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The Norms and Commentary on the Responsibility of Transnational Corporations and Other Business Enterprises with Regard to Human Rights: OMCT’s Comments and Recommendations

January 2003

For further information, please contact [email protected]
CONTENT

1. Human Rights and Companies: Overall Approach of OMCT 3
2. OMCT’s Comments and Recommendations on the Draft Norms and the Draft Commentary 4
2.1 General Observations and Recommendations 4
2.2 Part A: General Obligations 6
2.3 Part B: Right to Equal Opportunity and Non-Discriminatory Treatment 6
2.4 Part C: Right to Security of Persons 7
2.5 Part D: Right of Workers 10
2.6 Part E: Respect for National Sovereignty and Human Rights 12
2.7 Part H: General Provisions of Implementation 14

1. Human Rights and Companies: Overall Approach of OMCT

Companies’ involvement in human rights violations and their failure to respect human rights in countries where they carry out their operations is, today, often matched by their unwillingness to bear any responsibility with regard to the enjoyment of human rights. In parallel, while under international human rights law and the principle of due diligence States are responsible for guaranteeing that private entities, including companies, do not deprive individuals of their human rights, they are often unable or unwilling to do so. In this context, OMCT’s approach towards corporate responsibility is guided by two main standpoints.

Firstly, while under existing international human rights law States remain the primary duty-bearer of human rights obligations, companies do bear responsibilities in the realm of human rights. The Preamble of the Universal Declaration on Human Rights (UDHR) underlines that every organ of society shall strive to promote respect for human rights and to secure their universal and effective recognition and observance. Companies’ responsibilities in the realm of human rights have also been recognised in other U.N. human rights instruments. The U.N. Committee on Economic, Social and Cultural Rights (CESCR), in its General Comment No. 12 on the right to food and its General Comment No. 14 on the right to health stressed that while only States are parties to the Covenant and are thus ultimately accountable for compliance with it, all members of society - including the private business sector – have responsibilities in the realisation of the right to food and the right to health. In her 2001 report to the U.N. Human Rights Commission, the Special Rapporteur on the sale of children, child prostitution and child pornography addresses the direct obligations imposed by international law on the private sector, including through labour law; the Convention on the Rights of the Child (CRC); the Optional Protocol to the CRC on the sale of children, child prostitution and child pornography; as well as international criminal law.

Secondly, OMCT believes that the pursuing of voluntary principles or guidelines regarding companies’ responsibilities and obligations in the human rights field shall go along and be complemented by the development of a binding instrument guaranteeing the cessation and non-repetition of a violation, along with the victims’ right to an effective remedy, reparation and compensation.

It is in this view that OMCT supports and contributes to the drafting of Norms of Responsibility of Transnational Corporations and Other Business Enterprises with regard to Human Rights -along with the drafting of a Commentary accompanying these norms- in order to elaborate a coherent and binding instrument encompassing mechanisms of monitoring and enforcement.

2. OMCT’s Comments and Recommendations on the Draft Norms and the Draft Commentary

OMCT welcomes the new versions of the Draft Norms of Responsibility of Transnational Corporations and Other Business Enterprises with Regard to Human Rights and of the Draft Commentary. In this respect, OMCT supports the work carried out by the working group and Professor Weissbrodt.

The comments and recommendations given below concern the Draft Norms of Responsibility of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, as well as the Draft Commentary accompanying these norms. They address specific issues related to given articles and commentaries, along with overall issues cutting-across and concerning the whole document.

2.1 General Observations and Recommendations

Terminology: the use of “shall” and the binding nature of the instrument

The report of the sessional working group on the working methods and activities of transnational corporations (hereafter TNCs) underlines that the Draft Norms are meant to be binding. In the same line, paragraphs 3, 4 and 13 of the Draft Norms’ preamble underline that TNCs and other business enterprises are respectively “responsible for promoting and securing the human rights”, are “obligated to respect generally recognised responsibilities and norms in United Nations treaties and other international instruments”, and that they “have human rights obligations and responsibilities”. Article 1 of the Draft Norms upholds this approach underlying that “within their respective sphere of activity and influence, transnational corporations and other business enterprises have the obligation to respect, ensure respect for, prevent abuses of, and promote human rights recognised in international as well as national law”.

This strong wording and statement regarding companies’ obligations and responsibilities in the realm of human rights contrasts with the use of the word “shall” in the remaining parts of the document –except in the commentary d) to article 6 where the word “must” is employed. Moreover, the wording “shall endeavour”, which is even weaker than the word “shall” is used in the part H. dealing with the implementation of the draft norms.

