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Eric Scott | (985) 241-1063 | [email protected] | Writing Sample

The United Nations’ Guiding Principles on Business and Human Rights:

No Guiding Light for Women’s Human Rights

Introduction

The most recent UN document dealing with the issue of business and human

rights is the “Guiding Principles on Business and Human Rights: Implementing the

United Nations “Protect, Respect and Remedy” Framework” (Guiding Principles).1 The

Guiding Principles acknowledges it “will not bring business and human rights challenges

to an end”2 but state they “will mark the end of the beginning.”3 This claim is based on

the assertion that the Guiding Principles will establish “a common global platform for

action, on which cumulative progress can be built.”4 Further the Guiding Principles assert

its contribution to normative international law lie “not in the creation of new international

law obligations but in elaborating the implications of existing standards and practices for

States and businesses.”5 But how do the Guiding Principles deal with the specific human

rights needs of women in relation to transnational corporations?

This comment will focus on the international human rights documents that the

Guiding Principles specifically direct businesses to “at a minimum”6 adhere: the

International Bill of Human Rights and the International Labour Organization’s

1 Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect

and Remedy” Framework U.N. Doc. A/HRC/17/31 (Mar. 21, 2011) available at

http://www.ohchr.org/Documents/Issues/Business/A-HRC-17-31_AEV.pdf [hereinafter Guiding

Principles].

2 Id. at 5.

3 Id.

4 Id.

5 Id.

6 Id. at 13.

Eric Martin Scott | Writing Sample

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Declaration on Fundamental Principles and Rights at Work. Thus, this comment will

discuss how these documents do not completely cover the human rights of women, and

therefore, neither do the Guiding Principles. This comment focuses on the second pillar

of the Guiding Principles, namely, the “Corporate Responsibility to Respect Human

Rights” and how, as both a guide and an aspirational document, the Guiding Principles do

not currently act as a guiding light in addressing the human rights needs of women in the

global business context.

Transnational Corporation in an International Human Rights Context

As the Guiding Principles state, there are currently some “80,000 transnational

enterprises”7 and “10 times as many subsidiaries.”8 Transnational businesses have been

internationally criticized for the role they play in the violation of human rights due to

their economic and political influence.9 Additionally, the United Nations has previously

taken notice of the increased influence of transnational businesses and other business

enterprises on the economies of countries.10

7 Id. at 5.

8 Id.

9 See, e.g., Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 14 Buff.

Hum. Rts. L. Rev. 129, 131 (2008) (describing transnational corporations (TNCs) as “essentially

unencumbered by responsibility for the adverse effects caused by their policies or activities, despite the

increasing impact of their decisions.”).

10 See UN Sub-Commission on the Promotion and Protection of Human Rights, Economic, Social and

Cultural Rights: Norms on the Responsibilities of Transnational Corporations and Other Business

Enterprises with Regard to Human Rights, 3 (Aug. 26, 2003), E/CN.4/Sub.2/2003/12/Rev.2, (“Taking note

of the global trends which have increased the influence of transnational corporations and other business

enterprises on the economies of most countries and in international economic relations . . .”) available at

http://www.unhcr.org/refworld/docid/403f46ec4.html (last visited April 7, 2013) [hereinafter Norms].


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The characteristics of business enterprises acting in more than one State11 have

traditionally been complicated. This is because generally the laws of States allow

companies to be legal entities separate from the persons who operate the company as well

as from the entities the company operates. Thus, “even when an affiliate is entirely

owned by a parent corporation . . . the separate legal personalities of the parent and the

affiliate pose difficult questions of institutional responsibility.”12

It has been this separate legal personality that has historically shielded a parent

company from liabilities created by a subsidiary.13 But, since the start of the twentieth

century, businesses operating in more than one country have steadily increased.14 With

this increase, the concepts that constitute an international, multinational, transnational, or

global business are often confused with each other.15 The multinational company has

been defined a “business organization whose activities are located in more than two

countries,” consisting of a country “where the firm is incorporated and of the

11 See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 201 (1987) (defining

a State under general international law as “an entity that has a defined territory and a permanent population,

under the control of its own government, and that engages in, or has the capacity to engage in, formal

relations with other such entities.”).

12 1 TRANSNATIONAL BUSINESS TRANSACTIONS § 1:3.

13 See 1 FLETCHER CYC. CORP. § 43

As a general rule, two separate corporations are regarded as distinct

legal entities even if the stock of one is owned wholly or partly by the

other. Thus, generally, absent fraud or bad faith, a corporation will not

be held liable for the acts of its subsidiaries or other affiliated

corporations.

