Nearly four years after the UN Sub-Commission on the Protection and Promotion of Human Rights adopted the Norms in August 2003, they have all but disappeared.

Professor John Ruggie, Special Representative of the UN Secretary-General (SRSG) on business & human rights (SRSG) declared his disquietude with the Norms in his initial interim report:

“…it has proved exceedingly difficult to carry on a serious dialogue about standards without having it become a recapitulation of the earlier debates in and around the Commission on the ‘Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights’… The reason is clear: the Norms claim to represent a definitive and comprehensive set of standards. But those earlier debates ended in stalemate - with most of business opposed, many if not most human rights groups in favour and Governments adopting the Special Representative’s mandate as a means to move beyond the stalemate”; “the Norms exercise became engulfed by its own doctrinal excesses… its exaggerated legal claims and conceptual ambiguities created confusion and doubt even among many mainstream international lawyers and other impartial observers”; and “the flaws of the Norms make that effort a distraction from rather than a basis for moving the Special Representative’s mandate forward. Indeed, in the Special Representative’s view the divisive debate over the Norms obscures rather than illuminates promising areas of consensus and cooperation among business, civil society, governments and international institutions with respect to human rights.”

In his most recent interim report Professor Ruggie continues to declare that the Norms are not useful because “factual claims about the state of the law were so entangled with normative preferences and institutional interests” that they could not constitute a basis for his current mandate. Based on these statements and others, it is safe to say that the Norms are not on the SRSG’s agenda. The SRSG has stated that he has had to start over with the research and agenda setting for the development of any potential standards, which might be applicable to corporations with regard to human rights.

The results of that research are set forth in the SRSG’s second interim report, which “maps” the current international laws, standards and guidelines governing corporate accountability with regard to human rights. As it is essentially a survey of existing standards, we find much agreement with the most recent report: States have primary responsibility for human rights protections; corporations are accountable for criminal and gross human rights violations; there is a growing jurisprudence that corporations can be held complicit for human rights violations; and there are a number of good voluntary standards and self-regulation initiatives which a few corporations have signed on to, but the lack of widespread acceptance and any form of monitoring or accountability mechanism, makes such efforts futile if not damaging to the overall goal of prevention of human rights abuses by corporations.

We clearly agree that States have primary responsibility, but it is clear that the majority of States have not met this responsibility. The report acknowledges that in many cases States fail to meet their duty to protect their citizens from rights abuses by corporations and therefore the existing governance gaps allow for human rights abuses by corporations to continue unaddressed. The range of case studies, which have been submitted to the SRSG through written and oral submissions, make clear that leaving enforcement of human rights protections solely in the hands of the states is not working to protect victims of corporate abuse. We therefore wholeheartedly agree with Professor Ruggie’s many statements that States, corporations and civil society, must share responsibility for corporate human rights abuses.

What is therefore of primary concern are the tone and conclusions of the report. While the report recognizes trends such as the increasing focus on protections against corporate abuses by UN treaty bodies and regional mechanisms and direct obligations on corporations, he fails to give these trends due credibility in shaping the development of corporate accountability. The SRSG appears to advocate a self-regulatory approach favoring voluntary initiatives and market incentives, rather than strengthening any international legislation. In the same vein, Professor Ruggie seems to overemphasize the “success” of certain voluntary approaches. Indeed, while we recognize that it is necessary to get more corporations adopting and practicing voluntary human rights protections before generating the political will among States to enact global legal obligations that are directly binding on corporations, purely voluntary approaches have not proven to be entirely effective in preventing human rights abuses by corporations on their own.

Whatever happened to the clarity and conviction that multinational corporations have direct human rights obligations, such as those advocated in the Norms?

There is an already overwhelming and still growing body of evidence cataloguing corporate abuses in all corners of the world. Therefore, in order to prevent these abuses corporations must have their own human rights obligations towards those who come within their spheres of activity and influence. Again, while States clearly have the duty to further codify and enforce laws related to corporate accountability for human rights violations, that is not a reason to delay the development of internationally binding standards. Given the failures of the implementation of their obligations by the States, and the sparse application of voluntary initiatives by corporations, the issue must be placed in the jurisdiction of inter-governmental organizations, which can guide States and corporations and provide a forum for civil society to present their cases.

The SRSG recognizes the lack of accountability mechanisms in all of the standards and practices that he surveys. We commend his recognition that a “dearth of viable grievance and alternative dispute resolution mechanisms for business and human rights” exists. Therefore, we urge recognition that some kind of inter-governmental standard setting process is needed.

What we have advocated for and what victims of corporate human rights abuses still need are binding and enforceable international standards – common standards which apply across the board, for all corporations, large and small, across all sectors, all over the world regardless of where the accountability mechanism is located, in the host state or home state. The international community, through the United Nations, or otherwise, must work towards a proper framework of binding regulations to protect against corporate human rights violations. Such a framework must include the appropriate mechanisms for monitoring and enforcement, as well as a forum for victims to present their grievances. In fact, the victim’s perspective needs to inform and guide the development of any international standards, which may eventually be developed.

Of course, the development and adoption of internationally binding standards and accompanying reporting, monitoring and enforcement mechanisms won’t take place overnight. But, hopefully the research which is being conducted under the current mandate will be used to inform such a development process. Professor Ruggie has asked for an extension of his mandate, which will likely be granted at the May session of the HRC, extending his mandate for one-year to May 2008. We look forward to continuing to engage in the process and presenting useful recommendations, which will move the corporate accountability agenda forward. Our hope is that the SRSG will not close off the possibility of recommending initiating a State-sponsored process of developing such standards, and that the Norms and the process that led to the Norms will be recognized as an essential building block for any future standard-setting process.

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