Positive rights:
Economic, social and cultural rights and development
Ann-Mari Fröberg
1. Introduction
1.1 Positive rights?
The topic “Positive rights: ESC rights and development” can be read to suggest that economic, social
and cultural rights require solely positive action on the part of the state (and perhaps the non-state actor)
in order to achieve development. It is true that for instance the implementation of the right to decent
working conditions requires more than merely legislation on the part of the state. The effective
implementation of this particular right can be considered to require a labour inspectorate system that
effectively can monitor the compliance of working conditions regulations at various workplaces.
Employers need to take measures that are sometimes costly in order to ensure that their employees
work in safe and healthy working conditions.
However, all ESC rights do not necessarily entail positive measures. The core content of trade union
rights in Article 8 of the ICESCR is an example of a ‘negative’ ESC right. Neither the state nor the
business entity needs to take positive measures in order to ensure the right to form and join trade unions.
Roughly stated, the establishment of a trade union is something the state and the business entity “only”
need to respect. Economic, social and cultural rights contain both positive and negative elements
concerning measures to be taken and should not be conceived of solely as ‘positive rights’.1
Even if ESC rights were to be considered costly to realise, the potential benefits of realising ESC rights
should be taken into account. Decent working conditions generate healthy and responsible workforce,
which in the long run will increase productivity and make possible the generation of increased living
standards for all within the state. The short-term benefits for business entities for respect of ESC rights

researcher (doctoral candidate), Institute for Human Rights, Åbo Akademi University
Allan Rosas and Martin Scheinin, “Categories and Beneficiaries of Human Rights” in Raija Hanski and Markku Suksi
(eds.), An Introduction to the International Protection of Human Rights: A Textbook (Turku/Åbo: Åbo Akademi University,
Institute for Human Rights, 1999), pp. 49-62, at p. 53. General Comment 3: the nature of State parties’ obligations by the
Committee on Economic, Social and Cultural Rights, Fifth session (1990), UN doc. HRI/GEN/1/Rev.6, pp. 14-17, at p. 15,
para. 5. See also General Comment 9: The Domestic Application of the Covenant by the Committee on Economic, Social
and Cultural Rights, nineteenth session (1998), UN doc. E/C.12/1998/24, para. 10. Magdalena Sepúlveda, The nature of the
Obligations under the International Covenant on Economic, Social and Cultural Rights (Antwerp: Intersentia, 2003), pp.
123-126.
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is the avoidance of different forms of consumer boycotts that can be devastating for business activities.2
This is not to say that the action taken to ensure ESC rights should be taken on the basis of a
cost-benefit analysis. Once a state has ratified a human rights convention concerning ESC rights, such
as the ICESCR, it is under an obligation to ensure the effective implementation of the rights contained
in that convention and to regulate the conduct of private actors to protect individuals against human
rights abuses3.
1.2. General aspects
The main sources for economic, social and cultural rights in public international law are the Universal
Declaration of Human Rights4 and the International Covenant on Economic, Social and Cultural
Rights5. Other sources include regional human rights instruments and legal instruments by the UN
specialized agencies, most notably the conventions and recommendations by the International Labour
Organisation.6 Development, or more specifically, the right to development is not explicitly addressed
in the ICESCR or other legally binding international instruments. The absence of a separate provision
on the right to development does not mean that the ICESCR would not be applicable to
development-related claims by individuals. The notion of development is found amongst others in
Article 1(1) of the ICESCR, which states that peoples have the right to “freely pursue their economic,
social and cultural development”. Article 6(3) of the Declaration on the Right to Development 7
recognises that a failure to observe economic, social and cultural rights (ESC rights) as well as other
human rights creates an obstacle to development. The full enjoyment of ESC rights is accordingly
essential for the realisation of development. ESC rights deal with issues that have been traditionally
addressed by development activities, such as the right to an adequate standard of living or the right to
education. Although this paper tackles the question of ESC rights and development, it is important to
note that the indivisibility and interdependence of human rights remain valid in a development context
and that civil and political rights are equally relevant to the realisation of development as economic,
social and cultural rights.8
Traditionally, international human rights law is viewed as creating a relationship between the state and
the individual. In this relationship the individual is the rights-holder and the state the duty-bearer.
International human rights law has not left much space open for the inclusion of non-state actors, such
Sigrun I. Skogly, “Economic and Social Rights, Private Actors and International Obligations”, in Michael K. Addo (ed.),
Human Rights Standards and the Responsibility of Transnational Corporations (The Hague: Kluwer Law International,
1999), pp. 239-258, at p. 256.
