인권을 침해하는 다국적기업에 관한 규율방안
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Abstract
Transnational corporations(TNCs) and international human rights law have come into increasing contact with one another in the modern era of globalization. The primary issue arising from this contact is whether transnational corporations are subject to human rights obligations previously. In the international law arena, the duties of TNCs have been recognized through specific part within the body of human rights instruments. Many existing international human rights instruments acknowledge the interconnection of human duties and rights with respect to TNCs by either expressly granting specific rights or being capable of interpretation as to include various human rights. For example, the Universal Declaration of Human Rights not only creates duties for every individual and organ of society but also grants rights to such individuals and organs. The Universal Declaration’s repeated use of the term “everyone” without limitation to human beings serves to grant numerous rights to human beings as well as TNCs. Under the rules of international law, some of these instruments carry more weight than others, but together they set forth international law of human rights, civil and political rights, employment rights and environmental and health rights as it has evolved and exists today. It is an undisputed fact that TNCs can and do breach human rights. Notorious examples have been related to breach of labour rights by Nike, while Royal Dutch Shell and British Petroleum have been accused of environmental damage. However, a world-wide approach, in particular under the auspices of the UN, has failed to establish a binding code. As outlined above, the human rights framework cannot be interpreted in a way to directly impose mandatory obligations and accountability mechanisms on non-state actors such as TNCs. The ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy on November 16, 1977, which addressed the area of labor regulation and contained principles of relevance to both multinational and national enterprises. In addition, The OECD Guidelines for Multinational Enterprises containing recommendations addressed by the signing governments to transnational corporations operating in or from adhering countries and providing voluntary principles and standards for responsible business conduct for them, especially in the field of human rights. The guidelines have been adopted by the thirty OECD states and accepted by nine non-member states in Paris on 27 June 2000. Furthermore, the UN Global Compact was enacted upon the suggestion of the UN Secretary-General at the World Economic Forum in Davos, Switzerland. It includes ten principles, two of which refer to human rights in particular. Moreover, and remarkable in this context, the UN Norms on the Responsibility of Transnational Corporations and Other Business Enterprise with Regards to Human Rights(UN Norms) outlined above deserve further mention. With this phrasing, the UN Norms address the issue that transnational corporations need to comply with different legal frameworks; they must consider the local law in the fields of their action, the laws of the country in which they are incorporated, international law, policies, practices, and other laws. These international attempts, self-regulation approaches have also played an important role regarding TNCs’ liability issues. These regulatory frameworks all suffer from the shortfall of being non-binding. Nevertheless, several initiatives provide for ways to enhance accountability for compliance and the effect of such so-called “soft obligation” mechanisms, which should generally not be underestimated due to their significance for the development of international law in particular. There are considerable concerns regarding the efficacy of self-regulation mechanisms, since their implementation is not guaranteed beyond a reasonable doubt. In particular, worries have been expressed that such internal codes often may be more of a public relations exercise
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