As it stands, the use of the word “shall” and of the wording “shall endeavour” raises a certain ambiguity with respect to the binding nature of the draft norms. The need for consistency with the preambular part and article 1 of the draft norms, as well as with the stated objective of creating a legally binding instrument, would require to replace the word “shall” with “must” or “have the obligation to” in the whole document (Draft Norms and Draft Commentary), as well as to drop the wording “shall endeavour” and replace it by “must” or “have the obligation to”.

Indeed, OMCT considers as essential that the document reflects the willingness to create a binding instrument for TNCs and other business enterprises. In this respect, the wording represents an essential element and a strong language would be adequate to indicate clear obligations and responsibilities. While such strong wording is found in some parts of the document, the use of the terminology “shall” and “shall endeavour” in most articles and commentaries fails to define precise obligations and creates some ambiguity in that respect.

“Other business enterprises” and “contractor, subcontractor, supplier and licensees”: the need for clarification

Another subject of concern is related to the lack of clarity as to whether the Draft Norms and Draft Commentary fully apply to “contractor, subcontractor, supplier and licensees”.

Indeed, the definition given in article 20 of “other business enterprise” applies to the business enterprise that has any relation with a TNC. As such, one can understand that this definition implicitly recognises that the Draft Norms and Draft Commentary do apply to “contractor, subcontractor, supplier and licensees”, as all of them can have relations with TNCs. However, commentary c) to article 15 defines the relationship between, among others, these “other business enterprises” and “contractor, subcontractor, supplier and licensees”, differentiating therefore between these two and putting into question the definition given in article 20 of the “other business enterprises”.

Moreover, article 20 also applies the terminology “other business enterprises” to any enterprise whose activities involve violations of the right to security. This definition is related to commentary a) to article 4, which mentions the entities that shall observe international human rights standards related to the security of the person. In this respect, while according to article 20 the term “other business enterprises” should encompass “contractor, subcontractor, supplier and licensees”, commentary a) to article 4 explicitly mentions “other business enterprises” and “subcontractors” as two different entities. This differentiation, besides putting into question the definition of “other business enterprises” given in article 20, also leaves aside the “contractor, supplier and licensees”.

To summarise, the definition given in article 20 of “other business enterprises” is implicitly applying to “contractor, subcontractor, supplier and licensees”. However, the Draft Norms and Draft Commentary do not reflect this definition and tend to put it into question (see commentary c) to article 15 and commentary a) to article 4). OMCT believes that the mentioning of “contractor, subcontractor, supplier and licensees” as duty bearers of the Draft Norms and Draft Commentary is fundamental. This should go hand in hand with the responsibility and obligations of TNCs and other business entities to ensure that their “contractor, subcontractor, supplier and licensees” are not implicated in human rights violations –directly or indirectly- or do not benefit –directly or indirectly- from such violations.

Such requirement implicates that a differentiation shall be made between “transnational corporations and other business enterprises” and “contractor, subcontractor, supplier and licensees”. This requirement is highlighted by the wording of commentary c) to article 15 and arises in other parts of the instrument including article 5 where the reference to “contractor, subcontractor, supplier and licensees” is fundamental.

2.2 Part A: General Obligations

Commentary b) to Article 1

Commentary b) to article 1 addresses the notion of corporate complicity, stating that TNCs and other business enterprises shall avoid complicity in human rights abuses. This commentary clarifies that TNCs and other business enterprises “have the responsibility to ensure that they do not knowingly benefit from human rights abuses and that they shall use their influence in order to help promote and ensure respect for human rights”.

While this commentary underlines that TNCs and other business enterprises shall ensure that their activities do not contribute directly or indirectly to human rights abuses, it remains silent as to whether it covers situations where they would indirectly benefit from human rights abuses. As a precision is being made regarding direct and indirect contribution to human rights abuses, OMCT believes that the same should be done regarding indirect benefit from human rights violations.

2.3 Part B: Right to Equal Opportunity and Non-Discriminatory Treatment

Article 2

Article 2 prohibits discrimination based on a certain number of grounds related to the status of the individual. The list of theses grounds is a non-exhaustive one, as highlighted by the mention “or other status of the individual”. However, this list is also not unlimited. Indeed, according to article 2, any differential treatment, distinction, exclusion or preference that is rooted on an individual’s ability to perform his/her job is not considered as discriminatory. This limitation, or exception, raises different concerns, as it does not refer to the same language used in the ILO Convention No. 111 on Discrimination.

