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Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights

Published online by Cambridge University Press:  27 February 2017

David Weissbrodt  and
Muria Kruger
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American Journal of International Law , Volume 97 , Issue 4 , October 2003 , pp. 901 - 922
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Copyright © American Society of International Law 2003

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References

1 Sub-Commission on the Promotion and Protection of Human Rights [hereinafter Sub-Comm'n], Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc.E/CN.4/Sub.2/2003/12/Rev.2(2003),awa87afeaK <http://www.unhchr.ch/htrnl/menu2/2/55sub/55sub.htm> [hereinafter Norms].

2 Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, Sub-Comm'n Res. 2003/16, UN Doc. E/CN.4/Sub.2/2003/L.ll,at52 (2003), awn'fatfe at <http://www.unhchr.ch/html/menu2/2/55sub/55sub.htm[hereinafter Res. 2003/16].

3 Mary Robinson, Second Global Ethic Lecture, University of Tubingen, Germany (Jan. 21,2002), at <http://www.ireland.com/newspaper/special/2002/robinson> (Robinson was high commissioner for human rights at that time).

4 A large-scale study of evidence from developing countries found that emerging market companies gain financially from stability. IFC [International Finance Corp.], SustainAbility, Ethos Institute, Groundbreaking Report Challenges Conventional Wisdom on Role of Business in Emerging Markets, Press Release 02/0098 (July 17,2002), at <http://www.sustainability.com/news/press-room/DevelopingValue-press-release.pdf>.

5 See Rogercowe, Investing in Social Responsibility: Risks and Opportunities (ABI Research Reports, 2001) (supporting the proposition that corporate social responsibility has a positive impact on businesses by increasing their potential for competitive advantage and increasing shareholder value through promotion of risk management); see also Daniel Farber, Rights as Signals, 31 J. Legal STUD. 83,98 (2002) (human rights protection properly encourages investment).

6 See Christopherl. Avery, Business and Human Rights in a Time of Change (Amnesty International 2000), at <http://www.business-humanrights.org/Avery-Report.htm> see also United Nations High Commissioner for Human Rights, Business and Human Rights, at <http://www.unhchr.ch/global.htm> (visited Sept. 2, 2003).

7 For example, consumer discontent that soccer balls/footballs were made by children led to a consumer boycott that forced the manufacturers to stop using child labor. Robert J. Liubicic, Corporate Codes of Conduct and Product Labeling Schemes: The Limits and Possibilities of Promoting International Labor Rights Standards Through Private Initiatives, 30 LAW & POL'YlNT'L BUS. Ill (1998). Another example concerns infant formula. Certain companies were encouraging mothers in developing countries to use infant formula instead of breast feeding. Feeding with formula led to increased infant mortality because the mothers lacked clean water and were not properly instructed in the use of the product. Once consumers learned about the increased infant mortality, they began boycotting Nestle products. Nancy E. Zelman, The Nestle Infant Formula Controversy: Restricting the Marketing Practice of Multinational Corporations in the Third World, 3 TRANSNAT'LL. 697 (1990).

8 The ethical market share in the United Kingdom grew by 15% from 1999 to 2000. Deborah Doane, Takinc; Flight: The Rapid Growth Of Ethical Consumerism (2001), awat fo6feai <http://www.neweconomics.org/gen/z_sys_publicationdetail.aspx?pid=88>. A study in the United States found that one out of every eight professionally managed investment dollars is used in socially responsible investing. Social Investment Forum, 2001 Report On Sociallyresponsible Investing Trends In The United States (Nov. 28,2001), Khttp://www.socialinvest.org/ areas/research/trends/2001-Trends.htm>. FTSE4Good, an independent global indexing company, announced that companies in its Global Resources Sector will have to meet higher human rights criteria starting in September 2003. FTSFA Good Index Series Raises the Hurdle on Human ffigte,FTSE News And Views, aKhttp://www.ftse.com/about_ftse/ newsandviews/humanrights.jsp> (stating that “[t]he new tougher criteria were developed using a broad public human rights consultation carried out during 2002”) (visited Sept. 2, 2003).

9 A 1999 study found that fifty-one of the one hundred largest economies in the world are corporations, while only forty-nine are countries and the combined sales of the world's top two hundred corporations are greater than a quarter of the world's economic activity. Sarah Anderson & John Cavanagh, Top 200: The Rise Of Corporate Global Power (1999), at <http://www.ips-dc.org/reports/top200text.htm>.

