Hostname: page-component-cd9895bd7-gvvz8 Total loading time: 0 Render date: 2024-12-25T19:35:18.852Z Has data issue: false hasContentIssue false
  • English
  • Français

Business and Human Rights: The Evolving International Agenda

Published online by Cambridge University Press:  27 February 2017

John Gerard Ruggie
John Gerard Ruggie*
Affiliation:
Mossavar-Rahmani Center for Business and Government, Kennedy School of Government, Harvard University, Harvard Law School
Get access Rights & Permissions [Opens in a new window]

Extract

The state-based system of global governance has struggled for more than a generation to adjust to the expanding reach and growing influence of transnational corporations. The United Nations first attempted to establish binding international rules to govern the activities of transnationals in the 1970s. That endeavor was initiated by developing countries as part of a broader regulatory program with redistributive aims known as the New International Economic Order. Human rights did not feature in this initiative. The Soviet bloc supported it while most industrialized countries were opposed. Negotiations ground to a halt after more than a decade, though they were not formally abandoned until 1992.

Type
Current Developments
Information
American Journal of International Law , Volume 101 , Issue 4 , October 2007 , pp. 819 - 840
Copyright
Copyright © American Society of International Law 2007

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

For funding the research and consultations reported in this essay, I thank the governments of Canada, Belgium, Norway, Sweden, and the United Kingdom; the Friedrich Ebert Stiftung, the German Marshall Fund of the United States, and the United Nations Foundation; the Kennedy School’s Corporate Social Responsibility Initiative; and the United Nations Office of the High Commissioner for Human Rights. Harvard Law School also provided research support. Aliens Arthur Robinson of Melbourne, Australia, provided pro bono legal research. My biggest debts are to my Geneva colleagues, Gerald Pachoud, on secondment from the Swiss Foreign Ministry, and Lene Wendland, of the High Commissioner’s Office; my Harvard-based legal research team, Rachel Davis, Amy Lehr, Michael Wright, and Vanessa Zimmerman; and Christine Bader, on secondment from BP. Beth Jenkins, Jonathan Kaufman, and Diego Quiroz Onate provided additional research assistance.

References

1 UN Intergovernmental Working Group on a Code of Conduct, Draft UN Code of Conduct on Transnational Corporations, UN Doc. E/1990/94 (June 12, 1990).

2 See generally Branislav, Gosovic & John Gerard, Ruggie, On the Creation of a New International Economic Order, 30 Int’l ORG. 309 (1976).Google Scholar

3 Organisation for Economic Co-operation and Development [OECD], Guidelines for Multinational Enterprises: Text, Commentary and Clarifications, OECD Doc. DAFFE/IME/WPG(2000)15/FINAL (2001), available at <http://www.olis.oecd.org/olis/2000doc.nsf/LinkTo/daffe-ime-wpg(2000)15-final> [hereinafter OECD Guidelines]; International Labour Organization, Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (rev. Nov. 2000), 83 ILO OFF. BULL. (ser. A), No. 3 (2000).

4 More information on the UN Global Compact is available at <http://www.ungIobalcompact.org>. I helped establish the compact and had oversight responsibility for it during my tenure as UN assistant secretary-general (199 7–2001); after I came to Harvard I continued to serve as Secretary-General Kofi Annan’s special adviser for the 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 capacity, and are mandated to undertake studies and make recommendations to the Commission.

6 UN Sub-Commission on Prevention of Discrimination and Protection of Minorities [its former name] Res. 1998/8, in Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on Its Fiftieth Session, UN Doc. E/CN.4/1999/4-E/CN.4/Sub.2/1998/45, at 30, 3 1–32, para. 4(d) (Sept. 30, 1998).

7 UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 26, 2003) [hereinafter Draft Norms]. The first iteration was called a “draft code of conduct,” and the second “draft guidelines.” Presumably, the first sounded too robust and the second too mild. The working group members were Miguel Alfonso-Martínez, Cuba; El-Hadji Guissé, Senegal; Vladimir Khartashkin, Russian Federation; Soo-Gil Park, Republic of Korea; and David Weissbrodt, United States.

