INTERNATIONAL BILL OF RIGHTS; THE SUBSTANTIVE HUMAN RIGHTS LAW.

Abstract?

International human rights law is one of the most important subjects of international law. In this short piece I shall discuss the importance of international human rights with respect to multinational enterprises and the mechanism for the implementation of these rights.

International Bill of Rights (the “IBR”):

Universal Declaration of Human Rights, 1948 (the “UDHR”) is the cornerstone of international human rights system which has been codified into international law through two treaties viz International Covenant on Civil and Political Rights (the “ICCPR”) and the International Covenant on Economic, Social and Cultural Rights (the “ICESCR”). Both of these treaties are universally accepted as guiding principles for the safeguard of human rights and only a very limited number of countries have shown reservations on a very few provisions of these international treaties.?

Multinational Enterprises and Human Rights:

The IBR (UDHR, ICCPR & ICESCR) is a legal compendium of rules applicable on States requiring the member States to abide by their international commitments towards human rights. The question which I want to raise is that; whether the rights protected under the IBR can be made basis of legal proceedings against the multinational enterprises, especially the technology companies, providing services worldwide through internet, and who transgress the rights of individuals and communities on the unjustified and illegal demands of despotic regimes, just to avoid any backlash, resulting in loss of their revenue.

The answer of the question raised is not easy to find as multinational technology companies, like Google, Facebook, Twitter, YouTube etc, incorporated in one country (home country) and providing services globally, are responsible to follow the laws of the countries in which they are providing services (host countries), and, in case of violation of any local law, the regulatory body of a host country may take action against them.

The technology companies are functioning all over the world including in those countries who have a bleak human rights record towards their own citizens. There are countries who, in violation of their international obligations, have also promulgated laws with the purpose of suppressing a segment of a country on religious, secretion or ethnic basis.

Host State's pressure:

There are instances where countries have threatened multinational enterprises, especially the technology companies, to abide by their local laws despite the fact that the same are in violation of settled and accepted standards of human rights. There are instances where certain countries put pressure on technology companies, like Google, to remove certain services from their platform(s) on the ground that the said services violate the provisions of their domestic laws.

In many cases, the local laws referred by the countries for requiring the technology companies for bringing down the material from their forum(s) are internationally condemned laws being violative of the recognized and well established human rights, especially the right of expression, hence, these laws are in breach of the IBR and the countries, who has ratified the ICCPR, are violating the human rights of its citizens in disregard of their international commitments.?

Many technology companies are incorporated in the USA, however, they are transnational enterprises which provide services globally, therefore, it has certain international obligations towards human rights. The IBR is not only binding on the States which have ratified it, rather all the transnational companies are bound to honour the provisions of the IBR, and the United Nations Guiding Principles of Business and Human Rights has reaffirmed this legal position.

Transnational enterprises; whether to follow the IBR or the directions of the host country:

If we look at this issue from the perspective of multinational companies then; it would be their legal obligation to abide by the directions issued by the host country in the light of local laws. Through this approach, the companies would not be in a difficult position of losing revenue, which situation they could face in case they refuse to follow the guidelines issued by the regulatory body of the host State, who can put restrictions on their services within its territorial limits. The companies may also claim that they are no one to judge about the validity of local laws on the touchstone of international human rights as guaranteed under the IBR; hence, they have no other option except to succumb to the demands or instructions of the host State.

Apparently this approach seems to be logical, but a deeper analysis would show the flaw embedded therein. The ICCPR has given the details of human rights available to every individual and community which includes the right of expression and a country which has signed the ICCPR is bound to honour the guaranteed human rights of their citizens. In this situation, it is not difficult for the technology companies to ascertain, whether the sighted local laws, which put restrictions on the right of expression on certain individuals or communities are or not in line with the ICCPR. In this scenario, when, on one hand there is a direction of a host country requiring a transnational enterprise to act in derogation of rights of a community while on the other hand it has the duty to uphold the said basic rights of the said community then, what should be the duty of the companies??

