Multinational enterprises and workplace reproductive health: extending corporate social responsibility.

• Author: Atkins, Rebecca Kathleen

ABSTRACT

Corporate social responsibility is a relatively new approach to the protection of human rights. While the human rights to whole-body health and workplace health are long-standing, the right to reproductive health is a new topic of discussion. This Note examines the right to reproductive health in the workplace and proposes that it would be best protected by imposing an affirmative duty on multi-national enterprises via corporate social responsibility. Origins of human rights, corporate social responsibility, and reproductive health are discussed before turning to the developing stalemate between multi-national enterprises and less developed countries.

TABLE OF CONTENTS I. INTRODUCTION II. WORKPLACE REPRODUCTIVE HEALTH: DEFINITIONS AND EFFECTS III. CORPORATE SOCIAL RESPONSIBILITY A. Definition of Multinational Enterprise B. Authoritative Foundations of Corporate Social Responsibility i. Binding Treaties on Sovereign Nation-States 1. International Bill of Human Rights 2. International Labor Organization Conventions ii. Soft Law 1. OECD Guidelines 2. UN Draft Norms 3. UN Global Compact 4. 1992 Rio Declaration on Environment and Development IV. AUTHORITATIVE FOUNDATIONS OF REPRODUCTIVE HEALTH A. Explicit Authority B. Implicit Authority in the General Human Right to Health C. "Quality Control" Concerns Regarding the Right to Reproductive Health V. A DANGEROUS STALEMATE BETWEEN MULTINATIONAL ENTERPRISES AND LESS DEVELOPED COUNTRIES A. The Sovereign Nation-State as the Traditional Protector of Human Rights B. Multinational Enterprises' Recent Rise in Economic Superiority VI. PREVENTING A STALEMATE: RECOGNIZING THE IMPORTANCE OF REPRODUCTIVE HEALTH AND MULTINATIONAL ENTERPRISES' SUPERIOR ECONOMIC POWER THRU A PROPOSED INTERNATIONAL DOCUMENT BASED ON THE 1992 RIO DECLARATION A. Research and Share Information Regarding Workplace Hazards to Reproductive Health B. Comprehensible Information Disclosure to Employees C. Non-Discriminatory Elimination of Hazards to Reproductive Health D. Duty to Incorporate and Report Substantive Standards VII. CONCLUSION I. INTRODUCTION

The sound of freedom that resonates from civil and political rights rings hollow to a newborn who has ... lost a parent due to an occupational accident, or whose parents are debilitated by occupational disease, or who may suffer personal injury due to the effects of a parent's workplace exposure to mutagens. (1)

Reproductive health is as important to sustainable growth and development as environmental protection. Multinational enterprises (MNEs) have a corporate social responsibility to work toward sustainable development and growth, which inherently entails the recognition and protection of certain human rights. Although this recognition and protection has traditionally been the duty of sovereign nation-states, MNEs' rise in economic power has placed these enterprises in a position to similarly infringe upon human rights. Unfortunately, the unequal bargaining power between MNEs and less developed countries (LDCs) is swiftly leading to a stalemate in the protection of human rights.

This Note posits that MNEs have an affirmative duty to recognize and protect reproductive health in the workplace based on corporate social responsibility and the recognition of various human rights in international documents. Part II discusses the various sources of corporate social responsibility, exploring both treaties binding on sovereign nation-states as well as various "soft law" instruments. After locating corporate social responsibility in human rights and the sustainable development that necessarily accompanies the achievement of such rights, Part III expands on the location of reproductive health in the human rights landscape. Part IV examines the developing stalemate in the protection of human rights, discussing traditional roles of the state actor and the difficult situation in which LDCs find themselves when faced with the allure of an influx of foreign capital. Finally, Part V offers a potential solution to the stalemate that respects both workers' autonomy and their right to be free from discrimination and hazards to reproductive health. This solution is designed to bind MNEs in order to recognize the large amounts of power and influence they have over individuals and LDCs.