14 See CHARLES L. HOWARD, THE ORGANIZATIONAL OMBUDSMAN: ORIGINS, ROLES AND OPERATIONS A

LEGAL GUIDE 105 (2010)

By 1900 the total number of multinational corporations had increased .

. . to approximately 3,000 . . . by 1970 . . . there were around 7,000 . . .

by 1990 the number had grown to approximately 30,000, and by 2000

the number of multinational corporations in the world was more than

63,000.

15 See GEORGE STONEHOUSE, DAVID CAMPBELL, JIM HAMILL & TONY PURDIE, GLOBAL AND

TRANSNATIONAL BUSINESS: STRATEGY AND DEVELOPMENT 4 (2004) (discussing this terminology in

business).


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establishment of branches or subsidiaries in foreign countries.”16 A transnational

corporation has been described as a business conducting “activities across national

boundaries” with “varying degrees of co-ordination, integration and local differentiation

of strategy and operation . . .”17

When it comes to compliance with human rights in an international law context,

the different characteristics of a corporation should not affect the liability of the

corporation as a legal entity.18 Furthermore, as the Guiding Principles state, they “apply .

. . to all business enterprises, both transnational and others, regardless of their size, sector,

location, ownership and structure.”19 Because Transnational Corporation (or company)

(TNC) is the term currently preferred by the United Nations and International Labour

Instruments;20 it will be utilized in this paper to describe any “economic entity operating

in more than one country.”21

16 See INTERNATIONAL ENCYCLOPEDIA OF THE SOCIAL AND BEHAVIORAL SCIENCES 10197 (Neil J. Smelser

& Paul B. Baltes eds., 2001) (“The multinational corporation is, thus, the product of foreign direct

investment that is defined as the effective control of operations in a country by foreign owners.”).

17 GEORGE STONEHOUSE, ET. AL., supra note 15 at 4.

18 See ANDREW CLAPHAM, HUMAN RIGHTS OBLIGATIONS OF NON-STATE ACTORS 195-201 (2006)

(discussing corporate social responsibility, “[T]he adjective ‘transnational’ or ‘multinational’ can be

employed to emphasize different characteristics of certain corporations. It does not really change the nature

of the corporation as a legal entity.”).

19 Guiding Principles, supra note 1, at 6.

20 See THE UN GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS: FOUNDATIONS AND

IMPLEMENTATION viii (Radu Mares ed., 2011) (discussing the use of Multinational Enterprise (MNE) and

Transnational Company (TNC) by various international bodies).

21 See Norms, supra note 10, at 7 (defining “transnational corporation” as “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.”).


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Women and the Global Economy

Females constitute about half the world’s population and presumably should

receive equal treatment as men by TNCs.22 However, as Amnesty International points

out, women are more likely than men to “face abuse from non-state actors, such as their

employers.”23 Globally, “women are much less likely to have a salaried job or to hold a

professional position” than men.24 As Deputy Executive Director Lakshmi Puri has

stated, despite the contribution of women to the betterment of businesses, “[T]he majority

of women are in vulnerable jobs and gender wage gaps are still large. Across all regions

and sectors, women are paid between 10 and 30 percent less than men.”25 Additionally,

“[w]omen occupy only about 1 in 7 of the world’s managerial and administrative jobs

and constitute less than 40% of the world’s professional and technical workers.”26

For women vulnerable employment is common, and is increasing in much of the

world.27 As Oxfam points out, much of this work is precarious because women are

“[c]ommonly hired on short-term contracts – or with no contract at all.”28 Additionally,

22 See World Factbook: Sex Ratio, Central Intelligence Agency, (listing total world population as 1.01

male(s) per female (2011 est.)) available at https://www.cia.gov/library/publications/the-world-

factbook/fields/2018.html#xx (last visited April 14, 2013).

23 Amnesty International, Women’s Human Rights: A Fact Sheet, at 1 “available at

http://www.amnestyusa.org/sites/default/files/pdfs/womens_human_rights_fact_sheet.pdf.

24 JOHN T. ROURKE, INTERNATIONAL POLITICS ON THE WORLD STAGE 464 (2008). (additionally stating,

“[W]orldwide, women are much less likely to have access to paid employment.”) Id. at 161.

