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Guidelines voluntary, but non-OECD states are not even targeted. Furthermore, adoptionand adherence by a broader political, economic and social spectrum would go further tochange the behaviour of MNEs.Symptomatic of voluntary instruments is permissive language; the Guidelines are noexception. Particularly, the human rights provision where MNEs are ‘encouraged’ to‘respect’ human rights. Not only is this provision drafted in permissive language, but theactual content of the provision is ‘ill-defined.’ This criticism is not limited to the humanrights provision; the Guidelines, generally, “… [are] particularly vague in their enunciationof corporate […].” For instance, enterprises are asked to take adequate steps to ensureoccupational health and safety, but the Guidelines do not say what qualifies as adequate.Similarly, the child labour provision asks enterprises to contribute to the effective abolitionof child labour, but does not say what activities qualify as contributing. Finally, the GeneralPolicies section uses the phrase good corporate governance without further clarifying whatkinds of principles and practices this may include.Assuming all parties do understand their duties, weak follow-up procedures undercut anyvalue the Guidelines may contain. A 2003 report, states the OECD has “… noted sixty-fourinstances of alleged non-observance of the guidelines by MNCs that had been filed withNCP. This is because, according to critics, the OECD created no enforcement mechanismto go along with its Guidelines. As a result, implementation of the Guidelines depends onindividual adhering states and their NCPs.While, in general, the follow-up mechanisms have attracted some criticism, so too have thedispute and review processes in particular. In terms of the NCP dispute process, there areprocedural weaknesses that have led some to be critical of the mechanism. Major concernscentre around inconsistency; there is no consistent NCP procedure providing informationto third parties, making public the fact that a case has been filed, issuing statements whilea matter is still under consideration, or making public reasons for not proceeding withconsideration of a case. Others are concerned that a central registry of NCP complaintsdoes not exist, there is no timeframe for dealing with complaints, transparency in decisionmakingis not ensured, there is no appeal of an NCP’s initial decision and decisions are notenforced. Furthermore, complaints are first assessed by state representatives.Perceived weaknesses in CIIME’s dispute process have caused the process to fall intodisuse. For example, the Trade Union Advisory Committee (TUAC), created in 1948 bythe OECD’s predecessor to provide feedback from the international labour community,has stopped bringing cases to CIIME. This may be because CIIME decisions require46|Private Sector Accountability in Combating the Commercial Sexual Exploitation of Children
consensus and/or, as they are not binding, they have little influence on corporate behaviour.In both NCP and CIIME dispute resolution, a company’s identity is ‘often not disclosed.’Without public disclosure, the complaints procedure has little immediate impact on thebehaviour of specific companies.While some critics focus on weak dispute resolution processes, others focus on ineffectivereporting mechanisms. The Guidelines, however, do not provide any guidance as to theways in which MNCs can measure or report their behaviour. Another criticism is thatmonitoring of compliance is not independent. It is true the guidelines make provision for‘disclosure of information’ but this can hardly be called an effective reporting mechanism.2.4.2.2 Regulating corporate behaviour via public international lawAs the above points illustrate, there have been a number of developments in the internationalarena considering the role played by private industry in the protection of children’s rights.Although the resulting documents are not binding, they do offer important guidelines ofthe possible role to be played by private sector in both protecting and promoting such rights.Clearly, CSEC falls within the ambit of all of these documents, and any involvement ofchildren in the making or viewing of harmful material is prohibited by international law orby international policy guidelines.Codes of conduct and global standard-setting cannot be solely relied on to ensure thatMNCs behave appropriately if faced with international human rights violations, onaccount of the difficulty in enforcing compliance due to their voluntary nature. Perhaps theobvious solution, as implicitly implied above, hinges on the existence of an internationallegal regime to ensure enforcement of the voluntary codes. Mary Robinson, the formerHigh Commissioner for Human Rights, has stated “that there is still a need for…a legalregime [to] help to underpin the values of ethical globalization.” She then called for the“next phase” to be less inspirational, less theoretical and abstract, and more about keepingsolemn promises made.” 220In contrast to the UN Global Compact and the OECD Guidelines, whose major weaknessis its voluntary nature, treaties are binding international agreements operating betweenstates that are party to them. What makes human rights treaties particularly unique isthat party states assume the obligation to protect the rights of individuals, not party to theagreement, within their respective territories or subject to the jurisdiction of the state. Tothe extent that international human rights law does embrace non-state actors, it does sovery largely by way of holding states indirectly liable for the direct infringement of others,including corporations.Private Sector Accountability in Combating the Commercial Sexual Exploitation of Children|47
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 50 and 51: A major criticism of the Tripartite
Page 52 and 53: MNEs are asked to respect worker’
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
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Page 96 and 97: With the advent of the social netwo
Page 98 and 99: up to $US 500 if they violate the c
Page 100 and 101: 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
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The World Congress III against Sexu
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