Indeed, in determining the distinctions, exclusions or preferences that shall not be considered as discriminatory, the Convention No. 111 does not refer to the individual’s ability to perform a job but rather to inherent requirements of a given job. As such the difference between the two formulations can look as if it was minimal. However, the wording of article 2 puts emphasis on a person’s productivity and performance. In some instances, productivity or performance can be related to the indigenous, social or religious status of a person or to other grounds on which discrimination is strictly prohibited. In such a case, it remains unclear as to which criteria would prevail. Moreover it also remains ambiguous, despite commentary b) addressing the issue of affirmative action policies, as to the room left for the implementation of special measures.
In this respect, OMCT would recommend to leave out the reference to the individual’s ability to perform his/her job and to replace it with article 1(2) of the ILO Convention No. 111.

2.4 Part C: Right to Security of Persons

Article 3

Article 3 underlines that “transnational corporations and other business enterprises shall not engage nor benefit from war crimes, crimes against humanity, genocide, torture, forced disappearances, forced or compulsory labour, hostage-taking, other violations of humanitarian law, and other international crimes against the human person as defined by international law”.

OMCT notes that this list does not include extrajudicial, summary or arbitrary executions and would recommend to include it in the list, as an identified violation.

Article 4

While article 4 underlines that security arrangements for TNCs and other business enterprises shall observe international human rights norms, it fails to refer to international standards - such as the U.N. Principles on the Use of Force and Firearms and the U.N. Code of Conduct for Law Enforcement Officers - which are crucial in the realm of the security of the person. Whereas commentary a) mentions these standards, OMCT believes that it is crucial to cite them in the article itself and recommends, therefore, that “international human rights standards” be added in the sentence.

Article 4, while requiring that security arrangements observe international human rights norms, remains silent regarding the disclosure of security arrangements. In this respect, OMCT believes that the disclosure of security arrangements represents a crucial element in guaranteeing the effective observance of human rights norms. Indeed, the lack of transparency with regard to the content and terms of reference of security arrangements represents a key factor when human rights violations by companies’ security guards are at stake. The strong reluctance of companies to disclose these arrangements underlines the crucial issue of disclosure and transparency, as well as the need for the Draft Norms and Draft Commentary to take a firm position on this issue.

In this respect, OMCT recommends that either the article itself, or its commentaries do clearly require that companies disclose their security arrangements.

Finally, OMCT notes that this article implicitly allows security personnel to use force. The commentaries related to article 4, and in particular commentaries b), c) and e) specify the limits and modalities regarding this use of force by security personnel and include the following features:
Ø The possibility to use a public (State) Security force;
Ø The prohibition to use force for activities that are exclusively the responsibility of the State military and law enforcement services;
Ø The use of force only for preventive or defensive services;
Ø The respect of the principles of proportionality and necessity;
Ø The prohibition to use force to violate the rights of individual exercising their workers and trade union rights;
Ø The guarantee that the guards are being trained in human rights law and use caution with regard to the use of force and firearms;
Ø The interdiction to work with individuals or forces (private or public), which have been responsible for human rights violations.

Several issues arise with respect to these limits and modalities, notably concerning their content, formulation and implications. These are being developed under the different commentaries to article 4.

Commentary a) to Article 4

Commentary a) underlines the observance of international standards but fails short in referring to international norms. As such, this commentary is not only inconsistent with article 4, which refers to international norms, but also with the list of instruments that follows which includes not only standards but also norms. In this respect, OMCT would recommend to insert the word “norm” in the sentence.

Commentary a), when referring to a list of international norms and standards, underlines that TNCs and other business enterprises, their officers, subcontractors and agents shall observe them “to the extent applicable”. Paragraph 4 of the preamble lists several human rights instruments -including those listed in commentary a)- without referring to the fact that they might not be fully applicable with respect to TNCs and other business enterprises. Similarly, in many parts of the document, reference is made to certain treaties without mentioning this issue.

OMCT acknowledges that it would be difficult for TNCs and other business enterprises to observe all human rights instruments in their entirety, and in particular regarding reporting issues. However, such mention in article 4, while it is not addressed anywhere else, might well undermine the consistency of the document, as well as the acknowledgement -clearly spelled out in the preamble- according to which TNCs and other business enterprises are obliged to respect generally recognised responsibilities and norms in United Nations treaties and other human rights instruments. In this respect, OMCT recommends that the reference “to the extent applicable” be removed.

Commentary c) to Article 4

Commentary c) underlines that security personnel shall not violate the rights of individuals while exercising the rights to freedom of association and peaceful assembly, to engage in collective bargaining or to enjoy other related rights of workers.
While commentary c) implicitly includes the right to strike, OMCT is concerned about the fact that this right is not clearly mentioned in the list. Indeed, in many instances, security personnel do intervene in order to break a strike, often using excessive and disproportionate force. As such, and given the high correlation between the exercise of the right to strike and the use of force by security personnel, OMCT believes that it is fundamental to clearly and specifically refer to this issue in the text. In this respect, OMCT would therefore recommend that the right to strike be specifically included in commentary c).

