国际人权法 外文版

The notion of collective human rights and corporate social responsibility: issues and trends ininternational lawJide James-EluyodeSJD (Univ. of Arizona); LLM (John Marshall Law School-Chicago); LLB (Lagos St. U.); BL (NLS); IPLP Fellow, University of Arizona Rogers College of Law. The author is grateful to Mary E. Guss, Staff Attorney at the Indigenous Peoples Law & Policy Program, University of Arizona Rogers College of Law, for reviewing early drafts of this article, and to Prof. James Hopkins for his helpful comments. This article is a revised adaptation of the author’s paper titled “Corporate Social Responsibility and the Collective Human Rights Paradigm: Current Developments in International Law and Beyond,” which was presented at the John Marshall Law School Center for International Law’s CLE Lunch and Learn Conference, held in Chicago-Illinois on March 7, 2012.© 2013 Sweet & Maxwell and its ContributorsSubject: Human rights. Other Related Subject: Company law. International lawKeywords: Corporate social responsibility; Human rights; Indigenous peoples; International law; Multinational companiesLegislation cited: Declaration on the Rights of Indigenous Peoples 2007 (United Nations) Convention 169 on Indigenous and Tribal Peoples 1989Cases cited: Mayagna (Sumo) Awas Tingni Community v Nicaragua (2003) 10 I.H.R.R. 758 (IACHR)Maya Indigenous Community of the Toledo District v Belize Unreported 2004 (IACHR)Case SU-039/97 Unreported February 3, 1997 (Colombia)*209IntroductionCertain sets of recognised collective human rights of “peoples” have newly emerged in the international arena and have created significant complexities. In view of this development,corporations need to re-evaluate the question of their conduct and the nature of the responsibility they owe with respect to the human rights of groups or communities as collective units. This is so because traditional human rights were individual-based, but as that focus is shifting so must the standards for evaluating corporate conduct within host communities.This article examines some of the challenges that the newly evolved international normative standards regarding collective human rights of peoples, otherwise called “indigenous peoples’ rights”, present for corporations. This article reviews the changing expectation for corporate behaviour, and the implications on corporate operations, of some of the relevant international instruments and guiding frameworks on indigenous rights. These include the United Nations Declaration on Rights of Indigenous Peoples; ILO Convention 169; the World Bank Operational Policy on Indigenous Peoples; OECD Guidelines for Multinational Enterprises; the Akwé: Kon Guidelines; and the UN Protect, Respect and Remedy Framework for Business and Human Rights.This article finds that it has become imperative for corporations to be familiar with the new set of human rights of peoples and that failure to be proactive can be very costly. The article also counsels that owing to the unique nature of indigenous human rights, any compliance model adopted by corporate entities ought to reflect this unique quality, because simply adopting the generic human rights compliance model may prove to be ineffective.Collective human rights—how so?The concept of human rights has generally referred to composition of innate privileges which a person is entitled to enjoy simply because of his/her humanity.1 These rights are based on the principle that every person, irrespective of who he or she is and where he or she is, is the subject of rights and is entitled to all civil, political, economic, social and cultural rights.2 The idea of human rights has been recognised globally as the fundamental requirement for upholding human dignity, freedom, peace and justice in all societies.3Although the evolution of human rights can be traced as far back as medieval times,4the modern conception of internationally affirmed human rights arose in the 20th century. Countriesbanded together in the aftermath of brutal wars and atrocities to combat increasing infraction on liberty, freedom, dignity and worth of the human person, resulting in the establishment of the Uni ted Nations (“UN”) in 1945 and later, the adoption of the Universal Declaration of Human Rights (“UDHR”) by the UN General Assembly in 1948.5Historically, human rights were believed to have been conceived as rights enjoyed by individuals only.6As Thomas Aquinas puts it, natural law (which has been asserted as a foundational basis for the evolution of human rights),7 confers certain immutable rights upon individuals.8Others have justified their support for the notion of human rights adhering only to individuals by suggesting that most traditional human rights instruments only admit individuals as the principal beneficiaries of*210 rights proclaimed by such instruments.9 They add that the abstract concept of collective human rights too often presents great obstruction to the enjoyment by individuals of their human rights.10However, many, including the UN, have countered this notion by asserting that an insistence that human rights can only be held as individual rights will be, for all practical purpose, at variance with the social realities of human situations.11 They argued that conjoined rights, such as the rights of peoples or the rights of cultural minorities, are valid constituents of human rights.12Moreover, claims suggesting that most primary human rights instruments admit of only individual beneficiaries may be, in fact, erroneous. This is because art.1 of the UN Charter