10 Development and International Economic Cooperation: Transnational Corporations, UN Doc. E/1990/94; see also Draft United Nations Code of Conduct on Transnational Corporations, May 1983, 23ILM 626 (1984) [hereinafter Draft UN Code].

11 Organisation for Economic Co-operation and Development, Guidelines for Multinational Enterprises,June 21, 1976,15 ILM 969 (1976). The OECD updated these Guidelines in 2000. For the current version, see OECD Guidelines for Multinational Enterprises (Oct31,2001),available at <http://www.oecd.org/> [hereinafter OECD Guidelines].

12 International Labour Organization, Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, Nov. 16, 1977, 17 ILM 422, para. 6 (1978), available at <http://www.ilo.org/public/english/employment/multi/tridecl/index.htm> [hereinafter ILO Tripartite Declaration]. The Tripartite Declaration is voluntary. Id., para. 2 (“The aim of this Tripartite Declaration of Principles is to encourage the positive contribution which multinational enterprises can make . . .”).

13 Secretary-General Kofi Annan, Address at the World Economic Forum in Davos, Switzerland (Jan. 31,1999), UN Doc. SG/SM/6448 (1999). Prior to adoption of the Norms, the staff of the Global Compact issued a statement of July 24, 2003, in support of the Norms, indicating that

we always welcome efforts that help to clarify complex human rights questions and that foster practical changes that advance understanding and good practices. [We] understand [] that the Draft Norms have already initiated significant educational efforts and we are looking forward to seeing how these efforts could contribute positively to the Global Compact.

E-mail from Georg Kell (July 24,2003) (on file with author). That statement responded to a letter from four major participants, which stated their concern to their partners in the Global Compact that companies are being allowed to sign onto the Global Compact without having to follow through with reporting obligations. Letter from Jeremy Hobbs, Oxfam International; Irene Kahn, Amnesty International; Michael Posner, Lawyers Committee for Human Rights; and Kenneth Roth, Human Rights Watch, to Louise Frechette, deputy secretary-general of the United Nations (Apr. 7, 2003) (on file with author); we atoGRI Chief Executive Responds to Release of the UN Sub-Commission on the Promotion and Protection of Human Rights Norms for Transnationals (Aug. 13,2003) (on file with author) (stating that “The Global Reporting Initiative (GRI) has welcomed the work of the [Sub-Commission], which it sees as a further step in catalysing and focusing discussion on how human rights can be advanced around the world in measurable, concrete and practical ways.”).

14 The principles are that businesses should (1) support and respect the protection of internationally proclaimed human rights within their sphere of influence; (2) make sure they are not complicit in human rights abuses; (3) uphold the freedom of association and the effective recognition of the right to collective bargaining; (4) eliminate all forms of forced and compulsory labor; (5) abolish child labor; (6) eliminate discrimination in respect of employment and occupation; (7) support a precautionary approach to environmental challenges; (8) undertake initiatives to promote greater environmental responsibility; and (9) encourage the development and diffusion of environmentally friendly technologies. The Global Compact, at <http://www.unhchr.ch/global.htm> (visited Sept. 2, 2003).

15 Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on Its Fortyninth Session, Res. 1997/11, UN Doc. E/CN.4/1998/2, E/CN.4/Sub.2/1997/50 (1997).

16 Sub-Comm'n, Working Document on the Impact of the Activities of Transnational Corporations on the Realization of Economic, Social and Cultural Rights, UN Doc. E/CN.4/Sub.2/1998/6.

17 Sub-Comm'n, The Relationship Between the Enjoyment of Economic, Social and Cultural Rights and the Right to Development, and the Working Mediods and Activities of Transnational Corporations, UN Doc. E/CN.4/Sub.2/ RES/1998/8.

18 Id.

19 Sub-Comm'n, Report of the Sessional Working Group on the Working Methods and Activities of Transnational Corporations on Its First Session, UN Doc. E/CN.4/Sub.2/1999/9. See generally David Weissbrodt & Muria Kruger, Business and Human Rights, in Human Rights And Criminaljustice For The Downtrodden: Essays In Honour Of Asbj0rn Elde 421 (Morten Bergsmo ed., 2003).