3
Skogly, 1999, supra (note 2), at p. 251-252. Matthew Craven, The International Covenant on Economic, Social and
Cultural Rights: A Perspective on its Development (Oxford: Clarendon Press, 1995), pp. 112-113.
4
Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948.
5
Hereinafter CESCR or ICESCR, signed 16 December 1966 in New York, entry into force 3 January 1976, 993 UNTS 3.
6
Asbjørn Eide, “Economic, social and cultural rights as human rights”, in: Asbjørn Eide, Catarina Krause and Allan Rosas
(eds.), Economic, Social and Cultural Rights: A Textbook (Dordrecht: Martinus Nijhoff Publishers, 2001), pp. 9-28 at p. 17.
7
Adopted by General Assembly resolution 41/128 of 4 December 1986. The Declaration was adopted by 146 votes to 1
(United States) and 8 abstentions (the Nordic countries except Norway, Germany, Israel, Japan and the United Kingdom).
8
Koen de Feyter, World Development Law: Sharing Responsibility for Development (Antwerpen: Intersentia, 2001), p.
262.
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as transnational corporations and other business enterprises9, as duty-holders to any significant extent.10
One reason for not emphasising too much on the responsibilities of non-state actors is the concern that
express recognition of duties for private actors at the international human rights level could dilute the
notion of individual inalienable rights. However, there is a need to clarify the role of private actors as
duty-bearers11, since especially transnational corporations increasingly gain power in comparison to
that of the states. The trading and investment activities of transnational corporations can be beneficial
to the realisation of ESC rights and hence development as these activities are most likely to generate
economic growth and lead to the creation of employment opportunities and a possibility to a
re-distribution of wealth, which can ensure an adequate standard of living for all individuals. But the
activities of transnational corporations can equally be detrimental to the full realisation of ESC rights
and development. Where transnational corporations deny their workers a living wage, i.e. a wage that
ensures an adequate standard of living for workers and their families, and decent working conditions,
their actions create an obstacle to the realisation of ESC rights.12
Notwithstanding the increasing powers of transnational corporations this paper takes the position that
states have the primary responsibility to ensure the enjoyment of ESC rights for individuals. This
standpoint is prevailing in international human rights law and was quite recently confirmed by the
‘Norms on the responsibilities of transnational corporations and other business enterprises with regard
to human rights’ adopted by the UN Sub-Commission on the Promotion and Protection of Human
Rights 13 and subsequently considered by the Commission on Human Rights 14 . Non-binding
recommendations, codes of practice and guidelines regulating the conduct of business entities should
be seen as welcomed efforts to complement to the human rights responsibility of states. They cannot,
The term “transnational corporation [TNC]” refers to an economic entity operating in more than one country or a cluster
of economic entities operating in two or more countries – whatever their legal form, whether in their home country or
country of activity, and whether taken individually or collectively. The phrase “other business enterprise” includes any
business entity, regardless of the international or domestic nature of its activities. The definitions are taken from ‘Norms on
the responsibilities of transnational corporations and other business enterprises with regard to human rights’, adopted
unanimously approved by the UN Sub-Commission on the Promotion and Protection of Human Rights at the fifty-fifth
session, 22nd meeting, on 13 August 2003, UN doc. E/CN.4/Sub.2/2003/12/Rev.2. The term “multinational enterprise” is
generally equated with the term “transnational corporation”. Unlike other commonly used definitions of TNCs, the
definition in the ‘Norms’ does not refer to control, influence or co-ordination of activities as a key element in determining
whether the entity is indeed a TNC. This element must, according to Peter Muchlinski, be inferred from the reference to
economic entity; see further Peter Muchlinski, “Human rights, social responsibility and the regulation of international
business: The development of international standards by intergovernmental organisations”, Non-State Actors and
International Law, Vol. 3, No. 1 (2003), pp. 123-152, at p. 137
10
Skogly, 1999, supra (note 2), at pp. 239, 246.
11
Allan Rosas and Martin Scheinin, 1999, supra (note 1), at p. 58.
12
Muchlinski, 2003, supra (note 9), at pp. 123, 135. Skogly, 1999, supra (note 2), at pp. 241-246.
13
See the preamble and paras. 1, 17 and 19 of the Norms, supra, (note 9).
