Hoisted on their own petard? Business and human rights

Abstract

Although there is a voluminous literature on corporate social responsibility (CSR), there has been a conspicuous silence on what constitutes a socially responsible corporate stance regarding workers in situations that fall within the boundaries of internationally accepted human rights standards. Corporate statements typically avoid any discussion of what a given human right might mean in practice or whether there is some generally accepted statement of what the right means. To highlight the tension between traditional notions of CSR and emerging soft law on the human rights responsibilities of business, this paper reviews the employers' position at the 2012 International Labour Conference challenging the meaning of one International Labour Organization (ILO) core convention. This paper reviews company codes of conduct and how company reporting mechanisms relate to the ILO fundamental principles that embody human rights in the work context. In light of the United Nations (UN) Global Compact and the UN Human Rights Council's Guiding Principles on Business and Human Rights (Ruggie framework), the paper will critique the view that ILO supervisory bodies cannot authoritatively say what a core convention means.

Keywords

Codes of conduct CSR human rights ILO

Introduction

Workers have long sought to compel companies to observe basic labour standards in the workplace and to have them accept that workers possess certain rights, such as freedom of association and the right to engage in collective bargaining. Recognizing that national legislation is not sufficient, they have sought a way to establish certain standards worldwide. This movement to achieve internationally accepted standards and workers' rights arose in the period of global trade before World War I, with the Versailles peace conference at the end of the war providing an opportunity to establish a mechanism for international standard setting.

Since 1919, the International Labour Organization (ILO) has adopted conventions that set international standards on various aspects of working life. Prior to World War II, most conventions related to specific working conditions. In the decade after World War II, conventions enshrining fundamental rights were adopted. To date, there are 189 conventions. Most set labour standards. Some are deemed ‘promotional’ as they promote a process, such as tripartite consultation or labour inspection. Eight are seen as proclaiming fundamental principles and rights (Bartolomei et al., 1996: 33–34).

Until the 1970s, the ILO was the only supranational body setting labour standards. In the 1970s, controversy most often arose when multinational companies closed factories in another country and made workers redundant. American multinational companies in particular were criticized for following the practices of their home country when dealing with matters in a subsidiary (Blanpain, 1977). The critics of such labour relations practices advocated a supranational response. In 1976, the Organization for Economic Co-operation and Development (OECD) adopted Guidelines for Multinational Enterprises, which focused on the obligation of multinational companies to comply with the national law and practice of the host country. Although the OECD Guidelines were hailed as an advance, multinational companies had always been required to comply with the law of the host country. The OECD Guidelines set no new rights but did emphasize the social obligation of multinational companies to observe the norms, and not just the laws, of the host country. The next year, the ILO Governing Body adopted the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy. The ILO Tripartite Declaration followed a similar approach to the OECD Guidelines. The difference was that the ILO Tripartite Declaration was based on the standards found in ILO conventions and the guidelines applied regardless of whether the host country had ratified the ILO convention on a specific working condition.

By 1990, the focus of attention had moved from the behaviour of multinational companies towards their own workers to the impact of increasing globalization on workers in developing countries. The critics of globalization saw the establishment of the World Trade Organization (WTO) in 1995 with its mission to further liberalize trade as a threat to workers' welfare. With growing criticism of corporate practices relating to labour, new entities emerged and began to play a role in imposing standards on corporate behaviour. To some extent, this reflects the fact that a vocal group was locked out of the traditional forums. At both the OECD and the ILO only governments and employers' and workers' organizations have a voice. Non-governmental organizations (NGOs) and other advocacy groups looked elsewhere in order to exert influence on the behaviour of companies.

Although notions of corporate social responsibility (CSR) and codes of conduct arose earlier, the 1990s saw more companies drafting codes and/or expanding the coverage of their codes to include labour issues. Companies had to decide which specific issues to include, and these choices reflected the issues raised by their critics, such as child labour and forced labour. These enhanced codes of conduct spawned a plethora of private monitoring and auditing bodies. Significantly, over the past two decades the characterization of the rights involved has changed, with the result that today terms such as ‘labour standards’ seem old fashioned; instead, the term ‘human rights’ at work is more often used. This change has serious implications for a company's image. A company that fails to comply with labour standards is seen as committing a technical violation, whereas a company that violates human rights is seen as committing a grave offence.