20 Sub-Comm'n, Report of the Sessional Working Group on the Working Methods and Activities of Transnational Corporations on Its Second Session, UN Doc. E/CN.4/Sub.2/2000/12, paras. 26-58. For drafts of the documents considered by the working group in 2000, see Sub-Comm'n, Principles Relating to the Human Rights Conduct of Companies, UN Doc. E/CN.4/Sub.2/2000/WG.2/WP.l; Sub-Comm'n, Proposed Draft Human Rights Code of Conduct for Companies: Addendum, UN Doc. E/CN.4/Sub.2/2000/WG.2/WP.l/Add.l; Sub-Comm'n, Proposed Draft Human Rights Code of Conduct for Companies: Addendum, List of Principal Source Materials for the Draft Code of Conduct for Companies, UN Doc. E/CN.4/Sub.2/2000/WG.2/WP.l/Add.2. The working group has changed the title of this document many times in the drafting process. The first draft was called “Draft Code of Conduct for Companies.” UN Doc. E/CN.4/Sub.2/2000/WG.2/WP.l/Add.l, supra. But those in attendance at the 2000 Sub-Commission meeting felt that the term “code of conduct” was overused and might be misleading, as many voluntary codes also referred to themselves as “codes of conduct.” Id., para. 27. The second draft was entitled “Draft Universal Human Rights Guidelines for Companies,” UN Doc. E/CN.4/Sub.2/2001 /WG.2/WP. 1 / Add. 1 [hereinafter 2001 Draft Guidelines]. The term “universal” was suggested at a March 2001 seminar of experts convened to gather input on the guidelines. See generally Sub-Comm'n, Report of the Seminar to Discuss UN Human Rights Guidelines for Companies, UN Doc. E/CN.4/Sub.2/2001/WG.2/WP.l/Add.3,jw«faAfea <http://wwwl.umn.edu/humanrts/links/draftguidelines-ad3.html> [hereinafter Seminar Report]. At the 2001 Sub-Commission meeting, however, it was felt that the term “guidelines” was not indicative of the nature of the obligations the draft was meant to convey, so the word “principles” was considered preferable. Further, since “companies” was not deemed inclusive of all business forms and the working group's mandate included a special focus on transnational corporations, the suggested tide became “Draft Universal Human Rights Principles for Transnational Corporations and Other Business Enterprises.” In February 2002, the working group added “responsibilities” to reflect the nature of the obligations concerned but later excluded references to “universal” and potentially “fundamental,” as the name was becoming quite long. The third draft considered by the Sub-Commission in 2002 was therefore “Human Rights Principles and Responsibilities for Transnational Corporations and Other Business Enterprises,” UN Doc. E/CN.4/Sub.2/2002/WG.2/WP.l. At that meeting, the working group dropped the word “principles” in an attempt to shorten the name and attached a revised version to its report, entitled “Norms of Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights.” Sub-Comm'n, Report of the Sessional Working Group on the Working Methods and Activities of Transnational Corporations. UN Doc. E/CN.4/Sub.2/2002/13 [hereinafter 2002 WG Report],

21 Seminar Report, supra note 20.

22 The suggestion to shorten the text into broad substantive provisions and then follow each provision with a commentary was adopted and incorporated into the 2001 draft. The approach was based on the structure of several other UN human rights instruments, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”), GA Res. 40/33, annex, UN GAOR, 40th Sess., Supp. No. 53, at 207, UN Doc. A/40/53 (1985). Additionally, the order of subjects in the draft was reformulated to follow the somewhat analogous provisions in Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, openedjorsignalureMnr. 7,1966,660 UNTS195,5ILM 352 (1966) [hereinafter Racial Discrimination Convention].

23 Sub-Comm'n, Draft Universal Human Rights Guidelines for Companies, Introduction, UN Doc. E/CN.4/ Sub.2/2001/WG.2/WP.l; 2001 Draft Guidelines, supra note 20; Sub-Comm'n, Draft Universal Human Rights Guidelines for Companies: Addendum 2, Draft Universal Human Rights Guidelines for Companies with Source Materials, UN Doc. E/CN.4/Sub.2/2001/WG.2/WP.l/Add.2; Seminar Report, supranote 20.

