After
‘a common standard of achieving’ and ‘understanding’ the inalienable and
inviolable rights of all people have been protected and promoted under Human
Rights Conventions, many people have improved their living conditions. It
proves that the Human Rights regime has succeed in achieving its objective. However,
since interaction and interdependence among actors are growing and states’
economic powers are lessened, this power is substituted by Transnational
Corporations as ‘supplementary and complementary’[1]
responsibility then in some developing countries, which have a lot of natural
resources, have big problem to fulfill their international human rights
obligations. This condition has arisen because Human Rights regime does not
included the obligations of private actors, such as Transnational Corporations
and they, indirect or direct, participate in the creation of ‘the hegemony of
the great economic, industrial and military powers and ever form of
neo-colonialism.’[2]
The concept of Human Rights
obligations for States to citizens is changing since globalization plays
important role in many countries. States are not a sole agent of international
law especially under international human rights laws and TNCs’ obligations have
not covered at those laws. To re-conceptualize the human rights obligations for
TNC, many soft laws have been adopted to regulate the conduct of corporations
in adopting human rights norms in the form of voluntary codes of conduct, for
instance, Codes of Conduct and a UN draft of Codes of Conduct for TNCs in 1984[3],
Declaration of Principles adopted by the ILO in 1977 addressing labor rights
and TNCs[4].
Those soft laws are unsuccessful to provide legal framework for obtaining TNCs’
human rights obligations.
The States have primary tasks under
international human rights law to ensure and secure the human rights in its
territory. To transform the international legal order into national legal order,
States can legislate the conduct of TNCs in accordance with the human rights
obligations; however this legislation is criminal law which may have human
rights concepts against individuals by other private parties, for example,
protecting life of people in its territory, liberty, prohibiting of killing and
arbitrary detention, etc.[5]
Many states have criminal law which can apply for taking the TNCs human rights
obligations if TNCs violate people’s rights; however, if TNCs violate people’s
rights, many governments are unable to prosecute and apply the law because most
of TNCs has much power than governments. Moreover, States are unlikely to take
action against TNCs because they are afraid of losing foreign investment. In
these condition States are powerless then TNCs are untouchable. It may be in
some cases there is a problem for the national court to apply their
jurisdiction over foreigner, a nationality of TNCs differs from host States.
The new trend towards TNCs as direct
or indirect addressees of human rights may need to restructure the
international legal order; States powers in some areas are decreasing and
States are no longer as a sole actor of mediating between the international law
level and the rights and duties of non-state actors. ‘The declining role of
States, manifested through their declining power, leads to the attempt to
address TNCs directly and goes hand in hand with the increase power and
influence of TNCs.’[6] With this power, it should come responsibility
for TNCs ‘then it is logical to demand human rights observance by TNCs which
are as powerful as some States and may thus violate human rights in the same
way as States.’[7]
Most of TNCs have huge opportunities
in economics what it used to be in many States held in reserve as State business
in the public and private services through the privatization of many utilities,
such as, electricity, water, gas, energy supply services, transportations,
communication, and technology, etc. TNCs has played important role in public
sectors; however they are enjoying as private entities that do not have private
obligations.
The Impact of Globalization
Increasing cross boarder societal
exchange and transactions on economics, communication, security, and all types
of contemporary social life from culture to spirituality are widely opened. One
of the impacts of globalization is increasing the influence of TNCs and other
non-state actors and enlarging interdependence of States in many fields mostly
in trade, investment, services, and finance.
The promotion of liberalization,
privatization, and deregulation by the International Financial Institutions
(IFIs) makes States loss its control over TNCs and created human rights
obligation for TNCs in specific areas like social, labor, environment, and
other societal goods. The process of globalization makes it difficult for
States to control their own economies. States face dilemma on one hand States’
role has increased complexly in interdependent world and on the other hand international
capital is attempting to take it and States almost has to give up their regulation
power[8]
in respect to States’ human rights obligations.
It is estimated that TNCs control
over 75 % of world trade and those firms have become stateless at the centre of
the emergence of a global economy.[9]
The
concept of international legal personality can be enlarged through the
acknowledgement of the ICJ that the ‘subject of law in any legal system are not
necessarily identical in their nature or in the extent of their rights, and
their nature depends upon the needs of the community.[10]
It opens the possibility that the TNCs may be reconsidered[11]
in the new system of international court likes an International Human Rights
Court.
In
conclusion, the failure is to realize that respecting and promoting the rights
is not only transferring the International Human Rights Conventions to all
nations but also responding the new phenomenon of TNCs’ obligation to respect
and promote the rights. They exist in the socio-political structures where are
incapable of guaranteeing respect for human dignity.[12]
[1] Ramcharan, Human Rights Thirty Years
After The Universal Declaration, Martinus Nijhoff Publishers, 1979, p. 262
[2] The Algiers
Declaration of the Rights of Peoples, the Preamble of the Declaration: ‘…we live at a time … of frustration and
defeat, as new form of imperialism evolve to oppress and exploit the peoples of
the world. Imperialism, using vicious methods, with the complicity of
governments that it has itself often installed, continues to dominate a part of
the world. Through direct or indirect intervention, through multinational
enterprises, through manipulation of corrupt local politicians, with the
assistance of military regimes based on police repression, torture and physical
extermination of opponents, through a set of practices that has become known as
neo-colonialism, imperialism extends its strangehold over many peoples.’
[3] ECOSOC Res. 1913, UN ESCOR, 57th
Sess., 5 December 1974, Supp. No. 1, 3 U.N. Doc. 5570/Add. 1 (1975)
[4] International Labor Organization (ILO)
“Tripartite Declaration of Principles Concerning Multinational Enterprises and
Social Policy 16 November 1977, reprinted in 17 ILM (1978) 423
[5] Article
2 (2) ICCPR providing: ‘where not already provided for by existing legislative
or other measures, each State Party to the present Covenant undertakes to take
the necessary steps, in accordance with its constitutional processes and with
the provisions of the present Covenant, to adept such legislative or other
measures as may be necessary to give effect to the rights recognized in the
present Covenant.
[6] Alston, Non-State Actors and Human
Rights, Oxford, 2005 p. 74
[7] Kapur, From Human Tragedy to Human
Rights: Multinational Corporate Accountability for Human Rights Violations, 10
Boston College Third World L.J. (1990) p. 2
[8] Cerny, The Changing Architecture of
Politics: Structure, Agency and the Future of the State (1990) at 237.
[9] Higgott, Underhill, and Bieler,
Non-State Actors and Authority in the Global System, London, Routledge, 2000,
at 1-2
[10] Reparations for Injuries Case, 1949 ICJ
paras. 178.
[11] Alston, Non-State Actors and Human
Rights, Oxford, 2005, p. 19
[12] See supra note No. 1 p. 249
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