Companies accustomed to dealing with labour relations matters on a global scale now find themselves moving in an unfamiliar human rights terrain, where set markers are not clear (Marculewicz, 2012). Among the prominent actors are the ILO and the UN, with regional bodies such as the European Court of Human Rights and the Court of Justice of the European Union also playing a role in the regulation of corporate behaviour. There is a multiplicity of actors, all espousing a human rights approach, and with no particular hierarchy among them. This can create confusion as to what commonly cited rights, such as ‘freedom of association’, mean. It can also lead to situations where companies state that they accept a certain right but define that right in a way that critics assert eviscerates the right. This is best illustrated by the controversy that arose at the 2012 International Labour Conference (ILC), when the Employers group in the Committee on the Application of Standards refused to examine any individual case relating to ILO Convention No. 87, Freedom of Association, based on the Employers' view of what that convention means, a view with which the Workers' group adamantly disagreed (La Hovary, 2013; Swepston, 2013).

ILO declaration of fundamental rights

One key document regarding human rights at work was produced by the ILO at an especially auspicious point in time, just as globalization was attracting attention but before other entities had made a pronouncement on human rights at work. While the ILO's 1998 Declaration of Fundamental Principles and Rights at Work proclaimed no new rights, it identified certain rights as ‘fundamental’. The propitious timing of its adoption has resulted in its being deemed the definitive statement for human rights benchmarking.

With the challenges of globalization becoming apparent, ILO Director-General Michel Hansenne in 1994 set forth his strategic plan to sharpen the focus of ILO activity in the post-Cold War era (International Labour Conference, 1994). He identified four fundamental values which flowed from several core ILO conventions concerned with the protection of basic human rights at work. Hansenne moved to achieve a consensus among the ILO's tripartite constituents on what specific rights would be deemed ‘fundamental’ and, equally important, what specific conventions would be termed ‘core’ conventions. There was little debate on the specific rights to be included, as for years certain conventions had been viewed as guaranteeing fundamental rights. With regard to the right some might consider the most contentious, freedom of association, the ILO since 1951 had already given it exceptional and extraordinary status by declaring that all member states were bound to observe freedom of association regardless of whether a member state had ratified the relevant conventions.

Despite this ILO activity, many worker rights proponents viewed ILO conventions as little more than worthy statements since there was no enforcement mechanism to compel companies to apply the rights guaranteed in a convention. Believing they could be effectively enforced, activists turned their attention to social clauses in trade agreements (Hafner-Burton, 2009). The link between trade and labour standards created particular tension at the WTO's December 1996 Ministerial meeting in Singapore with some governments of emerging economies viewing the proposed link as disguised protectionism by advanced countries. The WTO sidestepped the controversial issue by stating that the ILO was the proper forum for the resolution of these matters since it was the organization within the UN system with competence in labour matters.¹

In June 1998, the ILO adopted a ‘Declaration on Fundamental Principles and Rights at Work’, setting out four rights:

(a) freedom of association and the effective recognition of the right to collective bargaining;

(b) the elimination of all forms of forced or compulsory labour;

(c)the effective abolition of child labour; and

(d) the elimination of discrimination in respect of employment and occupation.

The Declaration made clear that the four principles flow directly from the underlying conventions and, in fact, that one cannot correctly understand the obligation imposed on member States without referring to the substantive requirements of the conventions. Understanding this relationship between the fundamental principles and the underlying conventions is critical to understanding that the text of the four principles is a condensed way of expressing the specific values, concepts and requirements of the referenced conventions. The Declaration expressly linked eight core conventions to the four fundamental principles, two for each principle:

C. 87, Freedom of Association and Protection of the Right to Organise (1948) and C. 98, Right to Organise and Collective Bargaining (1948);

C. 29, Forced Labour (1930) and C.105 Abolition of Forced Labour (1957);

C. 138, Minimum Age (1973) and C.182, Worst Forms of Child Labour (1999);

C. 100, Equal Remuneration (1951) and C. 111, Discrimination (Employment and Occupation) (1958).

Coverage and reporting

The ILO's constitution makes conventions binding only on ratifying Member States and only those States are required to file a report on their compliance with the obligations of the ratified convention. The 1998 ILO Declaration made a radical departure from this stance by stating in section 2 that ‘all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership’ in the ILO ‘to promote and to realize … the principles concerning the fundamental rights which are the subject of those Conventions’. The Declaration introduced an innovative ‘follow-up’ process with the aim of producing an annual report. Thus, member States which have not ratified one of the eight core conventions are now required to respond to questions regarding the law and practice in their country regarding the human right in question.