24 Sub-Comm'n, The Effects of the Working Methods and Activities of Transnational Corporations on the Enjoyment of Human Rights, UN Doc. E/CN.4/Sub.2/RES/2001/3, para. 4(c).

25 The five members then and at present are Miguel Alfonso-Martinez (Cuba), El-Hadji Guisse (Senegal), Vladimir Rhartashkin (Russia), Soo-Gil Park (South Korea), and David Weissbrodt (United States).

26 Three members of the working group submitted the Commentary: Vladimir Khartashkin, Soo-Gil Park, and David Weissbrodt. Sub-Comm'n, Human Rights Principles and Responsibilities for Transnational Corporations and Other Business Enterprises with Commentary on the Principles, UN Doc. E/CN.4/Sub.2/2002/WG.2/WP. 1 / Add.2. The working group lacked sufficient time for a comprehensive review of the Commentary to the Norms at its three-day meeting in February 2002.

27 Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, in 2002 WG Report, supra note 20, at 15-21.

28 Sub-Comm'n, The Relationship Between the Enjoyment of Economic, Social and Cultural Rights and the Right to Development, and the Working Methods and Activities of Transnational Corporations, UN Doc. E/CN.4/Sub.2/RES/ 2002/8.

29 Norms, supra note 1; Sub-Comm'n, Commentary on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, UN Doc. E/CN.4/Sub.2/2003/38/Rev.2 [hereinafter Commentary].

30 Norms, supra note 1, pmbl.; Commentary, supra note 29, pmbl.

31 Sub-Comm'n, Report of the Sessional Working Group on the Working Methods and Activities of Transnational Corporations, UN Doc. E/CN.4/Sub.2/2003/13.

32 Res. 2003/16, supra note 2, para. 1.

33 Id., paras. 2-3.

34 Id., para. 5.

35 Id., para. 7.

36 Non-Governmental Organizations Welcome the New UN Norms on Transnational Businesses (Aug. 13,2003) (on file with author).

37 Amnesty International and Christian Aid began using the draft Norms as the basis for their assessment of business conduct and campaign efforts even before the Norms were adopted.

38 The aim of the “Initiative for Respect in partnership with Mary Robinson and the Ethical Globalisation Initiative is to show leadership within the business sector on how human rights can be incorporated into the centre of the CSR [corporate social responsibility] and Governance debates.” E-mail from John Morrison to David Weissbrodt (Aug. 26,2003) (on file with author); see also John Morrison, Business and Human Rights, NEW ACADEMY REV., Spring 2003, at 8. The seven founding companies of the initiative are ABB, Barclays Bank, National Grid Transco, Novartis, Novo Nordisk, MTV, and The Body Shop International. During their first meeting in Zurich in June 2003, the group agreed that one of the priorities should be to “road test” the Norms.

39 The Norms also represent an important step in applying international law to business enterprises as nonstate actors. In taking that step, the Norms build upon such foundations as the Universal Declaration of Human Rights, GA Res. 217A (III), Dec. 10, 1948, UN Doc. A/810, at 71 (1948), which applies not only to states, but also to such “organs of society” as businesses; the responsibilities under humanitarian law imposed on armed opposition groups as nonstate actors; the Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 UNTS 277; and individual criminal responsibility (including for corporate officers) established by the Rome Statute of the International Criminal Court.July 17,1998, UN Doc. A/CONF.183/9 (1998), 37ILM 999 (1998), corrected through May 8, 2000, by UN Doc. CN. 177.2000.TREATIES-5; as well as increasing responsibilities voluntarily assumed by businesses under the OECD Guidelines, note 11 supra; the ILO Tripartite Declaration, note 12 supra; and the Global Compact, note 14 supra. Space limitations prevent us from addressing that issue in greater detail.

40 As one author stated, “Strangely, there is no agreed definition for a'[trans] national corporation.'” Alejojose G. Sison, When Multinational Corporations Act as Governments: The Mobil Corporation Experience, in Perspectives On Corporate Citizenship 166, 166 (Jorg Andriof & Malcolm Mcintosh eds., 2001).