8 Id., para. 1.

9 Id., paras. 1 5–18.

10 David, Weissbrodt & Muria, Kruger, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, 97 AJIL 901, 903 (2003).Google Scholar

11 UN Sub-Commission on the Promotion and Protection of Human Rights [Sub-Comm’n] Res. 2003/16, Responsibilities of Transnational 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).

12 International Chamber of Commerce and International Organisation of Employers, Joint Views of the IOE and ICC on the Draft “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights” (Mar. 2004), available at <http://www.reports-and-materials.org/IOEICC-views-UN-norms-March-2004.doc> [hereinafter IOE-ICC Joint Views].

13 UN Commission on Human Rights [CHR] Dec. 2004/116, UN Doc. E/CN.4/DEC/2004/116 (Apr. 22, 2004).

14 CHR, Report of the United Nations High Commissioner on Human Rights on the Responsibilities of Transnational 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 61st 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 corporations 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 business 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, Romania, the Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

16 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).

17 I received letters to this effect from the major international human rights organizations, including Human Rights Watch, the Fédération internationale des ligues des droits de I’homme, and Amnesty International. See Human Rights Watch, Corporate Accountability: A Human Rights Watch Position Paper (Sept. 9, 2005), available at <http://hrw.org/english/docs/2005/09/09/globall1723.htm>; Fédération internationale des ligues des droits de I’homme, Position Paper: Comments to the Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Doc. 442/2 (Mar. 15, 2006), available at <http://www.fidh.org/IMG/pdf/business442a.pdf>; Letter to John Ruggie from Irene Khan, secretary general, Amnesty International, Ref. OSG/2006/30/ja (Apr. 27, 2006), available at <http://www.reports-and-materials.org/Amnesty-Intl-comments-on-Ruggie-interim-report-27-Apr-2006.pdf>. The two position papers are also available at <http://www.business-humanrights.org/Documents/Ruggie-HRC-2006>.

18 Materials related to my mandate, including reports, statements, working papers, commentaries, and announcements, maybe found on the SRSG’s home page at the Business and Human Rights Resource Center Web site, <http://www.business-humanrights.org/Gettingstarted/UNSpecialRepresentative>. I am extremely grateful to Chris Avery and his dedicated staff for making this invaluable service available.

19 Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Interim Report, UN Doc. E/CN.4/2006/97, paras. 5 6–69 (Feb. 22, 2006) [hereinafter Interim Report].

20 Draft Norms, supra note 7, para. 21.

21 The overall figures are taken from Unctad, World Investment Report 2006, UN Sales No. E.06.II.D.11 (2006), available at <http://www.unctad.org/en/docs/wir2006_en.pdf>. The number of Wal-Mart suppliers comes from the announcement of a lecture by Wal-Mart’s CEO. H. Lee Scott, CEO, Wal-Mart, London Lecture of the Prince of Wales’s Business and the Environment Programme, University of Cambridge Programme for Industry (Feb. 1, 2007), available at <http://www.admin.cam.ac.uk/news/dp/2007013101>.

22 This is particularly true of the extractive sector. For my 2006 report, I conducted a review of sixty-five NGO publications alleging significant corporate-related human rights abuses over the previous five years or so. Oil, gas, and mining accounted for two-thirds of the total. Virtually all cases took place in low-income countries, of which nearly two-thirds either had recently emerged from conflict or were still immersed in it. Moreover, all but two of the countries fell below the global average for the “rule of law” developed by the World Bank. See Interim Report, supra note 19, paras. 2 4–30.

23 See Beth, Kytle & John Gerard, Ruggie, Corporate Social Responsibility as Risk Management: A Model for Multinationals (Harvard University, Kennedy School of Government, Corporate Social Responsibility Initiative Working Paper No. 10, Mar. 2005), available at <http://www.ksg.harvard.edu/m-rcbg/CSRI/publications/workingpaper_10_kytle_ruggie.pdf>Google Scholar.