This distinction between regular reporting of ratifying member States and the follow-up procedure has, over time, decreased greatly in significance due to the success of the ILO's ratification campaign. At present, the ILO has 185 members. Five of the eight core conventions have more than 170 ratifications.² C. 138, the child labour convention dealing with minimum age for entry into employment, has 166 ratifications. The two conventions dealing with freedom of association (C. 87) and collective bargaining (C. 98) have only 152 and 163 ratifications, respectively. Significantly, several large countries have not ratified C. 87 or C. 98, including the USA, China and India.

The UN Global Compact

In the late 1990s, there was popular resistance to the idea of the WTO. The benefit of liberalized trade to business, especially transnational businesses, was obvious, but in many countries the benefit to working people was less clear. Engaging with the trade liberalization debate, Kofi Annan, then Secretary-General of the United Nations, proposed the initiation of ‘a global compact of shared values and principles’ in a speech³ at the January 1999 World Economic Forum in Davos. In his speech, he appealed directly to businesses: ‘Specifically, I call on you – individually through your firms, and collectively through your business associations – to embrace, support and enact a set of core values in the areas of human rights, labour standards, and environmental practices’. Annan pointed out that the three areas listed were areas in which ‘universal values have already been defined by international agreements’ (Kell and Levin, 2003).

The UN Global Compact (UNGC) was launched on 26 July 2000, in concept and substance virtually unchanged from what was said in the Davos speech (Sagafi-nejad and Dunning, 2008). The first two principles commit businesses to support human rights generally. Among the UNGC's principles are four in a category simply labelled ‘Labour’. These four principles word-for-word are identical to the four fundamental principles of the ILO's 1998 Declaration. This is not surprising since Kofi Annan, in his 1999 Davos speech, had specifically cited the 1998 ILO Declaration adopted only six months earlier.

On its website,⁴ the UNGC acknowledges the source of the Labour principles⁵ and states that the ‘Declaration calls upon all ILO Member States to apply the principles in line with the original intent of the core Conventions on which it is based’. But it does not indicate that a full and correct understanding of what these four principles mean can only be grasped by reading the eight underlying ILO conventions, nor does its website list the eight core conventions. Thus, it may be that some companies neglected to study the relevant ILO documents and as a result failed to understand the full import and specific standards of the four Labour principles at the time they agreed to support the UNGC.

Coverage and reporting

The UNGC has no mandatory coverage, as it is a voluntary partnership between UN agencies and businesses. Essentially, it is a means whereby businesses can publicly endorse 10 universally accepted principles and then can seek to conduct their business activities in a manner that is in alignment with these principles. The UNGC Office emphasizes that the UNGC is not legally binding and it does not in any way monitor the activities of signatory companies to determine whether they are acting in accordance with the 10 principles. This non-legalistic, non-mandatory orientation is consistent with the traditional view of CSR; namely, that a company voluntarily decides to abide by certain principles and rules of conduct and defines for itself what these principles mean.

Rather than establish a monitoring or supervisory function, the UNGC opted for a policy of self-reporting, called the Communication on Progress (COP), which a company is asked to post annually on the UNGC's website. The experience with the reporting requirement indicates that some companies either did not understand the nature of the UNGC or, at the time they signed, did not fully grasp what the principles meant. Thousands of companies signed the UNGC, but few COP reports were filed. The UNGC Office took the position that the annual posting is a requirement, and failure to post the reports can result in expulsion (Rasche and Kell, 2010). After a substantial period when the UNGC Office attempted to persuade participating companies to report, expulsions did occur. In February 2013, the UNGC Office reported that since 2005 it had expelled a total of 4101 companies for repeated failure to report,⁶ and that 1570 companies were at the non-communicating participant stage. This indicates that a substantial percentage of companies who signed on to the UNGC never filed a single report. There has been no published research on why this is so. It may be that many companies feared publicly disclosing a report of their behaviour, agreeing with one leading international labour attorney who has cautioned companies that the concept of human rights ‘is a loaded one that is fraught with risk for those who implement it without a complete understanding of how it can be used against them’.⁷

