ISO 26000:2010 - SOCIAL RESPONSIBILITY STANDARD: A NEW FRAMEWORK INTO PRACTICE FOR HUMAN RIGHTS AND INTELECTUAL PROPERTY RIGHTS BY R. VINOBA SELVANDURAI., M.A., M.L., Research Scholar, The Tamilnadu Dr. Ambedkar Law University, Chennai. “We shall do our part to build a world of peace where the weak are safe and the strong are just”. –John F Kennedy 1. Introduction: Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible. Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law. International human rights law lays down obligations of Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.
Transcript
ISO 26000:2010 - SOCIAL RESPONSIBILITY STANDARD: A NEW FRAMEWORK INTO PRACTICE FOR HUMAN RIGHTS AND
INTELECTUAL PROPERTY RIGHTS
BYR. VINOBA SELVANDURAI., M.A., M.L.,
Research Scholar, The Tamilnadu Dr. Ambedkar Law University, Chennai.
“We shall do our part to build a world of peace where the weak are safe and the strong are just”. –John F Kennedy
1. Introduction:
Human rights are rights inherent to all human beings, whatever our nationality,
place of residence, sex, national or ethnic origin, colour, religion, language, or any other
status. We are all equally entitled to our human rights without discrimination. These
rights are all interrelated, interdependent and indivisible. Universal human rights are
often expressed and guaranteed by law, in the forms of treaties, customary international
law, general principles and other sources of international law. International human
rights law lays down obligations of Governments to act in certain ways or to refrain
from certain acts, in order to promote and protect human rights and fundamental
freedoms of individuals or groups.
Intellectual property rights are recognized as human rights in the Universal
Declaration of Human Rights, 1948, and in other international and regional human
rights treaties and instruments. However, the relationship between intellectual property
systems and human rights is complex and calls for a full understanding of the nature and
purposes of the intellectual property system. It is suggested by some that conflicts may
exist between the respect for and implementation of current intellectual property
systems and other human rights, such as the rights to adequate health care, to education,
clarify the implications for businesses of concepts such as “complicity” and “sphere of influence”;
develop materials and methodologies for undertaking human rights impact assessments of the activities of transnational corporations and other business enterprises;
After three years of work, the SRSG proposed a conceptual policy framework to the
United Nations Human Rights Council. The framework is organized around the three
foundational principles of “protect, respect and remedy”: the state duty to protect
against human rights abuses by third parties, including business; the corporate
responsibility to respect human rights; and the need for more effective access to
remedies.
The UN Special Representative for Business and Human Rights Mr. John Ruggie
had spent more than five years and finally drafted draft Guiding Principles on the
operationalization of the UN “Protect, Respect, Remedy” policy framework on business
and human rights highlighting the need to maintain and build on the momentum for
positive action that has developed over the past five years.
The draft Principles, to be finalized and presented by the Special Representative
along with his final report to the UN Human Rights Council in June 2011, seek to
provide concrete recommendations and guidance to governments, companies and other
actors. Once adopted, the Principles will become a global benchmark of good practice
on business and human rights with the potential to reshape much of the current
corporate responsibility landscape. The Guiding Principles recommended to provide
ISO3 Strategy of “ISO 26000:2010 – Social Responsibility Standard4” to Human
Rights for opt enforcement of rules and regulation of the principles for taking necessary
actions against the wrongdoer of human rights.
3. ISO – it’s Strategy:
• ISO – the name was derived from the Greek word isos, meaning “ equal ”. The long
form “International Organization for Standardization ” needs translating, but whatever
the language the short form is always ISO.
• ISO’s origins founded in 1946 by delegates from 25 countries, ISO began operating
on 23 February 1947.
• ISO develops International Standards for products, services, processes, materials and
systems, and for conformity assessment, managerial and organizational practice. It does
not carry out certification of conformity to its standards, including ISO 9001:2008 or
ISO 14001:2004.help ensure quality, ecology, safety, economy, reliability,
compatibility, interoperability, efficiency, effectiveness and other vital characteristics;
facilitate trade and disseminate technology.
