Ruggie BusinessHumanRights 2007

Business and Human Rights: The Evolving International Agenda
Author(s): John Gerard Ruggie

Source: The American Journal of International Law , Oct., 2007, Vol. 101, No. 4 (Oct.,
2007), pp. 819-840
Published by: Cambridge University Press
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CURRENT DEVELOPMENTS
Business and Human Rights: The Evolving International Agenda
By John Gerard Ruggie*
The state-based system of global governance has struggled for more than a gen
adjust to the expanding reach and growing influence of transnational corporation
Nations first attempted to establish binding international rules to govern the activ
nationals in the 1970s.1 That endeavor was initiated by developing countries
broader regulatory program with redistributive aims known as the New Internat
nomic Order.2 Human rights did not feature in this initiative. The Soviet bloc su
while most industrialized countries were opposed. Negotiations ground to a halt a
than a decade, though they were not formally abandoned until 1992.
"Soft law" approaches enjoyed broader political appeal. In 1976 the Organisa
nomic Co-operation and Development (OECD) adopted a set of Guidelines for
Enterprises, and a year later the International Labour Organization (ILO) adopted
Declaration of Principles Concerning Multinational Enterprises. Each was revi
Both reference the Universal Declaration of Human Rights (UDHR) and other
human rights standards.
Also in 2000, the United Nations Global Compact became operational. It is a volu
tiative engaging companies and civil society, including labor, in promoting UN p
* Kirkpatrick Professor of International Affairs and Director, Mossavar-Rahmani Center for B

ernment, Kennedy School of Government, Harvard University; Affiliated Professor in Internation
Harvard Law School; United Nations Secretary-General's Special Representative for Business an
(SRSG). For funding the research and consultations reported in this essay, I thank the governmen
gium, Norway, Sweden, and the United Kingdom; the Friedrich Ebert Stiftung, the German Mar
United States, and the United Nations Foundation; the Kennedy School's Corporate Social Resp
tive; and the United Nations Office of the High Commissioner for Human Rights. Harvard Law S
vided research support. Aliens Arthur Robinson of Melbourne, Australia, provided pro bono legal r
gest debts are to my Geneva colleagues, Gerald Pachoud, on secondment from the Swiss Foreign M
Wendland, of the High Commissioner's Office; my Harvard-based legal research team, Rachel Dav
Michael Wright, and Vanessa Zimmerman; and Christine Bader, on secondment from BP. Beth Je
Kaufman, and Diego Quiroz Onate provided additional research assistance.
1 UN Intergovernmental Working Group on a Code of Conduct, Draft UN Code of Conduct o
Corporations, UN Doc. E/ 1990/94 (June 12, 1990).
2 See generally Branislav Gosovic & John Gerard Ruggie, On the Creation of a New International
30 INT'LORG. 309(1976).
3 Organisation for Economic Co-operation and Development [OECD] , Guidelines for Multin
prises: Text, Commentary and Clarifications, OECD Doc. DAFFE/IME/WPG(2000)15/FINA
able at <http://www.olis.oecd.org/olis/2000doc.nsf/LinkTo/daffe-ime-wpg(2000) 1 5-final> [h
Guidelines] ; International Labour Organization, Tripartite Declaration of Principles Concernin
Enterprises and Social Policy (rev. Nov. 2000), 83 ILO OFF. BULL. (ser. A), No. 3 (2000).
819

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820 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 101:819
the areas of human rights, labor standards, environmental protection, and, since 2004,
corruption.4 Focused on norm diffusion and the dissemination of practical know-h
tools, the Global Compact has become the world's largest corporate social responsibility
tiative, with some three thousand participating companies and forty national networks
unique among such initiatives for its extensive involvement of developing-country com
Fueled by escalating reports of corporate human rights abuses, especially in the extr
sector and the footwear and apparel industries, the UN Sub-Commission on the Pro
and Protection of Human Rights (Sub-Commission), a subsidiary body of the then Com
sion on Human Rights composed of twenty-six more or less independent experts, estab
a working group on business and human rights in 1998.5 It was tasked with "makfing]
ommendations and proposals relating to the methods of work and activities of transnat
corporations in order to ... promote the enjoyment of economic, social and cultural rig
the right to development, as well as of civil and political rights."6 In 2003 the working
produced the draft "Norms on the Responsibilities of Transnational Corporations and O
Business Enterprises with Regard to Human Rights" (draft Norms).7
Written in treatylike language, the text comprises twenty-three articles setting out
rights standards for companies in areas ranging from international humanitarian law, th
civil, political, economic, social, and cultural rights, to consumer protection and enviro
tal practices. While acknowledging that states are the primary duty bearers in relation t
rights, it stipulates that transnational firms and other business enterprises, within their
of activity and influence," have corresponding legal duties.8 It also requires that corporat
pliance be monitored by national and international agencies, and victims provided with
tive remedies.9
The Sub-Commission approved the text in 2003. According to their principal author,
Norms are the first nonvoluntary initiative [in the area of business and human rights] a
at the international level."10 But the story did not end there. The draft was then tran
to the Commission on Human Rights (Commission), the intergovernmental parent body
adoption at its next session in 2004. n And the Commission reacted coolly.
4 More information on the UN Global Compact is available at <http://www.unglobalcompact.org>.

establish the compact and had oversight responsibility for it during my tenure as UN assistant secretary
(1997-2001); after I came to Harvard I continued to serve as Secretary-General Kofi Annan's special adviser
compact until he appointed me to be SRSG for business and human rights in 2005.
5 The twenty-six members of the Sub-Commission are elected by the Commission, act in their personal
and are mandated to undertake studies and make recommendations to the Commission.
UN Sub-Commission on Prevention of Discrimination and Protection of Minorities [its former nam
1998/8, in Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorit
Fiftieth Session, UN Doc. E/CN.4/1999/4-E/CN.4/Sub.2/1998/45, at 30, 31-32, para. 4(d) (Sept. 3
7 UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 26, 2003) [hereinafter Draft Norms]. The first iterat
called a "draft code of conduct," and the second "draft guidelines." Presumably, the first sounded too ro
the second too mild. The working group members were Miguel Alfonso-Martinez, Cuba; El-Hadji Guisse,
Vladimir Khartashkin, Russian Federation; Soo-Gil Park, Republic of Korea; and David Weissbrodt, United
* Id., para. 1.
9 Id., paras. 15-18.
1 ° David Weissbrodt & Muria Kruger, Norms on the Responsibilities ofTransnational Corporations and Other Busi-
ness Enterprises with Regard to Human Rights, 97 AJIL 901,903 (2003) .
UN Sub-Commission on the Promotion and Protection of Human Rights [Sub-Comm'n] Res. 2003/16,
Responsibilities ofTransnational Corporations and Other Business Enterprises with Regard to Human Rights, UN
Doc. E/CN.4/Sub.2/2003/L.ll, at 52 (Aug. 13, 2003).