2. WORKPLACE REPRODUCTIVE HEALTH: DEFINITIONS AND EFFECTS

   Reproductive health, a relatively new human right, is a key factor in achieving sustainable development and growth on the international stage. Although a standard definition is still being developed, reproductive health generally encompasses all aspects of health that affect reproduction by males and females. (2)

   The International Convention on Population and Development (ICPD) (3) encompasses a sex-neutral view of reproductive health and "is the only document that actually comes out and embraces a right to reproductive health." (4) According to the ICPD, "[r]eproductive [h]ealth is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes." (5)

   However, reproductive health is frequently discussed as a concept of women's health. (6) In fact, this frequently may be a starting point for many commentators, because women often are seen as the only sex with cause for reproductive concern. Therefore, under some definitions, reproductive health specifically includes "miscarriage, infertility, death from infectious diseases, pregnancy anemia, and complications from pregnancy that threaten to undermine the health of pregnant workers." (7) Significantly, a woman's reproductive health may not be confined to her reproductive years or to the time span of pregnancy. Maternal death, which is either death during pregnancy or within forty two days of pregnancy, (8) can be caused by "deficiencies of calcium, vitamin D, or iron" during infancy or before birth. (9) These deficiencies can "result in a contracted pelvis and eventually in death from obstructed labor[,] or in chronic iron-deficiency anaemia [sic] and ... death from hemorrhage." (10)

   Despite the prevalence of a female-centric definition of reproductive health, males also have reproductive health and cause for concern. "Male reproductive exposures are ... proven or strongly suspected of causing not only fertility problems but also miscarriage, low birth weight, congenital abnormalities, cancer, neurological problems, and other childhood health problems." (11) Studies have suggested that there are "significant associations between paternal [occupational] exposures and fetal health problems." (12) Paints, solvents, metals, dyes, hydrocarbons, toluene, xylene, benzene, TCE, vinyl chloride, lead, and mercury have all been associated with various health problems in the fetus during pregnancy or after birth. (13) Even the U.S. National Institution on Occupational Safety and Health has recognized the severity of occupational risk to male reproductive health, despite the fact that male reproductive health is discussed much less frequently than its female counterpart. (14) Therefore, any right to reproductive health, including rights to be free from hazards to that health, should include female and male concerns.

   Reproductive health is inextricably linked to general, individual, workplace, and public health. Reproductive health affects more aspects of society than just the mother-to-be and the unborn fetus. Workplace reproductive health can affect current workers and potential future employees. To better understand the seriousness of MNEs' responsibility to recognize and protect reproductive health, it is necessary to discuss various workplace hazards in further detail.

   Three types of workplace factors can affect reproductive health: physical, biological, and chemical. (15) First, physical factors mainly affect pregnant workers. "Regular exposure to shocks, vibration or excessive movement can ... increase the risk of miscarriage, prematurity or low birth weight." (16) Additionally, "[p]rolonged exposure to loud noise may lead to increased blood pressure and tiredness." (17) Manual handling, working in hot conditions, and shiftwork can also affect the health of a pregnant employee, leading to potential injury, increased risk of fainting and heat stress, and low birth weight. (18) Second, biological agents such as "hepatitis B, HIV (the AIDS virus), herpes, TB, syphilis, chickenpox and typhoid" (19) "can affect the unborn child if the mother is infected during pregnancy." (20) This category of factors clearly affects the health of all workers and further weighs in favor of a right to workplace reproductive health. Third, both males and females can suffer genetic damage due to exposure to hazardous chemicals. (21) This damage "can be passed onto [their] children through negative effects on development of the embryo, foetus and infant ... [, potentially] result[ing] in fetal death, malformation, retarded growth and organ dysfunction." (22) Additionally, male "[e]xposure to ... certain agents can result in decreased libido and impotence, testicular damage or infertility, and spermatoxicity." (23) These potential outcomes have the ability to impede not only the enjoyment of the rights to reproductive and general health, but also the sustainable growth and development of societies. Before discussing reproductive health more fully, Part III will discuss various foundations of corporate social responsibility.

3. CORPORATE SOCIAL RESPONSIBILITY

   1. Definition of Multinational Enterprise

      Many corporations around the world are increasingly operating on an international scale. The revised 2000 Organisation for Economic Co-Operation and Development Guidelines for Multinational Enterprises (OECD Guidelines) state that MNEs:

      [U]sually comprise companies or other entities established in more than one country and so linked ... they may co-ordinate their operations in...