25 Speech delivered by UN Women Deputy Director and Assistant Secretary-General Lakshmi Puri at the

UN Women National Committees’ Meeting in Sydney, Australia, (Sept. 5, 2011) available at

http://www.unwomen.org/2011/09/accelerating-gender-equality-worldwide-a-challenge-for-un-women/.

26 ROURKE, supra note 24, at 161 (2008).

27 See The World's Women 2010: Trends & Statistics, United Nations ST/ESA/STAT/SER.K/19, at 75

(“Part-time employment is common for women in most of the more developed regions and some less

developed regions, and it is increasing almost everywhere.”) available at

http://unstats.un.org/unsd/demographic/products/Worldswomen/WW2010pub.htm#.

28 KATE RAWORTH, TRADING AWAY OUR RIGHTS: WOMEN WORKING IN GLOBAL SUPPLY CHAINS 4 (2004)

available at http://www.oxfam.org/sites/www.oxfam.org/files/rights.pdf.


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“women are more likely than men to be hired on short-term, seasonal, casual, or

homework contracts, renewed every year, every three months, or even every day.”29

Thus, women are heavily disadvantaged in many industries “because they often do not

have written contracts, full-time work, or permanent status.”30

Additionally, women make up the majority of the work force in many labor-

intensive industries in several countries.31 The work that women perform in these labor-

intensive industries is often delegated to them because they are women.32 In some

countries women are the preferred workers because “their wages tend to be lower (often

less than $1 per day), and they are considered better suited to repetitive tasks that require

nimble fingers.”33 Furthermore, one author postulates that the fact that women make up

the vast majority of difficult factory and agriculture labor in many countries is not by

“accident.”34 As this author points out, the limitations in women's job opportunities in

these industries “increases their willingness to work in substandard conditions.”35

Furthermore, owners and managers may deliberately or unwittingly “reproduce the idea

29 Id. at 18.

30 Rachel J. Anderson, Promoting Distributional Equality for Women: Some Thoughts on Gender and

Global Corporate Citizenship in Foreign Direct Investment, 32 Women’s Rts. L. Rep. 1, 12 (2010) (“Jobs

created by [Foreign Direct Investment], for example in the subcontracting sector, in which many women

are employed, are often exploitative.” For example, “[W]omen are heavily represented in the agriculture,

textile, and subcontracting sectors where they are at a disadvantage . . .”) Id. at 22.

31 See Figure: “Women as percentage of production employees” (listing percentages as: Colombia 65%,

Honduras 65%, Morocco 70%, Kenya 75%, Bangladesh 85%, Zimbabwe 87%, Cambodia 90%) RAWORTH,

supra note 28, at 17.

32 See Anderson, supra note 30, at 6 (stating “For example, jobs that require the use of tools that can be

used as weapons are considered men's work, while producing textiles, specifically sewing, is considered

women's work.”).

33 See CLAPHAM, supra note 18, at 16 (discussing transnational corporations attraction to Free Trade Zones

that provide “little to no social regulation.”).

34 Tiana O'Konek, Corporations and Human Rights Law: The Emerging Consensus and Its Effects on

Women's Employment Rights, 17 Cardozo J.L. & Gender 261, 265 (2011) (referring to the statistics

reported by Oxfam supra note 32, states, “These statistics do not appear to be an accident.”).

35 Id.


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that women are more docile and compliant and thus more appropriate workers for these

conditions.”36 Thus, TNCs can continue treating women workers unequally “when they

combine low wages for women with a shift from hiring more men to hiring more women

to reduce costs …”37 This type of employment abuse can begin early because girls are

often employed as child laborers, and “when the girls become women, their access to

paid employment decreases.”38

Another factor creating vulnerability in many workplaces for women is education

and training. Women who may become employed by a TNC “often lose out as higher

levels of education are required or subcontractors become increasingly responsible for

structuring certain areas of employment.”39 Thus, “men often receive skills training that

is not provided to women, which inhibits women's mobility into higher paid jobs

requiring an elevated level of skills.”40 Beyond training, TNCs often offer certain

amenities to male workers while not offering amenities to women that would improve a

woman’s work/life balance.41 Thus, the international human rights of women in the

global economy have become increasingly vulnerable, as the influence of TNCs has

increased.

36 Id. (discussing that the garment industry “has harnessed a source of wealth that amplifies gender

inequality and has the cyclical effect of creating a seemingly endless supply of uneducated women willing

to take demanding jobs for low pay and no upward mobility.”).

