UN perspectives on "business and humanitarian and human rights obligations".

I have been asked to summarize and reflect upon the role of the United Nations in establishing the humanitarian and human fights obligations of business. My remarks will trace the history of this topic at the United Nations and then focus on the latest developments.

Since the early days of the United Nations there have been human rights treaties and other law-making instruments that may be interpreted to apply directly or indirectly to business. Most prominently, the Universal Declaration of Human Rights (1) focuses on the obligations of states, but it also mentions the responsibilities of individuals and "every organ of society." (2) Human rights treaties, such as the International Covenant on Civil and Political Rights, (3) require states "to respect and to ensure to all individuals ... rights" (4) such that if a corporation endangers the rights of an individual, the state has a duty to take preventive action. Some other UN-based treaties such as the international Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women specify state responsibility for the misconduct of any "persons, group or organization" (5) or even of "any person, organization or enterprise." (6)

The UN Commission on Transnational Corporations unsuccessfully attempted to draft an international code of conduct for TNCs in the 1970s and 1980s. (7) During that same era the OECD (8) and the ILO (9) developed voluntary guidelines for TNCs with rudimentary and rarely used procedures for interpretation. The ILO focused almost exclusively on the narrow issue of labor standards and the OECD guidelines mentioned human rights only once.

In January 1999 UN Secretary-General Kofi Annan proposed a "Global Compact" of shared values and principles at the World Economic Forum in Davos. (10) The original Global Compact asked businesses voluntarily to support and adopt nine succinctly expressed core principles, which are divided into categories dealing with general human rights obligations, standards of labor, and standards of environmental protection. In 2004 the Global Compact added a tenth core principle on corruption. (11) About 2,300 transnational corporations have joined the Global Compact.

Several UN-based institutions have adopted fragmentary corporate responsibility standards in limiting procurement to companies that protect the environment (UNCHR), do not engage in child labor (UNICEF), do not promote cigarettes (WHO), and do not engage in corrupt business practices (World Bank). If these standards were made more consistent, they could yield quite a powerful influence for corporate social responsibility.

In August 2003 the twenty-six human rights experts from around the globe who are members of the UN Sub-Commission on the Promotion and Protection of Human Rights unanimously approved the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. (12) The Norms provide that

States have the primary responsibility to promote ... and protect

human rights recognized in international as well as national law,

including ensuring that transnational corporations and other

business enterprises respect human rights. Within their

respective spheres of activity and influence, transnational

corporations and other business enterprises have the obligation

to promote ... and protect human fights recognized in

international as well as national law,....

The Norms have, by fat', the most comprehensive approach to human rights, requiring TNCs and other business enterprises to respect the fight to equality of opportunity and treatment: the right to security of persons; the fights of workers, including a safe and healthy work environment and the right to collective bargaining; respect for international, national, and local laws and the rule of law; a balanced approach to intellectual property fights and responsibilities: transparency and avoidance of corruption; respect for civil, economic, political, social, and cultural rights; consumer protection; and environmental protection. In respect to each of those subjects, the Norms principally reflect, restate, and refer to existing international standards, but apply them not only to governments but directly to businesses. The Norms are consistent with the progressive development of international law in applying standards not only to states, but also to individuals, armed opposition groups, and other nonstate actors.

While applying to all states and companies, the Norms are not legally binding, but are similar to many other UN declarations, principles, guidelines, and standards that interpret existing law and summarize international practice without reaching the status of a treaty. However, the Norms do include some basic implementation procedures by (1) anticipating that companies will adopt their own internal rules of operation to assure the protections set forth by the Norms; (2) indicating that businesses are expected to assess their major activities in light of the Norms; (3) subjecting companies' compliance with the Norms to independent and transparent monitoring that includes input form relevant stakeholders; (4) calling for reparations or other compensation in cases where the Norms have been violated; and (5) calling upon governments to establish a framework of application of the Norms.