24 This pattern has characterized the global branded footwear and apparel industry, for example, which accounted for the second highest fraction of alleged human rights violations in the study reported in footnote 22 supra.

25 See Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises [Report of the SRSG], Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, UN Doc. A/HRC/4/35, para. 20 (Feb. 19, 2007) [hereinafter Business and Human Rights: Mapping International Standards]; see also Steven, R. Ratner, Business, in The Oxford Handbook of International Environmental Law, ch. 35, at 807 (Daniel, Bodansky, Jutta, Brunnee, & Ellen, Hey eds., 2007).Google Scholar

26 Rosalyn, Higgins, Problems and Process: International Law and How We Use It 50 (1995).Google Scholar 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. 11) [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.

29 David, Kinley & Junko, Tadaki, From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law, 44 VA. J. Int’l L. 931 (2004).Google Scholar

30 Philip, Alston, ‘Core Labour Standards’ and the Transformation of International Labour Rights Regime, 15 Eur. J. Int’l L. 457, 459–60 (2004)Google Scholar, rejecting even the ILO’s declared core labor standards on these grounds.

31 The Business Leaders Initiative on Human Rights (BLIHR), a voluntary program comprising fourteen major global firms of which Mary Robinson is the honorary chair, is exploring whether and how human rights can be operationalized and integrated in companies’ policies and management practices. They now use the Universal Declaration as their point of departure, having found the draft Norms list inadequate. See BLIHR, Report 3: Towards a ‘Common Framework’ on Business and Human Rights: Identifying Components 18–19 (June 2006), at <http://www.blihr.org/Pdfs/BLIHR3Report.pdf>..>Google Scholar

32 Draft Norms, supra note 7, para. 1.

33 Two law firms conducted a search often jurisdictions for the mandate and did not find the term “spheres of influence” used in legal contexts. It was introduced into corporate social responsibility discourse by the Global Compact, and has proven to be useful as a tool in corporate policymaking. It assists companies in scanning their operating environments for possible sources of risk and opportunities that could affect their social license to operate. See, e.g., 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://www.blihr.org> (follow “Tools” hyperlink).

34 Philip, Alston, The ‘Not-a-Cat’ Syndrome: Can the International Human Rights Regime Accommodate Non-state Actors? in Non-State Actors and Human Rights 3, 13–14 (Philip, Alston ed., 2005).Google Scholar

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).Google Scholar

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 (CVRD) 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 had an agreement to do so, on the grounds that the communities were using illegal means to force the company to fulfill their demands. CVRD reported the events to the Organization of American States, seeking clarification of state duties vis-à-vis indigenous peoples. Funai sought an injunction from Brazil’s domestic courts, which was granted, ordering CVRD to resume payments. Funai is also seeking a declaration from the Brazilian Federal Court attributing legal responsibility to CVRD for social impacts caused by its mining activities. See CVRD and Funai’s press releases on this issue, available at <http://www.cvrd.com.br/saladeimprensa/en/releases/release.asp?id=16724>; <http://www.fiinai.gov.br/ultimas/noticias/1_semestre_2007/janeiro/un0131_001.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 recognize the respective social roles of states and corporations, see Steven, R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 Yale L.J. 443 (2001).Google Scholar

41 David, Weissbrodt & Muria, Kruger, Human Rights Responsibilities of Businesses as Non-state Actors, in Nonstate Actors and Human Rights, supra note 34, at 315, 340.Google Scholar The language is slightly different in Weissbrodt & Kruger, supra note 10, at 915: “[T]he legal authority of the Norms now derives principally from their sources in international law as a restatement of legal principles applicable to companies.”

42 American Law Institute, Projects Overview, at <http://www.ali.org/index.cfm?fuseaction=projects.main>. The American Law Institute conducts periodic restatements of various bodies of U.S. law, documenting their evolution.

