following text contained in document produced by United States Council for International Business (USCIB)

TALKING POINTS

 on the

Draft "Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights"    

·         Business is committed to operating in a responsible and sustainable manner, including by respecting the human rights and civil liberties of employees, customers, suppliers and the communities in which they operate.  Business is also committed to helping advance human rights in those countries where human rights are denied by policy or practice and fully supports efforts to raise awareness of human and labor rights among companies.   

·         In addition to the many international treaties that have been negotiated between governments, businesses have put considerable efforts into developing voluntary codes that set forth positive human rights practices for companies and other organizations.  Examples include the OECD Guidelines for Multinational Enterprises (1976), the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (1977), the Caux Principles for Business (1994), the US Model Business Principles (1996), the Global Sullivan Principles (1999), the UN Global Compact (2000), and the US-UK Voluntary Principles on Security and Human Rights (2000).  

·         Such efforts are designed to supplement the implementation and enforcement of national laws and regulations to protect human rights and civil liberties, not to replace them.   But the draft “Norms” are predicated on the belief that human rights can best be advanced by circumventing national political and legal frameworks and establishing international legal obligations for multinational companies that do not exist at the national level – or apply to domestic companies.  

·         We believe that, while well intentioned, this approach would be counterproductive because it risks undermining the resources and attention necessary to improve the capacity of national governments to implement and enforce their existing human rights laws, with which all companies – foreign or domestic, local or global – must already comply.  It would also shift the focus away from some of the worst cases of human rights and labor abuses that take place in local economies.  

·         Private organizations, including business, do not have the democratic mandate or authority to assume what are and should remain government responsibilities and functions. Attempting to shift that responsibility to companies would place them in an impossible situation of being held accountable for the actions of those beyond the company’s control.  

·         Moreover, the “norms” extend far beyond issues of basic human rights and cover a wide range of political, social, and economic rights that are appropriately decided by national governments.  It would be highly inappropriate to, in effect, privatize the policing of those rights by making companies the enforcing agent.   

·         The draft “norms” create a legal no man’s land.  They do not distinguish between binding and non-binding human rights obligations.  The draft code is presented as a set of “norms” when in fact many of the instruments it is drawn from are not themselves legally binding and those that are legally-binding heavily qualify to the rights that they address.  By calling them “non-voluntary” and using legal language where there is no legal obligation, the draft blurs the line between voluntary and legal actions, and makes corporate compliance virtually impossible.  

·         The draft norms would create significant conflicting requirements for companies and few, if any, could remain in compliance with existing national laws should the draft “norms” be adopted.  As one example, companies would be required to ensure that their actions do not indirectly contribute to human rights abuses.  Since tax payments support all governments, companies would be required to stop tax payments to any government that is suspected of past or future human rights abuses.  Based on the definitions of human rights used in the draft code, the United States would have to be included in that list for, as one example, allowing prison inmates to work.  

Further, companies would be required to ensure that all companies in their entire supply chain comply with the draft code, which for many companies is simply not possible.  Companies would be required to break contracts with suppliers that the company – not an impartial court - deems to be in non-compliance with the draft code.  Given the legal ambiguities in the draft code, it would create a legal justification for companies to break contracts at will.  

·         Finally, to the extent that the draft “norms” present potential legal and practical burdens on companies operating in developing countries with poor human rights records, they would create a serve deterrent to investing in developing countries.  Rather than improving human rights in such countries, the draft code would virtually eliminate the very investment that is the best hope for economic development and improved human rights.