Methods of influencing company conduct

Since 1945, those external to companies who sought greater protection of workers' rights typically adopted a regulatory orientation. They called for some international organization to adopt a quasi-legal statement of the right, and devised a supervisory mechanism as a method of enforcement. In contrast, the UNGC in seeking to influence company conduct opted for the moral suasion approach, a posture more in keeping with the approach of CSR. Those internal to the company have also considered how they should take into account the interests and welfare of various stakeholders, with explicit consideration of workers' rights a more recent phenomenon.

For decades, some companies have sought to define their values and how these should guide the conduct of their employees. While there is no agreed definition of CSR, there are some similarities found in most definitions, but also considerable differences (Crane et al., 2008: 5–9). Most definitions of CSR cast it as voluntary action on the part of the company which goes beyond what is legally required. This in turn requires a company to decide what areas of company conduct which are not legally mandated need to be addressed.

Codes of conduct

Company codes of conduct first appeared in the USA as far back as the 1940s, then typically an expression of a company founder's views on how the company's managers should conduct themselves in an appropriate and ethical manner. In the 1980s, defence industry price fixing scandals led to renewed interest in codes of conduct, with codes of that era stressing the need for employees to conduct business in a lawful manner.

Prior to 1990, most companies would not have covered working conditions and labour relations matters in their code, but with increasing globalization and with worker rights activists criticizing companies for their treatment of workers, many companies have inserted provisions regarding working conditions and labour rights into their code of conduct. Most, however, have resisted any attempt by external bodies to dictate the content of a code of conduct or to make it legally binding. For instance, in 1999 the International Organization of Employers (IOE) and the International Chamber of Commerce (ICC) developed a position paper and guidance for employers' associations and companies with the aim of pointing out ‘that mandatory codes of conduct and independent monitoring constitute an infringement on both management authority and state sovereignty by reaching into the global supply chain’ and noting ‘that codes reflect a particular company's needs and philosophy and … therefore vary from company to company’.⁸

What impact codes have made on companies' behaviour in labour matters is impossible to gauge. Research on this area is sparse because of the difficulty in gaining access to proprietary information and independently verifying reported outcomes. Studies have typically relied on surveys of a limited number of large companies (Keller, 2008).

External supplier codes of conduct usually require the supplier to meet basic labour standards, setting out ‘specific lists of core labor protections, while others (increasingly) incorporate by reference International Labour Organization conventions, model industry code templates, or local employee-protection laws’.⁹ This 2009 observation by a prominent American management labour attorney reveals that in less than a decade there has been a transition from outright resistance to companies accepting that core labour protections should be included in a code of conduct. It also indicates that some companies are responding not by defining their own standards, but by referring to external sources, such as ILO conventions.

The codes of most manufacturing and retailing companies cover the four fundamental principles listed in the 1998 ILO Declaration, some explicitly while others use similar language. The degree of aspiration ranges from adherence to the ILO conventions to mere support for the general principle (Brudney, 2012: 559). If they mention any form of enforcement, codes typically state that the company may take action, for example disciplinary action against an employee or de-listing of a supplier.

The public relations tone pervading many codes has inspired scepticism in some quarters as to the seriousness of the company's commitment to human rights. It has been asserted that codes of conduct are motivated by a company's need to project a reputable public image, especially if a given brand is heavily marketed to consumers (Diller, 1999). This can be a double-edged sword, since social activists have used statements made in corporate codes as the basis for corporate shaming and even as the basis for legal action (Mundlak and Rosen-Zvi, 2011: 612).

There are critics of the view that voluntary self-policing can achieve meaningful human rights observance by companies. Ryder (2010),¹⁰ when head of the International Trade Union Confederation, observed that CSR differs greatly from a concept of ‘the social responsibilities of business’ (49–50). Ryder took the position that society should place social responsibilities on business, and decried the view of CSR often held by businesses because it is based on the paternalistic notion that companies unilaterally can decide what is best for workers.

