When international and national norms conflict

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When international and national norms conflict

Companies sometimes face situations in which national law or local practice conflicts with international human rights principles. National authorities generally require compliance with their laws; local communities may demand observance of traditional practices; while others may advocate adherence to international human rights standards, as might the company itself for reasons of principle and consistency.

There are places in which law (including United Nations or home state sanctions) prohibits companies from operating, or where the risk of becoming involved in international crimes is so great that companies should refrain from doing business there. But the vast majority of cases do not fall into these categories, leaving companies left with the challenge of finding ways to honor the principles of international human rights standards without violating national law.

Companies faced with this situation have taken different approaches:

Some multinational companies left South Africa during Apartheid to avoid having to implement discriminatory practices, while others stayed and explicitly disobeyed segregation laws, challenging the government to enforce its own legislation.
To honor the spirit of freedom of association where it is curtailed by the government, some companies have encouraged workers to form their own representative structures, facilitated elections of worker representatives, provided education on labor rights, and trained local management on how to respond constructively to worker grievances.
Companies in the internet and telecommunications sector have responded to government challenges to free expression and privacy by working with human rights advocates to develop guidance on what steps companies should take when faced with such challenges.
Questions for discussion:
What principled guidance can the SRSG provide to companies faced with conflicts between national and international norms?
How should the nature of the rights at risk and the severity of possible abuses be taken into account when dealing with such conflicts?
How might multinational companies address this situation differently from domestic companies?
What examples can you cite of a company having grappled with conflicts between norms, and how would you evaluate the effectiveness of the company’s actions?
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posted by: JeffMowatt on Thursday December 3, 2009Ratings Relevance: 0 5 Agreement: 0 0
We’re a small UK business, a social enterprise, with a social mission in Ukraine and an International Director who is resident in country. By the norms of their constitution, he shares the residential obligation to act on information of harm being done to vulnerable children, which has been found within institutions for disabled children.


This was later presented in a strategy paper, as part of a comprehensive economic development proposal which has begun to have impact 3 years later, in some but not all of the areas identified.

Free expression, for us, is limited more by other businesses which host defamatory content on our activism, and for local residents by the application of “super injunctions” from London which suppress web content.

Multinational companies and the associations which represent them might be more receptive to requests for colllaboration and assistance with intervention.

There is a case for enlightened self interest in the knowledge that Interpol estimates a market of $100 million in the child porn industry alone. Add to this human trafficking and the 1.6% official rate of HIV infection and we have problems developing on the doorstep of Europe which will incur both financial and social cost.

Jeff Mowatt

People-Centered Economic Development

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posted by: Nora Gotzmann on Sunday January 10, 2010Ratings Relevance: 5 0 Agreement: 5 0
Perhaps it would be useful for guidance on conflicts between national and international norms to include some notes on company behaviour in ‘permissive’ spaces. Ie. whilst there are clearly instances where national and international norms directly conflict there are also many instances where there national law does not impose a direct prohibition and a company can therefore implement the international standard. Eg. the national law might not set a minimum wage but nor does it prohibit that the company pays a minimum wage, the law does not restrict overtime but nor does it prohibit the company from implementing its own overtime restrictions etc. etc.
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posted by: Dunstan on Thursday January 14, 2010Ratings Relevance: 5 0 Agreement: 5 0
I think these are very tough questions – lots of grey, no black and white. The Global Network Initiative (www.globalnetworkinitiative.org) is a great example of companies and stakeholders trying to think through the underlying principles that should inform company thinking when local law and international human rights are in conflict, while not defining a one-size-fits-all approach for all companies in all situations. Rather, a company’s decision on whether to enter or leave a market can be informed by a huge range of factors including timing, relationships, the nature of their products and the impact on local human rights. The context is critical. I think that once companies are in a country there can be all sorts of ways in which they can minimize their negative impacts on human rights – and maximize the positive – and there are also ways of working to improve the human rights standards in a country over time. The Global Network Initiative principles and implementation guidelines are an attempt to do this, and contain a number of very specific commitments to address freedom of expression and privacy challenges (such how to limit content restrictions) in a market and actions companies can take (such as choosing to challenge through local legal processes, or calling attention to human rights abuses internationally). Sadly, staying in a market and engaging – working to improve the local human rights standards over time – is very tough and will necessarily involve compliance with local laws that conflict with international human rights standards. What’s important to me is that the decision on whether or not to enter a market is taken carefully with the impact on human rights in mind – with the use of human rights due diligence tools for example – and that once in the market companies have deliberate and well planned mitigation strategies in place.

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posted by: Lcb911 on Saturday January 23, 2010Ratings Relevance: 6 0 Agreement: 2 0
Complexity arises when national law conflicts with those international instruments, in which case legal compliance could undermine the responsibility to respect. In such situations, which have come up under South Africa’s Apartheid regime and in relation to, inter alia, freedom of association, gender discrimination, and most recently free expression and privacy in the internet and telecommunications sectors, experience suggests a decision tree for companies.

Each stage of this process results in either an acceptable solution whereby the company can comply with domestic requirements without risking infringement of human rights, or further action.
Decision Tree Analysis Process:
1. Explore whether there is a way to reconcile the conflict between standards;
2. If no reconciliation possible then attempt to negotiate an exception or solution with the State;
3. If mediation or informal discussion with State officials is unsuccessful, then challenge the law;
4. Where challenge is unsuccessful consider whether operating in the jurisdiction in question is still feasible, assuming that the company is now forced to choose between national and international standards.