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2007] CURRENT DEVELOPMENTS 821
The main international human rights n

the draft Norms, and began to refer to th
nity, represented by the International Cha
sation of Employers, was firmly opposed. 1
ument contained "useful elements and idea
as a draft proposal, it had no legal standin
engage in any monitoring of corporate act
Although the Commission was not prep
states, including several major industrial
human rights did require serious attention
Commission asked the Secretariat to explor
elusive a year later, the Commission then
special representative (SRSG), initially for
"identify and clarify" international standa
rights, elaborate on key concepts including
and submit "views and recommendations" f
25, 2005, the UN Economic and Social C
three days later then secretary-general Ko
12 International Chamber of Commerce and Intern

and ICC on the Draft "Norms on the Responsibilit
prises with Regard to Human Rights" (Mar. 2004
ICC-views-UN-norms-March-2004.doc> [hereina
13 UN Commission on Human Rights [CHR] D
2004).
14 CHR, Report of the United Nations High Commissioner on Human Rights on the Responsibilities of Trans-
national Corporations and Related Business Enterprises with Regard to Human Rights, UN Doc. E/CN.4/
2005/91 (Feb. 15,2005).
15 In CHR Resolution 2005/69, UN Doc. E/CN.4/2005/L.87, para. 1 (Apr. 15, 2005), reprinted in CHR,
Report on the 6lst Session, UN Doc. E/2005/23-E/CN.4/2005/135, at 268, the SRSG was given the following
mandate:
(a) To identify and clarify standards of corporate responsibility and accountability for transnational cor-
porations and other business enterprises with regard to human rights;
(b) To elaborate on the role of States in effectively regulating and adjudicating the role of transnational
corporations and other business enterprises with regard to human rights, including through international
cooperation;
(c) To research and clarify the implications for transnational corporations and other business enterprises
of concepts such as "complicity" and "sphere of influence";
(d) To develop materials and methodologies for undertaking human rights impact assessments of the
activities of transnational corporations and other business enterprises;
{e) To compile a compendium of best practices of States and transnational corporations and other busi-
ness enterprises.
The resolution was cosponsored by Argentina, Austria, Belgium, Canada, Chile, Croatia, Cyprus, the Czech
Republic, Denmark, Estonia, Ethiopia, Finland, France, Germany, Greece, Guatemala, Hungary, India, Ireland,
Italy, Latvia, Lithuania, Luxembourg, Malta, Mexico, the Netherlands, Nigeria, Norway, Poland, Portugal, Roma-
nia, the Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.
UN Economic and Social Council, Decision on Human Rights and Transnational Corporations and Other
Business Enterprises, UN Doc. E/2005/INF/2/Add.l (July 25, 2005) (approving the UN secretary-general's
appointment of a special representative for the mandate).

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This essay provides an overview of the SRSG mandate's work to date, and lays out th
direction in which it is moving. In doing so, it indicates why I concluded that I co
"endorse" or "build upon" the draft Norms as the basis for my mandate, as some partic
in the debate had urged me to do.17 The essay draws on two sets of reports I have subm
to the Commission and its successor body, the Human Rights Council; nearly two
research papers produced by or for the mandate; the results of three regional multistake
consultations (in Johannesburg, Bangkok, and Bogota), four international workshops of
experts, and two multistakeholder consultations focused on individual sectors (extractiv
financial services); and site visits to the international operations of companies on three
tinents; as well as pro bono research conducted for the mandate by several law firms.18 Th
is divided into three parts: a brief examination of the central conceptual flaws of the d
Norms; some problematic factual claims made by Norms' advocates coupled with a m
of standards, legal and otherwise, that currently govern the activities of business in rela
human rights; and a concluding discussion of the mandate's future directions.
I. Conceptual Challenges
It would be surprising if all major actors in the "Norms" debate, quite apa
stantive merits of their arguments, did not also behave strategically, in keep
ceived interests. Business typically dislikes binding regulations until it sees
inevitability. Governments often support the preferences of corporations d
countries and/or compete for foreign investment. And the imprimatur of
have provided NGOs with a powerful campaign tool: declaring certain c
"illegal" has far greater social purchase, even in the absence of viable enforce
than merely claiming corporate "wrongdoing."
The SRSG mandate, however, was not bound by these prior positions, nor
simply to search for the lowest common denominator among them. Indeed,
Norms were the only comprehensive business and human rights propo
believed they merited careful assessment to see if they could serve as a sound
forward. But I found instead that they embodied sources of conceptual as w
fusion, with potentially deleterious consequences for the realization of righ
17 I received letters to this effect from the major international human rights organizat
Rights Watch, the Federation internationale des ligues des droits de l'homme, and Amn
Human Rights Watch, Corporate Accountability: A Human Rights Watch Position
available at <http://hrw.org/english/docs/2005/09/09/globalll723.htm>; Federation in
des droits de l'homme, Position Paper: Comments to the Interim Report of the Special Rep
retary-General on the Issue of Human Rights and Transnational Corporations and O
prises, Doc. 442/2 (Mar. 15, 2006), available at <http://www.fidh.org/IMG/pdf/busine
John Ruggie from Irene Khan, secretary general, Amnesty International, Ref. OSG/200
available at <http://www.reports-and-materials.org/Amnesty-Intl-comments-on-Rugg
Apr-2006.pdf >. The two position papers are also available at <http://www.business-humanr
Ruggie-HRC-2006>.
18 Materials related to my mandate, including reports, statements, working papers
announcements, may be found on the SRSG's home page at the Business and Human Rights
site, <http://www.business-humanrights.org/Gettingstarted/UNSpecialRepresentative>. I a
to Chris Avery and his dedicated staff for making this invaluable service available.

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key conceptual issues in the present part;

Commission in February 2006. 19 I discuss
The Universe
To minimize charges of bias against globa

are its most visible embodiment, the Norm
prises," not only transnationals, within its
ating businesses if they had no connection
activities was purely local, and their activit
the person - though neither the text no
exemptions would be determined ex ante.2
According to the most recent figures, sev
global economy today, with some 770,00
alone is reported to have more than sixty
countries than ever before, and increasing
human rights challenges for them.22 In ad
adopting network-based operating models
and within countries. Networks, by their
direct control over significant operations, s
structures. This organizational form has en
has increased the challenges companies fac
range of activities required to bring a pro
the number of participating units in value
ability any particular link in the chain pose
time, these distributed networks also have
19 Special Representative of the Secretary-Genera

tions and Other Business Enterprises, Interim R
[hereinafter Interim Report] .
20 Draft Norms, supra note 7, para. 21.
21 The overall figures are taken from UNCTA
E.06.II.D.1 1 (2006), ^^^^^r<http://wvvw.unctad.
suppliers comes from the announcement of a lect
Lecture of the Prince of Wales's Business and the E
for Industry (Feb. 1, 2007), available at <http://w
22 This is particularly true of the extractive sector
publications alleging significant corporate-related h
and mining accounted for two-thirds of the total. V
nearly two-thirds either had recently emerged from
the countries fell below the global average for the "
supra note 19, paras. 24-30.
3 See Beth Kytle & John Gerard Ruggie, Corpor
Multinationals (Harvard University, Kennedy Sch
Working Paper No. 10, Mar. 2005), available at
workingpaper_l 0_kytle_ruggie.pdf > .
This pattern has characterized the global brand
accounted for the second highest fraction of alleged
supra.

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civil society actors can seek to leverage a company's brand and resources in the hope of i
ing not only the performance of the firm, but also the setting in which it operates.
Transnational corporate networks pose a regulatory challenge to the international leg
tem. To begin with, in legal terms purchasing goods and services from unrelated supplier
erally is considered an arm's-length market exchange, not an intrafirm transaction. Am
related parties, a parent company and its subsidiaries are distinct legal entities, and even
scale projects may be incorporated separately. Any one of them may be engaged in join
tures with other firms or governments. Owing to the doctrine of limited liability, a p
company generally is not legally liable for wrongs committed by a subsidiary even wh
the sole shareholder, unless the subsidiary is under such close operational control by the
that it can be seen as the parent's mere agent. Each legally distinct entity is subject to th
of the countries in which it operates, but the transnational corporate group or networ
whole is not governed directly by international law. It is this foundational fact that th
to establish global legal standards for transnational corporations seeks to alter. And it ha
to change.
Rights and Duties
If international human rights obligations are to be attributed to transnational corpor