Multi-stakeholder initiatives

More recently, with widespread use of the Internet and the rise of social media, worker rights' proponents have been able to use a cheap, global platform to highlight human rights violations. To respond to allegations, many companies have permitted outsiders to examine their conduct. One development has been certification initiatives, flowing from the premise that companies, using an independent entity, should report to shareholders and other stakeholders on their activities of a non-financial nature. The best known may be Social Accountability International (SAI) which in 1997 created SA8000, an international standardized code of conduct¹¹ relating to working conditions based on the principles found in ILO and UN conventions. SAI describes itself as ‘a non-governmental, multi-stakeholder organization whose mission is to advance the human rights of workers around the world’ and adds that it ‘partners to advance the human rights of workers and to eliminate sweatshops by promoting ethical working conditions, labor rights, corporate social responsibility and social dialogue’. As with most certification initiatives, SAI takes a non-legal, non-regulatory approach; rather, it adopts a management orientation as it seeks to change company behaviour. SAI says it seeks to operationalize worker rights by ‘building local capacity and developing systems of accountability through socially responsible standards’ and by ‘promoting social dialogue as a foundation for sustainable change’. A positive outcome of any certification initiative is training, since company managers need to understand the standards they must apply. Also, managers know that periodically there will be an audit process to determine whether the company is continuing to adhere to the prescribed standards.

Another recent development has been the appearance of reporting initiatives, one of the best known being the Global Reporting Initiative which began in 1997. A reporting initiative must, by its nature, stipulate the subject matter to be reported on, and typically gives guidance on how to report. A reporting initiative does not necessarily require standardization or certification. However, a lack of specific standards undermines the usefulness of the reports submitted since the reporting companies' conduct cannot be measured against a benchmark, nor can they be compared to each other.

There are both supporters and critics of certification and reporting initiatives. Critics assert that the entities that undertake to certify or report on a company's conduct face the threat of defection by the company (which pays for the activity) if the scrutiny of its conduct is perceived to be too rigourous. A recent study of 800 CSR programmes in the apparel industry made the distinction between corporate-influenced and labour-influenced CSR programmes. The former were found to be effective in detecting and remediating minimum wage, hours, and health and safety issues (Anner, 2012). Corporate-influenced programmes, however, were less effective in ensuring workers' rights to form unions, to bargain collectively and to take industrial action.

Contesting the meaning of human rights

While more recent actors in the human rights area have resorted to issuing principles using lofty but rather general human rights language, the ILO, in contrast, historically had been viewed as having rather technically phrased conventions carefully supervised by the ILO's Committee of Experts describing in precise detail the obligations imposed by a convention. An incident at the July 2012 ILC (as detailed in the following text) indicates pushback by employers to the concept of internationally defined obligations.

Disagreement at the 2012 ILC

At the meeting of the tripartite Committee on the Application of Standards (CAS) at the 2012 ILC (ILO, 2012a), the chairperson of the ILO's Committee of Experts presented the 2012 General Survey of the Committee of Experts (ILO, 2012b).¹² The topic of the General Survey was unusually broad – all eight core conventions. The section on C. 87, Freedom of Association, included a discussion of the right to strike (ILO, 2012b: 46–65). The organization of the material on freedom of association and much of the text was assumed to be relatively uncontroversial as it was taken from the last General Survey on this topic in 1994 (ILO, 2012b: 17–100). There was, however, one striking departure from usual practice. The Committee of Experts highlighted in two text boxes the very different views of the Employers and the Workers regarding the right to strike (ILO, 2012b: 47–48).

At the outset of the 2012 CAS meeting, the vice chair of the Employers group expressed the Employers' dissatisfaction with parts of the General Survey and took the position that neither the preparatory work for C. 87 nor the text itself ‘offers a basis for developing, starting from the Convention, principles regulating in detail the right to strike’ and that ‘the right to strike has no legal basis in the freedom of association Conventions’ (ILO, 2012b: 47). This statement was made despite the fact that since 1952, its very first year of operation, the tripartite Governing Body Committee on Freedom of Association has proceeded in the belief that a right to strike exists (Bellace, 2014).

Instead of merely registering an objection, the Employers group refused to examine any case of serious non-compliance by a ratifying member state that involved C. 87. The Workers group refused to accept this condition, thus the two groups were unable to draw up a list of cases to examine.¹³ As a result, for the first time since 1927, the Committee on the Application of Standards examined no individual cases during the 2012 ILC.