1. The exercise of reconciling standards van involve the efforts of a number of departments in the corporation. Lawyers might be tasked to determine whether there are reasonable ways to avoid conflict, or whether reasonable alternative interpretations of national or international law is feasible; industry standards or local practice might be reviewed; officials might reach out to international bodies or local civil society elements for interpretation. Additionally, the company might review its planned actions in light of its objectives. Many times it may be possible to find alternative means to the same objective that avoids conflict. These processes are usually informal but can also lead to a decision to invoke formal processes for definitive interpretation (and thus lead to stage two).
2. In this stage, there is an assumption that reconciliation is impossible and alternative means of avoiding conflict are not feasible. Now both formal and informal contacts must be made with the appropriate State officials to seek top mediate the conflict. This may involve a number of alternative approaches, from negotiating an agreement with the State (with the object of reaching an agreement that avoids violation of human rights norms), to seeking protection under bilateral investment treaties that incorporate international standards, to seeking legislative change in an appropriate manner.
3. It is possible that discussions with State officials may not produce agreement that satisfies the requirements of international standards. In that event, the company miust determine whether it ought to challenge the inconsistent national legislation. Challenge may take one of two forms in most cases. Usually this course suggests a legal challenge to inconsistent state law. Sometimes it may suggest political challenge. In the latter event, it may be important to solicit the help and counsel of local civil society elements. Special sensitivity ought to be exercised when engaging in challenge in countries with weak government or in conflict zones.
4. Only when lawful challenge proves unsuccessful does a company actually face the issue suggested by the problem–reconciling inconsistent national and international obligations to respect human rights. In that case, the company must make a decision based on the greater good in terms of human rights. The example of Google’s well publicized initial determination to engage in business in China in the face of national censorship requirtements provides a good illustration of the nature of the decision. In that case, Google decided that there was more human rights benefits to providing some greater amount of information to Chinese customers than to abandon China altogether. It is important to remember that decisions made in this context are dynamic. They require constant review as circumstances change. Where the human rights benefits diminish in the face of continued onconsistency in legal requirements, then the company must reevaluate its business decision in order to meet its “respect” requirements under the three pillar mandate.

All of these steps could be more effective if taken in collaboration with peer companies, nongovernmental allies, and where applicable the home state. This is especially useful where these collectives can develop models of decision and analysis that are context specific–the example for labor issues, or for issues peculiar to a particular industrial sector. It might also provide a useful area to stimulate collaboration between industry and civil society groups.

Engaging in the analysis suggested by this decision tree has a number of advantages. First, it clarifies issues relating to the decision. It helps to naturalize human rights within the conventional patterns of corporate routines for making business decisions. In a sense, the decision tree approach suggested here is similar to decision processes whenever businesses must make a decision in the face of conflict and uncertainty. Lastly, it provides a method for reducing the danger of treating human rights issues as either unmanageable or special (in the sense that it represents a class of issues that are unnatural within the corporate decision making context).

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posted by: Katharina Hermann on Wednesday January 27, 2010Ratings Relevance: 5 0 Agreement: 5 0
There is indeed very little guidance for companies facing this dilemma. To my knowledge, the only guidance that currently exists are a few mentions in the SRSG’s reports to the Human Rights Council; the GNI principles referenced above; and two publications from the Danish Institute for Human Rights, which – in case of a conflict – suggest to distinguish between the principle and the standard of a right: Standards are considered to be the way “in which such principles are expressed and implemented in individual situations”; while human rights principles had near universal acceptance, this was not the case for human rights standards which were subject to cultural and pragmatic considerations. Thus the Institute suggests that companies act with a degree of flexibility in the case of a violation of a standard as opposed to a principle: While the protection of the standard may not be achieved, it should be a goal to protect the principle, e.g. explore other means of protecting the workers’ right to representation. The guide also proposes a balancing test as to whether the operation’s benefits will outweigh the harm done. Further the Institute suggests the company make a public statement regretting to not be able to conform to international human rights standards and informing the public of alternative procedures the company has put in place.

In addition, the forthcoming ISO 26000 will have a section on this topic. Does anyone know of other existing relevant guidance?

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posted by: Elizabeth on Friday February 5, 2010Ratings Relevance: 3 0 Agreement: 2 0
In some circumstances it may be possible to negotiate an agreement with the host government that is to their benefit as well as to the company’s and the community’s benefit. My company has experience of reaching agreement with host governments about security arrangements for facilities, including the provision of security by people from the local communities, who are trained assuring security in a way that respects human rights. The agreements with government have included arrangements whereby police and/or army become involved only if a security incident reaches a defined level of seriousness. Police and army are also trained in human rights. Exercises are held periodically to test the efficacy of the arrangements. This type of agreement can work well if all the parties approach it in good faith and if they all believe that they will get benefit from it.

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posted by: marcusC on Tuesday March 30, 2010Ratings Relevance: 1 0 Agreement: 1 0
Corporate practice should be consistent with international norms in cases where the national norms do not sufficiently protect worker rights. Too often the national legal framework’s inability or unwillingness to protect worker rights is offered as a justification for corporate disregard for international norms and fundamental rights. The Performance Standards of the International Finance Corporation offer one tenable approach for the more complicated case of countries where independent unions are unlawful. Performance Standard Two states, “Where national law substantially restricts workers’ organizations, the [company] will enable alternative means for workers to express their grievances and protect their rights regarding working conditions and terms of employment

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