37 Anderson, supra note 30, at 20.

38 “Seventy percent of the children in the world who do not attend school regularly are girls, while over 100

million girls are employed as child laborers.” Id. at 1.

39 Id. at 12.

40 Id.

41 “[C]orporations operating banana plantations in Africa, the Caribbean, Central America, Latin America,

and the Philippines made brothels available to male workers, they neglected to make other services such as

childcare available to female workers.” Id. at 7.


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Creation of the “Guiding Principles”

An early document produced to address the responsibility of TNCs for human

rights was the “Norms on the Responsibilities of Transnational Corporations and Other

Business Enterprises with Regard to Human Rights” (Norms).42 At the time of the

adoption of the Norms it was noted that “[i]n some countries, compliance with the Norms

might be relevant to determining liability for injuries caused by businesses and their

officers.”43 But, the Norms “triggered a deeply divisive debate between the business

community and human rights advocacy groups while evoking little support from

Governments.”44 Thus an “authoritative focal point”45 was missing, and it was under the

auspices of this authority gap that the Guiding Principles was initiated.

In April 2005, the Office of the High Commissioner for Human Rights requested

that the Secretary-General appoint a special representative to create a report on the issue

of human rights and transnational corporations.46 By April 2008, the United Nations

Special Representative of the Secretary General on Human Rights and Transnational

Corporations and Other Business Enterprises, John Ruggie,47 submitted his report to the

42 Norms, supra note 10.

43 David Weissbrodt & Muria Kruger, Norms on the Responsibilities of Transnational Corporations and

Other Business Enterprises with Regard to Human Rights, 97 Am. J. Int’l L. 901, 921 (2003).


45 Id.

46 Office of the High Commissioner for Human Rights, Human Rights and Transnational Corporations and

Other Business Enterprises SRSG Mandate U.N. Doc. E/CN.4/RES/2005/69 (April 20, 2005) available at

http://ap.ohchr.org/documents/E/CHR/resolutions/E-CN_4-RES-2005-69.doc.

47 Berthold Beitz Professor in Human Rights and International Affairs at Harvard’s Kennedy School of

Government, and Affiliated Professor in International Legal Studies at Harvard Law School, available at

http://www.hks.harvard.edu/m-rcbg/johnruggie/bio.html.


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Human Rights Council.48 This report explicitly pointed out that it was not formulating a

limited list of human rights; rather, the report pursued “the more promising path of

addressing the specific responsibilities of companies in relation to all rights they may

impact.”49

In June 2008, the Human Rights Council had adopted a resolution “[e]mphasizing

that transnational corporations and other business enterprises have a responsibility to

respect human rights.”50 Then in March 2011, Special Representative John Ruggie

submitted his final report presenting the “Guiding Principles on Business and Human

Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework”

for consideration by the Human Rights Council.51 The following June, the Human Rights

Council endorsed the “Guiding Principles” in resolution 17/4.52

The Guiding Principles’ Framework for Business and Human Rights

The Guiding Principles’ “Protect, Respect and Remedy” framework “comprises

three core principles: the State duty to protect against human rights abuses by third

parties, including business; the corporate responsibility to respect human rights; and the

48 UN Human Rights Council, Protect, Respect and Remedy: A Framework for Business and Human

Rights: Report of the Special Representative of the Secretary-General on the Issue of Human Rights and

Transnational Corporations and Other Business Enterprises, A/HRC/8/5 (April 7, 2008), available at

http://www.unglobalcompact.org/docs/issues_doc/human_rights/Human_Rights_Working_Group/29Apr08

_7_Report_of_SRSG_to_HRC.pdf [hereinafter PRR].

49 Id. at 4 (emphasis added).

50 UN Human Rights Council, Mandate of the Special Representative of the Secretary-General on the Issue

of Human Rights and Transnational Corporations and Other Business Enterprises, A/HRC/RES/8/7 (June

18, 2008), available at http://ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_RES_8_7.pdf.

51 Guiding Principles, supra note 1.

52 UN Human Rights Council, Human Rights and Transnational Corporations and Other Business

Enterprises, A/HRC/RES/17/4, at 2 (June 16, 2011) available at

http://www.unglobalcompact.org/docs/issues_doc/human_rights/A.HRC.17.RES.17.4.pdf.