Keeping in view the fact that, any multinational company which has been incorporated in the USA where the State upholds the rights of its citizens and requires the companies incorporated within its jurisdiction to do the same, needs to uphold the human rights even beyond its territorial limits. Secondly, the companies like Google and YouTube, in every sense of the expression, are international companies and they are legally obliged to apply the same human rights standards all over the world which are universally accepted and enshrined in the IBR. Thirdly, being multinational companies, Google and other like companies are to follow the UN Guiding Principles of Business and Human Rights while functioning in different jurisdiction and, as these principles require the companies to honour the human rights of the individuals and communities, therefore, they are obliged to give IBR precedence over the local laws of the host States. And lastly, it appears that most of the times the transnational companies prefer to abide by the directions of the host country instead of upholding individual human rights, just because it is in their financial interest. Denial of human rights of a community in order to safeguard a company's financial interest is the worst type of iniquitous practice which cannot be condoned on any ground, whatsoever.

Remedies against multinational companies against violations of human rights:

The most difficult challenge for the individuals and communities in case of violations of their human rights by the multinational companies on the pressure of the country of their residence, as discussed above, is to find a suitable remedy against the defaulting companies (remedies against host State or its regulatory authorities is not subject matter of this document).?

Theoretically, there is a remedy in the judicial or administrative system of the host State who is responsible for the decision of the company, but practically there is no real remedy in the local system as courts and administrative bodies are bound by the local laws which authorise the State to violate the human rights of individuals and communities and, unless the discriminatory laws are repealed, approaching the local authorities would be an exercise in futility.

The second type of remedy which is discussed in the UN Guiding Principles is non-State-based grievance mechanism. As per guiding principles, remedies are usually administered by a company either alone or with stakeholders or by an industry association or multi-stakeholder group. As per my research, no such remedy is available against multinational technology companies as there is no body which may be approached by aggrieved individuals or communities for redressal of their grievances.

The third type of remedies are the remedies available in the home State and these are two types of remedies viz judicial remedies (civil and criminal proceedings against defaulting corporations) and non-judicial State-based grievance mechanisms viz forums of ombudspersons appointed by State or other State institutions authorised to redress human rights violations by the companies.

As per my understanding, in the scenario under discussion the only viable remedies which are available, are the remedies in the home State and the individuals and communities may approach the judicial or the non-judicial State forums of the home State for redressal of their grievances.

To find a forum for redressal of grievances is a procedural issue, but the most important issue is that what would be substantive law on the subject of violations of human rights by multinational companies before the forums in the home State?

IBR, whether limited to the States?

The IBR consists of international instruments signed and ratified by member States, restricting the States from breaching the basic rights of their citizens and these instruments make the defaulting States answerable before the designated international forums. As the multinational enterprises are not parties to international human rights treaties, therefore, it may be claimed by them that IBR is not a legally binding instrument to their extent.?

As per the settled principles of international law, the States are not answerable to other States or international organisations, except to the extent they agree through multilateral treaties, therefore, these treaties are necessary for making the States responsible for treating their citizens in a humane manner and the IBR is manifestation of this global concern towards safeguarding human rights of individuals and communities. Although the multinational companies are not signatories of the IBR, they are bound to follow the same as binding legal rules on the touchstone of principles of "Common Law".

Common Law:

The term "Common Law" is usually understood as an ever evolving branch of law, developed over the time (starting from pre parliamentary era up till now) through uniform decisions of the courts chiefly operating in the area which has not been taken over by the legislature. Before the inspection of Parliament or other legislative bodies, the common law was a major source of binding legal rules which brought uniformity in the decision making process of the courts.?

Judge made law or the law discovered by the judge:

Today, when we have settled legal rules of common law based on judicial decisions, it would be difficult to trace the original form or rules of common law, however, it is almost obvious that the judges have made the substantive common law by discovering the customs and usages which had been followed by the society or any of its segment, and the same usages have taken the force of law by continuous and uninterrupted practice.

The issue of substantive law with respect to human rights violations of multinational companies can only be resolved by discovering the usages and customs prevalent in the international community and which are considered morally and legally so sacrosanct that breach of the same are considered proscribed. This discovery process would be akin to the process of discovery of common law.

As the provisions of the IBR are the manifestation of universal acceptance of standards of human rights which are continuously being followed, therefore, the courts of home countries may conveniently accept the IBR as substantive law (common law on the subject) in the area of alleged violations of human rights abroad at the hands of multinational companies, otherwise, the aggrieved individuals and communities would be rendered remedy less, even against the most egregious violations of human rights by transnational technology corporations.

Therefore, it is the right time to make the technology companies practically bound to follow the guidelines prescribed under the international human rights law by treating the IBR as substantive law, enforceable in the home countries as common law on the subject.?