Commentaries b) and e) to Article 4: the use of public security forces

Commentaries b) and e) clearly recognise that TNCs and other business enterprises can use public (State) security forces. Besides the general conditions listed above, these commentaries put the following limits and conditions to this use:
Ø In the better case the incorporation in the contract of articles 3 and 4 of the Draft Norms, or at least the disclosure of these articles to all stakeholders;
Ø Consultations with the host government and, where appropriate, NGOs and communities.

Public security forces are meant to protect individuals as well as legal entities under their jurisdiction. This protective function is being carried out in the name of the general or public interest. As such, in performing their work, police security forces can end up in protecting the premises of TNCs or other business enterprises against a legitimate threat.

The case foreseen by commentaries d) and e) is rather different as it presents a situation where TNCs and other business enterprises would use public security forces through a contractual relation. In such a situation, the performance of the protective function is no longer dependent upon the general or public interest, but rather upon the specific interest of the TNCs or other business enterprises. In such a case, the realisation of this specific corporate interest might well clash with the fulfilment of the general one, which includes, incidentally, the protection of all human rights.

The document is well aware of this distinction as it underlines, in commentary b), that business security arrangements shall not be used for activities that are exclusively the responsibility of the State military or law enforcement services. There seems to be, therefore, a contradiction between the different commentaries to article 4.

Overall, OMCT believes that in the light of the above-mentioned contradictions, the use of public security forces by TNCs or other business enterprises on a contractual basis must be clearly outlawed by the Draft Norms and the Draft Commentary. In addition, the Draft Norms and the Draft Commentary shall demand that TNCs and other business enterprises make sure –in the light of article 1 and its commentaries- that when public security forces are intervening independently to protect them from a legitimate threat, they do respect human rights.

Commentary d) to Article 4

Commentary d) mentions that TNCs and other business entities shall not hire individuals or work with units of State security forces that are known to have been responsible for human rights violations. Different cases have shown that TNCs and other business enterprises have been hiring or working with private militias or paramilitary groups in order to secure their premises or to break up trade union movements or claims. In this respect, OMCT deems necessary to specifically include both terms in the sentence.

Finally, OMCT notes that this commentary mentions that TNCs and other business enterprises shall ensure that the guards use caution with regard to the use of force and firearms. International human rights norms and standards require more than caution with respect to the use of force and firearms, including the principles of necessity and proportionality that are addressed in the U.N. Code of Conduct of Law Enforcement Officials , the U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials , as well as in commentary b). In this respect, OMCT recommends that a stronger language, rooted in existing instruments, be used regarding TNCs’ and other business enterprises’ responsibilities with respect to their guards and the use of force.

2.5 Part D: Right of Workers

Commentary a) to Article 5

Commentary a) underlines that the wages given to the workers shall allow them to avoid debt bondage and other contemporary forms of slavery. The International Covenant on Economic, Social and Cultural Rights (ICESCR), in its article 7, underlines that workers have the right to just and favourable conditions of work which ensure, among other, a decent living for themselves and their families in accordance with the provisions of the ICESCR. In this respect, the threshold put by the ICESCR regarding wages or remuneration is much higher than the sole protection against debt bondage and other contemporary forms of slavery.

In this respect, OMCT recommends that the last part of the sentence “(…) that will allow them to avoid debt bondage and contemporary forms of slavery” be replaced by the following “(…) that will allow them to enjoy just and favourable conditions of work to avoid debt bondage and other contemporary forms of slavery and to ensure a decent living for themselves and their families”.

Article 8

Article 8 refers to the compensation of workers. The term compensation with respect to the remuneration of workers is neither found in the International Covenant on Economic, Social and Cultural Rights (ICESCR), nor in the ILO Conventions No. 95 and No. 100. In this respect, OMCT believes that the use of the wording “compensate” is not appropriate to describe a working relationship and that it shall be removed from article 8 and replaced by the wording “provide” or “remunerate”.

Commentary a) to Article 8

As it is the case in article 8, commentary a) refers to the compensation or workers. The term compensation with respect to the remuneration of workers is neither found in the International Covenant on Economic, Social and Cultural Rights (ICESCR), nor in the ILO Conventions No. 95 and No. 100. In this respect, OMCT believes that the use of the wording “compensate” is not appropriate to describe a working relationship and that it shall be removed from commentary a) and replaced by the wording “provide” or “remunerate”.

Commentary a) speaks about “fair and reasonable remuneration”. The ICESCR, in its article 7, speaks about, as a minimum, “fair wages and equal remuneration for work of equal value”. OMCT would recommend standardising the wording used in commentary a) with article 7 of the ICESCR.

