Corporate voluntarism and human rights: the adequacy and effectiveness of voluntary self-regulation regimes

Relations Industrielles/Industrial Relations, Wntr, 2004 by Penelope Simons

In response to increasing public concern over the accountability of transnational corporations (TNCs) for violations of human rights in the states in which they operate, governments, corporations and NGOs have promoted the development and implementation of voluntary self-regulatory regimes. However, TNC practices under these regimes call into question their adequacy and effectiveness in preventing complicity in egregious violations of human rights by corporations operating in conflict zones and repressive regimes. This article reviews and assesses the language, human rights content and compliance mechanisms of the voluntary policies and/or codes developed by a number of corporations, industry groups, intergovernmental organizations and multistakeholder initiatives, as well as associated corporate practices. The analysis shows that these voluntary regimes are flawed and inadequate, and therefore unable to ensure that TNCs are not complicit in human rights violations in their extraterritorial activities.

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There is a growing international concern about the accountability transnational corporations and other business entities (TNCs) for egregious violations of human rights committed by security forces, or host state military forces, in the protection or facilitation of business activity. Allegations of complicity (1) in forced displacement, extrajudicial killings, disappearances, rape and abduction, the use of forced labour and violent repression of peaceful protests have been made against companies, particularly in the extractive sector, operating in a commercial relationship with host governments with a poor human rights record and/or in the context of a civil war.

In Burma (Myanmar), for example, oil companies, including the U.K.-based Premier Oil have been accused of complicity in human rights abuses including forced displacement and forced labour committed by members of the Burmese military. (2) In the case of Premier Oil, Burmese military forces were hired by the company and its joint venture partners to protect the Yetagun pipeline and company employees (Macalister 2000; Osborn 2001). (3) In Sudan, in the course of an ongoing and brutal civil war, government military forces and government-sponsored militia have been protecting the oil exploration and development areas from rebel attacks. They have done this by forcibly displacing local civilian populations using helicopter gunships, crude bombs dropped from Antonov bombers and by further terrorizing these populations through murder, rape, the abduction of women and children and the burning of villages (Harker 2000; Gagnon and Ryle 2001; Human Rights Watch 2003b). Talisman Energy Inc., a Canadian company, which was operating in the Upper Western Nile region of South Sudan from 1998 to 2003 as partner in the Greater Nile Petroleum Operating Company (GNPOC), has been accused of complicity in these human rights abuses. (4)

Similar allegations have been leveled against companies such as British Petroleum plc. (BP), Royal Dutch/Shell Group (Shell), and other TNCs. (5) In relation to its operations in Colombia, BP was implicated in the grave violations of human rights, including extrajudicial murder, torture and "disappearances" committed by its hired security forces, which included members of the Colombian military (Human Rights Watch 1998). Shell was accused of complicity in the brutal repression of local protesters by the Nigerian military that culminated in the trial and execution of writer/activist Ken Saro Wiwa and nine others by the Nigerian Government (Human Rights Watch 1999). (6)

There is a growing consensus among individuals and organizations concerned with the promotion and protection of human rights that TNCs should be accountable for violations of international human rights law related to their business activities (Muchlinski 2001: 31-32; Ratner 2001: 446-448). This consensus is reflected in a growing academic, nongovernmental and intergovernmental literature that assesses the human rights impacts of corporate activity (UN 1995), and the legal and non-legal mechanisms by which these entities may be held responsible for violations of human rights (see, for example, Frey 1997; Clapham 2000; Forcese 2002; International Council on Human Rights Policy 2002).

Under international human rights law states have an obligation to respect and ensure respect for human rights within their territorial jurisdiction. Problems arise however, where TNCs operate in conflict zones or repressive regimes and are implicated in violations of human rights that are committed by a host state government or that the latter is unable or unwilling to prevent. Neither general international law nor international human rights law clearly impose direct legal obligations on TNCs to respect human rights (Frey 1997: 163; Joseph 1999: 175; McCorquodale 2002: 92-97). Nor does there appear to be an international legal obligation on the 'home' states of these business entities to ensure that the latter observe international human rights standards in their extratemtorial activities (Brownlie 1983: 165; Joseph 1999: 180-181). (7)