JOINT COMMITTEE ON ENTERPRISE AND SMALL BUSINESS debate -
Wednesday, 10 Nov 2004

EU Business Norms: Presentation.

Chairman

I welcome Mr. Colm Ó Cuanacháin, secretary general of Amnesty International, and Professor David Weissbrodt of the University of Minnesota Law School who is a member of the UN Sub-Commission on the Promotion and Protection of Human Rights. I remind visitors that while the comments of members are protected by parliamentary privilege, those of the visitors are not. Members are also reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside of the House or an official by name or in such a way as to make him or her identifiable.

I invite Professor David Weissbrodt to make his submission.

Professor David Weissbrodt

I thank the Chairman for this opportunity. I will try not to abuse the privilege of which he spoke.

Chairman

Contributions normally take ten minutes and they are followed by a question and answer session.

Professor Weissbrodt

That would be perfect. I will discuss my experience working on the document entitled The UN Human Rights Norms for Business: Towards Legal Accountability. Pages 21 and 22 contain the most important provision of the document. The document states that Governments have a primary responsibility to protect human rights. It also states that within their respective spheres of activity and influence, transnational corporations and other business enterprises also have an opportunity to protect human rights. This reaffirms what we all know, which is that Governments are the primary duty holders in dealing with international legal principles.

The document addresses the rather complicated issue of whether these standards apply only to transnational corporations and not to other companies. The document tries to apply the norms to all companies and states that big companies have greater spheres of activity and influence and therefore have greater responsibilities than smaller companies.

It is notable that the norms involve a very comprehensive view of the definition of human rights, relying on existing standards, such as the Universal Declaration on Human Rights, the many treaties that Ireland has ratified, including the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights, and also the ILO standards and other efforts to deal with issues of corporate social responsibility. We have developed the most comprehensive view of what companies may want to do and of that for which they have already expressed their support. We help them to translate the aforementioned principles into a form they will understand. The Universal Declaration on Human Rights, for example, is one of the major human rights documents and we make it more business-friendly by ascertaining how it would apply to businesses. After all, the Universal Declaration on Human Rights states that it applies to states, individuals and organs of society. An organ of society would include a business. However, if one reads the document one will note that it is a little difficult to translate. We are trying to help businesses in this regard.

We also deal with security, including the responsibility of security guards. We examine equality issues, equal opportunity and the idea of non-discrimination. The norms deal with the rights of workers, including the rights to collective bargaining, freedom of association and an adequate standard of living. Beyond this, the norms refer to a balanced approach to the very complicated issue of intellectual property rights and responsibilities. We also deal with transparency and the avoidance of corruption.

Chairman

On what page is intellectual property dealt with?

Professor Weissbrodt

It is referred to in a comment under the provision relating to the rule of law. It comes under item 10(d) on page 28.

We also deal with civil, political, economic, social and cultural rights, always within the context of the responsibilities of a company dealing with its own activities and influence and not always in terms of human rights. We also address consumer protection and environmental protection. The norms reflect, restate and refer to existing international norms.

Those are the basic ideas of the document but we developed others in the process of drafting. For example, we had to ask ourselves whether we wanted a document the subscription to which would be entirely voluntary. Companies have developed many codes of conduct and these perform a very useful function in having companies build within their culture the sense of corporate social responsibility. The norms will help a company that wants to do this.

However, the norms extend further. Anyone familiar with company codes of conduct will know that they can be changed with the click of a mouse if they are on the Internet. They are usually not implemented by any mechanisms within the company, they are just posted. Furthermore, they often do not mention human rights. I have examined several hundred such codes of conduct and found that only 80, approximately, mentioned human rights. Therefore, our document is intended to apply to all companies and not just those that issue their own codes of conduct or otherwise sign on.

Those are the principal mechanisms but one will also note that principles of implementation have been outlined. We examined, for example, how the norms would apply, which I can go through with the committee, but I am very aware of time.

Chairman

That is fine.

Professor Weissbrodt

Five implementation techniques were identified. First, if one issues a code of conduct as a company, one must examine it to ensure it is compliant with the norms. Second, if one plans to undertake any major activity, one must consider the impact on human rights. Third, although we rely principally on business and its implementation of this document, we also believe monitoring should take place and ought generally to be independent, transparent and include relevant stakeholders. However, we do not prescribe how that should be done. Fourth, if one causes injury, there should be some form of reparation. However, the reparations on which we rely are those which already exist under contract and tort law. Fifth, given that governments have a primary responsibility in this area, we recommend that there should be — in a very vague sense — a framework for application of the norms. That is a description of the norms themselves. Perhaps after questions, I can inform members about where it fits in the UN system, how these documents get drafted and how they fit with the next steps in the process of adoption by the United Nations.

Chairman

Does Mr. Ó Cuanacháin wish to contribute?

Mr. Colm Ó Cuanacháin

No. I will leave it open to members if that is acceptable.

Deputy Lynch

I welcome Professor Weissbrodt and Mr. Ó Cuanacháin.

