Content of the UN Norms

David Weissbrodt notes that the UN Norms were supposed to ‘go beyond the voluntary guidelines offered in the Global Compact, the ILO Tripartite Declaration and the OECD Guidelines for Multinational Corporations,’³²⁷ because they were the ‘first non-voluntary initiative accepted at the international level’.³²⁸ Although they offered implementation provisions, which indicated they were not meant as aspirational statements,³²⁹ the truth of the matter is quite different. The UN Norms were to be placed somewhere in the middle between the voluntary Global Compact and a fully binding instrument as hoped for by Amnesty International.³³⁰ The UN Norms were hence not mandatory in the sense that they could be described to be international legislation or “hard law”, as they are considered to be more or less a soft-law instrument. The UN Norms did have hopes of becoming mandatory regulation, but the crushing objections of the international community ensured that the UN Norms did not gain such legal status.

Even though the norms might seem quite revolutionary in many ways, their approach to business and human rights is quite traditional. The preamble highlights the state’s primary responsibility in the protection of human rights, but highlights that ‘transnational corporations and other business enterprises, as organs of society, are also responsible for promoting and securing the human rights set forth in the Universal Declaration of Human Rights’. ³³¹ The responsibilities in respect of human rights are bipartite, with the primary responsibility trusted to states, whilst other organs of society would also be responsible for human rights. States still would hence remain the primary actor in fulfilling rights.³³² States were asked to establish

325 Backer (n 7) 331.

326 United Nations High Commissioner on Human Rights on the Responsibilities of Transnational Corporations and Related Business Enterprises With Regards to Human Rights, ‘Report of the United Nations High Commissioner on Human Rights on the Responsibilities of Transnational Corporations and Related Business Enterprises With Regards to Human Rights, U.N. Doc. E/CN.4/2005/91’ (2005) 52(d).

327 Weissbrodt and Kruger (n 316) 913.

328 ibid 903.

329 Weissbrodt and Kruger (n 149) 338.

330 Troy Rule, ‘Using “ Norms ” to Change International Law : UN Human Rights Laws Sneaking in through the Back Door ?’ (2005) 5 Chicago Journal of International Law 325, 328.

331 UN Draft Norms (n 315).

332 Tom Sorell, ‘The UN Norms’ in Janet Dine and Andrew Fagan (eds), Human Rights and Capitalism - A multidisciplinary Perspective on Globalisation (Edward Elgar 2006) 287.

laws for implementing the UN Norms, although due to the wording, some have seen this to not have been obligatory for states.³³³

The UN Norms set forward twenty-three articles written in treaty-like language.³³⁴ The general obligation is that ‘states have the primary responsibility to promote, secure the fulfilment of, respect, ensure respect of 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, secure the fulfilment of, respect, ensure respect of and protect human rights recognized in international as well as national law, including the rights and interests of indigenous peoples and other vulnerable groups.’³³⁵ The UN Norms are to be read and understood in the light of this general obligation,³³⁶ which addresses the underlying fear of the international community that the UN Norms would dismiss the importance of states. These fears were even addressed directly in the UN Norms: ‘Nothing in these Norms shall be construed as diminishing, restricting, or adversely affecting the human rights obligations of States’.³³⁷ The idea of the UN Norms was to extend the level of human rights protection to other actors and not to limit the obligations of those who are already obliged to obey by human rights standards, with the justification for the secondary responsibility of multinational corporations tied to the Universal Declaration of Human Rights.

The application of the UN Norms also extended to ‘other business enterprises’, meaning that it also extended down the supply chain. Similarly, the extent was widened with the ‘sphere of influence’, which describes the extent of the duties of multinational corporations. The Commentary on the UN Norms unfortunately does not shine any light on the exact definition of the term in relation to the UN Norms and hence we must rely on the term’s descriptions from elsewhere in the instrument.

The Commentary prohibits companies from working with entities or persons who do not ‘follow these or substantially similar Norms’.³³⁸ The Commentary also urges companies to monitor their supply chains to the greatest extent possible.³³⁹ In

333 David Kinley, ‘Human Rights Law Review The UN Human Rights Norms for Corporations : The Private Implications of Public International Law’ (2006) 6 Human Rights Law Review 447, 453.

334 John G Ruggie, ‘Business and Human Rights: The Evolving International Agenda’ (2007) 101 The American Journal of International Law 819, 820; Seppala (n 313) 403.

