May 2005

Anna Pinto
ESCR-Net Corporate Accountability Working Group
Washington
USA

Hope this comes up on your agenda
Greetings friends,

We hope that you will consider endorsing the attached Joint NGO letter in response to the report of the Office of the High Commissioner for Human Rights (OHCHR) on the human rights responsibilities of business.

As you know, at the end of February, OHCHR released their 'Report of the United Nations High Commissioner on Human Rights on the responsibilities of transnational corporations and related business enterprises with regard to human rights'
(http://www.ohchr.org/english/bodies/chr/docs/61chr/E.CN.4.2005.91.doc).
Among other standards and initiatives, a significant portion of this report was dedicated to the UN Human Rights Norms for Business. The report concluded with a series of valuable recommendations by the High Commissioner for Human Rights.

In response, a group of organizations-including Rights and Accountability in Development (RAID), Amnesty International, Human Rights Watch, International Commission of Jurists (ICJ), and the ESCR-Net Corporate Accountability Working Group-have drafted a Joint NGO letter in response to the OHCHR report (see below and attached). This letter supports the recommendations of the High Commissioner and clearly articulates the joint recommendations of NGOs. Our intention is to send this letter to each of the country delegations to the UN Commission on Human Rights, as well as to the Secretary General and the High Commissioner.

We hope that your organization will consider endorsing this Joint NGO Letter. If you are able to endorse this letter, please send your organization's name, country, contact person, and email address to ESCR-Net, at: cgrove@escr-net.org.

Our hope is to collect a first set of endorsements before the end of next week (March 17), to send to each of the country delegations to the UN Commission on Human Rights, as well as to the Secretary General and the High Commissioner for Human Rights.

Best Regards,
Anna Pinto

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NGO Letter on OHCHR report

Dear Ambassador,

Report of the United Nations High Commissioner on Human Rights on the responsibilities of transnational corporations and related business enterprises with regard to human rights [E/CN.4/2005/91]

We respectfully wish to draw to your attention to the reactions of the undersigned non governmental organizations (NGOs) to the recent report prepared by the Office of the High Commissioner for Human Rights (OHCHR), submitted in response to Commission decision 2004/116 considering the scope and legal status of existing initiatives and standards on the human rights' responsibilities of transnational corporations. We feel that the OHCHR's report, which we found balanced and constructive, makes a useful contribution to the discussion of the human rights responsibilities of companies. It offers some useful recommendations for consideration by the Commission on Human Rights about how to take forward this important initiative. The report is the outcome of the broad based consultations organized by the Office of the High Commissioner for Human Rights to which many governments, NGOs, businesses and trade unions contributed. They did so either by providing written submissions or by participating in the stakeholders' meeting jointly organized with the Global Compact Office, in Geneva in October 2004.

The OHCHR report makes a positive contribution to advancing the international community's understanding of the relationship between business and human rights. It clearly sets out the issues and it provides a succinct analysis of existing initiatives and standards, four of which are scrutinized in detail: the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy; the OECD Guidelines for Multinational Enterprises; the United Nations Global Compact; and the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights. Given the large number and wide range of initiatives and standards relevant to corporate social responsibility the criteria that the report sets out for determining their scope and legal status are particularly valuable.

While the OHCHR report notes that the ILO Tripartite Declaration, the Global Compact and the OECD Guidelines refer to human rights we recall that none of them, for different reasons, offer a comprehensive perspective. The ILO Tripartite Declaration has a very specific focus on workers' rights; the Global Compact is too general to offer adequate guidance; and the OECD Guidelines have geographical as well as procedural limitations. We share the OHCHR report's view that as a result "there is a gap in understanding what the international community expects of business when it comes to human rights". This is a gap that the UN Norms, as the most comprehensive, clear and complete text on business and human rights, attempts to bridge.

The divergent views of those critical or supportive of the Norms have been presented in a balanced way in the report. This provides a useful starting point for further consultation aimed at understanding business responsibilities and identifying options for strengthening standards. In our view, these differences can best be addressed, and common ground found, through further dialogue and study. In this regard, we believe there are a number of initiatives currently underway that could make a valuable contribution to any future consideration by the Commission of Human Rights of these issues. These include research by NGOs using the Norms as a framework to identify the human rights responsibilities of companies and the Business Leaders' Initiative on Human Rights, which is currently "road testing" the Norms with companies from different business sectors. The findings of these endeavors will only become available towards the end of 2006.

Crucially, in the "Outstanding Issues" section, the OHCHR report identifies areas that need further clarification, concerning fundamental concepts of corporate responsibility, including "complicity," "spheres of influence," and the protection of human rights in situations where "a State is unwilling or unable" to do so. We recognize that these issues and others merit further examination and discussion. We concur with the comment that "the clarification of responsibilities of business with regard to human rights could help prevent human rights problems from arising."

We have given careful thought to the OHCHR report and consulted on it within our organizations and constituencies. We concur with a number of the report's conclusions. Namely that:

・ The responsibility of businesses with regard to human rights is a key issue on the agenda of the Commission on Human Rights.

・ The Commission should act quickly to build on the positive momentum that has developed on this issue to define and clarify the human rights responsibilities of business entities.

・ There are gaps in understanding the responsibilities of business with regard to human rights.

・ There is a need to continue dialogue through the consultation process and expand it to incorporate additional voices.

・ The further development of practical tools to help businesses implement their responsibilities should be encouraged.

・ A number of key issues require separate study and clarification including the concepts of "complicity," "spheres of influence," and the protection of human rights where "a State is unwilling or unable" to do so.

・ The UN Norms offer useful elements and should be maintained among existing initiatives and standards on business and human rights.

The OHCHR report will be discussed at the forthcoming session of the Commission on Human Rights. We hope that the Commission will reflect on it and decide to make further progress to address business and human rights issues. We would like to present for your delegation's consideration some recommendations. Specifically, we jointly call on the Commission to:

・ Keep business and human rights issues firmly on the agenda for the future, in order "to identify options for the strengthening of standards on the responsibilities of transnational corporations and related business enterprises with regard to human rights and possible means of implementation." The process should build on the Norms.

・ Continue the broad based consultations process it initiated and ensure wide participation from affected groups and stakeholders from all regions.

・ Create an independent mechanism to study fundamental issues identified in the OHCHR report. For example, the Commission could call for the appointment of a special representative, special advisor, or independent expert of the Secretary-General on business and human rights.
This person should be mandated to study fundamental issues, such as the concepts of "complicity" and "spheres of influence," and identify existing human rights standards with regard to business and human rights as well as additional measures to address protection needs not adequately covered by existing instruments. Moreover, this person should be requested to engage in consultations and provide regular reports on progress in order to support an ongoing and constructive dialogue on the issue of business and human rights.

・ Commit to review progress on an annual basis, beginning in 2006, in order to enhance standards of corporate accountability.

We reaffirm our commitment to work constructively with the UN Secretary General, the High Commissioner for Human Rights, the Commission on Human Rights and other stakeholders to continue to study the relationship between business and human rights and to build consensus on how to address these complex issues.

Yours sincerely,

CC: Secretary General
High Commissioner for Human Rights