Article 9

Article 9 addresses the effective recognition of the right to collective bargaining. As highlighted in many cases, the sole recognition of this right is frequently not sufficient and real implementation is often lacking. In light of this reality, OMCT recommends that the word “effective guarantee” be added in the sentence after the word “recognition”.

Commentary a) to Article 9

Commentary a) details the obligations of TNCs and other business enterprises regarding the right to freedom of association. One of the major concerns regarding the exercise of this right relates to the question of trade unions’ ability to operate independently and without interference from the corporate management. In this respect, corporate involvement in trade unions’ activities can be more subtle and go well beyond the list given in the commentary, which is limited to the drawing up of constitutions and rules, the election of representatives, the organisation of the administration and activities, as well as the formulation of programmes.

In this respect, OMCT believes that a specific mention should be added regarding the fact that TNCs and other business enterprises shall recognise the rights of workers’ organisations to function independently and without interference, including with respect to the right of workers’ organisations to draw up their constitutions and rules, to elect their representatives, to organise their administration and activities, and to formulate their programmes.

Eventually, while the issue of wording has been dealt with in part 2.1 (General Observations and Recommendations), OMCT would like to stress that the use of the wording “shall refrain” remains too weak and does not reflect the obligatory nature of non-discrimination against workers by reasons of trade union membership or participation in trade union activities, as well as of the non-interference. In this respect, OMCT would recommend to drop the wording “refrain” and replace “shall” by “must”, as mentioned in part 2.1.
Commentary e) to Article 9

Commentary e) underlines that transnational corporations and other business enterprises shall take particular care to protect the rights of workers from procedures in countries which do not fully implement international standards regarding the freedom of association, the right to organise and the right to bargain collectively.

As the list presented in commentary e) is an exhaustive one, OMCT recommends that a specific reference be made to the right to strike. Indeed, while this right is clearly recognised in article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), many restrictions still exist, at the national level, regarding its enjoyment.

2.6 Part E: Respect for National Sovereignty and Human Rights

Article 10

Article 10 underlines that TNCs and other business enterprises shall recognise and respect applicable norms of international law. In this sentence, the term “applicable”, addressing the applicability of international norms at the national level, can be understood in two different ways.

The applicable norms of international law can constitute the bulk of international customary law and international or regional human rights instruments that have been ratified by a given State. It can also mean the norms of international law (customary and those ratified by the State concerned) that have been translated into national legislation. In such a case, the scope of applicable norms of international law might be much more restricted, as it often happens that international norms have not been translated into national legislation and are not directly applicable at the national level.

Given this lack of clarity, OMCT recommends to remove the term “applicable” or to precise that it is the first understanding of that wording which prevails.

Commentary c) to Article 10

The last sentence of this commentary underlines that TNCs and other business enterprises shall take particular care in situations in which indigenous lands, resources, or rights thereto have not been adequately demarcated or defined.

Article 16 of the ILO Convention No. 169 clearly states that “the peoples concerned shall not be removed from lands which they occupy” and that their relocation shall be considered as an exceptional measure and shall only be carried out without their free and informed consent.

In this respect, the threshold put by international standards is greater than the need to take particular care in situations in which indigenous lands, resources, or rights thereto have not been adequately demarcated or defined. Consequently, OMCT recommends that this commentary clearly refers to the wording and approach of the ILO Convention No. 169.

Commentary d) to Article 10

Commentary d) refers to the enforcement of intellectual property rights and clarifies the purpose, objective, modalities and limits of this enforcement. Among other elements, it stresses the mutual advantage of producers and users of technological knowledge, the protection of public health and the balance of rights and obligations.

In its resolutions 2000 and 2001 on intellectual property and human rights, the Sub-Commission for the Promotion and Protection of Human Rights stressed the primacy of human rights obligations over economic policies and agreements. In this respect, OMCT recommends that this primacy of human rights be clearly spelled out in commentary d).

Article 12

Article 12 stresses that TNCs and other business enterprises shall respect and contribute to the realisation of, among others, the right to “drinking water”.

In its general Comment No. 15 on the right to water, the Committee on Economic, Social and Cultural Rights stresses that the right to water not only entails drinking water but also sanitation. In this respect, OMCT would recommend to change, in the article, the term “right to drinking water” with the wording “right to water”, which encompasses drinking water and sanitation

Commentary to article 12: the need to add a part on water

Commentaries to article 12 detail the obligations of TNCs and other business enterprises with respect to the right listed in this article. As the Committee on Economic, Social and Cultural Rights released a General Comment on the right to water, OMCT would recommend that a commentary be added, specifically addressing TNCs’ and other business enterprises’ obligations with respect to the right to water, on the basis of General Comment No. 15.