on what basis shall this be done? It seems clear that longstanding doctrinal arguments
whether such firms could be "subjects" of international law are yielding to new realities
ground. For example, firms have acquired significant rights under various types of bil
investment treaties and host government agreements, they set international standards in
sectors, and certain corporate acts are directly prohibited in a number of civil liability c
tions dealing with environmental pollution.25 Thus, at a minimum transnational corpor
have become "participants" in the international legal system, as Rosalyn Higgins, presid
the International Court of Justice, puts it, with the capacity to bear some rights and d
under international law.26
The case made for the draft Norms went like this. The UDHR, in its preamble, procl
that "every individual and every organ of society . . . shall strive by teaching and educ
promote respect for these rights and freedoms and by progressive measures, national an
national, to secure their universal and effective recognition and observance."27 Transna
corporations have greater power than some states to affect the realization of rights, th
ment continued, and "[w]ith power should come responsibility."28 Therefore, these cor
tions must bear responsibility for the rights on which they may have an impact. And
25 See Report of the Special Representative of the Secretary-General on the Issue of Human Rights an
national Corporations and Other Business Enterprises [Report of the SRSG], Business and Human Righ
ping International Standards of Responsibility and Accountability for Corporate Acts, UN Doc. A/HR
para. 20 (Feb. 19, 2007) [hereinafter Business and Human Rights: Mapping International Standards];
Steven R. Ratner, Business, in THE OXFORD HANDBOOK OF INTERNATIONAL ENVIRONMENTAL LAW
at 807 (Daniel Bodansky, Jutta Brunnee, & Ellen Hey eds., 2007).
26 Rosalyn Higgins, Problems and Process: International Law and How We Use It 50 (1995).
As early as 1949, the ICJ stated: "The subjects of law in any legal system are not necessarily identical in their nature
or in the extent of their rights, and their nature depends upon the needs of the community." Reparation for Injuries
Suffered in the Service of the United Nations, Advisory Opinion, 1949 ICJ REP. 174, 178 (Apr. 1 1) [hereinafter
Reparation for Injuries].
27 Universal Declaration of Human Rights, GA Res. 217 (III), UN Doc. A/810, at 71 (1948).
28 Weissbrodt & Kruger, supra note 10, at 901.

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some states are unable or unwilling to make

jected to direct and uniform corporate res
The draft Norms enumerated rights that
including nondiscrimination, security of t
rights. But the list included rights that st
global level, including consumer protection
management, and the principle of "free, p
and communities. At the same time, the dr
business but provided no principled basis f
criticism that the list was overly inclusive,
of "core" rights that are said to enjoy the m
grasp.29 But that move, in turn, is subject
a "significant departure from the insisten
the equal importance of all human rights."
observers to conclude that any detailed ex
might bear some responsibility is an inher
could apply, but in any particular instance
A far more serious problem concerns the
human rights duties to corporations. After
the paragraph entitled "General Obligation
and influence, transnational corporations a
promote, secure the fulfilment of, respect,
nationally recognized human rights.32 Tha
ence" they would have exactly the same ran
rights - the only difference being that stat
secondary. But the draft Norms defined no
of influence, though useful as an analytica
the boundaries within which corporati
unknown. Nor was the distinction betwe
scope and threshold conditions left unspecif
29 David Kinley &C Junko Tadaki, From Talk to W

porations at International Law, 44 VA. T. INT'LL.
30 Philip Alston, 'Core Labour Standards' and the Tr
J. INT'L L. 457, 459-60 (2004), rejecting even the
3 The Business Leaders Initiative on Human Righ
global firms of which Mary Robinson is the honor
operationalized and integrated in companies' policie
laration as their point of departure, having found
a 'Common Framework' on Business and Huma
<http://www.blihr.org/Pdfs/BLIHR3Report.pdf>
32 Draft Norms, supra note 7, para. 1 .
33 Two law firms conducted a search often jurisdic
influence" used in legal contexts. It was introduced i
pact, and has proven to be useful as a tool in corporat
environments for possible sources of risk and opportu
blihr, UN Global Compact, and Office of the UN High Commissioner for Human Rights, A
Guide for Integrating Human Rights into Business Management (2005), available at <http://ww
blihr.org> (follow "Tools" hyperlink).

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likely in practice to come to hinge on the respective capacities of states and corporations
ticular situations - so that where states were unable or unwilling to do their job, the p
would be on companies to step in. This approach may be desirable in special circum
but as a general proposition it is deeply troubling on several grounds.
Philip Alston, former chair of the United Nations Committee on Economic, Social and
tural Rights, identifies both the problem and its resulting dilemma:
If the only difference is that governments have a comprehensive set of obligations

those of corporations are limited to their "spheres of influence", . . . how are the latte
gations] to be delineated? Does Shell's sphere of influence in the Niger Delta not
everything ranging from the right to health, through the right to free speech, to the
to physical integrity and due process?34
Alston raises concerns that this formula could undermine corporate autonomy, risk takin
entrepreneurship, asking: "[W]hat are the consequences of saddling [corporations] with al
constraints, restrictions, and even positive obligations which apply to governments?"35 I
because corporations are not democratic public interest institutions, they should be perm
have such roles only in exceptional circumstances - for example, where they perform state fun
The formula's possible impact on the roles and responsibilities of governments is equ
troubling. Within the constraints of "progressive realization," the international human
regime recognizes the legitimate need of governments to exercise discretion in making
offs and balancing decisions, and especially in determining how best to "secure the fulfil
of, precisely, the economic, social, and cultural rights on which corporations may have g
influence. Imposing the full range of duties on transnational corporations directly under
national law by definition reduces the discretionary space of individual governments wit
scope of those duties.36 The draft Norms' attempt to square the circle by requiring com
also to follow national laws and policy priorities - and even "more protective standards
ever those may be found - is no solution.37 It merely adds layers of conflicting prescr
for firms to observe. In addition, where governance is weak to begin with, shifting oblig
onto corporations to protect and even fulfill the broad spectrum of human rights may f
undermine domestic political incentives to make governments more responsive and resp
sible to their own citizenry, which is surely the most effective way to realize rights.
Finally, attributing the same range of duties to corporations that currently apply to stat
ferentiated only in degree within undefined corporate "spheres of influence," would gener
less strategic gaming and legal wrangling on the part of governments and companies alike.
trated by a recent Brazilian case where a corporation and a government authority are con
which one reneged on its legal obligations to provide support to communities of indigeno
ples, the rights of vulnerable groups and individuals are not well served in such circumsta
34 Philip Alston, The 'Not-a-Cat' Syndrome: Can the International Human Rights Regime Accommodate N
Actors? in NON-STATE ACTORS AND HUMAN RIGHTS 3, 13-14 (Philip Alston ed., 2005).
35 Id at 14.
36 Carlos M. Vazquez, Direct vs. Indirect Obligations of Corporations Under International law, 43 COLUM. J.
TRANSNAT'L L. 927, 950-54 (2005).
37 Draft Norms, supra note 7, paras. 10, 19.
38 After members of surrounding indigenous communities occupied mining sites of the Companhia Vale do Rio Doce
(CVRJD) in protest for what they regarded as insufficient provision of funds and services by the company, CVRD refused
to continue making any payments to the communities through the National Indian Foundation (Funai), with which it