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need for more effective access to remedies.”53 Of the second pillar regarding corporate

responsibility to respect to human rights, Special Representative Ruggie wrote that it “in

essence means to act with due diligence to avoid infringing on the rights of others . . .”54

As he puts it, there is one “near-universally” recognized social norm regardless of a

company’s region of establishment or industry, “the corporate responsibility to respect

human rights — or, put simply, to not infringe on the rights of others.”55

The Guiding Principles’ section containing “The corporate responsibility to

respect human rights” has two parts: the Foundational Principles; and the Operational

Principles. Each principle has several subparts and commentaries. The first foundational

principle directs that TNCs should “respect human rights.”56 The commentary to the

principle states this respect should take place “wherever they operate . . . independently

of States’ abilities and/or willingness to fulfil [sic] their own human rights obligations.”57

Therefore, the Guiding Principles establish that the responsibility to respect human rights

“exists over and above compliance with national laws and regulations protecting human

rights.”58 The second foundational principle states that a TNC’s responsibility to respect

human rights is “understood, at a minimum, as those expressed in the International Bill of

Human Rights and the principles concerning fundamental rights set out in the

International Labour Organization’s Declaration on Fundamental Principles and Rights at

53 PRR, supra note 48, at 1.

54 John Gerard Ruggie, Protect, Respect and Remedy: A United Nations Policy Framework for Business

and Human Rights, 103 Am. Soc’y Int’l L. Proc. 282 (2009).

55 “As a well-established and institutionalized social norm, the corporate responsibility to respect exists

independently of state duties and variations in national law. There may be situations in which companies

have additional responsibilities. But the responsibility to respect is the baseline norm for all companies in

all situations.” Id. at 284.


57 Id.

58 Id.


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Work.”59 Additionally, the commentary to this principle explains that the International

Bill of Human Rights consists of the Universal Declaration of Human Rights (UDHR),

the International Covenant on Civil and Political Rights (ICCPR), and the International

Covenant on Economic, Social and Cultural Rights (ICESCR).60

It is here that the major flaw with the Guiding Principles in respect to the human

rights of women in the global marketplace emerges. The Guiding Principles give no

direct guidance on the rights of women, and the human rights documents it directly

mentions are problematic in regard to women’s human rights. This is because the

experience of women regarding both human rights and their violations “are unique.”61

Thus, for TNCs to operate under the assumption that the human rights they are respecting

are universal is particularly problematic in regard to the human rights of women.62

The International Bill of Human Rights and International Labour Organization

Standards Lack Protection for the Human Rights of Women

Universal Declaration of Human Rights

The modern conceptualization of international human rights began with the

Charter of the United Nations in 1945.63 This document outlined that all member states of

59 Id.

60 Id.

61 See Amnesty International, supra note 23.

62 Id. “While human rights are often understood as the rights that everyone has by virtue of their humanity,

the assumption that all humans have the same experiences and needs is particularly problematic for

women.” See also Organizational Irrationality and Corporate Human Rights Violations, 122 Harv. L. Rev.

1931, 1950 (2009) (“In calculating the potential costs of human rights violations, corporations might not

only misinterpret information about their likely complicity, but also underestimate the risk of enforcement

against them.”).

63 U.N. CHARTER, available at http://treaties.un.org/doc/Publication/CTC/uncharter.pdf.. See also HENRY J.

STEINER, PHILIP ALSTON, & RYAN GOODMAN, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW

POLITICS MORALS 134 (3d ed. 2008) (“The United Nations Charter itself first gave formal and

authoritative expression to the human rights movement that began at the end of the Second World War.”).


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the United Nations promote and encourage respect for human rights,64 and pledge

themselves to promoting universal respect for, and observance of, human rights.65 While

the UN Charter utilized the term human rights, “this idea was not well understood.”66

Thus, the United Nations’ expression of human rights was carried further with the

Universal Declaration of Human Rights (UDHR) in 1948.67 But, while the UDHR can be

used by courts to determine if a human right has been violated,68 the UDHR is neither a

treaty nor legally binding on nations69 (much less corporations).70 Additionally, at its

outset, the UDHR was not without controversy.71 Moreover, today the universality of the

UDHR is subject to question,72 and as one author writes:

64 U.N. Charter, supra note 63, art. 1, para. 3 (stating, “To achieve international co-operation in solving

international problems of an economic, social, cultural, or humanitarian character, and in promoting and

encouraging respect for human rights and for fundamental freedoms for all without distinction as to race,

sex, language, or religion . . .”) (emphasis added).