41 Wernerfeld, Non governmental forces Andworld Politics 20-23 (1972); Barbara A. Frey, The Legaland Ethical Responsibilities of Transnational Corporations in the Protections of International Human Rights, 6 Minn. J. Global Trade 153, 153 (1996) (citingjonathan I. Charney, Transnational Corporations and Developing Public International Law, 1983 DUKE L.J. 748, 749 n.l);MennoT. Ramminga, Holding Multinational Corporations Accountable for Human Rights Abuses: A Challenge for the EC, inTHEEU AND HUMAN RLGHTS553,553 n.l (Philip Alston ed., 1999) (“The simplest definition of a multinational corporation is 'an enterprise which owns or controls production or service facilities outside the country in which it is based'.”).

42 Luzius Wildhaber, Some Aspects of the Transnational Corporation in International Law, 27 NETH. INT'I. L. REV. 79, 80 (1980).

43 Detlev F. Vagts, The Multinational Enterprise: A New Challenge for Transnational Law, 83 HARV. L. REV. 739, 740 (1970) (quoting Raymond Vernon, Economic Sovereignty at Bay, FOREIGN AFF., Oct. 1968,atll0, 114).

44 Sison, supra note 40, at 168.

45 Vagts, supranote 43, at 740. Arghyrios Fatouros has proposed the following definition of a transnational enterprise: “a complex of legally discrete entities (i.e., companies), established in several countries, forming a single economic unit (enterprise), which engages in operations transcending national borders under the direction of a sole decision-making center.” Arghyrios A. Fatouros, Transnational Enterprise in the Law of Stale Responsibility, in International law of state responsibility for injuries to aliens 3 61,362 (RichardB. Lillich ed., 1983); see also Tranhnational corporations: Internationa1,Legai,Framework 227 (Arghyrios A. Fatouros ed., 1987); David Bergman, Corporations and ESC Rights, in International Human Rights Internship Program, Circle Of Rights 485,490 (2000).

46 ILO Tripartite Declaration, supra note 12, para. 6.

47 OECD Guidelines, supra note 11, pt. I, para. 3.

48 Draft UN Code, supra note 10, para. 1 (a).

49 Norms, supra note 1, para. 20.

50 Id., para. 21. A member of the working group provided this definition for the document and it was accepted by the group at its March 2002 meeting.

51 See infra note 57. The Norms focus on transnational corporations because those large businesses raise the greatest international concern and are the least susceptible to national regulation.

52 Draft UN Code, supra note 10, para. 4.

53 ILO Tripartite Declaration, supra note 12, para. 11.

54 OECD Guidelines, supra note 11, pt. I, para. 4.

55 Id., para. 5.

56 The manner and extent to which they apply raise further issues. See text at notes 62-65 infra (distinguishing between larger and small operations).

57 The Norms do not establish an exception but de-emphasize implementation as to small, local business: “These Norms shall be presumed to apply, as a matter of practice, if the business enterprise has any relation with a transnational corporation, the impact of its activities is not entirely local, or the activities involve violations of the right to security as indicated in paragraphs 3 and 4.” Norms, supra note 1, para. 21.

58 Georg Kell & John Gerard Ruggie, Global Markets and Social Legitimacy: The Case for the 'Global Compact,' Transnat L Corp., Dec. 1999, at 101, 111 (stating that opponents of earlier proposals for binding standards to be imposed through the World Trade Organization “are deeply concerned that seeking to impose such standards through the trade regime would be an open invitation to exploit them for protectionist purposes, to the grave disadvantages of the developing countries and the trade regime as a whole”).

59 OECD Guidelines, supra note 11, pt. II, para. 10.

60 Norms, supra note 1, para. 15.

61 Commentary, supranole 29, para. 15(c).

62 Joint Views of the IOE [International Organisation of Employers] and ICC [International Chamber of Commerce] on the Draft Norms of Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (Jan. 14, 2003) (on file with author).

63 Slavery, supra note 6. For a discussion on levels of responsibility, see Douglass Cassel, International Security in the Post-Cold War Era: Can International Law Truly Effect Global Political and Economic Stability ? Corporate Initiatives: A Second Human Rights Revolution? 19 Fordham Int'Ll.J. 1963 (1996); Frey, supra note 41; Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 11 YALE L.J. 443 (2001).