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In sum, while it may be useful for some p

ety," they are specialized organs, perform
should reflect that fact. As early as 1949, t
ognizing an international person "is not th
and rights and duties are the same as thos
range of duties as states for all rights they m
tive rule making itself highly problematic.
II. Mapping Standards
Another problematic feature of the debate that preceded the creation of the SR
and carried over into it was the sharply divergent views about the actual state of i
law regarding business and human rights. The draft Norms were described as "a
of international legal principles applicable to companies."41 As we have just seen,
have imposed direct obligations on corporations under international law and were
"non-voluntary" in character. According to one authoritative source, restatement
law as it presently stands or might plausibly be stated by a court."42 The idea th
project amounted to no more than a "restatement" of legal principles was contested
and also questioned by academic observers.43 Apparently, the Commission on Hum
was not persuaded either, because my first task under the mandate, as noted
"identify and clarify standards of corporate responsibility and accountability for t
corporations and other business enterprises with regard to human rights"44 - ess
"restate" existing standards and indicate emerging trends.
Therefore, within the limits of our time and resource constraints, the SRSG's
to map international standards and practices regarding business and human right
2007, 1 presented the results to the Human Rights Council in a report with four
had an agreement to do so, on the grounds that the communities were using illegal means to force the c
their demands. CVRD reported the events to the Organization of American States, seeking clarification
vis-a-vis indigenous peoples. Funai sought an injunction from Brazil's domestic courts, which was g
CVRD to resume payments. Funai is also seeking a declaration from the Brazilian Federal Court attribut
sibility to CVRD for social impacts caused by its mining activities. See CVRD and Funai's press relea
available at <http://www.cvrd.com.br/saladeimprensa/en/releases/release.asp?id= 16724>; <http://
br/ultimas/noticias/ I_semestre_2007/janeiro/un0 1 3 1_00 1 .htm> (in Portuguese) .
39 Reparation for Injuries, supra note 26, at 179.
40 For an attempt to sketch out an analytical foundation for corporate duties that does recogniz
social roles of states and corporations, see Steven R. Ratner, Corporations and Human Rights: A T
Responsibility, 1 1 1 YALE LJ. 443 (2001).
41 David Weissbrodt & Muria Kruger, Human Rights Responsibilities of Businesses as Non-state A
STATE ACTORS AND HUMAN RIGHTS, supra note 34, at 3 1 5 , 340. The language is slightly differe
& Kruger, supra note 10, at 915: "[T]he legal authority of the Norms now derives principally fro
in international law as a restatement of legal principles applicable to companies."
American Law Institute, Projects Overview, at <http://www.ali. org/index.cfm?fuseaction=
The American Law Institute conducts periodic restatements of various bodies of U.S. law, docume
lution.
43 See, e.g., IOE-ICC Joint Views, supra note 12. For a sampling of academic critiques, see Detlev F. Vagts, The
UN Norms for Transnational Corporations, 16 LEIDEN J. INT'L L. 795 (2003); Vazquez, supra note 36; Rebecca
M. M. Wallace & Olga Martin-Ortega, The UN Norms: A First Step to Universal Regulation of Transnational Cor-
porations' Responsibilities for Human Rights? 26 Dublin U. LJ. 304 (2004).
44 See supra note 15.

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supporting materials.45 The mapping was organized into five clusters laid out along a c
uum, starting with the most deeply rooted international legal obligations and ending wit
untary business standards: the state duty to protect against corporate abuses; corporate r
sibility and accountability for international crimes; corporate responsibility for other
rights violations under international law; soft law mechanisms; and self-regulation.
The State Duty to Protect
All sides agree that the state is the primary duty bearer in relation to human rights. B
duty to protect against third-party abuses of rights, including by business entities, had
relatively little attention in the debate surrounding the draft Norms. This neglect is sur
inasmuch as international law firmly establishes that states have such a duty within thei
diction.46 It exists under the core UN human rights treaties and is elaborated by the trea
ies; it is also generally agreed to exist under customary international law. Indeed, the U
regional human rights mechanisms have addressed it with increasing frequency. To doc
the UN treaty bodies' evolving understanding of this duty and what it implies, we con
detailed analyses of their commentaries.47
The earlier UN human rights treaties, such as the International Convention on the El
ination of All Forms of Racial Discrimination, the International Covenant on Econ
Social and Cultural Rights, and the International Covenant on Civil and Political
(ICCPR), do not specifically address state duties regarding business. They impose genera
obligations to ensure the enjoyment of rights and prevent nonstate abuse. Thus, the Co
tion on Racial Discrimination requires each state party to prohibit racial discrimina
"any persons, group or organization" (Art. 2(l)(d)).48 And some of the treaties recognize
45 Report of the SRSG, supra note 25, para. 88. See also the four supporting addenda: Report of th
Addendum: State Responsibilities to Regulate and Adjudicate Corporate Activities Under the United
Core Human Rights Treaties: An Overview of Treaty Body Commentaries, UN Doc. A/HRC/4/
(Feb. 13, 2007) [hereinafter Addendum: State Responsibilities to Regulate and Adjudicate Corpora
ities]; Addendum: Corporate Responsibility Under International Law and Issues in Extraterritorial R
tion: Summary of Legal Workshops, UN Doc. A/HRC/4/35/Add.2 (Feb. 15, 2007) [hereinafter Ad
Corporate Responsibility Under International Law]; Addendum: Human Rights Policies and Mana
Practices: Results from Questionnaire Surveys of Governments and the Fortune Global 500 Firms,
A/HRC/4/35/Add.3 (Feb. 28, 2007) [hereinafter Addendum: Human Rights Policies and Managem
tices] ; Addendum: Business Recognition of Human Rights: Global Patterns, Regional and Sectoral Var
UN Doc. A/HRC/4/35/Add.4 (Feb. 8, 2007) [hereinafter Addendum: Business Recognition of
Rights]. These reports were compiled with the assistance of a Harvard-based research team, pro bo
tributions from law firms, and international workshops of legal experts.
46 States also have duties to respect, promote, and fulfill rights, but the most business-relevant is the duty
tect because it is directed at third-party abuse. Beyond the national territory, the scope of the duty will vary
ing on the state's degree of control. The UN human rights treaty bodies generally view states parties' ob
as applying to areas within their "power or effective control." Note that where corporations perform pub
tions or are state controlled, their acts may be attributed to the state under international law. See GA R
(Dec. 12, 2001) (taking note of the International Law Commission's Articles on Responsibility of States fo
nationally Wrongful Acts).
47 See Addendum: State Responsibilities to Regulate and Adjudicate Corporate Activities, supra not
included general comments or recommendations where they exist, as well as other primary materials su
cluding observations on states parties' periodic reports.
8 International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 19
UNTS 195.

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that are particularly relevant in business c

health, and indigenous communities.
Beginning with the Convention on the El
Women, adopted in 1979, and including th
recently adopted Convention on the Right
more directly and in greater detail. The Co
example, requires states to take all appropr
women by any "enterprise" (Art. 2(e)), and
gages and other forms of financial credit"
cretion regarding the modalities for regul
The treaty bodies elaborate upon the d
Human Rights Committee is one recent ex
itive obligations on States Parties to ensure
viduals are protected by the State, not just
but also against acts committed by private
could breach Covenant obligations where t
to exercise due diligence to prevent, punish
by private persons or entities."51
The committees express concern about sta
frequently in relation to the right to non
and health-related rights. But they indicat
rights recognized by the treaties that priv
tend not to specify the precise content of r
ulation through legislation and adjudication
where appropriate.
The committees have not expressly interp
extraterritorial jurisdiction over abuses co
territory.52 Nor, however, do they seem t
in some situations they have encouraged it
and Cultural Rights has suggested that sta
and companies" from violating rights in o
ination of Racial Discrimination recently n
49 Convention on the Elimination of All Form

UNTS 13.
50 Human Rights Committee, General Comment No. 3 1 : The Nature of the General Legal Obligation Imposed
on States Parties to the Covenant, UN Doc. CCPR/C/2 1 /Rev. 1 /Add. 13, para. 8 (May 26, 2004) , reprinted in Com-
pilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN
Doc. HRI/GEN/l/Rev.8, at 233 (May 8, 2006) [hereinafter Treaty Bodies Compilation].
51 Id
52 Note that both the Convention Against Torture and the Optional Protocol to the Convention on the Rights
of the Child on the Sale of Children, Child Prostitution and Child Pornography require states parties to establish
jurisdiction over certain offenses where the victim or alleged offender is a national, or when the alleged offender is
present in their territory and there is no extradition. Neither the Committee Against Torture nor the Committee
on the Rights of the Child has discussed these provisions in relation to corporations.
53 Committee on Economic, Social and Cultural Rights [CESCR], General Comment No. 15: The Right to
Water, UN Doc. E/C. 12/2002/1 1, para. 33 (Jan. 20, 2003), reprinted in Treaty Bodies Compilation, supra note
50, at 105.

