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A major criticism of the Tripartite Declaration concerns the confidential interpretationprocedure. The interpretation procedure has the potential to clarify the TripartiteDeclaration as situations arise, taking into account perspectives of three sectors; however, inpractice the procedure is ineffective. Furthermore, the procedure provides limited relief toaffected parties, in that the procedure is limited to interpreting the Tripartite Declaration.Perhaps the most important observation concerns the confidentiality of the procedure. Asthe Tripartite Declaration is a voluntary instrument, the only available sanction involvespublic perception, boycotting and shaming. The identities of corporations involved in theprocess are kept confidential and are therefore shielded from public scrutiny and potentialembarrassment.The Tripartite Declaration refers to a long list of ILO Conventions; for member-statesthat have ratified them, these conventions are non-voluntary. However, as the TripartiteDeclaration is not drafted in compulsory language, the obligations it creates are not legallybinding on MNEs. This language, combined with a lack of monitoring and implementationmechanisms, and limited dispute resolution creates a mere aspirational declaration withoutany legal mandate. Implementation of the Tripartite Declaration depends on states toincorporate the instrument domestically, NGOs to promote the instrument and campaignfor its incorporation and MNEs to adhere to the obligations. The legal impact is furtherlessened by the Declaration’s declaration of the primacy of national laws. Accordingly, itcan be argued that the ILO is unable to prevent host states from adopting lax labour andenvironmental standards, and TNCs cannot be condemned for taking advantage of suchstandards.While the argument could be made that the tripartite structure of the Tripartite Declarationis its strongest attribute, in that it articulates a role for all three parties; an argumentcan be made that it is also a weakness. For example, in the context of the interpretationprocedure, only two of the four receivable requests passed unanimously and concludes thisdemonstrates how difficult it is for the three officers representing the three different partieswithin the ILO to reach an agreement. It is perhaps over-reaching to state commentatorshave criticised the Tripartite Structure as ineffective; however, in the context of decisionmaking,it is fair to argue that the tripartite structure creates some obstacles.2.4.2.1.3 Organization for Economic Co-operation and Development initiativesIn 1976, the OECD published its Guidelines for Multinational Enterprises 184 as an annexto its Declaration on International Investment and Multinational Enterprises. 185 It is a setof recommendations addressed to MNEs to provide standards for ‘responsible businessconduct.’ 186 The Guidelines aim to encourage MNEs to make positive contributions tothe social, economic and environmental welfare in territories in which they operate. 18742|Private Sector Accountability in Combating the Commercial Sexual Exploitation of Children
Originally addressing only multinationals, the 2000 review extended the scope to alsocover domestic enterprises. The Guidelines are not legally binding on MNEs, howeveradhering states have agreed to implement and encourage corporations operating in, orfrom their states, to observe the Guidelines.The Guidelines develop through principles separated by ten headings. The Guidelinesare then divided into ten sections: Concepts and Principles; General Policies; Disclosure;Employment and Industrial Relations; Environment; Combating Bribery; ConsumerInterests; Science and Technology; Competition; and Taxation. 188 Similar to the TripartiteDeclaration, some principles have been clarified by the Committee on InternationalInvestments and Multinational Enterprises (CIIME), meaning, CIIME has interpretedhow certain provisions should be understood. Unlike the Tripartite Declaration, clarifications“… do not modify the authoritive texts […].” 189 For this reason, the Clarifications will notbe explored. The Guidelines are also supplemented by a commentary, agreed to during the2000 Review. The Commentary explains the Guidelines and Implementation procedurebut is not part of the Declaration. 190 The Commentary will be explored to the extent thatit clarifies MNEs obligations under the Guidelines.The Guidelines contain two foundational sections, through which the substantive sectionsare to be read: Concepts and Principles 191 and General Policies. 192 In neither section isMNE defined; however, like the Tripartite Declaration, elements of MNEs are provided. 193Importantly, the primacy of national law and policy of host countries is established. 194Within this framework, MNEs are given a role in economic, social and local development. 195Notably, MNEs are asked to “[c]ontribute to economic, social and environmental progresswith a view to achieving sustainable development[,]” 196 “[r]espect the human rights ofthose affected by their activities […]” 197 and “[e]ncourage local capacity building [… ].” 