2.7 Part H: General Provisions of Implementation

Overall observations

Part H. provides different avenues and mechanisms for implementing the Draft Norms. Overall, this part addresses the issue of adherence to and incorporation of the Draft Norms, monitoring, identification of violations and victims’ compensation/reparation. As such, it entails the main elements of implementation as foreseen by “traditional” human rights instruments, i.e. those addressing States’ human rights obligations.

The implementation is guaranteed through 4 different ways: initiatives of TNCs and other business enterprises, external monitoring conducted by national, regional and international actors/mechanisms, internal monitoring conducted by TNCs and other business enterprises, as well as compensation/reparation to those affected.

As it stands, OMCT believes that part H. entails a series of disparate measures and that, in spite of their interesting and sometimes innovative nature, it remains difficult to see how, concretely, they will allow for a proper and coordinated adherence to and incorporation of the draft norms, monitoring, identification of violations and victims’ compensation/reparation.

In addition, part H. tends to place different requirements, or responsibilities, on different actors – in terms of implementation and monitoring- without drawing clear distinctions between their respective obligations. Indeed, part H. foresees different monitoring roles for TNCs and other business enterprises, States, NGOs, trade unions, U.N. treaty bodies, U.N. special procedures, the U.N. Human Rights Commission, the U.N. Sub-Commission for the Promotion and Protection of Human Rights and U.N. specialised agencies, but fails to differentiate between those bearing obligations under international human rights law, the monitoring mechanisms, and the actors that are using these mechanisms to provide alternative information.

In this respect, OMCT believes that Part H. shall, firstly, identify the obligations and responsibilities of States, TNCs and other business enterprises with respect to the implementation of the Draft Norms, then the mechanisms –existing ones or new ones- to monitor and enforce such implementation, and eventually the avenues for allowing the participation of the civil society, including trade unions and NGOs.

Article 15, along with its commentaries

Article 15 and its commentaries partially provide for the identification of TNCs’ and other business enterprises’ obligations and responsibilities with respect to the implementation of the Draft Norms. Overall, article 15 demands that TNCs and other business enterprises integrate the Draft Norms in their internal rules of operation and their contract arrangements with other partners, as well take other measures to fully implement the Draft Norms.

Concerning the initiatives of TNCs and other business enterprises, which are aimed at incorporating the draft norms into their rules and working methods, part H. does not provide for external verification or monitoring. Actually, according to the text, the external monitoring is meant to address the practical implementation of the Draft Norms (i.e. the activities of TNCs and other business enterprises), each TNC and other business enterprise determining, alone, the applicable internal rules.

As such, the conformity of the rules and working methods of TNCs and other business enterprises with human rights principles would remain unchecked. Different risks are related to such an approach, including that the standards elaborated by TNCs and other business enterprises do not meet the threshold of the Draft Norms and the Draft Commentary; restrictive interpretations of the Draft Norms and the Draft Commentary by TNCs and other business enterprises; a loss of coherence and uniformity; as well as a lowering of existing human rights standards. In such a case, article 15, along with its commentaries, simply falls to describe the adequate remedies or procedural steps. Moreover, in such a framework, OMCT fears that the sole requirement of training, disclosure, dissemination and availability of the rules, as well as of transparency might not allow, alone, to guarantee that initiatives taken by TNCs and other business enterprises fulfil the requirements of the Draft Norms and the Draft Commentary.

In addition, article 15 also demands, besides the adoption, dissemination and implementation of internal rules of operation in compliance with the Draft Norms and the Draft Commentary, that TNCs and other business enterprises take “other measures” to fully implement the Draft Norms and to provide at least for the prompt implementation of the protection these set forth. While these “other measures” remain fundamental, article 15 and its commentaries fail short to detail them. Indeed, it remains unclear as to whether these “other measures” are limited to the incorporation of the Draft Norms in contracts, arrangements or dealings with contractors, subcontractors, suppliers and licensees or whether they do encompass other processes.

In case these “other measures” are, indeed, limited to the application of the Draft Norms in the context of a relationship with contractors, subcontractors, suppliers and licensees, these are clearly insufficient. If not, article 15 and its commentaries fail short to clearly describe the scope and modalities of these measures, rendering the accountability and obligations very weak and giving the impression that the Draft Norms are not a binding instrument but rather an “à la carte” loose commitment. Commentaries d) and e) seem to answer to that concern as they do spell out other measures besides the adoption, dissemination and implementation of internal rules of operation. However, it still remains unclear as to whether the procedures listed in commentaries d) and e) do cover the term “other measures” in an exhaustive manner. Overall, if this would be the case, they would again fail to answer to the procedural questions presented above regarding the monitoring of the internal rules.

