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PUBLICATION in Le Monde du Droit: "Business and human rights, an issue based on soft law - The example of the Universal Declaration of Human Rights" by Noëlle Lenoir
It's no secret that, in the absence of binding international norms (i.e., duly ratified treaties), non-governmental organizations (NGOs) that go after companies for human rights violations or the risk of such violations tend to invoke soft law norms. Thus, the "Business and Human Rights" issue is essentially placed under the aegis of the UN Guiding Principles on Business and Human Rights, approved by the UN Human Rights Council on June 16, 2011, and the OECD Guidelines for Multinational Enterprises, adopted by the 42 member countries on May 25, 2011. Both texts are recommendations. As the foreword to the OECD Principles states: "They contain non-binding principles and standards designed to promote reasonable business conduct in a globalized environment, consistent with applicable laws and internationally accepted standards"[1]. In the sense of public international law, they are therefore recommendations.
A soft law standard, the Universal Declaration of Human Rights has raised many hopes
The other recommendation often invoked, with regard to the need for companies to respect human rights wherever they are based or operate, is the Universal Declaration of Human Rights (UDHR) adopted on December 10, 1948. The invocation of this text may seem less obvious, as it is addressed above all to States bound to protect the fundamental rights of their population and of all those residing on their territory.
Drafted on the rubble of the post-war era, the UDHR enshrines the internationalization of fundamental rights. Mainly drafted by Eleanore Roosevelt, widow of the former President of the United States, and René Cassin, one of the pioneers of the Free French, who went on to become Vice-President of the Conseil d'Etat, a member of the Conseil Constitutionnel and, above all, winner of the Nobel Peace Prize in 1968, the UDHR was intended from the outset to serve as a model for all nations.
In fact, it was on the case brought by the United States against the Islamic Republic of Iran in 1979, following the attack on the American mission by "militants" which resulted in the hostage-taking of some 50 American citizens, that the UN International Court of Justice (ICJ) ruled on May 24 1980, citing the UDHR. The Court declared that "the abusive deprivation of the liberty of human beings and the subjecting of them under painful conditions to physical coercion are manifestly incompatible with the principles of the Charter of the United Nations and with the fundamental rights set forth in the Universal Declaration of Human Rights" (judgment, § 91), thus underscoring the seriousness of the actions in question. For the ICJ, the hostage-taking of diplomatic personnel was not simply a violation of the Vienna Conventions on Diplomatic Privileges and Immunities, but a breach of "the obligations imposed by general international law" (Judgment § 62)[2].
Having been adopted by the UN General Assembly by a large majority - 48 in favor, 8 abstentions (USSR, five socialist countries, South Africa and Saudi Arabia)[3], the UDHR raised many hopes. It has been taken up by a number of African and European constitutions (art. 16 § 2 of the Constitution of the Republic of Portugal of April 2, 1976, art. 10 § 2 of the Spanish Constitution of December 27, 1978, and art. 20 of the Romanian Constitution of December 8, 1991). It is also mentioned in the Preamble to the Inter-American Convention on Human Rights of November 22, 1969.
The rise of non-democratic regimes and the weakness of the UN reduced its influence
The first breach was the divisions that emerged between UN member states over the notion and scope of fundamental rights. Instead of generating a single treaty, the UDHR lost its universality. The rapid deterioration of international relations, and in particular the post-war Cold War between the USSR and the Western democracies, made the elaboration of a single binding text unfeasible.
To give concrete form to and complement the UDHR, two Covenants were adopted on December 16 1966, which came into force in 1976: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). This dichotomy is clearly the result of profound political differences between States.
The ICCPR has not been ratified by China, Cuba, Malaysia, Myanmar, Oman, Saudi Arabia, Singapore, Sudan or the United Arab Emirates, but it has been ratified by the USSR. The ICESCR has not been ratified by Cuba, Malaysia, Saudi Arabia, Singapore, Sudan, the United Arab Emirates or the United States. Since then, no text has come along to synthesize it.
Fundamental rights have also lost their universality due to the rise of non-democratic regimes and the UN's inability to enforce its own principles.
Certainly, at the first International Conference on Human Rights held in Teheran on May 13, 1968, while the Shah of Iran was in power, a highly engaging "Proclamation" was adopted: it "clearly emphasizes the significance of the Universal Declaration, which expresses the common understanding of the peoples of the world of the inviolable rights inherent in all members of the human family, and constitutes an obligation for the members of the international community"; it is also solemnly affirmed, with reference to the UN Covenants of 1966, that "the other conventions and declarations adopted in the field of human rights [...] have established norms and obligations with which all nations should comply".
But this profession of faith remained largely a dead letter. The Rome Statute establishing the International Criminal Court makes no reference to the UDHR, which seems to have reverted more or less to its original "Declaration-Manifesto" status.
The decline in the UDHR's influence is also, and above all, linked to the rise of democratic regimes whose representatives are members of the UN Human Rights Council. This subsidiary body of the General Assembly is supposed to examine human rights violations brought to its attention and make recommendations to states found guilty of such violations. Obsessed by the anti-Israeli stance of some of its members, this body ritualistically multiplies its condemnations of Israel in its reports, but is much less forthcoming when it comes to criticizing states that turn against their own people. The latest example: we had to wait until the end of November 2022 to see the creation of a "mission to investigate alleged human rights violations linked to the demonstrations that began on September 16, 2022", which since then the UN Human Rights Council has refrained from mentioning, while failing to respond to the Iranian government's violent denial.
The UDHR as a CSR reference standard for companies
It is therefore the NGOs who have focused on revitalizing the UDHR by promoting it as a reference standard for companies in the context of CSR. Although, as mentioned above, the UDHR is addressed to States whose primary task is to defend human rights and democracy, it has a particular symbolic force due to its universal character.
What's more, some of the rights affirmed in the Declaration must be implemented by companies (and, to a certain extent, by every individual), and not just by States. This applies, for example, to:
- Non-discrimination "in particular on grounds of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (article 2);
- Prohibition of forced labor: "No one shall be held in slavery or servitude" (article 4);
- The right to own property: "1. Everyone, whether alone or in community with others, has the right to own property. 2. No one may be arbitrarily deprived of his property" (article 17);
- The right to work and to fair remuneration, and the right to form and join trade unions (article 24).
But for other rights, it's up to States to protect them. It is up to the international community to assume its full responsibilities. Respect for the dignity and freedom of every member of the human family depends primarily on them.
To conclude, it is not certain that the transfer of soft law texts that have not been drafted with companies in mind from the sphere of the state to that of CSR will clarify the essential departure, from both an ethical and legal point of view, between what is certainly incumbent on the company in the exercise of its societal responsibilities, and what is truly incumbent on the international community charged with ensuring respect for the founding principles - such as those set out in the UDHR - with which it has endowed itself.
Noëlle Lenoir, NLAV Partner
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[1] https://www.oecd.org/fr/daf/inv/mne/2011102-fr.pdf
[2] For the rest, the judgment is disappointing. The Court states that it "believes it to be its duty to draw the attention of the international community as a whole (...) to the possibly irreparable danger of events such as those before [it]", "events [which] undermine at their very core an edifice (...) the safeguarding of which is essential (...)" (judgment, § 92), but does not draw any consequences for the protective measures to be applied to diplomatic and consular missions and representations.
[3] At the time, the UN was composed of 56 States.
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