• ISO standard carries the ISO logo and the designation “International Standard”.
• ISO – the organization consists of a network of national standards bodies, the most
representative of standardization in each country, from all regions of the world, working
in partnership with international organizations such as the United Nations, its
specialized agencies and the World Trade Organization.
4. The need for International Standards:
At the start of the 21st century, the globalization of trade and many other issues,
such as security, health or the environment imply that International Standards of the
type produced by ISO, based on a double level consensus – between countries and
across stakeholders – are, more than ever, in demand. The political context in which
International Standards are developed has evolved drastically, with the expansion of
membership and scope of the World Trade Organization, the multiplication of free trade
agreements, the pressure for better public governance, the concentration of industry in
ever more global companies, the growing influence of non-governmental organizations
(NGOs) for more equitable and sustainable development and the increasing public
demand for the social accountability of economic actors. Companies have therefore to
monitor their triple bottom line, economic, environmental and social, in order to ensure
their own sustainable development whilst contributing to that of the planet. International
Standards assist increasingly in this aim. With a collection of over 17 000 International
Standards, developed and promoted by the stakeholders themselves in a network of over
150 national bodies and hundreds of organizations in liaison, ISO is the leader for the
production of International Standards.
5. The need for International Standards
i. The economic dimension
ISO’s initial and still central mission is to provide International Standards which
assist the dissemination of technology, the interoperability of components and
equipment, the assessment of their performance and, more generally, trade and business
relations. The need for truly global standards has expanded as new markets, new actors
and new powerful economies emerge. This is what has led to the high level of
involvement of experts in ISO, where they can benefit from adequate mechanisms to
construct a global consensus and apply : “ do it once, do it right, do it internationally ”.
ii. The environmental dimension
The environmental challenges are particularly present in ISO’s work. Production
and processing activities, and products themselves, are in the spotlight of the issues of
climate change and sustainable development. ISO offers a wide-ranging portfolio of
environment related standards, from sampling, testing and analytical methods to product
life cycle analysis, environmental management or greenhouse gas emission accounting
and verification.
iii. The social dimension
Recognition of the economic and environmental benefits of International Standards
is steadily percolating to company boardroom and to governmental levels. The latest
evolution in understanding is that standardization can also offer considerable benefits in
the social sphere. Already, many ISO standards relate to health and safety in the work
place, in transportation or at home, from safety requirements forspecific equipment to
ergonomics and accessibility. New areas include security matters such as risk
assessment, security management, biometrics, securing the inter-modal supply chain,
preventing and responding to natural disasters or managing IT security. Public
awareness has resulted in a growing interest of governments, the media and investors in
the ethical behaviour of producers and retailers. ISO has also launched the development
of an International Standard giving guidelines for social responsibility.
iv. ISO : a platform for global performance
ISO continues to fill its traditional role of keeping the wheels of industry sectors
rolling efficiently by supplying the technical standards they need, adapting them to the
evolutions of technology, the increased concerns for the environment or security and the
pervasiveness of information and communication technologies. However, technology,
industry and business do not exist in a vacuum. They operate in the wider global system
that has economic, environmental and social dimensions. ISO’s mission has evolved to
that of providing the crucible for developing globally relevant, consensus based
standards that assist organizations in meeting their challenges in all three dimensions of
sustainable business.