14
See Report to the Economic and Social Council on the Sixtieth Session of the Commission, draft report of the
Commission, UN doc. E/CN.4/2004/L.10/Add.16, 21 April 2004, paras. 5-7 and Report to the Economic and Social Council
on the Sixtieth Session of the Commission, draft report of the Commission, UN doc. E/CN.4/2004/L.11/Add.7 –
Resolutions and decisions adopted by the Commission at its sixtieth session: decision 2004/116 at pp. 81-82. The
Commission i.a. underlined that the Norms adopted by the Sub-Commission have no legal standing and asked the Office of
the High Commissioner for Human Rights to submit a report on existing initiatives and standards relating to the
responsibility of transnational corporations and other business entities with regard to human rights to the Commission in
order for it to identify options for strengthening standards on the responsibilities of business enterprises with regard to
human rights and possible means of implementation.
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however, be considered as substitutes for legally binding documents, especially as they lack efficient
monitoring and enforcement mechanisms.15
This paper will now briefly address the issue of development in terms of human rights law and then
turn to the question of transnational corporations operating in export processing zones and the
realisation of the right to decent working conditions.
2. Human rights as an essential component of development
The notion ‘development’ suggests some form of progress to be acquired during a period of time.
Development is still often equated with economic development, which is featured by economic growth,
i.e. a rise in national or per capita income and product, and fundamental changes in the structure of the
economy. Nevertheless, during the past few decades the recognition of the non-economic components
of development has emerged. The role of human rights in the development process has been
acknowledged by UNDP’s Human Development Reports16, the UN’s Agendas for Development17 and
most notably by the UN Declaration on the Right to Development and subsequent UN follow-up
reports based on that declaration.18
As already noted, the CESCR does not recognise an explicit right to development, although it
recognises the right of peoples to pursue their economic, social and cultural development by virtue of
their right of self-determination. Moreover the provision concerning the right to work in the CESCR
refers to the achievement of steady development under conditions that safeguard fundamental political
and economic freedoms to the individual. There exists also on the international level another legal
provision that indicates the existence of a relationship between human rights and economic and social
developments, namely Article 55 of the UN Charter19.20 According to this provision the UN shall
promote, inter alia, economic and social progress and development and respect for human rights. The
promotion of these fields is to be done with “a view to the creation of conditions of stability and
well-being”. The Member States of the UN undertake, according to Article 56 of the UN Charter, to
take joint and separate action in order to achieve the purposes set out in Article 55 of the UN Charter.
The Declaration on the Right to Development, referring to the purposes set forth in Article 55 of the
UN Charter, puts the individual at the centre of development – as the central subject of development –
and emphasises human rights as a central component of development. Development is not just about
On enforcement of social rights see Bob Hepple, “Enforcement: the law and politics of cooperation and compliance”, in
Bob Hepple (ed.), Social and Labour Rights in a Global Context:International and Comparative Perspectives (Cambridge:
Cambridge University Press, 2002), pp. 238-257.
16
The Human Development Reports are available at UNDP’s website http://hdr.undp.org/.
17
Working group on an Agenda for Development report available at http://www.un.org/esa/documents/gamain.htm and the
report by the Secretary-General, UN doc. A/48/935 of 6 May 1994 at http://www.un.org/Docs/SG/agdev.html.
18
de Feyter, 2001, supra (note 8), at pp. 2-32.
19
Charter of the United Nations, adopted in San Francisco 26 June 1945, entry into force 24 October 1945, 1 UNTS xvi.
20
Allan Rosas, “The Right to Development”, in: Asbjørn Eide, Catarina Krause and Allan Rosas (eds.), Economic, Social
and Cultural Rights: A Textbook (Dordrecht: Martinus Nijhoff Publishers, 2001), pp. 119-130, at pp. 121-122.
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fulfilling needs, but also about complying with obligations to respect and fulfil human rights. The
national state is identified as the primary duty-holder of the right to development21, but there is also a
suggestion in Article 2 of the Declaration that all human beings have a responsibility for development.