The Norms were transmitted to the UN Commission on Human Rights--the parent body of the Sub-Commission. The 2004 session of the Commission welcomed the Norms and asked for a report from the High Commissioner for Human Rights, but at the same time noted that the document, as a draft before the Commission, does not on its own have any legal status. Simultaneously, however, the Commission recognized for the first time in its history that corporate social responsibility and human rights belong on the human rights agenda of the United Nations.

At its 2005 session the Commission adopted a resolution (13) welcoming the High Commissioner's report (14) that in an extraordinarily balanced fashion identified precisely the same number of criticisms of the Norms as it found positive attributes. The Commission also called for the appointment by the Secretary-General of a Special Representative (SRSG) on the issue of human rights and transnational corporations and other business enterprises. The Special Representative will serve for "an initial period of two years," implying that the Commission intended to continue the mandate beyond two years. The SRSG was expected, inter alia, to "identify and clarify standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to human rights." (15)

During the year that has passed since the 2005 session of the Commission on Human Rights, that body has been replaced by a new Human Rights Council, but the procedural appendages of the Commission, such as the SRSG, will be transferred to the Council that is expected to be elected in May 2006 and take office in June. The Council will have a lot to do in establishing its procedures and organizing itself, so it may take some time for it to begin handling substantive matters such as the human rights responsibilities of business, but it will eventually get around to reviewing the Draft Interim Report of the SRSG, which was disseminated in February 2006. (16)

With one major exception, the SRSG's report makes a positive and generally balanced contribution to the international understanding of the relationship between human rights and business. I found particularly impressive the SRSG's review of the human rights challenges faced by different kinds of business, including the extractive sector as well as the foods and beverages industry.

The SRSG favorably mentions several voluntary initiatives including the Global Compact, the ILO, the OECD, the Fair Labor Association, the Extractive Industries Transparency Initiative, the Kimberly Process Certification Scheme, the Voluntary Principles on Security and Human Rights, and the Equator Principles. The SRSG concludes, however, that

there can be little doubt that these arrangements have weaknesses

as well. One is that most choose their own definitions and

standards of human rights, influenced by but rarely based

directly on internationally agreed standards.... Moreover,

these initiatives tend not to include determined laggards,

who constitute the biggest problem.... Finally, even when

taken together these "fragments" leave many areas of human

rights uncovered. The challenge for the human rights community,

then, is to make the promotion and protection of human rights

a more standard and uniform corporate practice. (17)

The SRSG then embarks on an assessment of the UN Human Rights Norms, which prompted the establishment of the SRSG on the issue of human rights and transnational corporations and other business enterprises (note the similarity in name), and which seek to respond to the challenges that the SRSG has identified. Because the Norms apply to all states and businesses, the document deals with what he calls "the laggards," that is, the tens of thousands of transnational corporations that have failed to join the UN Global Compact. (18)

On the positive side, the SRSG agrees with the UN Commission on Human Rights that the Norms "contain useful elements: the summary of rights that may be affected by business, positively and negatively, and the collation of source documents from international human rights instruments as well as voluntary initiatives have considerable utility." (19)

The SRSG then embarks on an extremely negative and unproductive critique of the Norms--inspired, if not copied word for word, from the advocacy of the International Chamber of Commerce and the International Organization of Employers. (20) For example, the SRSG accuses the Norms of "doctrinal excesses. Even leaving aside the highly contentions though largely symbolic proposal to monitor firms and provide for reparation payments to victims, its exaggerated legal claims and conceptual ambiguities created confusion and doubt even among many mainstream international lawyers and other impartial observers." (21) The SRSG does not cite a single one of these "mainstream international lawyers and other impartial observers," (22) but relies on the tendentious and highly biased views of lawyers employed by the International Chamber of Commerce. Similarly, he ignores the considerable positive commentary that the Norms have generated. (23) The SRSG is correct in saying that the Norms call for the establishment of some mechanism for monitoring of human rights abuses committed by business, and many in civil society hoped that the SRSG would himself begin to fulfill that monitoring role, just as the thirty or so other special procedures of the UN Commission on Human Rights have for more than 25 years monitored such domains as the use of torture, arbitrary killings, the discharge of toxic wastes, the right to housing, and the right to food.