64 Slavery, supra note 6.

65 Norms, supra note 1, para. 1.

66 Id.

67 Id., para. 19.

68 Id., para. 15.

69 Id., para. 16.

70 Paragraph 18 of the Norms, supra note 1, provides:

Transnational corporations and other business enterprises shall provide prompt, effective and adequate reparation to those persons, entities and communities that have been adversely affected by failures to comply with these Norms through, inter alia, reparations, restitution, compensation and rehabilitation for any damage done or property taken. In connection with determining damages, in regard to criminal sanctions, and in all other respects, these Norms shall be applied by national courts and/or international tribunals, pursuant to national and international law.

71 See id., para. 17.

72 Cf, e.g., International Law Commission, Draft Code of Offences Against the Peace and Security of Mankind, Report of the International Law Commission on Its Sixth Session, in [1954] 2Y.B. Int'lL. Comm'n 150, UN Doc. A/CN. 4/SER.A/1954/Add.l; Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001), available at <http://www.un.org/law/ilo>.

73 See Hurst Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, 25 GA.J. INT'I. & COMF. L. 287 (1995/96). Other prominent nontreaty human rights instruments are the Standard Minimum Rules for the Treatment ofPrisoners, ESC Res. 663 C (XXIV) and 2076 (LXII) (Mayl3,1977); the Declaration on the Rights of Disabled Persons, GA Res. 3447 (Dec. 9, 1975); the Code of Conduct for Law Enforcement Officials, GA Res. 34/169 (Dec. 17, 1979); the Declaration on the Right to Development, GA Res. 41/128 (Dec. 4,1986); the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, GA Res. 43/173 (Dec. 9, 1988); the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, ESC Res. 1989/65 (May 24, 1989); the Declaration on the Protection of All Persons from Enforced Disappearance, GA Res. 47/133 (Dec. 18,1992); the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GA Res. 47/135 (Dec. 18,1992); the Declaration on the Elimination of Violence Against Women, GARes. 48/104 (Dec. 20,1993); the Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23 (1993); and the Beijing Declaration and Platform for Action, UN Doc.A/CONF.177/20 & Add.l (1995).

74 Dinah L. Shelton, Compliance with International Human Rights Soft Law, in International Compliance With Nonblndingaccords 119 (Edith Brown Weiss ed., 1998).

75 The consensus on some declarations has evolved quite quickly to prompt the development of a treaty. For example, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel. Inhuman or Degrading Treatment or Punishment of 1975, GA Res. 3452 (XXX), annex, UN GAOR, 30th Sess., Supp. No. 34, at 91, UN Doc. A/10034 (1975), was followed quite rapidly by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, opened for signature Dec. 10, 1984, 1465 UNTS 85 (entered into force June 26, 1987) [hereinafter Convention Against Torture].

76 See, e.g., Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, GA Res. 36/55, UN GAOR, 36th Sess., Supp. No. 51, at 171, UN Doc. A/36/51 (1981).

77 Sub-Comm'n, Draft Declaration on the Rights of Indigenous Peoples, UN Doc. E/CN.4/Sub.2/ 1994/2/Add. 1.

78 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 UNTS 3.

79 UN Commission on Human Rights Working Group on Arbitrary Detention, Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment Regarding the Situation of Immigrants and Asylum Seekers, UN Doc. E/CN.4/2000/4, Annex 2 (1999).

80 UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Housing and Property Restitution in the Context of the Return of Refugees and Internally Displaced Persons, UN Doc. E/CN.4/Sub.2/ RES/1998/26.

81 UN Commission on Human Rights, Protection of Human Rights in the Context of Human Immunodeficiency Virus (HIV) and Acquired Immunodeficiency Syndrome (AIDS), UN Doc. E/CN.4/RES/1997/33.

82 Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, ESC Res. 1989/65, annex, 1989 UN ESCOR, Supp. No. 1, at 52, UN Doc. E/1989/89.

83 Declaration on the Elimination of Violence Against Women, GA Res. 48/104, UN GAOR, 48th Sess., Supp. No. 49, at 217, UN Doc. A/48/49 (1993).

84 See Rosalyn Hlggins, The Development Of International Law Through The Political Organs Of The United Nations 7 (1963); Eric Heinze, Sexual Orientation and International Law: A Study in the Manufacture of Cross- Cultural “Sensitivity” 22 MICH.J. INT'LL. 283, 299 (2001).