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)Google Scholar; Vázquez, supra note 36; Rebecca, M. M. Wallace & Olga, Martin-Ortega, The UN Norms: A First Step to Universal Regulation of Transnational Corporations’ Responsibilities for Human Rights? 26 Dublin U. L.J. 304 (2004).Google Scholar

44 See supra note 15.

45 Report of the SRSG, supra note 25, para. 88. See also the four supporting addenda: Report of the SRSG, Addendum: State Responsibilities to Regulate and Adjudicate Corporate Activities Under the United Nations Core Human Rights Treaties: An Overview of Treaty Body Commentaries, UN Doc. A/HRC/4/35/Add.1 (Feb. 13, 2007) [hereinafter Addendum: State Responsibilities to Regulate and Adjudicate Corporate Activities]; Addendum: Corporate Responsibility Under International Law and Issues in Extraterritorial Regulation: Summary of Legal Workshops, UN Doc. A/HRC/4/35/Add.2 (Feb. 15, 2007) [hereinafter Addendum: Corporate Responsibility Under International Law]; Addendum: Human Rights Policies and Management Practices: Results from Questionnaire Surveys of Governments and the Fortune Global 500 Firms, UN Doc. A/HRC/4/35/Add.3 (Feb. 28, 2007) [hereinafter Addendum: Human Rights Policies and Management Practices] ; Addendum: Business Recognition of Human Rights: Global Patterns, Regional and Sectoral Variations, UN Doc. A/HRC/4/35/Add.4 (Feb. 8, 2007) [hereinafter Addendum: Business Recognition of Human Rights]. These reports were compiled with the assistance of a Harvard-based research team, pro bono contributions 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 to protect because it is directed at third-party abuse. Beyond the national territory, the scope of the duty will vary depending on the state’s degree of control. The UN human rights treaty bodies generally view states parties’ obligations as applying to areas within their “power or effective control.” Note that where corporations perform public functions or are state controlled, their acts may be attributed to the state under international law. See GA Res. 56/83 (Dec. 12, 2001) (taking note of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts).

47 See Addendum: State Responsibilities to Regulate and Adjudicate Corporate Activities, supra note 45. We included general comments or recommendations where they exist, as well as other primary materials such as concluding observations on states parties’ periodic reports.

48 International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 UNTS 195.

49 Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 UNTS 13.

50 Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21 /Rev. 1 /Add. 13, para. 8 (May 26, 2004), reprinted in Compilation 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. 12/2002/11, para. 33 (Jan. 20, 2003), reprinted in Treaty Bodies Compilation, supra note 50, at 105.

54 See Concluding Observations for Canada, UN Doc. CERD/C/CAN/CO/18, at 4, para. 17 (May 25, 2007).

55 Under the principle of “universal jurisdiction,” states may be obliged to exercise jurisdiction over individuals within their territory who allegedly committed certain international crimes. It is unclear whether and how such obligations extend jurisdiction over juridical persons, including corporations. See generally Addendum: Corporate Responsibility Under International Law, supra note 45.

56 Of course, the entire human rights regime may be seen to challenge the classical view of nonintervention. The 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 Actors, ch. 9 (2006)Google Scholar. On Africa, see generally Nsongurua, J. Udombana, Between Promise and Performance: Revisiting States’ Obligations Under the African Human Rights Charter, 40 STAN. J. Int’l L. 105 (2004).Google Scholar

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 have given the Court jurisdiction over legal persons other than states, but differences in national approaches prevented its adoption. 60 For a detailed survey of sixteen countries from a cross section of regions and legal systems, see Anita, Ramasastry & Robert, C. Thompson, Commerce, Crime and Conflict: Legal Remedies for Private Sector Liability for Grave Breaches of International Law—Executive Summary (2006), available at <http://www.fafo.no/liabilities>>Google Scholar. Of the sixteen, eleven were states parties to the ICC and nine had fully incorporated 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 implications 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.

62 28 U.S.C. §1350 (2000).

63 Doe I v. Unocal Corp., 395 F.3d 932, 94 5–56 (9th Cir.), rehearing en banc 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).

64 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 Federal Sentencing Guidelines Manual §8B2.1(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).

67 See generally Prosecutor v. Furundžija, No. IT-9 5–17/1 (Dec. 10, 1998); Prosecutor v. Akayesu, No. ICTR-9 6–4–T (Sept. 2, 1998).