The Norms also call for mechanisms for reparations to victims of human rights abuses by businesses. The SRSG acknowledges the "willingness by national courts to accept jurisdiction in cases alleging the most serious human rights-related abuses involving companies abroad, of which the U.S. Alien Torts Claims Act (ATCA) jurisprudence is the major but not sole instance." (24) The Norms encourage that development, which is, of course, the principal subject of others on this panel.

The SRSG ignores both the nature and the language of the Norms by accepting without analysis a contention presented by the International Chamber of Commerce, (25) that is:

[I]n several instances, and with no justification, the Norms end

up imposing higher obligations on corporations than states, by

including as standards binding on corporations instruments that

not all states have ratified or have ratified conditionally,

and even some for which states have adopted by no international

instruments at all. (26)

The Norms, of course, do not constitute a treaty and therefore cannot bind either states or corporations in the same way that treaties are binding if they are ratified. Further, the Norms clearly declare that states have the primary responsibility to promote and protect human rights--not corporations. If one were to take the SRSG/International Chamber of Commerce argument seriously, it would disallow the development of any non-treaty instrument on this or any other subject.

While the SRSG seems to prefer voluntary human rights standards for business, he does declare that "normative undertakings and advocacy are essential ingredients for the continued development of the human fights regime, in relation to business no less than other domains." (27) The SRSG affirms that "Under customary international law, emerging practice and expert opinion increasingly do suggest that corporations may be held liable for committing, or complicity in, the most heinous human rights violations amounting to international crimes, including genocide, slavery, human trafficking, forced labor, torture, and some crimes against humanity." (28)

In conclusion, despite his unfortunately negative and unhelpful response to the Norms, his failure to make much progress in developing broadly applicable human rights standards. his related but not exclusive preference for voluntary initiatives without adequate implementation, his failure to mention the relevant procurement standards, and his ridiculous and uncritical parroting of the arguments presented by the International Chamber of Commerce, there is much in the SRSG report that can be the basis for a useful continuation of the effort which the SRSG has identified, that is: "an unflinching commitment to the principle of strengthening the promotion and protection of human rights as it relates to business, coupled with a pragmatic attachment to what works best in creating change where it matters most--in the daily lives of people." (29)

(1) Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc, A/810, at 71 (1948).

(2) Id., preamble.

(3) International Covenant on Civil and Political Rights, GA Res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 UNTS 171, entered into force Mar. 23, 1976.

(4) Id., Art. 2.

(5) International Convention on the Elimination of All Forms of Racial Discrimination, GA Res. 2106 (XX), annex, 20 UN GAOR Supp. (No. 14) at 47, UN Doc. A/6014 (1966), 660 UNTS 195, entered into. force Jan. 4, 1969, Art. 2(1)(d).

(6) Convention on the Elimination of All Forms of Discrimination against Women, GA Res. 34/180. 34 UN GAOR Supp. (No. 46) at 193, UN Doc. A/34/46, entered into force Sept. 3, 1981, Art. 2(e).

(7) See Development and International Economic Cooperation: Transnational Corporations, UN Doc, E/1990/94 (1990). See also United Nations Draft International Code of Conduct on Transnational Corporations, 23 ILM 626 (1984).

(8) Organization for Economic Cooperation and Development, Guidelines for Multinational Enterprises, 15 ILM 967 (1976). The OECD updated these guidelines in 2000. OECD Guidelines for Multinational Enterprises, Revision 2000. at <http://www.oecd.org/dataoecd/56/36/1922428.pdf>.

(9) International Labor Organization, Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, 17 ILM 422, para. 6 (1978), updated in 2000, at <http://www.do.org/public/english/employment/ multi/index.htm>.