198Finally, MNEs and host governments are encouraged to cooperate when resolvingconflicts in obligations. 199 The Commentary extends co-operation to a partnership in thedevelopment and implementation of policies and laws. 200The principles established in the foundational sections inform, and are further developedby, the substantive principles. The first relevant and substantive section, employmentand industrial relations, focuses on worker’s rights regarding collective bargaining andrepresentation; occupational health and safety; employee training; and reasonable noticeof major changes. Although significantly less detailed, it is the human rights provision,added in 2000, which is more relevant to the discussion. 201The human rights provision consists of four short principles, prefaced by a “chapeau”referencing ‘applicable law, regulations and prevailing relations and employment practices.’ 202Private Sector Accountability in Combating the Commercial Sexual Exploitation of Children|43
Page 5 and 6: PRIVATE SECTOR ACCOUNTABILITYIN COM
Page 7 and 8: 3. Travel and Tourism Sub-Sector 63
Page 9 and 10: Executive SummarySince the First an
Page 11 and 12: from the sale of child pornography
Page 13 and 14: 1.1 Defining Commercial Sexual Expl
Page 15 and 16: The issue of commercial sexual expl
Page 17 and 18: 1.2.1 Transnational and multination
Page 19 and 20: offer stronger protections against,
Page 21 and 22: 1.3 Defining Corporate Social Respo
Page 23 and 24: Parliament passed a law requiring a
Page 25 and 26: 2. International Standards and the
Page 27 and 28: In terms of international law, the
Page 29 and 30: alia: establish the grounds for cri
Page 31 and 32: The ILO Convention No. 138, Concern
Page 33 and 34: 2.4 Existing Legal Mechanisms to En
Page 35 and 36: 2.4.2 Existing mechanisms for regul
Page 37 and 38: Governments play an auxiliary role
Page 39: lack of ) monitoring and enforcemen
Page 42 and 43: who follow relevant international l
Page 44 and 45: the Commentary references the rule
Page 46 and 47: 2.4.2.1.2.1 Tripartite DeclarationT
Page 48 and 49: Unlike the preceding sections, whic
Page 52 and 53: MNEs are asked to respect worker’
Page 54 and 55: Guidelines voluntary, but non-OECD
Page 56 and 57: An alternative to the above is to r
Page 58 and 59: freedom from state interference in
Page 60 and 61: During the Nuremburg Tribunals, Ger
Page 62 and 63: ATCA expanded liability for interna
Page 64 and 65: Pursuant to the holding in Kadic re
Page 66 and 67: The Court could establish jurisdict
Page 68 and 69: likely come across similar obstacle
Page 70 and 71: ecognised by customary internationa
Page 72 and 73: The report draws together a number
Page 74 and 75: means of fostering international pe
Page 76 and 77: a resolution, as well, in which it
Page 78 and 79: The Swedish document was originally
Page 80 and 81: services are designed to combat chi
Page 82 and 83: into contact with individuals who c
Page 84 and 85: children’s perception of the worl
Page 86 and 87: advertisement. The European adverti
Page 88 and 89: high-profile case in the US where a
Page 90 and 91: child actors have gone on in adulth
Page 92 and 93: 5. New Technologies Sub-Sector5.1 C
Page 94 and 95: North American cases illustrate how
Page 96 and 97: With the advent of the social netwo
Page 98 and 99: up to $US 500 if they violate the c
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As the genre is so new, there have
Page 102 and 103:
- children’s rights advocates, go
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law enforcement agencies, but equal
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6. Financial Sub-SectorIt has been
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law enforcement is having trouble u
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encourage cooperation and follow-up
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emedies against all corporations op
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Another important objective of the
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Endnotes1 Mark Erik Hecht is an aca
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35Canada. Industry Canada. Corporat
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84On 31 Jan. 1999, UN Secretary-Gen
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110Norms, D.111Norms, point 5. (Rea
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143Ibid., “General Policies.” P
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179Ibid., Annex, III: Global Report
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of the Guidelines).212Ibid., Part I
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258Ibid.259UNWTO Report to the UN G
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310Ibid., 12.311Council of Europe,
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Germany and South Africa, ISPs are
Page 137:
The World Congress III against Sexu
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