335 UN Draft Norms (n 315) A.1.

336 ‘Commentary on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/38/Rev.2’ (2003) A.1.(a). [herein after Commentary on the UN Draft Norms]

337 UN Draft Norms (n 315)

338 ‘Commentary on the UN Draft Norms (n 336) 5(c).

339 ibid 16(d).

this sense, the “sphere of influence” is meant to be interpreted broadly and also to include supply chains and contractors, not only the legal entity, which is the company in question. It is however troubling that the extent of legal obligations is based on a term which is left without proper definition.

The Commentary on the other hand mentions companies’ obligation to use due diligence in ensuring that their activities do not violate human rights or benefit from any such violations which they were aware or ought to have been aware of.³⁴⁰ The UN Norms and the Commentary together outline companies’ responsibilities to lie within their sphere of their activity. Companies can only be linked to abuses which they had had known of or should have known of. Companies are not only told not to commit abuses, but they are not allowed to directly or indirectly benefit from any abuses either or be complicit in such activity. It appears that the Commentary suggests that failure in due diligence could lead to some level of liability.³⁴¹

The UN Norms also include positive obligation to companies to ‘use their influence to promote respect for human rights’ and ‘contribute to sustainable development’. Its inclusion can be seen as the UN Norms’ attempt to provide a comprehensive regulative initiative which also urges companies to go beyond their requisite duties. However, Section 2.1.2 notes that transnational corporations are to respect not only international law, but also national laws and regulation and even public interests, development objectives and social, economic and cultural policies.³⁴² In this manner, the obligations are only within the companies’ limits of their resources and capabilities, but the inclusion of society developing is quite new, as this depicts the expansion of rights to include social, economic and cultural rights.³⁴³

On the topic of human rights, the UN Norms firstly mandates an overall obligation to respect, ensure respect for, prevent abuse and promote international and national law.³⁴⁴ This provision retains international conventions, treaties and initiatives and hence grants a number of possible obligations to multinational corporations. The UN Norms refer to various UN instruments, declarations and treaties in the preamble. Clearly the UN Norms attempted to gain legitimacy by being constructed on an already accepted foundation of international regulation.³⁴⁵

340 ibid A.1.(b).

341 Backer (n 7) 344.

342 UN Draft Norms (n 315).

343 Surya Deva, ‘UN’s Human Rights Norms for Transnational Corporations and Other Business Enterprises:

An Imperfect Step in the Right Direction?’ (2004) 10 ILSA Journal of International & Comparative Law 493, 507.

344 UN Draft Norms (n 315) A.1.

345 Such as the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.

The UN Norms also defined a list of rights which multinational corporations could affect and hence did not accept that companies could effectively impact all human rights in various manners. This leaves the possibility of an oversight of specific rights. Not everyone accepted the inclusion of rights related to consumer protection, corruption and the environment, which are not considered human rights norms.³⁴⁶

Multinational corporations could have implemented the UN Norms as internal rules of cooperation. For example, companies could adopt the UN Norms as their code of conduct or other voluntary operating principles. On the other hand, companies could create a corporate culture of respect for human rights which consists of training their workers in accordance with the UN Norms. It is hence left to the companies themselves to decide on the appropriate scheme of implementation within their operations. If implemented, external monitoring would have been conducted with periodic reports submitted to an UN organ. Interestingly the UN Norms differ in this sense from other initiatives, as the monitoring is not left solely to states.³⁴⁷ The Commentary dictated various responsibilities to different UN organs, such as the Commission on Human Rights and the Sub-Commission on the Promotion and Protection of Human Rights. The Sub-Commission would have been responsible for monitoring compliance with the UN Norms, whilst the Commission would have monitored compliance by establishing a working group or a special rapporteur.³⁴⁸ Additional reporting to states would have been made mandatory, as governments were obliged to implement and monitor compliance with the UN Norms and use them as a model for legislation.³⁴⁹ Constructing various organs from the national and international level would have built a monitoring system for the UN Norms. The UN Norms did not set up any remedy organs, but urged companies to provide legitimate avenues of remedy for their workers.³⁵⁰ If a company failed to comply with the UN Norms, they would have been obliged to provide reparation, compensation or rehabilitation to anyone who was adversely affected.