68 The Supreme Court’s only decision under the ATCA, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), does not preclude such liability for corporations, and the weight of current U.S. judicial opinion appears to support it—although there is disagreement among lower courts over its content and, in some cases, its existence. When applying the individual standard to corporations, the Ninth Circuit Court of Appeals in Unocal did not adopt the element of “moral support.” Doe I v. Unocal Corp., 395 F.3d at 949 n.24.

69 Weissbrodt & Kruger, supra note 41, at 340.

70 For a study of seven jurisdictions conducted for the SRSG, see Aliens Arthur, Robinson, Brief on Corporations and Human Rights in the Asia-Pacific Region (Aug. 2006), available at <http://www.reports-and-materials.org/Legal-brief-on-Asia-Pacific-for-Ruggie-Aug-2006.pdf>>Google Scholar. 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. 18: The Right to Work (Art. 6), UN Doc. E/C. 12/GC/18, para. 52 (Nov. 24, 2005), reprinted in Treaty Bodies Compilation, supra note 50, at 148. For similar remarks, see CESCR, General Comment No. 14: The Right to the Highest Attainable Standard of Health, UN Doc. E/C. 12/2000/4, para. 42 (Aug, 11, 2000), reprinted in 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), reprinted in 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), reprinted in 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.

74 See Addendum: State Responsibilities to Regulate and Adjudicate Corporate Activities, supra note 45.

75 A number of commentators include the Global Compact in the category of soft law instruments. But it was a personal initiative of the UN secretary-general, not mandated by the General Assembly, and deliberately resistant to including principles that were not already enshrined in UN conventions or declarations. Instead, the compact sought to translate them into business-relevant language and tools.

76 OECD Guidelines, supra note 3, General Policies II.2, at 11. The commentary notes the Universal Declaration “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), available at <http://www.oecd.org/dataoecd/26/21/36885821.pdf>. The report’s preface defines a weak governance zone as “an investment environment in which governments are unable or unwilling to assume their responsibilities. These ‘government failures’ lead to broader failures in political, economic and civic institutions that, in turn, create the conditions for endemic violence, crime and corruption and that block economic and social development.” Id. at 9.

78 International Organisation of Employers, International Chamber of Commerce, & Business and Industry Advisory Committee to the OECD, Business and Human Rights: The Role of Business in Weak Governance Zones, para. 15 (Dec. 2006), available at <http://www.business-humanrights.org/Updates/Archive/SpecialRepPapers>.

79 See OECD, Annual Report on the Guidelines for Multinational Enterprises: 2006 Edition, available at <http://www.oecd.org/document/40/0,3340,en_2649_34889_37785448_l_l_l_l,00.html>.

80 The International Finance Corporation’s Environmental and Social Standards include fundamental labor rights, the health and safety of surrounding communities, avoidance of involuntary resettlement, the rights of indigenous peoples, and protection of cultural heritage. IFC, Environmental and Social Standards (Feb. 2006), available at <http://www.ifc.org/ifcext/enviro.nsf/>.

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

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).

84 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)Google Scholar, 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. CV0 5–7307-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.

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 available information.

89 Numerous firms in the business recognition study only recently joined initiatives like the Global Compact and are only beginning to develop human rights policies.

90 See generally information from the International Organization for Standardization, available at <http://isotc.iso.org/livelink/livelink/fetch/2000/2122/830949/3934883/3935096/home.html>.

91 These data are from August 2006. E-mail from staff of Global Reporting Initiative to SRSG John Ruggie (Dec. 2006) (on file with author).