65 U.N Charter, supra note 63, art. 55(c) (stating in part, “ . . . the United Nations shall promote: . . .

universal respect for, and observance of, human rights and fundamental freedoms for all without

distinction as to race, sex, language, or religion.”) (emphasis added). See also U.N. Carter art. 56 ( stating,

“All Members pledge themselves to take joint and separate action in co-operation with the Organization for

the achievement of the purposes set forth in Article 55.”) (emphasis added).

66 VALERIE EPPS & LORIE GRAHAM, INTERNATIONAL LAW EXAMPLES & EXPLANATIONS 191 (2011)

(discussing how this lack of understanding of human rights extended both “in terms of what it might entail

or what duties and responsibilities it might impose upon States.”).

67 Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10,

1948) available at http://www.un-documents.net/a3r217a.htm [hereinafter UDHR].

68 See GERHARD VON GLAHN & JAMES LARRY TAULBEE, LAW AMONG NATIONS: AN INTRODUCTION TO

PUBLIC INTERNATIONAL LAW 450 (2007) (stating “The UDHR has . . . served as a convenient standard by

which many jurists and even national courts have evaluated compliance with the broad human rights

provisions of the UN Charter.”).

69 See EPPS & GRAHAM, supra note 66, at 192 (discussing that the UDHR is not a treaty or covenant, and

thus not “per se legally binding”). See also GLAHN & TAULBEE, supra note 68, at 447 (stating “[T]he

UDHR stands as a statement of desired goals rather than black letter, substantive, law.”).

70See John Douglas Bishop, The Limits of Corporate Human Rights Obligations and the Rights of For-

Profit Corporations, 22 BUSINESS ETHICS QUARTERLY 1, 126 (2012) (discussing that the human rights

listed in the UDHR place significant obligations on governments but, “Corporations are different sorts of

entities than governments and therefore should not have the same human rights obligations.”) available at

http://secure.pdcnet.org/8525737F005803FF/file/AC0CD32EC34175C285257950004898E5/$FILE/beq_2

012_0022_0001_0125_0150.pdf.

71 See Fereydoun Hoveyda, The Universal Declaration and Fifty Years of Human Rights, 8 Transnat’l L. &

Contemp. Probs. 429, 430 (1998) (stating, “The Communists considered it one-sided because, they said, it


13

[W]e do not need to look far to find instances of grave

disagreement over what constitutes a fundamental human

right. One should look no further than the 1948 Universal

Declaration of Human Rights (UDHR) to see some very

contentious propositions about rights that every human

being should posses.73

Furthermore, Professor Catharine A. MacKinnon has criticized the UDHR as not

clearly addressing the human rights of women. Of Article 1, which states that all human

beings “should act towards one another in a spirit of brotherhood,”74 MacKinnon writes,

“Must we be men before its spirit includes us?”75 MacKinnon further addresses that this

article could be seen as too literal by asking, “[I]f we were all enjoined to “act towards

one another in a spirit of sisterhood,” would men know it meant them, too?”76

Additionally, she criticizes Article 2377 by asking, “Are women nowhere paid for the

work we do . . . because we are not “him”?”78 Furthermore she criticizes the UDHR in

total by stating that this international human rights instrument, “might have mustered the

proclaimed Western capitalistic values and disregarded the true interests and needs of the masses.” Id.

“Additionally, in Muslim countries, religious leaders disapproved of the Declaration. In their view, some

articles were in absolute contradiction to the teachings of the Koran.” Id.).

72 See Riffat Hassan, Ph.D. Are Human Rights Compatible with Islam?

What needs to be pointed out to those who uphold the Universal

Declaration of Human Rights to be the highest, or sole, model, of a

charter of equality and liberty for all human beings, is that given the

Western origin and orientation of this Declaration, the "universality" of

the assumptions on which it is based is - at the very least - problematic

and subject to questioning.

available at http://www.religiousconsultation.org/hassan2.htm (last visited April 14, 2013).

73 GLAHN & TAULBEE, supra note 68, at 446-47.

74 UDHR, supra note 67, art. 1.

75 CATHARINE A. MACKINNON, ARE WOMEN HUMAN?: AND OTHER INTERNATIONAL DIALOGUES 42

(2006).

76 Id.

77 UDHR, supra note 67, art. 23 para. 3 (stating in part, “Everyone who works has the right to just and

favourable remuneration ensuring for himself and his family an existence worthy of human dignity . . .”).