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the rights of indigenous peoples in other countries from the activities of corporations re
in a state party. The Committee encouraged that state to "take appropriate legislative or
istrative measures" to prevent such acts, recommended that the state explore ways to h
corporations "accountable," and asked the state to provide information on measures ta
its next periodic report.54
In general, international law permits a state to exercise extraterritorial jurisdiction pr
there is a recognized basis: where the actor or victim is a national, where the acts have su
adverse effects on the state, or where specific international crimes are involved.55 Ex
torial jurisdiction must also meet an overall reasonableness test, which includes nonint
tion in other states' internal affairs.56 Debate continues over precisely when the prot
human rights justifies extraterritorial jurisdiction.
The regional human rights systems also affirm the state duty to protect against no
abuse and they establish similar correlative state requirements to regulate and adjudica
porate acts.57 The increasing focus on protection against corporate abuse by the UN trea
ies and regional mechanisms indicates a growing concern that states either do not fully
stand or are not always able or willing to fulfill this duty. This concern is reinforced
results of a questionnaire survey of states I conducted, asking them to identify policies a
tices by which they regulate, adjudicate, and otherwise influence corporate actions in
to human rights.58 Of those states responding, very few report having policies, prog
tools designed specifically to deal with corporate human rights challenges. A larger num
they rely on the broader framework of corporate responsibility initiatives, including su
law instruments as the OECD Guidelines and voluntary initiatives like the Global C
Very few explicitly consider human rights criteria in their export credit and investm
motion policies, or in bilateral trade and investment treaties, the points at which gov
policies and global business operations most closely intersect.
Corporate Responsibility and Accountability for International Crimes
By far the most consequential legal development identified in my 2007 report is the g
potential for companies to be held liable for international crimes - with responsibility i
under domestic law but reflecting international standards of individual responsibility
ified by the international ad hoc criminal tribunals and, especially, by the Statute of th
national Criminal Court (ICC).59
54 See Concluding Observations for Canada, UN Doc. CERD/C/CAN/CO/1 8, at 4, para. 17 (May 2

55 Under the principle of "universal jurisdiction," states may be obliged to exercise jurisdiction over in
within their territory who allegedly committed certain international crimes. It is unclear whether and how s
gations extend jurisdiction over juridical persons, including corporations. See generally Addendum:
Responsibility Under International Law, supra note 45.
Of course, the entire human rights regime may be seen to challenge the classical view of noninterven
debate here hinges on what is considered coercive. See id. for details.
57 For an overview, see ANDREW CLAPHAM, HUMAN RIGHTS OBLIGATIONS OF NON-STATE AC
9 (2006). On Africa, see generally Nsongurua J. Udombana, Between Promise and Performance: Revisitin
Obligations Under the African Human Rights Charter, 40 STAN. J. INT'L L. 105 (2004).
58 See generally Addendum: Human Rights Policies and Management Practices, supra note 45.
59 The ICC preparatory committee and the Rome Conference itself debated a proposal that would hav
the Court jurisdiction over legal persons other than states, but differences in national approaches prevented
tion.

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The number of jurisdictions in which c

against corporations is increasing as countr
initions into domestic law. Where national
ment of companies, the international stand
corporate entities - as legal persons.60 And i
jurisdiction with respect to international c
to corporations.61
ICC ratification is not the only means by w
tems. A significant, though not the sole, e
Alien Tort Claims Act (ATCA) .62 No one-t
for natural and legal persons, but U.S. co
amount to international crimes under the
ciples of individual responsibility in doing
Given this expanding jurisdictional web, s
porations will be subject to increased liabilit
may face either criminal or civil liability d
incorporated into a state's criminal code or
not be certain where claims will be brough
be held to. No two national jurisdictions ha
and national systems vary significantly in m
and in cases involving corporate groups.66
Few companies may ever directly comm
there is greater risk of their facing allega
60 For a detailed survey of sixteen countries from a

TRY & ROBERT C. THOMPSON, COMMERCE, CRIM
TOR Liability for Grave Breaches of International Law - Executive Summary (2006) , available at
<http://www.fafo.no/liabilities>. Of the sixteen, eleven were states parties to the ICC and nine had fully incor-
porated the Statute's three crimes; of these, six already provided for corporate criminal liability. Even some ICC
nonparties have incorporated one or more of the Statute's crimes into their domestic laws, with potential legal impli-
cations for corporations.
61 Of the sixteen countries in the Fafo survey, supra note 60, eleven require a nationality link, five rely on universal
jurisdiction, and several do both. Nine of these countries provide for some form of corporate criminal liability in
their domestic laws.
6228U.S.C§1350(2000).
63 Doe I v. Unocal Corp., 395 F.3d 932, 945-56 (9th Cir.), rehearing en bane granted, 395 F.3d 978 (9th Cir.
2003). The case later settled and was dismissed on stipulation. Doe I v. Unocal Corp., 403 F.3d 708 (9th Cir. 2005)
(vacating opinion below).
6 They may also have civil proceedings brought against them for related wrongs under domestic law, such as
assault or false imprisonment.
65 The difficulty of doing so has led some jurisdictions to adopt a "corporate culture" approach. In Australia,
where a firm's culture expressly or tacitly permitted the commission of an offense by an employee, the firm may be
held liable: Criminal Code Act §12.3(2) (c)-(d) (1995) (Austl.). In the United States the 2006 Federal Sentencing
Guidelines permit judicial consideration of whether a corporation has an "organizational culture that encourages
ethical conduct and a commitment to compliance with the law." U.S. SENTENCING COMMISSION, 2006 FED-
ERAL Sentencing Guidelines Manual §8B2.i(a).
66 No uniform formula exists for "piercing the corporate veil" that separates a subsidiary from its parent company.
One alternative may be imposing civil liability on the parent company for its own acts and omissions in relation
to its foreign subsidiaries. See Connelly v. RTZ Corp. PLC, [1998] A.C. 854 (H.L.) (appeal taken from Eng.) (UK);
Lubbe v. Cape pic, [2000] 4 All E.R. 268 (H.L.) (appeal taken from Eng.) (UK).

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differences, most national legal systems recognize complicity as a concept. The ad hoc i
national tribunals have developed a fairly clear standard for individual liability in such
knowingly providing practical assistance, encouragement, or moral support that has a s
tial effect on the commission of the crime.67 Where national courts adopt this standar
likely that its application to corporations would closely track its application to individu
although the element of "moral support" may pose specific challenges.68 A company tr
good faith to avoid involvement in human rights abuses might have difficulty knowin
counts as moral support for legal purposes. Mere presence in a country and paying taxe
unlikely to create liability. But deriving indirect economic benefit from the wrongful co
of others may do so, depending on such facts as the closeness of the company's associatio
those actors. However, even where a corporation did not intend that a crime occur, it m
held liable if it knew, or should have known, that it was providing assistance that had
stantial effect on the commission of the crime.
As this scenario of expanding corporate liability unfolds, the uncertainty created by n