92 See Richard, Locke, Fei, Quin, & Alberto, Brause, Does Monitoring Improve Labor Standards? Lessons from Nike (Harvard University, Kennedy School of Government, Corporate Social Responsibility Initiative Working Paper No. 24, 2006), available at <http://www.ksg.harvard.edu/m-rcbg/CSRI/pub_workpapers.html>>Google Scholar; see also Roseann, Casey, Meaningful Change: Raising the Bar in Supply Chain Workplace Standards (prepared for SRSG regional consultation in Bangkok, June 2006)Google Scholar, available at <http://www.business-humanrights.org/Updates/Archive/SpecialRepPapers>. Because of these limitations, the Fair Labor Association has adapted its operating model to include capacity building at the factory level. See FLA 3.0: Toward Sustainable Compliance, available at <http://www.fairlabor.Org/all/resources/FLA3.0/index.html>. But patterns of procurement, such as seasonal surges of orders, also contribute significantly to the problem and are not redressed by any initiative.

93 On FLA, see <http://www.fairlabor.org/all/about/index.html>, and on SA8000, see <http://www.sa-intl.org/index.cfm?fuseaction=Page.viewPage&pageId=473>.

94 Responding to subparagraph (d) of the mandate, supra note 15, 1 also submitted a separate report to the Human Rights Council addressing the major methodological issues raised by different approaches to human rights impact assessments. Report of the SRSG, Human Rights Impact Assessments: Resolving Key Methodological Questions, UN Doc. A/HRC/4/74 (Feb. 5, 2007).

95 Addendum: Business Recognition of Human Rights, supra note 45, at 4.

96 See, e.g., UN Environment Programme (UNEP) and UN Global Compact, The Principles on Responsible Investment (Apr. 2006), available at <http://www.unpri.org>. More than 180 institutions have signed on, representing some $8 trillion in investments under management. UNEP & UN Global Compact, Press Release, Principles for Responsible Investment Hit $8 Trillion Mark on First Year Anniversary (Apr. 29, 2007), available at <http://www.unglobalcompact.org/NewsAndEvents/news_archives/2007_04_30.html>.

97 Argentina, Belgium, Brazil, Bangladesh, Canada, Cuba, France, Germany, Indonesia, Iran, Ireland, Norway, Pakistan, Peru, Switzerland, the United Kingdom, the United States, and the European Union.

98 The United States indicated in its oral statement that it would follow up with a letter addressing certain technical issues with regard to the state duty to protect, but to date has not done so.

99 See International Chamber of Commerce (ICC) and International Organisation of Employers (IOE), Joint Preliminary Views of the International Chamber of Commerce (ICC) and the International Organisation of Employers (IOE) to the 4th Session of the Human Rights Council on the Second Report of the Special Representative of the UN Secretary-General on Business and Human Rights, John Ruggie (distributed at the Human Rights Council, 2007) (on file with author).

100 See Amnesty International, ESCR-Net, Human Rights Watch, International Commission of Jurists, & International Federation for Human Rights, Joint NGO Statement to the Human Rights Council (Mar. 2007), available at <http://hrw.org/english/docs/2007/03/29/global15612.htm>.

101 G8 Summit 2007, Heiligendamm, Growth and Responsibility in the World Economy, Summit Declaration 3 0–31, para. 84 (June 7, 2007), available at <http://www.g-8.de/Webs/G8/EN/G8Summit/SummitDocuments/summit-documents.html>.

102 When the mandate was established in 2005, a shorter time frame had been proposed in the hope of securing U.S. support, but the United States nevertheless voted against the authorizing resolution.

103 See, e.g., International Covenant on Economic, Social and Cultural Rights, Art. 2(1), Dec. 16, 1966, 993 UNTS 3.

104 Iris Marion, Young, Responsibility and Global Labor Justice, 12 J. POL. Phil. 365, 387 (2004).Google Scholar

105 Id.; see also Michael, Green, Institutional Responsibility for Moral Problems, in Global Responsibilities: Who Must Deliver on Human Rights? 117 (Andrew, Kuper ed., 2005).Google Scholar

106 Amartya, Sen, Elements of a Theory of Human Rights, 32 Phil. & Pub. Aff. 315, 319 (2004)Google Scholar.

107 Amartya, Sen, Human Rights and the Limits of Law, 27 Cardozo. L. Rev. 2913, 2918 (2006).Google Scholar

108 Sen, supra note 106, at 319.

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/107_p_01.pdf>>Google Scholar.