78 MACKINNON, supra note 75, at 42.


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specificity to mention women sometime, other than through ‘motherhood,’ which is more

bowed to than provided for.”79

The International Covenant on Civil and Political Rights and the

International Covenant on Economic, Social and Cultural Rights

In 1966 the General Assembly of the United Nations adopted the International

Covenant on Civil and Political Rights (ICCPR)80 and the International Covenant on

Economic, Social and Cultural Rights (ICESCR).81 The ICCPR guarantees such rights as:

the right to life; human dignity; equality before the law; freedom of speech, assembly and

association and religion; and freedom from torture, ill-treatment, and arbitrary detention.

The ICESCR relates to such rights as the right to work and working conditions, and the

right to form trade and labor unions, health care, and education.

While these two covenants can be considered steps forward for human rights, they

have not been without controversy, especially as they relate to the human rights of

women. As one author writes, their enactment “marked the beginning of the perceived

hierarchy of civil and political rights over economic, social, and cultural rights …”82

Thus, this hierarchy of rights “negatively affected women because men were considered

exclusive occupants of the civil and political realm and because gender roles curtailed

women's economic, social, and cultural rights to such an extent that they were unable to

79 Id.

80 International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No.

16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S., at 171 (Dec. 19, 1966) available at

http://treaties.un.org/doc/publication/UNTS/Volume%20999/v999.pdf [hereinafter ICCPR].

81 International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N.

GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S., at 3 (Dec. 16, 1966) available at

http://treaties.un.org/doc/publication/UNTS/Volume%20993/v993.pdf [hereinafter ICESCR].

82 Johanna E. Bond, International Intersectionality: A Theoretical and Pragmatic Exploration of Women's

International Human Rights Violations, 52 Emory L.J. 71, 87 (2003) (discussing how the ICCPR “included

stronger obligations on the part of States parties and stronger enforcement mechanisms” and thus seen as

dominant).


15

express their civil and political selves.”83 Furthermore, another author criticizes the

ICCPR’s protection of gender equality, specifically Article 20,84 by stating, “On its face,

Article 20 does not proscribe advocacy of hatred based on sex.”85 This author concludes

the ICCRP’s message is that violence based on gender is not as prohibited as violence

based on other human characteristics and that this message is “powerful and frightening,

given the prevalence of violence against women especially when combined with some of

the cultural pretexts.”86 This author further criticizes ICESCR Article 1387 and its

omission of gender from its list of protected classes, by stating this “signifies that

exclusion from participation in a free society on the basis of sex is not only acceptable

but the rule of law.”88

International Labour Organization Standards

While the International Labour Organization’s (ILO) Declaration on Fundamental

Principles and Rights at Work89 lists only four core labor standards, currently the ILO’s

83 Id.

84 ICCPR, supra note 80, art. 20 para 2 (stating “Any advocacy of national, racial or religious hatred that

constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”).

85 Berta Esperanza Hernandez-Truyol, Women's Rights As Human Rights - Rules, Realities and the Role of

Culture: A Formula for Reform, 21 Brook. J. Int’l L. 605, 642 (1996).

86 Id. at 642-43.

87 ICESCR, supra note 81, art. 13 para 1 (stating in part that States “agree that education shall enable all

persons to participate effectively in a free society, promote understanding, tolerance and friendship among

all nations and all racial, ethnic or religious groups . . .”).

88 See Hernandez-Truyol, supra note 85, at 644 (stating “This exclusion of sex is significant because of the

paramount importance of education to women's self-determination, overall well-being, and particularly to

the attainment of human rights.”).

89 Declaration on Fundamental Principles and Rights at Work, Int'l Lab. Org. [ILO], 86th Sess. (June 18,

1998), 37 I.L.M. 1233 (1998), 1998 WL 778019.


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Governing Body identifies eight conventions as "fundamental."90 These constitute the

ILO Declaration on Fundamental Principles and Rights at Work and are listed as the

Freedom of Association and Protection of the Right to Organise Convention; Right to

Organise and Collective Bargaining Convention; Forced Labour Convention; Abolition

of Forced Labour Convention; Minimum Age Convention; Worst Forms of Child Labour

Convention; Equal Remuneration Convention; and the Discrimination (Employment and

Occupation) Convention.91

One author describes the core ILO standards as having “major potential flaws.”92

Additionally, difficulty involving ILO labor standards that can affect women can arise

from “irreconcilable cultural traditions.”93 This author further elaborates that the ILO

standards have been characterized as “offering ‘de minimus [sic] protection”94 and not

protecting rights such as “workplace safety, limits on the hours of work and rights to

periods of rest, and freedom from workplace abuse”95 and does not “assert a global

minimum wage, or create a right to a fair or living wage.”96 As discussed above, these

rights are of particular importance to women in the workplace.