6. ISO and world trade:-
The WTO’s Agreement on Technical Barriers to Trade, which includes the Code of
Good Practice for thePreparation, Adoption and Application of Standards, recognizes
the important contribution that international standards and conformity assessment
systems can make to improving the efficiency of production and to facilitating
international trade. ISO fully implements the six principles adopted by the TBT
committee that should be observed by international standardizing bodies: transparency;
openness; impartiality and consensus; effectiveness and relevance; coherence; and
development dimension. ISO’s global relevance policy details principles consistent with
the WTO principles along with implementation
guidelines to ensure that ISO standards :
•. respond effectively to global, regulatory requirements, market needs and scientific/technical developments ;
•.do not distort markets nor have adverse effects on fair competition ;
•.do not stifle innovation or technological development ;
•.do not give preference to the requirements of specific countries or regions, and are performance-based rather than design-prescriptive.
Increasing the participation of ISO's developing country members and strengthening their standardization infrastructures as the focus of the ISO Five-year Plan for Developing Countries.
The plan has five key objectives :
•. improve awareness ;
•. develop capacity ;
•. increase national and regional cooperation ;
•. develop electronic communication and expertise in IT tools ;
•. increase participation in the governance and technical work of ISO.
7. ISO 26000: 2010:Social Responsibility Standard:-
ISO 26000:20105 provides guidance on the underlying principles and issues in
social responsibility and addresses seven core subjects on social responsibility covered
in the standard. These seven core subjects are 1) organizational governance, 2) labor
practices, 3) the environment, 4) fair operating practices, 5) consumer issues, 6) human
rights and 7) community involvement & development.
Issue 8: Fundamental principles and rights at work
Core subject: Labour practices
Issue 1: Employment and employment relationships
Issue 2: Conditions of work and social protection
Issue 3: Social dialogue
Issue 4: Health and safety at work
Issue 5: Human development and training in the workplace
Core subject: The environment
Issue 1: Prevention of pollution
Issue 2: Sustainable resource use
Issue 3: Climate change mitigation and adaptation
Issue 4: Protection of the environment, biodiversity and restoration of natural
habitats
Core subject: Fair operating practices
Issue 1: Anti-corruption
Issue 2: Responsible political involvement
Issue 3: Fair competition
Issue 4: Promoting social responsibility in the value chain
Issue 5: Respect for property rights
Core subject: Consumer issues
Issue 1: Fair marketing, factual and unbiased information and fair contractual
practices
Issue 2: Protecting consumers' health and safety
Issue 3: Sustainable consumption
Issue 4: Consumer service, support, and complaint and dispute resolution
Issue 5: Consumer data protection and privacy
Issue 6: Access to essential services
Issue 7: Education and awareness
Core subject: Community involvement and development
Issue 1: Community involvement Issue 2: Education and culture Issue 3: Employment creation and skills development Issue 4: Technology development and access Issue 5: Wealth and income creation Issue 6: Health Issue 7: Social investment6
The International Standard also provides guidance on putting social responsibility
into practice in an organization. The objective of social responsibility is to contribute to
sustainable development7. An organization's performance in relation to the society in
which it operates and to its impact on the environment has become a critical part of
measuring its overall performance and its ability to continue operating effectively. This
is, in part, a reflection of the growing recognition of the need to ensure healthy
ecosystems, social equity and good organizational governance. In the long run, all
organizations' activities depend on the health of the world's ecosystems.
6 http://www.iso.org/iso/iso_catalogue/management_and_leadership_standards/social_responsibility/sr_iso26000_overview.htm dt.22.04.2011.7 A Modern Phenomenon to be implemented and executed in the modern era so as to protect welfare of the state and to raise the economic status of the state. It is a wider concept of economic growth, which ensures fairness and opportunities for dignified life for all, without further destroying recklessly the word's finite resources
Special Courts. The Special Courts started trying the cases after they were committed to
them. The Act was later amended giving the Special Courts the power to take
cognizance of the offences under Act only in the state of Karnataka. The situation in
respect of the Human Rights Courts under the Protection of Human Rights Act, 1993 is
not different in all states.