In the General Survey, the Committee of Experts stated that it derived its understanding of the right to strike from the tripartite Committee on Freedom of Association (CFA) of the Governing Body, expressed in over 2800 cases since 1952. The Employers also disagreed with this, asserting that the CFA ‘creates non-binding recommendations on a case-by-case basis’ not based on the freedom of association Conventions (ILO, 2012a: Doc. 37, 27/4). This is a curious view, which if accepted would imply that the thousands of cases decided by the CFA over 60 years have produced no coherent approach to the right of freedom of association that can be relied upon by other parts of the ILO.

C. 87 and C. 98 give workers the right to organize and to defend their occupational interests (Gernigon, 1998: 442). The ability to do so usually rests upon their ability to apply economic pressure, and thus the right to strike and engage in other industrial action is the foundation upon which the right of freedom of association rests. Despite this, the Employers took the position that the Committee of Experts could express no ‘opinion’ on this when examining whether a member State had respected its obligations under C. 87 and C. 98. The Employers also asserted that since the ILC had not agreed to a precise statement of the right to strike, the matter was left to national law. In effect, then, the Employers argued that there was no internationally recognized right to strike contained within a guarantee of freedom of association and a right to collective bargaining.

Impact of ILO law on other bodies

Since 1989, the Employers group had expressed their dissatisfaction with the Committee of Experts regarding the right to strike. But the vehemence of the Employers' exposition of their views at the 2012 ILC was unexpected. The timing suggests that the Employers' strongly expressed position may have been prompted by the perceived need to send a message to an audience outside the ILO. The Employers group appeared to be targeting the ILO's Committee of Experts for a reason. They complained that the General Surveys are ‘seen as being the position of the Organization which they are not’ and commented that it would be ‘damaging’ if the views of the Committee of Experts were taken as the views of the ILO in UN or other international forums (ILO, 2012a: 27/4). The Employers' vice chair stated that the Employers were aware that the fundamental ILO conventions are ‘embedded into’ the UN Global Compact, the UN Human Rights Council's Ruggie framework, and other prominent guidelines for multinational enterprises.

The Employers' vice chair implied that other influential actors in the human rights arena, which can bring pressure on employers to adhere to certain standards, were consulting the reports of the Committee of Experts on freedom of association and collective bargaining and deeming these informative and authoritative statements on the meaning and scope of these human rights. On this particular point, the Employers' vice chair may well be correct.

A prime example is the European Court of Human Rights, which for some time had interpreted Article 11 of the European Convention of Human Rights, which guarantees freedom of association, narrowly. Recently, the Court has taken a broader view. In 2008, in Demir and Baykara, v. Turkey, the Court recognized that the right to strike is probably one of the ‘most important’ ways by which unions can protect the occupational interests of their members.¹⁴ A year later in the Enerji Yapi-Yol Sen v. Turkey case,¹⁵ the Court took into account the fact that the right to strike is recognized in other international instruments, and specifically examined the right to strike in the light of ILO C. 87. Moreover, the European Court of Human Rights expressly considered the interpretation of the ILO supervisory bodies¹⁶ indicating that although the C. 87 on its face is silent on the right to strike, the right to strike is an element of freedom of association (Raimondi, 2013).

For employers in the European Union, the planned accession of the EU to the European Convention on Human Rights may well change the EU's understanding of how the right of freedom of association applies in a labour context. In 2007, the Court of Justice of the European Union issued two decisions (Viking and Laval) which held that the workers' right of collective action must find a justification when the free movement of labour is restrained by such action, a view which is at odds with longstanding ILO jurisprudence. It has been suggested that once accession occurs, the European Court of Justice may well adjust the strictness of the proportionality test applied, in order to bring it more into line with the restrictions accepted under ILO law (Veldman, 2013).

