3 International Legal Personality in a Human Rights Context
4.2 International Soft-Law Measures
4.2.2 The United Nations Norms on the Responsibility of
4.2.2.3 Critique of the UN Norms
The UN Norms attempted to gain legitimacy and possibly acceptance by referencing international treaties, declarations and other initiatives351 and wished to state that the Universal Declaration of Human Rights also truly encompasses multinational corporations. However, as noted earlier most of these instruments were not meant
346 Kinley (n 333) 427.
347 ibid 500.
348 ‘Commentary on the UN Draft Norms (n 336) 16(b).
349 ibid 16(b) and 17(a).
350 ibid.
351 Weissbrodt and Kruger (n 316) 915.
to also apply to non-state actors. It is extremely difficult to legitimise human rights standards to corporate actors when the treaties that are referenced are not constructed to include other actors than state entities. Even more problematic is the fact that not even all states have accepted or ratified all the referred documents. The UN Norms were seen to privatise human rights and these private companies would become agents are able to define and enforce human rights.352 This complexity was noted as early as in the drafting process by governments. For example, the Australian government noted that ‘the implementation of international human rights standards rests primarily with those States who are a party to the standards, not individual businesses’.353 The UN Norms did not just restate the already accepted treaties, as some argue,354 but attempted to fill the voids of existing regulation, as noted by Casey.355 The UN Norms attempted to refer to various documents to provide guidelines to the applicable obligations more than extending the referred treaties to also include companies. The UN Norms also started a new wave of regulating corporate conduct, which helped formulate other business and human rights instruments.
Although the UN Norms allocated the primary responsibility to states, they included the idea of sharing certain obligations with multinational companies.
This eliminated the role of the state between multinational corporations and international law and hence obligated multinational corporations directly. It was too radical for governments who were unwilling to share their international obligations, and states fiercely opposed the UN Norms. Critics remark that it is clear that even if the intention of the UN Norms was not to shift responsibility from states, it would do so inevitably and hence threaten the international system.356
Compared to the later discussed Guiding Principles on Business and Human Rights, the drafting process of the UN Norms lacked transparency and political
352 Justine Nolan, ‘With Power Comes Responsibility: Human Rights and Corporate Accountability’ (2005) 28 University of New South Wales Law Journal 581, 585; David Kinley, Justine Nolan and N Zerial, ‘Reflections on the United Nations Human Rights Norms for Corporations’ (2007) 25 Companies and Securities Law Journal 30, 34–37.
353 Australian Permanent Mission to the U.N, ‘Comments by Australia in Respect of the Report From the Office of the High Commissioner for Human Rights by the Commission on Human Rights in Its Decision 2004/116 of 20 April 2004 on Existing Initiatives and Standards Relating to the Responsibility of Transtational Corporations’
(2004) 2.
354 Hillemans (n 318) 1070.
355 Michael Casey, ‘Transnational Corporate Responsibility for International Environmental and Human Rights Violations: Will the United Nations’ “Norms” Provide the Required Means?’ (2005) 36 California Western International Law Journal 217, 239.
356 Jacob Gelfand, ‘The Lack of Enforcement in the United Nations Draft Norms: Benefit or Disadvantage?’
in Olivier De Schutter (ed), Transnational Corporations and Human Rights (Hart Publishing 2006) 320;
Larry Catá Backer, ‘Moving Forward the UN Guiding Principles for Business and Human Rights: Between Enterprise Social Norm, State Domestic Legal Orders, and the Treaty Law That Might Bind Them All’ (2015) 38 Fordham International Law Journal 457, 502; Larry Catá Backer, ‘On the Evolution of the United Nations
“Protect- Respect-Remedy Project”: The State, the Corporation and Human Rights in a Global Governance Context’ (2011) 9 Santa Clara Journal of International Law 37, 46.
consideration.357 John Ruggie, the Special Representative of the Secretary-General, had a more transparent working style whilst constructing both the Protect, Respect and Remedy Framework and the Guiding Principles. The Sub-Commission on the other hand worked without any input from the business world, mostly within their personal capacities, and even more importantly the Sub-Commission worked without any mandate from the Human Rights Council. It was also problematic that neither the Sub-Commission or the Commission had the authority to make the UN Norms legally binding even though that was their eventual goal.358 When the UN Norms were finally given to the Council, their reaction was unsurprising as they had very little knowledge of the UN Norms and were surprised their hopes of a binding legal status.
The UN Norms did not become what was initially intended; a mandatory regulative instrument. This was no surprise, as most states were against the mandatory nature of the UN Norms from the very beginning. John Ruggie called the UN Norms a train wreck in Geneva359 and criticised them for their inconsistency with international law, as they could not be simultaneously voluntary for non-state actors and reflecting international legal principles.360 He also noted that taking existing human rights instruments which were designed for states and asserted them to be binding on business entities was not within the realm of international law.361 He went as far as to pronounce the UN Norms dead in 2006.362 He clearly wished to distance himself from the UN Norms with the Protect, Respect and Remedy Framework and the Guiding Principles on Business and Human Rights.
357 Amerson (n 314) 918.
358 Anita Ramasastry, ‘Closing the Governance Gap in the Business and Human Rights Arena: Lessons from the Anti-Corruption Movement’ in Surya Deva and David Bilchitz (eds), Human Rights Obligations of Business - Beyond the Corporate Responsibility to Protect (Cambridge University Press 2013) 168; Gelfand (n 356) 1.
359 Special Representative to the Secretary-General, ‘Remarks by John Ruggie: Delivered at a Forum on Corporate Social Responisibility, Co-Sponsored by the Fair Labor Association and the German Network of Business Ethichs, Bamberg, Germany’ (14 June 2006) <https://business-humanrights.org/sites/default/files/reports- and-materials/Ruggie-remarks-to-Fair-Labor-Association-and-German-Network-of-Business-Ethics-14-June-2006.pdf>.
360 Commission on Human Rights, Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, E/CN.4/2006/97 (2006) 2.
361 ibid.
362 Remarks by John Ruggie: Delivered at a Forum on Corporate Social Responisibility, Co-Sponsored by the Fair Labor Association and the German Network of Business Ethichs, Bamberg, Germany’ (n 359).