10. Problem of sanction: Apart from the above, the Special Courts will face yet
another question from the provisions of s. 197 of Cr.P.C which provides for the special
procedure for the prosecution of public servants for offences committed in the course of
their duty. In most of the cases of violation of human rights, it is the police and other
public officers who will be accused. The offence will necessarily relate to the acts or
omissions of public servants in discharge of their duties. Even though there are a
plethora of precedents in favour of dispensing with the applicability of Section 197 of
Cr.P.C. on the ground that certain acts (like the ones which result in a violation of
human rights) do not come within the purview of the duties of public servants.
However, there is still scope for speculation as long as there is no specific provision in
the Act dispensing with the applicability of Section 197 of Cr.P.C.
Unless the lawmakers take note of the above anomalies and remove them through
proper amendments, India will remain without effective remedies against human rights
violations.
First of all the difficulty arose in filing the complaint before the Sessions Court.
Previously, cognizance was taken straightaway by the Sessions Court u/s 193 Cr.P.C.
later it was laid down by the apex Court and High Courts that committal proceedings
should be followed as far as the Human Rights cases are concerned. There are lots of
practical problems for victims of the Human rights violations to get justice against the
perpetrators of violators as the offenders are uniformed people wielding all sorts of
influence. Due to this tedious procedure, the poor victim is unable to fight in the court
of law since it is a long drawn battle. There must be some restriction to file cases against
public authorities in the name of Human rights violations, to avoid frivolous litigations.
There must be loud thinking and open debate before amendment in new context
emerging that nobody is above the law and are accountable to the people so that the
abuse of power and violations of human rights can be prevented.
It is pertinent to note that the Human Right Act prohibits any complaint filed
beyond the period of one year which is found to be a barricade to complaint before the
commission as far as individual complainants are concerned. When gross and mass
violations of human rights are reported, somehow or other the matter will be exposed. It
is clear that we had taken separate steps to file a private complaint under HR Act even
for directions that could be granted by High Court in writ proceedings, side by side, the
violations of atrocities committed by STF (Special Task Force) before the NHRC and
the Government, therefore we were successful in getting a landmark Judgement on the
intervention of Justice V.R.Krishna Iyer. Madras – Tamilnadu Pazhankudi Makkal
Sangam –Vs- State of Tamilnadu, Crl.R.C.No.868 of 199611). The difference between
Human Rights Commission and Human Rights Court, the human rights offences
defined in S.2 (d) of HR Act, 1993, procedures to be followed in HR Court adopting
Cr.P.C. as rules of practice and Evidence Act have been dealt in detailed in the said
judgment. The Division Bench framed 25 points and answered for all of course some of
the points for the victims in 223 pages of judgment. This is landmark judgment in the
11 1997 MLJ (Cri) 655
annals of Indian Judiciary in protection and promotion of human rights. Even though
the judgment of the Madras High Court paved the way functioning of the Human Rights
Courts in India, the ultimate remedy has not been given as the return of complaint was
upheld by the high court.
The approach of the subordinate judiciary in dealing with the cases of human
right violation of the Dalits, tribes and offences against police is very orthodox and not
up to the changing needs of the society. It is to be emphasized that many of the
subordinate courts are not alive to the letter and sprits of the constitution especially to
the preamble and Part III and IV of the Constitution which are conscience of the
Constitution.
As far as, arrest, illegal detention, custodial torture are concerned, eventhough
the Apex Court and high Court in number of cases laid dictum including in Jogindar
Kumar –Vs- State of UP12 - and in the D.K.Basu case13, the mandatory provisions of
S.54 of the Cr.P.C has not been complied. In number of cases of this nature, accused are
produced during night time in their homes wherein accused where unable to place their
objections voluntarily as to any ill treatment in the hands of police wherefore during
trial the accused were unable to prove the illegal detention and ill-treatment that resulted
in failure on the part of the victims to prove the violations of the human rights in illegal
arrest and torture at the hands of the police.