(10) Secretary-General Kofi Annan, Address at the World Economic Forum in Davos, Switzerland (Jan. 31, 1999). in UN Doc. SG/SM/6448 (1999).

(11) At <http://www.unglobalcompact.org/Portal/Detault.asp?>. The principles are that businesses should: (1) support and respect the protection of internationally proclaimed human rights within their sphere of influence; (2) make sure they are not complicit in human right abuses; (3) uphold the freedom of association and the effective recognition of the right to collective bargaining: (4) eliminate all forms of forced and compulsory labor; (5) abolish child labor: (6) eliminate discrimination in respect of employment and occupation; (7) support a precautionary approach to environmental challenges; (8) undertake initiatives to promote greater environmental responsibility; (9) encourage the development and diffusion of environmentally friendly technologies; and (10) work against all tbrms of corruption, including extortion and bribery.

(12) Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003).

(13) CHR Res. 2005/69, UN Doc. E/CN.4/2005/L.11/Add.7 at 68 (2005), was adopted April 20, 2005, by a vote of 49 in favor, 3 (Australia, South Africa, and the United States) against, and 1 (Burkino Faso) abstaining. The United States called for a vote and explained its vote against the resolution, http://www.humanrights-usa.net/2005/0420Item17TNC.htm.

(14) UN Doc. E/CN.4/2005/91 (2005).

(15) CHR Res. 2005/69. supra note 13.

(16) John Ruggie, Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, UN Doc. E/CN.4/2006/97 (Feb. 22, 2006), at <http://www.ohchr.org/english/bodies/chr/docs/62chr/ E.CN.4.2006.97-pdf>.

(17) Id., para. 53.

(18) SRSG Ruggie indicates that there are about 70,000 transnational firms, together with roughly 700,000 subsidiaries and millions of suppliers. UN Doc. E/CN.4/2006197. para. 11 (2006).

(19) Id., para. 57.

(20) See International Chamber of Commerce and the International Organisation of Employers, Joint Views of the IOE and ICC on the Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN ESCOR, 55th Sess., UN Doc. E/CN.4/Sub.2/2003/NGO/44 (2003), at <http://www.reports-and-materials.org/ IOE-ICC-views-UN-norms-March-2004.doc>; Maurice Mendelson, In the Matter of the Draft "Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights," 2 OIL, GAS & ENERGY L. INTELLIGENCE (2004), cited at <http://www.gasandoil.com/ogel/ authors/ author_detail.asp?key=680>.

(21) UN Doc. E/CN.4/2006197, para. 59 (2006).

(22) Id., para. 69.

(23) ANDREW CLAPHAM. HUMAN RIGHTS OBLIGATIONS OF NON-STATE ACTORS 195, 225-37 (2006): Larry Cata Backer. Multinational Corporations, Transnational Law: The United Nations' Norms on the Responsibilities of Transnational Corporations as a Harbinger of Corporate Social Responsibility in International Law, 32 COLUM. HUM. RTS. L. REV, 287 (2006): David Kinley & Junko Tadaki, Human Rights Responsibilities for Corporations at International Law, 44 VIRGINIA J. INT'L L. 931 (2004).

(24) UN Doc. E/CN.4/2006/97, para. 15 (2006).

(25) See International Chamber of Commerce and the International Organisation of Employers. Joint Views of the IOE and ICC on the Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN ESCOR, 55th Sess., UN Doc. E/CN.4/Sub.2/2003/NGO/44 (2003). at <http://www.reports-and-materials.org/ IOE-ICC-views-UN-norms-March-2004.doc>.

(26) UN Doc. E/CN.4/2006/97, para. 66 (2006).

(27) Id., para. 69.

(28) Id., para. 61.

(29) Id., para. 81.

David Weissbrodt, Fredrikson and Byron Professor of Law, University of Minnesota Law School. The author wishes to thank Muria Kruger and Mary Rumsey for their assistance in preparing these remarks.