of 1945,13 as well as art.1 common to both the International Covenant on Civil and Political Rights (“ICCPR”) of 1966 and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) of 1966 contain provisions which protect and respect the princi ple of equal rights and right to self-determination of peoples.14 Additionally, the Committee on the Elimination of Racial Discrimination (“CERD”), a UN treaty monitoring body, once declared that protection of the right of indigenous peoples, as a collective unit, to be free from discrimination, falls under the scope of the International Convention on the Elimination of all forms of Racial Discrimination of 1965.15The Committee concluded that the Convention will apply to any discriminatory acts perpetrated against peoples.16In light of the above, the UN subsequently affirmed that, owing to the peculiar circumstances of some demographics within society, the disproportionate discrimination they suffered, and in linewith the fundamental human rights principles of universality, equality and non-discrimination, the equal worth and dignity of peoples can only be best assured through the recognition and protection not only of their individual human rights but also of their collective rights as distinct groups.17The socially responsible businessThe need for some form of socially conscious behaviour on the part of businesses is not a completely new idea18; the question of what extent of social interaction and degree of social responsibility that private corporate entities owe their employees, customers and neighbours (the society at large), has been consistently debated since the early 20th century.19 Conceptual elements of what constitutes responsible corporate behaviour have always evolved with times.20Thus, over the years, corporate social responsibility (“CSR”) has mirrored different eras of social awareness, progressively evolving from dealing with employment, labour, environmental, and human rights conscious concepts.21There seems to be no singular and universally applicable definition of CSR. Nevertheless, one may characterise the social responsibility of corporations as their commitments to contribute to sustainable socio-economic development of the local community in which they operate, in ways that are both good for the bottom line of the business and for societal development.22The essence of CSR inc ludes a corporation’s legal and social obligations to the societies in which it operates, coupled with how the corporation accounts to the host community for those obligations.23For instance, Archie Carroll has proposed that the key responsibility of a corporation is to generate profits for the shareholders, and to do so within the legal framework drawn by the host government.24Subsidiary to the economic and legal responsibilities is a corporation’s ethical responsibility to conduct its business in accordance with acceptable standards and avoid detriment to its stakeholders. At the*211end is the corporation’s responsibility to adopt a philanthropic (discretionary) strategy that can be beneficial to the business and then to society.25The assertion that profit is the principal basis of any business enterprise, and that only profitable companies are capable of creating goods/services and ultimately adding value to the society, may still be valid.26Notwithstanding, the condition of our modern society now suggests that long-term profitability, as well as the sustainability of a corporation’s business operations, cannot reasonably be detached from the quality of the social licence conferred by a host community as stakeholder in the socio-economic structure.27In other words, the pursuit of profit and respect for human rights of host communities or good corporate citizenship are not two mutually opposing objectives. As John Kamm stated28 :“While it might not always be the case that trade and businesses are good for human rights, it most certainly is the case that a good human rights environment is always good for business. Businesses are acting in their own self-interest when they actively promote respect for human rights in countries where they operate. 29In the last decade, mechanisms of international human rights institutions have devoted an increasing level of attention to the issue of social responsibilities of businesses, especially in relation to the collective rights of inhabitants living within a host community. For instance, in 2001 the UN Commission on Human Rights (now Human Rights Council) appointed a Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples as part of its Special Procedures.30 The Special Rapporteur in discharging the mandate of the Human Rights Council has committed significant amounts of time to the issue of CSR and collective rights. In 2010, a thematic report outlining the responsibility of corporations with respect to indigenous rights was published.31 In 2011 a more specific report dealt with the corporate responsibility of businesses operating in the extractive sector.32Likewise, in 2005 the UN Secretary-General appointed a Special Representative on the Issue of Human Rights and Transnational Corporations and other Business Enterprises.33 The mandate of the Special Representative mainly concerns the identification and clarification of standards of corporate responsibility and accountability with regard to general human rights standards. But owing to the currency of the issue, the Special Representative devoted some time as well to expounding on the role of corporations in relation to the human rights of indigenous peoples.34。