Imposing human rights obligations on companies

The Employers' group stance at the June 2012 ILC might also have been precipitated by an event in June 2011 that ended years of debate at the UN. In August 2003, the UN Sub-Commission on the Promotion and Protection of Human Rights adopted a document entitled ‘Norms on the Responsibilities of Transnational Corporations and Other Business Entities with Regard to Human Rights’, which stated that while the primary responsibility for protecting human rights rests with the state, transnational companies, as organs of society, also have obligations within their ‘spheres of activity and influence’ to ‘promote, secure the fulfillment of, respect, ensure respect of and protect human rights’.¹⁷ This led to fierce criticism by companies. The International Organization of Employers (IOE) and the International Chamber of Commerce (ICC) categorized the draft as an effort to privatize vague human rights standards (Keller, 2008: 15–17). Rather than act on the document, the full Commission on Human Rights decided to appoint an independent expert to identify and clarify existing standards for and best practices of businesses with regard to human rights. In July 2005, the UN Secretary General appointed Professor John Ruggie as his Special Representative. For nearly six years, a ‘deeply divisive debate’ raged between business enterprises and human rights advocacy groups, regarding the nature and extent of the responsibility of businesses to observe human rights (Ruggie, 2013: 3).

On 16 June 2011, the United Nations Human Rights Council (2011) unanimously endorsed the Guiding Principles for the Implementation of the UN ‘Protect, Respect and Remedy Framework’.¹⁸

Using this framework, Part II of the Guiding Principles focuses on the ‘corporate responsibility to respect human rights’ and lists five foundational principles, the first of which declares ‘Business enterprises should respect human rights’. Part II, paragraph 12, states:

The responsibility of business enterprises to respect human rights refers to internationally recognized human rights – understood, at a minimum, as those expressed in the International Bill of Human Rights and the principles concerning fundamental rights set out in the International Labour Organization's Declaration on Fundamental Principles and Rights at Work.

The commentary states what instruments comprise an ‘authoritative list of the core internationally recognized human rights’. It further states that these ‘coupled with the principles concerning fundamental rights in the eight ILO core conventions as set out in the Declaration on Fundamental Principles and Rights at Work’ set the benchmarks for assessing human rights impacts. Thus, in June 2011 the UN for the first time expressly linked the concept of business responsibility to respect human rights with the rights enumerated in the eight core conventions of the ILO.

Conclusion

To some, ‘human rights’ is a label attached to concepts regarding just and moral conduct. In international law, human rights are those listed in certain international covenants or conventions, and a given human right has a specific meaning with obligations placed on governments to ensure that the right is applied in law and practice. Drafting of such documents typically occurs over long periods of time, as governments negotiate a text they find acceptable. Once adopted by a body such as the UN or the ILO, the document is seen as proclaiming an internationally recognized human right, which individuals can invoke in order to seek legal redress if that human right is infringed.

This view of human rights does not mesh easily with the traditional CSR approach that companies voluntarily decide whether to assume the obligation of observing human rights and how their conduct should be monitored. The adoption of the UN Guiding Principles on Business and Human Rights in 2011 has changed the CSR landscape, from one where the company decides on the parameters of its social responsibility obligations to one where society places responsibility on the company to act in regard to workers in accordance with internationally recognized human rights and, in particular, the ILO's eight core conventions.

Footnotes

Notes

Biographical note

Janice R. Bellace is the Samuel Blank Professor of Legal Studies, in the Department of Legal Studies and Business Ethics, and Professor of Management at the Wharton School of the University of Pennsylvania. She is the director of the Huntsman Program in International Studies and Business at the University of Pennsylvania. Her research is the area of comparative and international labour and employment law, with her most recent research focusing on human rights at work. She currently serves as the past president of the International Labour and Employment Relations Association, and is on the executive board of the U.S. branch of the International Society for Labour and Social Security Law. From 1995--2009, she was a member of the ILO's Committee of Experts.

References

Anner

(2012) Corporate social responsibility and freedom of association rights: The precarious quest for legitimacy and control in global supply chains. Politics & Society 40(4): 609–644.

Bartolomei

von Potobsky

Swepston

(1996) The International Labor Organization: The International Standards System and Basic Human Rights, Boulder: Westview Press.

Bellace

(2014) The ILO and the right to strike. International Labour Review 1531). Epub ahead of print. DOI: 10.1111/j.1564-913X.2013.00012.x.

Blanpain

(1977) The Badger Case and the OECD Guidelines for Multinational Enterprises, Deventer: Kluwer.

Brudney

(2012) Envisioning enforcement of freedom of association standards in corporate codes: A journey for Sinbad or Sisyphus? Comparative Labor Law & Policy Journal 33: 559–560.