This could be taken to imply that also transnational corporations, which in a sense are conglomerates of
human beings, should take due account of how their actions affect development in states where they
operate. Moreover, the fact that states are indicated as the primary duty bearers in the Declaration,
suggest that also other actors on the international arena can have duties with regard to the realisation of
the right to development. The Independent Expert on the Right to Development mentions multinational
corporations as one category of duty bearers for the realisation of the right to development. 22
What speaks for attributing duties with respect to development to transnational corporations? Economic
growth is an important element of development and has been described as an engine of development as
a whole. Economic growth can be accelerated through increased foreign direct investment. In recent
decades there has been a steady expansion of foreign direct investment particularly into less developed
countries and the presence of transnational corporations in these countries has steadily increased. The
operations of transnational corporations are of essential importance for economic growth and
development.23 A transnational corporation can in many instances be more powerful than the state in
which it invests and can easily relocate to another state where it considers to be offered a more
favourable investment climate. It has been asserted that transnational corporations are more likely to
relocate to another state, if the host state puts forth more effective and comprehensive labour legislation
or emphasises the importance of collective bargaining. Transnational corporations are thus able to
effectively affect both economic growth and the level of respect of human rights in a state and
development as a whole.24
The duty of transnational corporations in the realisation of the right to development is underlined in
cases where host states are willing, but unable to ensure protection against human rights violations due
to external pressure from transnational corporations. Here, there is a call for legal responsibility in the
realm of international human rights law for transnational corporations. However, the question of the
primary responsibility of the state arises when host states are more unwilling than unable to implement
human rights and regulate the conduct of transnational corporations. The unwillingness of states to
implement human rights can have its roots for instance in a will to attract investment and generate
21
See preamble and Articles 2, 3 and 6 of the Declaration, supra (note 7). See also de Feyter, 2001, supra (note 8), at pp.
20-22, 32.
22
Preliminary study of the independent expert on the right to development, Mr. Arjun Sengupta, on the impact of
international economic and financial issues on the enjoyment of human rights, submitted in accordance with Commission
resolutions 2001/9 and 2002/69, UN doc. E/CN.4/2003/WG.18/2, para. 4 at p. 3.
23
de Feyter, 2001, supra (note 8), at p. 174. David Kucera, “Core Labour Standards and Foreign Direct Investment”,
International Labour Review, Vol. 141, Nos. 1-2 (2002), pp. 31-69, at pp. 31-32.
24
de Feyter, 2001, supra (note 8), at pp. 174 and 182-183. On the relocation of transnational corporations due to labour
standards, see Hepple, 2002, supra (note 15), at p. 252. See also the preamble (recital 11) to Norms on the responsibilities of
transnational corporations, supra (note 9).
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economic growth.25
Strive for economic growth is, nevertheless, not an excuse for violations of economic, social and
cultural rights. This can be deduced from the Declaration on the Right to Development in which it is
stated that states should take steps to eliminate obstacles to development resulting from failure to
observe civil and political as well as economic, social and cultural rights. Article 9 of the Declaration
emphasises the indivisible and interdependent nature of all the aspects of the right to development. As
the Independent Expert on the Right to Development has noted, the integrity of all human rights
implies that if any one of them is violated, the composite right to development is also violated.
Economic growth must be rights-based.26
The Vienna Declaration and Programme of Action adopted by consensus by 171 states confirms the
approach that development and respect for human rights are interdependent and mutually reinforcing.
The Declaration reaffirms that the right to development is a human right and explicitly states that lack
of development may not be invoked to justify violations of international human rights. 27 The linkage
between respect for human rights and development has also been acknowledged in the United Nations
Millennium Declaration.28
The declarations cited above are non-binding instruments and there does not necessarily exist a
consensus on the precise content and scope of the right to development.29 There seems to exist – with
the consensus of the Vienna Declaration and the UN Millennium declaration – a common
understanding that there is a linkage between development in general and the respect for human rights.
One of them cannot be attained without the other.
3. TNCs and ESC rights – the case of export processing zones
The pursuit of economic growth and development has prompted countries to create export processing
zones (EPZs) in order to attract foreign direct investment and generate jobs. These are industrial zones
with special incentives, such as duty free imports and exports, tax holidays, and a dedicated
infrastructure. The package of incentives includes many times low labour standards and repression of
trade unionists, although there are very few countries that openly by legislative acts have excluded the
EPZs totally or partially from national labour legislation. In the export processing zones goods are not
Asbjørn Eide, “Obstacles and goals to be pursued”, in: Asbjørn Eide, Catarina Krause and Allan Rosas (eds.), Economic,
Social and Cultural Rights: A Textbook (Dordrecht: Martinus Nijhoff Publishers, 2001), pp. 553-562, at pp. 559-560. See
also Muchlinski, 2003, supra (note 9), at pp. 138-139
26
Preliminary study of the independent expert on the right to development, supra (note 22), paras. 3-4 at pp. 3-4.