variations in how international standards are applied in practice may become incre
problematic for all parties and generate a demand for greater harmonization.
Corporate Responsibility for Other Human Rights Violations Under International Law
The traditional view of international human rights instruments is that they impose
"indirect" responsibilities on corporations - provided under domestic law in accordance
states' international obligations. In contrast, the draft Norms, which imposed direct ob
tions on corporations under international law, were claimed to "derive legal authority
their sources in treaties and customary international law."69 Our mapping supports the
ditional view as a matter of law, although social expectations of business activity incre
reflect or invoke some of the standards of international instruments.
The precise requirements of customary international law continue to be debated, but
minimum they include a recognizable degree of uniform and consistent state practice.
tematic mapping of national practices would require a comprehensive country-by-
study not only of the direct applicability of international law, but also of a range of oth
evant measures, including constitutional protections of human rights, legislative provi
administrative mechanisms, and case law, as well as opinio juris. Such an inquiry w
beyond our capacity constraints. However, the country analyses that were conducted f
mandate, coupled with the responses to my state survey, parallel the recent secondary li
in finding insufficient evidence at this time to establish direct corporate responsibilities
customary international law.70
67 See generally Prosecutor v. Furundzija, No. IT- 95- 17/1 (Dec. 10, 1998); Prosecutor v. Akayesu, N
96-4-T (Sept. 2, 1998).
68 The Supreme Court's only decision under the ATCA, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004),
preclude such liability for corporations, and the weight of current U.S. judicial opinion appears to suppo
though there is disagreement among lower courts over its content and, in some cases, its existence. When
the individual standard to corporations, the Ninth Circuit Court of Appeals in Unocal did not adopt the
of "moral support." Doe I v. Unocal Corp., 395 F.3d at 949 n.24.
9 Weissbrodt & Kruger, supra note 41, at 340.
70 For a study of seven jurisdictions conducted for the SRSG, see Aliens Arthur Robinson, Brief on Corp
and Human Rights in the Asia-Pacific Region (Aug. 2006), available at <http://www.reports-and-mate

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Many UDHR provisions have entered cu

debate here too, they are generally agreed c
viduals) and not to include the preamble. M
in the Covenants and other UN human rig
legal responsibilities for corporations?
The treaties do not address the issue explic
respect" for and "ensure the enjoyment" of
gation for all actors, including corporations
the UN treaty bodies have not yet express
the right to work by the Committee on E
recognizes that various private actors, incl
responsibilities regarding the realization o
a particular role to play in job creation,
work."71 But then, in the same comment,
view that such enterprises are "not bound"
Committee's most recent general comment
have direct horizontal effect as a matter of
between nonstate actors only under domes
operate in much the same manner, even tho
addressees.
Nothing prevents states from imposing in
directly on corporations. But the evidence w
done so to any appreciable extent. Nonethe
other international human rights bodies ar
acknowledges that businesses are capable of
their protection.74 Moreover, even in the a
panies still may find themselves tried in t
instruments. No doubt this fact helps expl
Soft Law
To address corporate responsibility and accountability for human rights, governments uti-
lize a variety of other international mechanisms that have the force of soft law, some of which
may also include legislative or regulatory dimensions.
Legal-brief-on-Asia-Pacific-for-Ruggie-Aug-2006.pdf>. For the state survey results, see Addendum: Human

Rights Policies and Management Practices, supra note 45 . A scholarly overview may be found in JENNIFER A. ZERK,
Multinationals and Corporate Social Responsibility (2006).
71 CESCR, General Comment No. 1 8: The Right to Work (Art. 6), UN Doc. E/C. 1 2/GC/ 1 8, para. 52 (Nov. 24,
2005), reprinted in Treaty Bodies Compilation, supra note 50, at 148. For similar remarks, see CESCR, Genera
Comment No. 14: The Right to the Highest Attainable Standard of Health, UN Doc. E/C. 12/2000/4, para. 4
(Aug. 11, 2000), reprintedin id. at 86; CESCR, General Comment No. 12: The Right to Adequate Food, UN Doc
E/C. 12/1999/5, para. 20 (May 12, 1999), reprintedin id. at 63. See also UN Committee on the Rights of the Child
General Comment No. 5: General Measures of Implementation for the Convention on the Rights of the Child (arts
4, 42 and 44, para. 6), UN Doc. CRC/GC/2003/5, para. 56 (Nov. 27, 2003), reprintedin id. at 387 (noting that
the state duty to respect "extend[s] in practice" to nonstate organizations).
72 CESCR, General Comment No. 18, supra note 71, para. 52.
73 Human Rights Committee, General Comment No. 31, supra note 50, para. 8.
7 See Addendum: State Responsibilities to Regulate and Adjudicate Corporate Activities, supra note 45.

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The first is the traditional soft law standard-setting role of intergovernmental orga
tions.75 To illustrate, the OECD Guidelines recommend that firms "[r]espect the h
rights of those affected by their activities consistent with the host government's intern
obligations and commitments."76 But this benchmarking of corporate conduct leaves a
protection gap, because not all countries have adopted all human rights treaties, and even
they have, they may be unable or unwilling to enforce them. The problem is especially
in what the OECD calls "weak governance zones."77 Therefore, early on in my ma
requested that the three leading international business associations - the International C
ber of Commerce, the International Organization of Employers, and the OECD's B
and Industry Advisory Committee - consult their memberships and recommend a form
reduce this gap. In December 2006, they submitted a policy paper to the mandate that
beyond the current OECD Guidelines: "All companies have the same responsibilities in w
governance zones as they do elsewhere. They are expected to obey the law, even if it is
enforced, and to respect the principles of relevant international instruments where natio
is absent."78 If governments include this business-supported formula in the soon-to-be
guidelines, it will mark an advance in the prior soft law standard. In the meantime it ser
prudential advice to companies.
Second, several intergovernmental initiatives recently have focused on ways to e
accountability for compliance. For example, as a result of civil society demands, anyone
now bring a complaint against a transnational firm operating within the OECD Gui
sphere to the attention of a National Contact Point (NCP) - a nonjudicial review procedu
Some NCPs have also become more transparent about the details of complaints and
sions, permitting greater social tracking of corporate conduct, although the NCPs' over
formance remains highly uneven. Moreover, the OECD Investment Committee has expa
its oversight of the NCPs, providing another opportunity to review their treatment of
plaints. For its part, the International Finance Corporation (IFC) has adopted perfo
standards that companies are required to meet in return for IFC investment funds
include several human rights elements.80 Client compliance is subject to review by an o
man. The IFC standards also have spillover effects, as they are followed by banks adher
75 A number of commentators include the Global Compact in the category of soft law instruments. B
a personal initiative of the UN secretary-general, not mandated by the General Assembly, and deliberately
to including principles that were not already enshrined in UN conventions or declarations. Instead, the c
sought to translate them into business-relevant language and tools.
76 OECD Guidelines, supra note 3, General Policies II. 2, at 1 1 . The commentary notes the Universal Dec
"and other human rights obligations." Id. at 12, para. 4.
77 OECD, Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones (June 9, 2006),
at <http://www.oecd.org/dataoecd/26/21/36885821.pdf>. The report's preface defines a weak governance
"an investment environment in which governments are unable or unwilling to assume their responsibiliti
'government failures' lead to broader failures in political, economic and civic institutions that, in turn, create
ditions for endemic violence, crime and corruption and that block economic and social development." Id. at
78 International Organisation of Employers, International Chamber of Commerce, & Business and Industry A
Committee to the OECD, Business and Human Rights: The Role of Business in Weak Governance Zones, para
2006), available at <http://www.business-humanrights.org/Updates/Archive/SpecialRepPapers>.
79 See OECD, ANNUAL REPORT ON THE GUIDELINES FOR MULTINATIONAL ENTERPRISES: 2006 E
^^7^/^^<http://www.oecd.org/document/40/0,3340,en_2649_34889_37785448_l_l_l_l,00.ht
80 The International Finance Corporation's Environmental and Social Standards include fundamen
rights, the health and safety of surrounding communities, avoidance of involuntary resettlement, the rights
enous peoples, and protection of cultural heritage. IFC, Environmental and Social Standards (Feb. 2006), a
at <http://www.ifc.org/ifcext/enviro.nsf/>.