Further, another author writes that a leading scholar suggests that “the ILO

Declaration is not a useful tool for those affected by human rights violations because it

90 Conventions and Recommendations: Fundamental conventions, International Labour Organization,

available at http://www.ilo.org/global/standards/introduction-to-international-labour-

standards/conventions-and-recommendations/lang--en/index.htm (last visited April 14, 2013).

91 Id.

92 See Philip Alston, ‘Core Labour Standards’ and the Transformation of the International Labour Rights

Regime, 15 Eur. J. Int’l L. 457 (2004).

93 Id. at 471.

94 Id. at 486.

95 Id.

96 Id.


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lacks a ‘grievance procedure with . . . some meaningful remedy.’”97 Additionally, the

ILO’s core labor standards can be criticized as being male centric, and thus do not

address the realities of women in the workplace.98 Even standards specifically focused on

women, such as Convention 111 Concerning Discrimination in Respect of Employment

and Occupation,99 may carry little weight because the application of the ILO standards

have “encountered serious obstacles because it requires detailed, complex and ongoing

assessments to be undertaken of the comparable worth of jobs, in both the public and

private sectors.”100

Current Ratification Status of IBHR and ILO Documents

As of April 2013, out of the total number of 193 UN Member nations, complete

ratification of the IBHR’s conventions or the ILO standards is lacking. Currently, 167

countries have ratified the ICCPR,101 with only 160 countries having ratified the

ICESCR.102 As far as the ILO Standards, only 137 countries have endorsed all eight. In

regard to the standards most directed towards women, the Equal Remuneration

97 O'Konek, supra note 34, at 272.

98 “The contents of the core labour standards are based on assumptions underlying the male construction of

employment relations. Their focus on the right to organize and collective bargaining is disconnected from

women's experiences in global supply chains and thus inadequate to protect their employment rights.” Id. at

283.

99 See Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation, 362

U.N.T.S. 31, ILO, 42d Sess. (June 25, 1958) available at

http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO::P12100_ILO_CODE:C111 [hereinafter

Convention 111].

100 Adelle Blackett, Whither Social Clause? Human Rights, Trade Theory and Treaty Interpretation, 31

Colum. Hum. Rts. L. Rev. 1, 25 (1999).

101 International Covenant on Civil and Political Rights, United Nations Treaty Collection, available at

http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en (last

visited April 14, 2013).

102 International Covenant on Economic, Social and Cultural Rights, United Nations Treaty Collection,

available at http://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&lang=en&mtdsg_no=IV-

3&src=TREATY (last visited April 14, 2013).


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Convention (Convention 100)103 and the Discrimination (Employment and Occupation)

Convention (Convention 111);104 five countries have not ratified just Convention 100105

and four have not ratified just Convention 111.106 Furthermore, nine countries have not

ratified both Convention 100 and 111.107

Conclusion

While the Guiding Principles are a positive step forward in holding transnational

corporations to international human rights standards, they currently do not fully address

the human rights needs of women in the growing global economy. This is based on its

reliance on specific human rights instruments such as the IBHR and the ILO Standards

while not referencing other international instruments such as the Convention on the

Elimination of all Forms of Discrimination against Women.108 Thus, while the Guiding

Principles state it is not “foreclosing any other promising longer-term developments,”109

it is currently no guiding light on women’s human rights.

103 Convention (No. 100) Concerning Equal Remuneration for Men and Women Workers for Work of

Equal Value, art. 1(b), 165 U.N.T.S. 303, ILO, 34th Sess. (June 29, 1951) (stating “the term equal

remuneration for men and women workers for work of equal value refers to rates of remuneration

established without discrimination based on sex.”).

104 Convention 111, supra note 99, art. 1 para. (a), “any distinction, exclusion or preference made on the

basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the

effect of nullifying or impairing equality of opportunity or treatment in employment or occupation . . .”.

105 Ratifications of fundamental Conventions by country, International Labour Oranization, available at

http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:10011:3799616040686392::NO:10001:P10011_

DISPLAY_BY,P10011_CONVENTION_TYPE_CODE:2,F (last visited April 14, 2013).

106 Id.

107 Id.

108 Convention on the Elimination of all Forms of Discrimination Against Women, G.A. Res. 34/180, U.N.

Doc. A/34/46 (Dec. 18, 1979).


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