27
Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights on 25 June 1993 in
Vienna, UN doc. A/CONF.157/23, paras. 8-10.
28
General Assembly resolution of 8 September 2000, UN doc. A/RES/55/2 (adopted unanimously); Para. 24 of the
Declaration states “We [heads of State and Government] will spare no effort to promote democracy and strengthen the rule
of law, as well as respect for all internationally recognized human rights and fundamental freedoms, including the right to
development.” See also The Right to Development: Report of the High Commissioner for Human Rights, UN doc.
E/CN.4/2004/22, para. 13 at p. 5.
29
Rosas, 2001, supra (note 20), at pp. 124-126.
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produced for sale to, but primarily to export from the country receiving foreign direct investment. The
zones take many forms, including special economic zones, free trade zones and maquiladoras. To date,
some 40 million workers in approximately 116 countries work in these zones.30
According to ILO and UN sources, legal restrictions on trade union rights in some EPZ-operating states
and the lack of enforcement of labour legislation are among the factors noted as undermining amongst
others the working conditions in the zones. Violations of the right to just and satisfactory conditions of
work – including issues relating to hours of work, wages and occupational health and safety – have
remained largely unchanged in EPZs during the past decade.31
EPZ-operating states that have ratified the CESCR are bound by the obligations set forth by the
Covenant also with respect to the zones regardless of whether the states have opted for exempting the
zones from their national labour legislation or not. According to Article 2 of the CESCR, a State Party
undertakes to take steps to the maximum of its available resources with a view to achieve progressively
the full realisation of the rights set forth in the CESCR. The progressive realisation referred to in
Article 2 does not mean that the State Party may delay in its efforts to realize the rights. It is under an
obligation to take such measures by which it could achieve the full realisation of the rights in the
Covenant in the shortest possible time. 32 Furthermore the Committee on Economic, Social and
Cultural Rights has stated that there are some rights in the Covenant that must be immediately realised.
Such rights include amongst others the right to fair wages and equal remuneration for work of equal
value (Article 7(a)(i)) and the right to form and join trade unions (Article 8).33The list of provisions
capable of immediate realisation referred to by the Committee should not be considered exhaustive.
Article 7 of the CESCR provides that State Parties “recognize the right of everyone to the enjoyment of
just and favourable conditions of work”. Although the right to safe and healthy working conditions
(Article 7(b)) can be conceived as being open to progressive achievement, there are aspects in this
specific right that are subject to immediate implementation. An obligation for states to adopt legislation
that ensures healthy and safe working conditions can be considered to have an immediate effect. 34
The Committee on Economic, Social and Cultural Rights (Committee) has stated its concern over the
working conditions in EPZs, especially those with regard to occupational health and safety. The lack of
30
Labour and social issues relating to export processing, Report for discussion at the tripartite meeting of Export
Processing Zone-Operating Countries, (Geneva: ILO, 1998) pp. 3-4 and pp. 21-30, available at
http://www.ilo.org/public/english/employment/multi/research.htm. Employment and social policy in respect of export
processing zones (EPZs), Committee on Employment and Social Policy, ILO doc. GB.285/ESP/5, Geneva, November 2002,
pp. 1-3. Kucera, 2002, supra (note 23), at p. 37. Export processing zones – symbols of exploitation and a development
dead-end, ICFTU report, (Brussels: ICFTU, September 2003), pp. 5-8, 10.
31
Employment and social policy in respect of (EPZs), ILO doc., 2002, supra (note 30), pp. 6-9. The relationship between
the enjoyment of human rights, in particular, international labour and trade union rights, and the working methods and
activities of transnational corporations, Background document prepared by the Secretary-General, UN doc.
E/CN.4/sub.2/1995/11, paras. 61-65.
32
Craven, 1995, supra (note 3), p. 131. See also General Comment 3, supra (note 1), at p. 16, para. 9.
33
Genera comment 3, supra (note 1), at p. 15, para. 5.
34
Craven, 1995, supra (note 3), at p. 241.