Concerning the relations with other business partners, commentary c) specifies that TNCs and other business enterprises shall endeavour to assure that they only do business with enterprises that follow the Draft Norms and the Draft Commentary. However, the same commentary demands that TNCs and other business enterprises initially work with business partners that do not comply with the Draft Norms and the Draft Commentary, in order to reform their approach or to decrease the violations. In that case, commentary c) remains silent as to the limits of such approach –i.e. when an end shall be put to the working relations- the criteria surrounding it, the monitoring of the business partner, as well as whether it differs from the relationship foreseen in the first sentence of the commentary, i.e. a work relationship based upon a contractual basis. OMCT believes that these different points shall be clarified and detailed.
Finally, commentary f) to article 15 describes an ongoing process in which TNCs and other business enterprises shall endeavour to improve their implementation of the Draft Norms and the Draft Commentary. The overall wording of this commentary –which is already dealt with in part 2.1.- seriously puts into question the mandatory nature of human rights obligations for TNCs and other business enterprises. Indeed, such a wording rather gives the impression that TNCs and other business enterprises benefit from a large margin of manoeuvre and a kind of “à la carte” system for implementing human rights in their operations. This remark joins the concerns expressed above about the lack of external verification or monitoring.

Article 16

Article 16 addresses the question of implementation/monitoring, which has been left aside in article 15. In this respect, it must be said that the procedures and measures foreseen in this article do not answer to the concerns OMCT expressed regarding article 15 and its commentaries.

In this article, 2 types of implementation/monitoring are mentioned: external and internal, along with the modalities of this implementation/monitoring, which include the notions of transparency, independence, inclusiveness and periodicity. In this respect, OMCT deems necessary to clarify the precise and specific features of an independent monitoring, including the necessary conditions to guarantee this independence.

As it was the case for article 15, article 16 fails short in addressing the procedures or measures to be taken in case the monitoring would reveal a violation of the Draft Norms and the Draft Commentary, be it in the case of an internal or external monitoring.

Finally, as mentioned under the overall observations on Part H., article 16 places different requirements or responsibilities on different actors, without drawing clear distinctions between their respective obligations. Indeed, article 16 and its commentaries foresee different monitoring roles for TNCs and other business enterprises, States, NGOs, trade unions, U.N. treaty bodies, U.N. special procedures, the U.N. Human Rights Commission, the U.N. Sub-Commission for the Promotion and Protection of Human Rights and U.N. specialised agencies, but fail to differentiate between those bearing obligations under international human rights law, the mechanisms that have been set up to conduct the monitoring, and the actors that are using these mechanisms to provide alternative information. Such a presentation brings some confusion in the approach and shall be modified in order to identify, in a first time, the obligations and responsibilities of States, TNCs and other business enterprises with respect to the implementation of the Draft Norms, then to delimit the mechanisms –existing ones or new ones- to monitor and enforce such implementation, and eventually to define the avenues for allowing the participation of the civil society, including trade unions and NGOs.

Commentary a) to Article 16

Commentary a) addresses the implementation and monitoring at the national level and specifies, among others, that the Draft Norms and the Draft Commentary shall be used as a model for legislation or administrative provisions, as well as a basis for labour inspection.

OMCT believes that the avenues foreseen to monitor and implement the Draft Norms and the Draft Commentary are not sufficient and that other measures shall be listed in this commentary including the diffusion of the Draft Norms and the Draft Commentary in the national language; their inclusion into the work of the Ombudsman, the National Human Rights Commissions or other national human rights mechanisms when available; and the creation of national focal points mandated to review the human rights record of TNCs and other business enterprises and to receive individual complaints.

Overall, OMCT believes that the implementation of the Draft Norms and the Draft Commentary at the national level shall be examined in light of the principle of due diligence.

Commentary b) to Article 16

Commentary b) addresses the implementation and monitoring at the international level by U.N. treaty bodies, U.N. special procedures, the U.N. Human Rights Commission, the U.N. Sub-Commission for the Promotion and Protection of Human Rights and U.N. specialised agencies.

Among the measures foreseen, these include mechanisms that are already in place, at least partially. In such cases, the implementation and monitoring is an indirect one, the duty-bearers of the obligations being either States or U.N. specialised agencies.

Indeed, some treaty bodies, as well as certain special procedures of the U.N. Human Rights Commission, already address human rights violations by TNCs and other business enterprises. OMCT believes that this approach shall be expanded to the work of all treaty bodies and special procedures of the U.N. Human Rights Commission. While such avenues can enhance respect for human rights by TNCs and other business enterprises, States remain the sole interlocutors, TNCs and other business enterprises being addressed through the principle of due-diligence. Consequently, the same shortcomings as those experienced currently –i.e. that States are unable or unwilling to guarantee that TNCs or other business enterprises do respect human rights- can re-emerge. There is, therefore, a crucial need to find ways and means –to integrate in the Draft Norms and the Draft Commentary- in order to reinforce the role of States. Specific reporting guidelines can, in this respect, constitute an interesting step and partially answer to that concern.