11. Suggestions:- To prevent the abuse of power by the police, India should amend the
Indian penal code to the effect that the torture is also an offence as the Geneva
Convention of UN on Human Rights passed unanimous resolution. So also, appropriate
12 AIR 1994 SC 134913 AIR 1997 SC 3017
amendment has to be made in the evidence Act to draw presumption the accused that
accuse has to discharge the burden of proof as far as cases relating to human right
violation. The central government immediately should frame rules for the HR Act in
order to avoid difficulties in filing complaints, taking cognizance and awarding
sentences. There should be suitable provisions for awarding compensations to the
victims. It is most essentials and imperative to have a independent machinery to protect
the witnesses till the end of trial. The recent Ruchika14 case as against former Haryana
DGP Rathore is an outstanding example for the gross injustice caused on the victim’s
family in proving case before the Court of Law. Finally the violation of human rights
can be curbed not only by a state machinery or judicial pronouncement but create a
human right culture by creating a egalitarian society where all are equal before law
having equal opportunities in socio, political, economic and cultural life. To put it other
words, the goal of the constitution is accomplished by fulfilling the fundamental rights
enshrined in constitution to all.
12. Suggestions provided by the Malimath committee report, submitted that:
1. Sec. 313 of the CR.P.C must also be amended so as to draw adverse inference against
the accused if he fails to answer any relevant material against him therefore, making it
easy for the law enforcers to use DNA tests against him.
2. A specific law should be enacted giving guidelines to the police setting uniform
standards for obtaining genetic information and creating adequate safeguards to prevent
misuse of the same.
3. A national DNA database should be created which will be immensely helpful in the
fight against terrorism.
14 case against former Haryana DGP S P S Rathore, convicted of molesting a teenaged girl who later killed herself.
4. More well-equipped laboratories should be established to handle DNA samples and
evidence.
5. Efforts should be taken to create more awareness among general public, Prosecutors,
judges and police machinery.
13. Different aspects of the justice administration can be further improved by the following measures:
a. Discouraging routine summoning of doctors;
b. Calling expert witness at pre-scheduled time;
c. Recording experts' testimony by alternative judicial officer in case of non-availability of the presiding officer the court that summoned him. d. Amending provision of criminal procedures to have admissibility of the medical records;
e. Recording of experts' testimony through video-conferencing.
f. Directions to make speedy trial by the trial court.
There is a unanimity that medical and forensic evidence plays a crucial role in
helping the courts of law to arrive at logical conclusions. Therefore, the expert medical
professionals should be encouraged to undertake medico legal work and simultaneously
the atmosphere in courts should be congenial to the medical witness. This attains utmost
importance looking at the outcome of the case, since if good experts avoid court
attendance, less objective professional will fill the gap, ultimately affecting the justice.
The need to involve more and more professionals in expert testimony has been felt by
different organizations. The American College of physician's guidelines for the
physician expert witness emphasizes on broad physician participation in providing this
much-needed assistance to the legal system. The college believes that more doctors
should serve as experts as a component of their professional activities in order to meet
the need for medical testimony. This objective of greater expert participation can only
be achieved by addressing to the apprehensions that ponder the mind of medical
professionals. In the light of new developments in the forensic science, the home
ministry, Govt. of India constituted a committee under the chairmanship of Dr. Justice
V.S Malimath to suggest reforms in the criminal justice system. This committee
suggested comprehensive use of forensic science in crime investigation. According to
the committee DNA experts should be included in the list of experts given in section
293(4) of Cr.P.C, 1973.
Section 193 of Criminal Procedure Code defines “Cognizance of offences by Courts of Session”.
Except as otherwise expressly provided by this Code or by any other law for the time
being in force, no court of Session shall take cognizance of any offence as a court of
original jurisdiction unless the case has been committed to it by a Magistrate under this
code.
Section 197 of Criminal Procedure Code defines “Prosecution of Judges and public servants”.