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legislative and administrative measures by a State Party to control the negative effects of transnational
companies’ activities on the working conditions of workers and to ensure compliance with national
labour laws in maquilas has been raised as a principal subject of concern by the Committee in its
concluding observations on State Party reports.35 The Committee has not elaborated much on what
circumstances are to be considered as to be in violation of the right to healthy and safe working
conditions. In its consideration of State reports, it has noted that the working conditions in EPZs are
‘extremely unsatisfactory’ or ‘substandard’.36 The Committee has, however, urged State parties to take
measures in order to protect workers from occupational hazards that result from the use of toxic and
other dangerous substances in the work. 37 Moreover, the reporting guidelines 38 adopted by the
Committee refer to ILO’s Occupational Safety and Health Convention 39 . The contents of this
convention and the practice by the ILO bodies relating to occupational health and safety could be
considered to provide guidelines on the more specific content of the right to just and satisfactory
conditions of work in the CESCR.
When legislation on safe and healthy working conditions has been established, it is important to
enforce the legislation in force. Labour inspectorates are often mandated to supervise legislation
concerning working conditions.40The Committee has consistently put forth that the setting up of labour
inspection mechanisms and the strengthening of these mechanisms are of importance in order to ensure
the appropriate working conditions both in EPZs and in workplaces outside these zones. The
strengthening of the labour inspectorate includes, amongst others, the increase in the number of labour
inspectors and the State’s duty to ensure that labour inspectors are not denied access to workplaces. The
obligation to uphold an efficient labour inspection mechanism seems to be independent of whether the
state concerned is a highly indebted poor country or a more developed country.41
35
Concluding Observations of the Committee on Economic, Social and Cultural Rights: Honduras, 21 May 2001, UN doc.
E/C.12/1/Add.57, paras. 15-18 and 36-38. See also, Concluding Observations of the Committee on Economic, Social and
Cultural Rights: Guatemala, 28 May 1996, UN doc. E/C.12/1/Add.3, paras. 18, 29. Concluding Observations of the
Committee on Economic, Social and Cultural Rights: Panama, 24 September 2001, UN doc. E/C.12/1/Add.64, para. 14.
36
Concluding observations of the Committee on Economic, Social and Cultural Rights: Dominican Republic, 12 December
1997, UN doc. E/C.12/1/Add.16, para. 20. Concluding observations on Honduras, supra (note 35), para. 15. According to
an ICFTU report, examples on the working conditions in EPZs in those EPZ-operating states include work performed
during a heat wave in unventilated storage areas, working overtime and the need to ask for permission to go to the toilet; see
further ICFTU report, September 2003, supra (note 30), pp. 18-19.
37
Concluding observations of the Committee on Economic, Social and Cultural Rights: Ecuador, 14 May 2004, UN doc.
E/C.12/1/Add.100 (unedited version), p. 4, para. 41.
38
Reporting guidelines of the Committee in Compilation of Guidelines on the Form and Content of Reports to be
Submitted by State Parties to the International Human Rights Treaties, UN doc. HRI/GEN/2/Rev.2, 7 May 2004, pp. 5-25,
at pp. 7-8.
39
Convention (No. 155) concerning occupational safety and health and the working environment, adopted at Geneva on 22
June 1981, entry into force 11 August 1983, 1331 UNTS 280.
40
Craven, 1995, supra (note 3), at p. 242.
41
Concluding observations on Honduras, supra (note 35), paras. 15-16, 37. Concluding observations on Dominican
Republic, supra (note 36), para. 37. Concluding observations on Panama, supra (note 35), para 15. Concluding observations
on Ecuador, supra (note 37), p. 4, para. 41. Concluding observations of the Committee on Economic, Social and Cultural
Rights: Guatemala, 12 December 2003, UN doc. E/C.12/1/Add.93, paras. 15, 33. Concluding observations of the
Committee on Economic, Social and Cultural Rights: Russian Federation, 12 December 2003, UN doc. E/C.12/1/Add.94,
para. 47.
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The obligation of a State Party to the CESCR to provide protection to workers against violations of
their rights as workers stemming out of corporate action is unambiguous and clear. State Parties must
see to that private employers are made accountable on the national level for not complying with labour
legislation. Unfortunately, the Committee has not, at least in respect of violations occurring in EPZs,
named the transnational corporations or other business enterprises implicated in States’ failure to
comply with the obligations arising out of the CESCR. An approach to name business entities involved
in violations of ESC rights would underline the fact that business entities should take due account of
how their activities affect individuals’ enjoyment of human rights, while at the same time such an
approach would not undermine the primary responsibility of States to ensure respect and protection of
human rights.