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the Equator Principles, which are responsib

lending.81
Beyond the intergovernmental system, a third type of initiative is emerging having the force
of soft law and/or involves partial legalization; it is a multistakeholder form that engages cor-
porations directly, along with states and civil society organizations, in addressing sources of cor-
porate-related human rights abuses. Most prominent among them are the Voluntary Principles
on Security and Human Rights, to promote corporate human rights risk assessments and the
training of security providers in the extractive sector;82 the Kimberley Process Certification
Scheme, to stem the flow of "conflict diamonds";83 and the Extractive Industries Transparency
Initiative, to establish a degree of revenue transparency in the sums companies pay to host gov-
ernments.84 Each seeks to enhance the responsibility and accountability of states and corpo-
rations alike by means of operational standards and procedures for firms, often together with
regulatory action by governments, both supported by transparency mechanisms.
Kimberley, for instance, involves a global certification scheme implemented through
domestic law, whereby states seek to ensure that the diamonds they trade are from Kimberley-
compliant countries by requiring detailed packaging protocols and certification, coupled with
chain-of-custody warranties by companies. The Voluntary Principles have been incorporated
in legal agreements between companies and host governments in several countries. And while
the Extractive Industries Transparency Initiative is voluntary for governments, once they sign
up, companies are legally required to make their government payments public. Although each
has weaknesses that require improvement, the relative ease and speed with which such arrange-
ments can be established, and the flexibility with which they can operate, make them an impor-
tant complement to the traditional state-based treaty-making and soft law standard-setting
processes.85
Self-regulation
Finally, an expanding universe of self-regulation in the business and human rights domain
can be seen in individual company practices, industry initiatives, and multistakeholder efforts.
Although they have no status in law, they may have legal consequences. Some companies have
found that making allegedly false claims or breaking promises can pose legal risks.86 More
broadly, the experience they generate may affect both the substance and the incidence of future
regulations by demonstrating what works and what does not. I conducted two studies of vol-
untary initiatives and their uptake, submitting both to the Human Rights Council as addenda
to my 2007 report. One was a questionnaire survey of the Fortune Global 500 firms (FG500),
81 IFC, Who Benefits: Financial Institutions (2007), at <http://www.ifc.org/ifcext/sustainability.nsf/>.

82 Voluntary Principles on Security and Human Rights, available at <http://www.voluntaryprinciples.org>.
83 The Kimberley Process Certification Scheme (Nov. 2002), available at <http://www.kimberleyprocess.
com/> (follow "KPCS" hyperlink).
Extractive Industries Transparency Initiative, available at <http://www.eitransparency.org>.
85 For discussions of advantages and risks of such novel approaches to international regulation, see Nico Krisch
& Benedict Kingsbury, Introduction: Global Governance and Global Administrative Law in the International Legal
Order, 17 EUR. J. INT'L L. 1 (2006), and other articles in that issue.
86 See, e.g., Kasky v. Nike, 539 U.S. 654 (2003); see also Doe v. Wal-Mart Stores, No. CV05-7307-AG (Cal.
Super. Ct. filed Sept. 13, 2005), dismissed (CD. Cal. Mar. 30, 2007); Josh Gerstein, Novel Legal Challenge to Wal-
Mart Appears to Be Faltering on Coast, N.Y. SUN, Dec. 12, 2006.

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asking whether companies have human rights- related policies or management practices,
if so what their attributes are.87 The second ("business recognition study") consisted of c
three sources of information: the actual policies of a broader cross section of firms from
regions; the human rights- related criteria employed by eight collective initiatives, like th
Labor Association and the International Council on Metals and Mining; and the rights crit
applied by five socially responsible investment indices.88
These studies indicate that voluntary initiatives have expanded rapidly in recent years.
FG500 survey suggests that substantial policy diffusion is going on: almost all responden
report having some human rights policies or management practices in place, yet fewer tha
say they have experienced "a significant human rights issue" themselves. Uptake is conce
trated among European, North American, and, to a lesser extent, Japanese firms. N
entrants from elsewhere lag behind, though it is unclear whether this reflects a differe
approach or is merely a matter of timing.89
Leading firms, collective initiatives, and socially responsible investment indices recogn
broad array of human rights. The self- reporting in the FG500 survey produced more im
sive results than those we documented in the broader "business recognition study," but the
terns were similar. Labor rights are the most widely recognized across all regions and sec
topped by nondiscrimination. Recognition of other rights broadly tracks industry sectors.
extractive industry, for example, ranks community rights and the security of the person
highly than other sectors, while financial services stress privacy rights. In formulating
human rights policies, companies typically draw on international instruments or initiativ
But the language of the standards is rarely identical, and in some instances it is so elastic
the standards lose meaning, making it difficult for the company itself, let alone the publi
assess performance against commitments. There are also variations in the recognition of ri
that seem unrelated to expected sectoral differences, appearing instead to reflect the pol
culture of companies' home countries; for example, European-based firms tend to ad
more comprehensive rights agenda than others, including social and economic rights, wh
U.S. firms acknowledge only a narrower spectrum of rights and rights holders.
The Achilles heel of self-regulatory arrangements to date is their underdeveloped accou
ability mechanisms. Company initiatives increasingly include rudimentary forms of inte
and external reporting, as well as some form of supply-chain monitoring. But no univer
or even widely - accepted standards yet exist for these practices. The International Organ
tion for Standardization is developing a social responsibility "guidance standard," but it i
focused specifically on corporations or human rights.90 The Global Reporting Initiative h
developed standardized protocols to improve the quality and comparability of company so
and environmental reporting, including human rights indicators, but fewer than two hu
firms report "in accordance with" its guidelines, another seven hundred do so partially,
87 See generally Addendum: Human Rights Policies and Management Practices, supra note 45.
88 See Addendum: Business Recognition of Human Rights, supra note 45. This study relied on publicly av
information.
89 Numerous firms in the business recognition study only recently joined initiatives like the Global Comp
are only beginning to develop human rights policies.
90 See generally information from the International Organization for Standardization, available at <http:/
iso.org/livelink/livelink/fetch/2000/2122/830949/3934883/3935096/home.html>.

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others claim to use them informally.91 Ex

itoring by itself produces only limited beh
multistakeholder systems, like the Fair La
such as Social Accountability 8000, social au
external stakeholders.93 Relatively few compa
to have conducted a full-fledged human ri
includes selected human rights criteria in br
few such projects provide for community c
The leading socially responsible investm
company or industry-based policies, and th
strongly.95 Moreover, the idea of "respons
the past few years, with greater involvem
The substantial expansion of voluntary in
enterprises from emerging market econom
global stage. And laggards of all provenanc
the biggest challenge may be bringing such
For that to occur, it appears that states wil
tives more proactively, while accountabi
within market mechanisms themselves.
Summing Up
I presented this mapping to the Human

tions spoke in the ensuing interactive dialo
signifying a positive reception in UN pa
91 These data are from August 2006. E-mail from

2006) (on file with author).
92 See Richard Locke, Fei Quin, & Alberto Braus
Nike (Harvard University, Kennedy School of Gov
Paper No. 24, 2006), available at <http://www.ksg
Roseann Casey, Meaningful Change: Raising the B
regional consultation in Bangkok, June 2006), av
Archive/SpecialRepPapers>. Because of these limi
model to include capacity building at the factory
<http://www.fairlabor.Org/all/resources/FLA3.0
surges of orders, also contribute significantly to th
93 On FLA, see <http://www.fairlabor.org/al
sa-intl.org/index.cfm?fuseaction = Page.viewPage&
9 Responding to subparagraph (d) of the mandate,
Rights Council addressing the major methodologica
assessments. Report of the SRSG, Human Rights
UN Doc. A/HRC/4/74 (Feb. 5, 2007).
95 Addendum: Business Recognition of Human R
96 See, e.g., UN Environment Programme (UNE
Investment (Apr. 2006), available at <http://www
resenting some $8 trillion in investments under m
ciples for Responsible Investment Hit $8 Trillion
<http://www.unglobalcompact.org/NewsAndEve
Argentina, Belgium, Brazil, Bangladesh, Canada,
Pakistan, Peru, Switzerland, the United Kingdom