Having read the introductory information about this issue, it must be difficult to think about human rights in the context of corporate governance. Normally, when we talk about human rights, with which Mr. Ó Cuanacháin is very familiar, it is in the context of freedom of speech, movement and how people are treated by the state when they are incarcerated. Most people define human rights as how one is treated when one is helpless. In a broader context, Professor Weissbrodt's document is very interesting.

All the political parties are represented at this meeting. However, other committees are meeting as we speak as this is a very busy time which is why not all the committee members are present. Another committee which is meeting now is discussing disability legislation. Is it possible for someone with a disability or representing someone with disabilities to have these norms imposed if the legislation at national level does not exist to back it up? Does Professor Weissbrodt expect human rights norms to be transposed into national legislation across the board?

We have a major international problem with bullying, not just in schools but also in the workplace, regardless of where that workplace is. One is as likely to find such bullying in a third level institution as one is between cashiers in a supermarket or a corner store. If people are to have the protection of this major research — for which I compliment Professor Weissbrodt since it was not undertaken overnight — is it necessary for it to be transposed into national legislation?

Professor Weissbrodt

I thank the Deputy for her engaging question and her kind remarks about the four years' work we undertook in the entirely open process of drafting this report and carrying out the research for it. I refer the Deputy to page 22 of the green book, which details the provision dealing with the right to equal opportunity and non-discriminatory treatment. In it, the single word "disability" is used as a basis for non-discrimination. We thought about the issue a little bit as is evidenced in the commentary in which readers will find certain issues. Although we did not use the word "bullying", we referred to a "discriminatory form of harassment or abuse" which fits a definition of "bullying". We have thought about the issue, but the Deputy's question concerns how we can respond to this challenge.

There already exists some soft law principles in international human rights law dealing with the issue. There have been some recommendations from the UN. Just like this is a soft law document, a recommendation from the UN can be picked up by governments. In order to make it effective, it needs to be nationally applicable and national legislation is very important. However, one can still use it, for example, in order to voice criticism of a company or school that allowed for discrimination. For example, I understand Amnesty International is running a campaign on human rights and mental illness, which is a disability issue. Amnesty International is not afraid to engage in this exercise. Although it is not necessarily embodied in statutory law, it still has an influence on decision makers and those who run the businesses or institutions that might be engaged in discrimination.

The committee may know that there is already being drafted at the General Assembly of the United Nations in New York a whole treaty on disability rights. Therefore, this issue of disability is arising at international as well as local level. If one considers all the issues we had to deal with in this document, the fact that we had a single word and a few mentions in the commentary indicates that we thought about the issue and tried to track the developments in international law and incorporate as it develops the best international law on disability rights, labour rights, environmental rights and other issues as the consensus of the world develops.

Chairman

Is Professor Weissbrodt happy with the monitoring, whether by nations or private corporations? This committee processes approximately 35% or 40% of all documentation and regulations and new law from the EU in its role of EU scrutiny. The documentation comes to the committee by the half stone in huge volumes. We are concerned about how monitoring is taking place, either by the nation with responsibility or the private corporation with responsibility. Ultimately, we can make all the regulations we want, as members of Parliament or Government, but it is the strict monitoring of the requirements which concerns this committee more than anything else, particularly in the ever-evolving and changing position in which we find ourselves in a Europe enlarged from 15 to 25 member states.

Some countries will have to develop and upgrade their procedures for conducting business and commerce in a manner in which they never imagined. We had such an experience when Ireland joined the EU in 1973. With a motto of "Ireland green and Ireland clean", we have played more than our share in doing what we could to be first class European citizens and human beings in how we conduct our affairs in every possible way as a nation. I am proud to have been a Member of this Parliament for 23 years and Chairman of this hard working and dedicated committee for two years. It exists to ensure we get our fair share of investment and to act as a conduit from industry and the community to Government. We also ensure the consumer is not being exploited. What does Professor Weissbrodt think of the monitoring system at present?

Professor Weissbrodt

I am grateful to the committee for taking time out of its schedule to speak with me. The norms say only that there should be independent monitoring that involves input from stakeholders. This document was accepted unanimously by the 26 members of this low level UN human rights body. It is now expected to be considered by the UN Commission on Human Rights in March 2005. There will be continued discussion of these issues for some time because the commission, for the first time in its history, has agreed that corporate social responsibility and human rights will be on its agenda. This document has already raised interest but the UN is not quite ready to engage in a large monitoring exercise. Doing that on a global level would be difficult.

The norms have already had an impact. People who create mutual funds are using them as a mechanism for determining which companies are socially responsible. Organisations like Amnesty International, Christian Aid and other human rights organisations could help because they see this as a good summary of human rights principles. If they note a particularly egregious situation, they will use the norms as a mechanism for their own campaign work. Some companies are testing the norms within their own businesses — Hewlett Packard, Novo Nordisk and Barclays Bank have accepted them.