As the CESCR and other international legally binding human rights instruments are capable of dealing
with the responsibilities of transnational corporations only indirectly through addressing state
responsibility, it is of interest to have a cursory look at how direct corporate responsibility in regard to
working conditions has been addressed at the international level in a recent non-binding instrument,
namely the Norms on the responsibilities of transnational corporations and other business enterprises
with regard to human rights. These norms apply to transnational corporations and other business
enterprises “within their respective spheres of activity and influence” (Para. 1). Hence the Norms
recognise that “states and business operate in different fields of operations and so each has a specific
set of responsibilities in their particular fields of operation, thereby obviating the possibility that
business enterprises could supplant the state in its obligations to uphold and observe human rights”42.
This suggests that transnational corporations cannot refer to exemptions made to the laws by the host
country in respect of EPZs in order to justify action or inaction that impairs their employees’ enjoyment
of human rights.
The norms provide in Paragraph 7 that transnational corporations shall provide a safe and healthy
working environment as set forth in relevant international instruments and national legislation as well
as international human rights and humanitarian law. The commentary to the norms states that the
working environment must be provided in accordance with, amongst others, the CESCR and relevant
ILO conventions. The aim of a safe and healthy work environment is the prevention of accidents and
injuries that arise out of, are linked with or occur within the course of work. The commentary puts also
forth the importance of informing their workers on hazards that conditions of work may involve and
what measures are available to protect the workers. It also emphasises that transnational corporations
shall consult and cooperate fully with amongst others health, safety and labour authorities on matters of
occupational health and safety.43 The emphasis on cooperation with labour authorities in questions
concerning working conditions nicely complements the call for an effectively functioning labour
inspectorate mechanism provided by states put forth by the Committee on Economic, Social and
Cultural Rights.
42
Muchlinski, 2003, supra (note 9), at p. 138.
Commentary on the Norms on the responsibilities of transnational corporations and other business enterprises with
regard to human rights, UN doc. E/CN.4/Sub.2/2003/38/Rev.2, 26 August 2003, pp. 8-9.
43
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All in all, the Norms together with the commentary seem to provide for a useful clarification of which
human rights standards transnational corporations and other business entities should follow. At the
same time the Norms can be considered to provide guidance for States, in addition to observations by
treaty bodies, on what aspects of corporate action they reasonably should regulate in order to comply
with their international human rights obligations.
4. Concluding remarks
A rights-based approach to development underlines the importance of respect for human rights in order
to achieve development. Development is not merely economic development, which is composed of
economic growth and changes in the structure of the economy. It consists moreover of the realisation of
economic, social and cultural rights and civil and political rights. The linkage between human rights
and development can be traced in subtle provisions of the UN Charter and CESCR and in more explicit
terms in important declarations adopted by the Member States of the UN. There seems to exist at the
UN level a consensus of the interdependent and mutually reinforcing relationship between human
rights and development.
States have been proclaimed to have primary responsibility for development, but there is a growing
awareness that transnational corporations, amongst other international actors, are capable through their
activities and investment decisions to affect development, either positively or negatively. It is evident
that transnational corporations are capable of impairing a large set of economic, social and cultural
rights in the course of their activities. States, as parties to human rights conventions, are ultimately
responsible for such impairments. As transnational corporations can be more powerful than some states,
there has been a growing demand for attributing direct responsibility to transnational corporations for
their human rights abuses. Responsibility can in this authors view be attributed to transnational
corporations at the international level, as long as it is recognised that “states and business operate in
different fields of operations and so each has a specific set of responsibilities in their particular fields of
operation”44. The responsibilities of business entities do not substitute states’ obligations under human
rights conventions.
Some economic, social and cultural rights require positive action in order to be effectively fulfilled.
The right to just and satisfactory conditions of work is an example of a right that cannot be enjoyed
without effective legislative and administrative measures on the part of the State. The Committee on
Economic, Social and Cultural Rights has put forth that State Parties to the CESCR must adopt
legislation on occupational safety and health and ensure implementation of such legislation through the
supervision of an efficient labour inspectorate mechanism. This requirement is complemented through
the non-binding Norms on the responsibilities of transnational corporations and other business
enterprises with regard to human rights, which put forth that transnational corporations must comply
with occupational safety and health standards and cooperate with the labour authorities in the country
in which they operate. A coherent development framework requires both states and transnational
44
Muchlinski, 2003, supra (note 9), at p. 138.
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corporations to take measures that reinforce human rights and to refrain from human rights violations
or abuses.
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