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findings.98 International business responded favorably." Five leading NGOs, in a joint s

ment to the Council, expressed appreciation for my "attention and commitment" to th
while stressing the limits of voluntarism coupled with the need to give greater voice t
tims.100 Subsequently, the Group of Eight's summit meeting in Heiligendamm, Ge
indicated its support for the mandate.101 Preferences on how to move ahead continue t
But the mapping exercise succeeded in its objective of providing a common foundat
future deliberations by constructing a brief "restatement" of current international sta
and practices regarding business and human rights.
The extensive research and consultations that went into the conceptual and factual "g
clearing" phase of the mandate left little time for a strategic assessment of the major le
policy measures that states and other social actors could take to close protection gaps, l
to recommend which options might work best. Therefore, in my March 2007 presentat
asked the Council to extend the mandate by a year - giving it the normal three-year d
of mandates.102 It did so at its June 2007 session.
III. Future Directions
Increasing the effectiveness of the international human rights regime to deal

lenges posed by globalization is a long-term project. The mapping reported in th
indicates that this is a fluid area, but one in which significant protection gaps r
ings of the mandate to date also suggest a number of guiding principles for b
existing momentum and moving toward closing the gaps. Here, I briefly enum
bear most specifically on the role of international law.
First, any "grand strategy" needs to strengthen and build out from the exis
states and the states system to regulate and adjudicate harmful actions by cor
undermine it. Currently, at the domestic level some governments may be unabl
tive action on their own, whether or not the requisite will is present. And in th
arena states may compete for access to markets and investments, as a result of
action problems may restrict or impede their serving as the international comm
authority." This observation drives the desire to impose direct obligations
under international law. But doing so can itself have adverse effects on govern
98 The United States indicated in its oral statement that it would follow up with a letter addr
nical issues with regard to the state duty to protect, but to date has not done so.
See International Chamber of Commerce (ICC) and International Organisation of Emplo
Preliminary Views of the International Chamber of Commerce (ICC) and the Internationa
Employers (IOE) to the 4th Session of the Human Rights Council on the Second Report of the
tative of the UN Secretary-General on Business and Human Rights, John Ruggie (distributed at
Council, 2007) (on file with author).
10 See Amnesty International, ESCR-Net, Human Rights Watch, International Commission o
national Federation for Human Rights, Joint NGO Statement to the Human Rights Council (M
at <http://hrw.ore/english/docs/2007/03/29/2;lobal 1 56 1 2.htm> .
101 G8 Summit 2007, Heiligendamm, Growth and Responsibility in the World Economy, Sum
30-31, para. 84 (June 7, 2007) , available ^/"<http://www.g-8.de/Webs/G8/EN/G8Summit/S
summit-documents. html> .
102 When the mandate was established in 2005, a shorter time frame had been proposed in th
U.S. support, but the United States nevertheless voted against the authorizing resolution.

13.234.96.8 on Tue, 17 Oct 2023 03:50:28 +00:00
as discussed earlier - leaving aside the ques

bility and legal enforceability. Therefore,
expand the international regime horizontall
the duties of states to protect human righ
as well as host states, and collectively thro
several UN human rights treaties. 103 This
ing corporate responsibility and account
states about where the current regime cann
where its vertical extension, therefore, is
significant role to play in this process, bu
and augmenting existing institutional capa
Second, the focal point in the business an
establishing individual corporate liability f
that must be - and in the area of crimes is
liability model alone cannot fix larger imb
political philosopher Iris Marion Young put
global supply chains: "because the injustices
actions of many, . . . they can only be recti
tinues, requires a broader construction of
explains, is not to assign individual blame
ments, but "to change structural processes
will better regulate the process to prevent
like the Kimberley Process represent an im
combining importing and exporting states
grating voluntary with mandatory elemen
in other domains.
Finally, many elements of an overall stra

sequently, the interplay between systems
that can contribute to positive change nee
authority than Amartya Sen warns again
mands"106 or "laws in waiting."107 Doing
uses the term "incarcerate"108 - the social
evolving public recognition of rights. The
human rights agenda is that any successful
all of the moral, social, and economic ratio
This prospect requires providing incentive
103 See, e.g., International Covenant on Econom

UNTS 3.
104 Iris Marion Young, Responsibility and Global Labor justice, 12 J. POL. PHIL. 365, 387 (2004).
105 Id.; see also Michael Green, Institutional Responsibility for Moral Problems, in GLOBAL RESPONSIBILITIES:
Who Must Deliver on Human Rights? 1 17 (Andrew Kuper ed., 2005).
106 Amartya Sen, Elements of a Theory of Human Rights, 32 PHIL. & PUB. AFF. 315, 319 (2004).
107 Amartya Sen, Human Rights and the Limits of Law, 27 CARDOZO. L. REV. 2913, 2918 (2006).
108 Sen, supra note 106, at 319.

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as well as risks, and building social movements and political coalitions that involve repres
tation from all relevant sectors of society, including business - much as has been occurri
the environmental field. The human rights community has long urged a move "beyond v
untarism" in the area of business and human rights.109 Sen's advice suggests that this mov
accompanied by willingness on its part also to look "beyond compliance."
In sum, international law has an important role to play in constructing a better- functio
global regime to govern business and human rights. The effectiveness of its contribution
be maximized if it is embedded within, and deployed in support of, an overall strate
increasing governance capacity in the face of enormously complex and ever-changing for
globalization.
109 See International Council on Human Rights Policy, Beyond Voluntarism: Human
Rights and the Developing International Legal Obligations of Companies (2002), available at
<http://www.ichrp.org/paper_files/ 1 07_p_0 1 .pdf > .

13.234.96.8 on Tue, 17 Oct 2023 03:50:28 +00:00

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Business and Human Rights: The Evolving International Agenda

Author(s): John Gerard Ruggie

Stable URL: https://www.jstor.org/stable/40006320

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Business and Human Rights: The Evolving International Agenda

By John Gerard Ruggie*

* Kirkpatrick Professor of International Affairs and Director, Mossavar-Rahmani Center for B

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4 More information on the UN Global Compact is available at <http://www.unglobalcompact.org>.

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The main international human rights n

12 International Chamber of Commerce and Intern

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key conceptual issues in the present part;

To minimize charges of bias against globa

19 Special Representative of the Secretary-Genera

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Rights and Duties

If international human rights obligations are to be attributed to transnational corpor

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some states are unable or unwilling to make

29 David Kinley &C Junko Tadaki, From Talk to W

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If the only difference is that governments have a comprehensive set of obligations

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In sum, while it may be useful for some p

II. Mapping Standards

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The State Duty to Protect

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that are particularly relevant in business c

49 Convention on the Elimination of All Form

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Corporate Responsibility and Accountability for International Crimes

54 See Concluding Observations for Canada, UN Doc. CERD/C/CAN/CO/1 8, at 4, para. 17 (May 2

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The number of jurisdictions in which c

60 For a detailed survey of sixteen countries from a

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As this scenario of expanding corporate liability unfolds, the uncertainty created by n

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Many UDHR provisions have entered cu

Legal-brief-on-Asia-Pacific-for-Ruggie-Aug-2006.pdf>. For the state survey results, see Addendum: Human

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the Equator Principles, which are responsib

81 IFC, Who Benefits: Financial Institutions (2007), at <http://www.ifc.org/ifcext/sustainability.nsf/>.

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others claim to use them informally.91 Ex

I presented this mapping to the Human

91 These data are from August 2006. E-mail from

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findings.98 International business responded favorably." Five leading NGOs, in a joint s

III. Future Directions

Increasing the effectiveness of the international human rights regime to deal

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as discussed earlier - leaving aside the ques