Crane

Matten

Spence

(2008) Corporate Social Responsibility: Readings and Cases in a Global Context, London: Routledge.

Diller

(1999) A social conscience in the global marketplace? Labour dimensions of codes of conduct, social labeling and investor initiatives. International Labour Review 138(2): 99–129.

Gernigon

Odero

Guido

(1998) ILO principles concerning the right to strike. International Labour Review 137(4): 441–481. .

Hafner-Burton

(2009) Forced to Be Good: Why Trade Agreements Boost Human Rights, Ithaca: Cornell University Press.

10.

International Labour Conference, 81st Session (1994) Defending Values, Promoting Change. Report of the Director-General (Part I). International Labour Organization [ILO]. Geneva: International Labour Office.

11.

International Labour Conference (1998) ILO Declaration on Fundamental Principles and Rights at Work and Its Follow-up. International Labour Organization (ILO). Geneva: International Labour Office.

12.

International Labour Organization (ILO) (2012a). Report of the Conference Committee on the application of standards. Extracts from the record of the proceedings. In:2012a. International Labour Conference, 101st Session, Geneva, 2012. Available at: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_190828.pdf (accessed 13 February 2014).

13.

International Labour Organization (ILO) (2012b) (2012b) Report of the committee of experts on the application of conventions and recommendations. In:. General survey on the fundamental Conventions concerning rights at work in light of the ILO Declaration on social justice for a fair globalization, 2008 . Report III (Part IB). International Labour Conference, 101st Session, 2012. Available at: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/wcms_174846.pdf (accessed 13 February 2014).

14.

Kell

Levin

(2003) The global compact network: An historic experiment in learning and action. Business and Society Review 108(2): 151–181. .

15.

Keller H (2008) Corporate codes of conduct and their implementation: The question of legitimacy. In: Rüdiger W and Volker Röben (eds) Legitimacy in International Law. Berlin, pp. 219–298, at 15--17. Chapter available at: http://www.yale.edu/macmillan/Heken_Keller_Paper.pdf (accessed 22 February 2014).

16.

La Hovary

(2013) Showdown at the ILO? A historical perspective on the employers' group's 2012 challenge to the right to strike. Industrial Law Journal 42(4): 338–368.

17.

Marculewicz

Addressing human rights is more than having a policy.

2012. Available at www.littler.com/international-mexico-en/publication-press/publication/addressing-human-rights-more-having-policy (accessed 22 February 2014).

18.

Mundlak

Rosen-Zvi

(2011) Signaling virtue? A comparison of corporate codes in the fields of labor and environment. Theoretical Inquiries in Law 2011: 604–663.

19.

Raimondi

(2013) L'évolution de la jurisprudence de la Cour européenne des droits de l'homme sur le droit de grève [The Evolution of the Jurisprudence of the European Court of Human Rights on the Right to Strike]. In: Berg

(eds) Cohérence et impact de la jurisprudence de la Cour européenne des droits de l'homme: liber amicorum Vincent Berger, Oisterwijk: Wolf Legal Publishers (WLP), pp. 323–331.

20.

Rasche

Kell

(2010) The United Nations Global Compact: Achievements, Trends and Challenges, Cambridge: Cambridge University Press.

21.

Ruggie

(2013) Just Business: Multinational Corporations and Human Rights, New York: W.W. Norton & Company.

22.

Ryder

(2010) The promise of the United Nations Global Compact: A trade union perspective on labour principles. In: Rasche

Kell

(eds) The United Nations Global Compact: Achievements, Trends and Challenges, Cambridge: Cambridge University Press, pp. 44–58.

23.

Sagafi-nejad

Dunning

(2008) The UN and Transnational Corporations: From Code of Conduct to Global Compact, Bloomington: Indiana University Press.

24.

Swepston

(2013) Crisis in the ILO supervisory system: Dispute over the right to strike. International Journal of Comparative Labour Law and Industrial Relations 29(2): 199–218.

25.

United Nations Human Rights Council. Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect & Remedy’ Framework. 2011. Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, 21 March 2011.

26.

Veldman

(2013) The protection of the fundamental right to strike within the context of the European internal market: Implications of the forthcoming accession of the EU to the ECHR. Utrecht Law Review 9(1): 104–117.