(1) When any person who is or was a Judge or Magistrate or a public servant not
removable from his office save by or with the sanction of the Government is accused of
any offence alleged to have been committed by him while acting or purporting to act in
the discharge of his official duty no court shall take cognizance of such offence except
with the previous sanction-
(a) In the case of it person who is employed or, as the case may be, was at the time of
commission of the alleged offence employed, in connection with the affairs of the
Union, of the Central Government;
(b) In the case of a person who is employed or, as the case may be, was at the time of
commission of the alleged offence employed, in connection with the affairs of a State,
of the State Government:
* [Provided that where the alleged offence was committed by a person referred to in
clause (b) during the period while a Proclamation issued under clause (1) of article 356
of the Constitution was in force in a State, clause (b) will apply as if for the expression
"State Government" occurring therein, the expression "Central Government" were
substituted.
(2) No Court shall take cognizance of any offence alleged to have been committed by
any member of the Armed Forces of the Union whole acting or purporting to act in the
discharge of his official duty, except with the previous sanction of the Central
Government.
(3) The State Government may, by notification, direct that the provisions of subsection
(2) shall apply to such class or category of the members of the Forces charged with the
maintenance of public order as may be specified therein, whenever they may be serving,
and thereupon the provisions of that sub-section will apply as if lot the expression
"Central Government" occurring therein, the expression "State Government were
substituted.
*[(3A) Notwithstanding anything contained in sub-section (3), no court shall take
cognizance of any offence, alleged to have been committed by any member of the
Forces charged with the maintenance of public order in a State while acting or
purporting to act in the discharge of his official duty during the period while a
Proclamation issued trader clause (I) of article 356 of the Constitution was in force
therein, except with the previous sanction of the Central Government.]
(3B) Notwithstanding anything to the contrary contained in this Code or any other law,
it is here by declared that any sanction accorded by the State Government or any
cognizance taken by a court upon such sanction, during the period commencing on the
20th day of August, 1991 and ending with the date immediately preceding the date on
which the Code of Criminal Procedure (Amendment) Act, 1991, receives the assent of
the President, with respect to an offence alleged to have been committed during the
period while a Proclamation issued under clause (1) of article 356 of the Constitution
was in force in the State, shall be invalid and it shall be competent for the Central
Government in such matter to accord sanction and for the court to take cognizance
thereon.] * As per the amendment Cr.P.C. 2008.
(4) The Central Government or the State Government, as the case may be, may
determine the person by whom, the manner in which, and the offence or offences for
which, the prosecution of such Judge, Magistrate or public servant is to be conducted,
and may specify the court before which the trial is to be held.
Arrest of women after sunset & before sunrise to be prohibited except in
unavoidable circumstances. Police will have to give information about the arrest of a
person to anyone nominated by him/ her. Judicial inquiry will be mandatory in case of
death or disappearance of a person or rape of a woman while in police custody.
State governments will have to establish a Directorate of Prosecution.
Mandatory provision is for the release of person on the execution of a bond without
surety, if the arrested person is accused of a bailable offence & he/she can't afford the
surety. Under trials will not be detained beyond the maximum period of imprisonment
for the alleged offence strengthening of legal provisions to ensure peace, harmony &
tranquillity in the country15.
Conclusition:
Hence the United Nations Office of the High Commissioner for Human Rights
(OHCHR) decisions to establish “ISO 26000:2010 SOCIAL RESPONSIBILITY
STANDARD” in the member States to Streamline the regularities envisaged in UDHR
and INTELLECTUAL PROPERTY RIGHTS for taking appropriate action against
the wrongdoers of Human Rights and Intellectual Property Rights. will be very difficult
and there is possibility to be kept silent and be a paper board, if there is no change and
amendments in the local municipal laws of the member states, since there are a lot of
procedural lacunae in the existing Municipal laws of the member states. In brief, the
positive steps to be taken by the United Nations Office of the High Commissioner for
Human Rights (OHCHR) are to be welcome by the member states.