My preferred monitoring mechanism is based on company reports. Every publicly traded company must issue financial reports. Why not, in issuing a company report, also issue a report on how it is doing on the triple bottom line, the essence of corporate social responsibility? That has been mandated in the last two years by British and French law. People have had some experience using it and the mechanism provides for monitoring by the market. If a company is not doing a good job, people will not buy its stock. That is the best mechanism for monitoring but it is a matter of creativity.

National legislation might be needed to develop monitoring. It is not like the EU, where member states must respond to directives. If Ireland ratifies a convention, it can then decide what legislation must be adopted to fulfil the obligations under the treaty. Labour inspections exist in most countries to check the safety of working conditions. Such inspections would offer a way to monitor the implementation of this document because they monitor the underlying international labour conventions about safe working environments. It is a complicated question without a specific answer other than that there should be monitoring.

Deputy Callanan

There are people from outside the European Union on work permits in Ireland. The employer holds the permit and the view exists that this system discriminates against the worker. What are Professor Weissbrodt's views on that?

Deputy Lynch

This is an interesting question because there are two distinct opinions on it. As far as I am concerned, it is a form of bonded slavery where if the employee does not do what the employer wants, the permit can be withdrawn and the person has to leave the country. What response has there been from employers?

The professor is right about monitoring. We are all familiar with women's rights now, they are virtually self-monitoring because people are so aware of them. At the outset, however, there is always a cowboy element. It will be interesting to see how the market responds.

Professor Weissbrodt

Migrants are not discussed in this document. It deals with human rights, however, and it treats them as human beings. It does not address the right to vote because it is focused on companies. The essence of international law on this issue is that there is no obligation to allow people from outside the country to come in to work but once they are here, because they are citizens of EU member states or they have been accepted as migrant workers, they must be given equal rights with other workers. It would not be possible to deprive them of the right to collective bargaining, to join a trade union or freedom from gender discrimination. There is no obligation to accept external workers but the provisions against discrimination apply if they are here. That may not be entirely satisfactory but that is as far as international law had gone on the subject and this document restates international law on the issue.

Mr. Ó Cuanacháin

Amnesty International has human rights concerns over the system because the essential element of protection is not there. Some of the experiences of the individuals who have come to our attention, and that of State organisations, have indicated that those protections are essential. The work permit system, as it is currently constructed, is not affording the individuals that protection. This is a form of indentured labour, to draw on the Deputy's term, where because they are bound in to working for one employer, they feel powerless seeking to vindicate their rights as workers.

Professor Weissbrodt

The worst case that could have been referred to in other countries is where individuals are trafficked into a country. They are encouraged to come in as, say, waitresses, then their passports are taken from them and they are forced into sex slavery and prostitution. That is problematic and fits within the concepts found at the committee about no forced labour. It would be very problematic. I do not know the situation in Ireland as well as Mr. Ó Cuanacháin from Amnesty International.

Deputy Lynch

Not yet.

Professor Weissbrodt

I will defer to my colleague on that issue. Regarding the employers' reactions to this, I have had the opportunity to talk with many business people about this document. All say they already do this. These are the principles that they can accept and are comfortable with. However, they do raise other issues. At a recent meeting with IBEC, it stated that its principal concern is that it only wants to see voluntary standards, not standards to apply to all businesses. I gave the example of the most prominent of these voluntary standards such as the UN Global Compact, recently announced by the UN General Secretary. It is ten short sentences relating to human, labour and environmental rights and corruption and less detailed than this document. Some people see this document as a good explication of the UN Global Compact.

The Global Compact is voluntary and has been a great success with some 1,700 companies agreeing to join it. That is great progress as an educational exercise. However, a study has shown that there are some 75,000 transnational corporations. What about the other 73,000 companies? This document states that it should apply to all companies, not as a mandatory document as it is not a treaty, but as one that applies to all of them and can be used for potential monitoring and self-implementation. One day, it is possible that this document may become the subject of a treaty. Like the case of the disabled, one has to have a declaration on rights first and then later one can have a treaty. We are not there yet and this is only an initial step in that direction.

Chairman

On behalf of the committee, I thank Professor Weissbrodt and Mr. Ó Cuanacháin for their informative briefing which has been most enlightening.

Professor Weissbrodt

I thank the committee. The committee can encourage the Government to use its leadership in the human rights field and its experience in encouraging prosperity in the business sector.

Mr. Ó Cuanacháin

I also thank the committee. The Department of Foreign Affairs will be steering this document through the UN Commission on Human Rights. If the Chairman felt it was appropriate, it would be positive if the committee wrote to the Department of Foreign Affairs to add its voice to the important work that the Minister of State at the Department of Foreign Affairs, Deputy Conor Lenihan, is doing.

Deputy Lynch

I think we can do that, Chairman.

Chairman

Deputy Conor Lenihan was Vice-Chairman of this committee until recently. We are familiar with the great work the Minister of State is doing.

The joint committee adjourned at 3.20 p.m. sine die.