Moreover, the U.N. and its specialised agencies do already use human rights criteria as a basis for procurement determinations as to which products and services to purchase and with which TNCs and other business enterprises to develop partnership in the field. The Secretary General’s Guidelines on cooperation between the U.N. and the business community underline that the U.N. organisations should use the principles of the Global Compact as a point of reference when choosing a business partner. The Draft Norm and the Draft Commentary could in this respect clarify and detail the different criteria the U.N. and its specialised agencies should look at before choosing a business partner. However, the Draft Norm and the Draft Commentary remain silent with respect to a series of points OMCT deems as crucial, notably the question of prior and ongoing investigation, as well as the issue of human rights violations by TNCs and other business enterprises occurring after the conclusion of the partnership. Indeed, the Draft Norm and the Draft Commentary remain silent as to whether the U.N. and its specialised agencies shall conduct prior investigation on a given business partner before choosing it, the modalities and methodology of this investigation, as well as its repetition during the contract’s implementation. Related to this issue, OMCT believes that the
Draft Norm and the Draft Commentary have to address the questions of the measures that have to be taken in case of human rights violations by TNCs and other business enterprises occurring after the conclusion of the partnership. Eventually, OMCT believes that the integration of human rights principles as an essential element of the contracts shall be looked at.

In addition to the mechanisms already in place, commentary b) proposes the creation of new implementation/monitoring mechanisms including the creation of a specific mechanism by the U.N. Human Rights Commission, the use of the U.N. Sub-Commission for the Promotion and Protection of Human Rights and of its Working Group, as well as the development of additional techniques to implement and monitor the Draft Norm and the Draft Commentary.

As it stands, one has the impression that commentary b) gives a list of possible new mechanisms for monitoring and implementing the Draft Norm and the Draft Commentary. Such approach clearly contrasts with the other parts of the Draft Norm and the Draft Commentary and OMCT believes, in this respect, that either a selection shall be made between these different proposals, or that the mandate of these respective mechanisms shall be clarified.

Such clarification of mandate could also allow to clarify how these different mechanisms will address the main concerns regarding implementation of the Draft Norm and the Draft Commentary, i.e. the monitoring, identification of violations and victims’ compensation/reparation. Indeed, OMCT believes that the role to be played by the different new mechanisms that are being proposed remain unclear in this respect and needs to be clarified and detailed. For instance, it remains unclear whether these mechanisms will be allowed to receive individual complaints, whether they will look at country cases, at specific TNCs and other business enterprises, to whom they will make their recommendations, their enforcement powers, and the interaction with States.

Commentary c) to Article 16

Commentary c) addresses the role to be played by trade unions and NGOs. As mentioned in the overall observations, one has to differentiate the roles and, therefore the responsibilities and obligations of the different actors in the implementation and monitoring. As such, NGOs and trade unions represent crucial elements, notably with respect to the information they provide. In this respect, OMCT believes that commentary c) shall recognise this role played by NGOs and trade unions and guarantee their access to the mechanisms –existing ones or new one- that will monitor the implementation of the Draft Norm and the Draft Commentary.

The issue of Compensation and restitution: Commentary b), e), f) and h) to Article 16 and article 17

The issue of compensation and reparation is also being addressed under different procedures, placing responsibilities upon different actors, including a potential mechanism of the U.N. Human Rights Commission (Special Rapporteur or working group), the U.N. Sub-Commission for the Promotion and Protection of Human Rights, transnational corporations and other business enterprises, as well as national courts. While the sole fact of having different procedures for guaranteeing adequate compensation and restitution to the victims is not a problem in itself, the relationship between these different procedures remains unclear.

First of all, the relationship between the different procedures foreseen at the international and national levels needs to be clarified. Indeed, the text does not clarify whether recourse to the international level depends upon the exhaustion of national remedies or not. Similarly, concerning the procedures proposed at the national level, part H. fails to clarify whether the enforcement of the norms in national courts complements, replaces or is completely independent from the procedures that transnational corporations and other business enterprises have to establish regarding the filing of a complaint, its investigation and the compensation/rehabilitation of the victims.

Secondly, several questions also arise regarding the functioning of procedure at the international level, notably regarding their powers and mandate. Indeed, it remains unclear, as to whether the mechanisms foreseen at the international level will indeed address the issue of compensation/restitution. The current wording used in commentary b) to article 16, referring to the undertaking of effective action, as well as to the receiving of information from interested individuals fails to give a clear signal that the issue of compensation and restitution will be dealt with at the international level.