85 Additionally, Sub-Commission Resolution 2003/16 establishes a mechanism in the working group for receiving information about violations by companies. See supra note 34 and corresponding text.

86 Norms, supra note 1, para. 15. Depending on their resources and capabilities, businesses should consider creating ethics committees and/or appointing ethics officers to provide oversight and counseling, and to promote their code. Employee incentives can also be used to create accountability within a company. For example, conduct consistent with the code could be used as a basis for promotion or wage increases.

87 Commentary, supra note 29, para. 15(a).

88 Adoption and dissemination by a company could create implicit contractual obligations, which could be used by stakeholders as a basis for advocacy or even litigation if the company fails to meet the standards stated in its public human rights statements or assessments. See Ralph Steinhardt, Corporate Responsibility and llie International Law of Human Rights: The New LexMercatoria, in Non-State Actors And Human Rights (Philip Alston ed., forthcoming 2003).

89 In the United States, it may be in the corporation's interest to adopt and promulgate a corporate code of conduct. A corporation held criminally liable for the conduct of its agents can have its sentence reduced if it has an “effective compliance program” in place designed to detect and deter violations of the law by employees while workingfor the firm. U.S. Sentencing Guidelines Manual §8A1.2, cmt. n.3(k) (1998). That sentencing guideline has been a great incentive for U.S. corporations to establish company codes of conduct.

90 In addition to making them public, another way of disseminating a company's assessments and enabling them to be compared with the performance of others would be by establishing a standardized numerical system for evaluating performance under the Norms. One such system has been proposed by the secretariat of the Caux Round Table. Caux Round Table Self-Assessment and Improvement Process, at <http://www.cauxroundtable.org/resources.html> (visited Sept. 2, 2003). Another means of verification would be through a corporate social audit similar to the current system used by public accountants for auditing financial statements. The results of this independent social audit could then be separately published or attached to the company's annual report.

91 Commentary, supranote 29, para. 15(b), (e).

92 Norms, supra note 1, para. 15; Commentary, supra note 29, para. 15(c); text at notes 60-61 supra.

93 Commentary, supra note 29, para. 16(d).

94 Norms, supra note 1, para. 16; Commentary, supra note 29, para. 16(c).

95 Norms, supranote 1, para. 16; Commentary, supranote 29, para. 16(i).

96 Commentary, supra note 29, para. 16(d).

97 Id., para. 16(e).

98 Norms, supra note 1, para. 15.

99 Commentary, supra note 29, para. 15(d).

100 Norms, supra note 1, para. 16; Commentary, supranole 29, para. 16(g), (i). Impact statements can be used in efforts to avoid or reduce adverse human rights consequences related to a proposed action. Impact statements include a description of the acdon, its need and anticipated benefits, an analysis of any human rights impact related to the action, an analysis of reasonable alternatives to the action, and identification of alternative methods of meeting goals and are less detrimental to human rights.

101 Commentary, supranote 29, para. 15(g).

102 Id., para. 16(h).

103 Id., para. 16 (d); see Anne Bayefsky, The Un Human Rights Treaty System In The 21 St Century (2000); The Future Of Human Rights Treaty Monitoring (Philip Alston & James Crawford eds., 2000).

104 For example, the Committee on Economic, Social and Cultural Rights (CESCR) might use the Norms in drafting, adopting, and applying a general comment on the obligations of businesses to protect rights set forth in the International Covenant on Economic, Social and Cultural Rights. See, e.g., CESCR, General Comment 7, The Right to Adequate Housing (Art. 11(1)): Forced Evictions, UN Doc. E/C.12/1997/4; CESCR, General Comment 12, The Right to Adequate Food (Art. 11), UN Doc. E/C. 12/1999/5, para. 20; CESCR, General Comment 14, The Right to the Highest Attainable Standard of Health (Art. 17), UN Doc. E/C.12/2000/4, para. 50; CESCR, General Comment 15, The Right to Water, UN Doc. E/C. 12/2002/11, para. 23; see also Human Rights Committee, General Comment 16, The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation (32d session, 1988), in Compilation Of General Comments And General Recommendations Adopted By Human Rights Treaty Bodies, UN Doc. HRl\GEN\l\Rev.l, para.l (1994). The general comments of the two committees are available online at <http://www.unhchr.ch/tbs/doc.nsf>.

105 Article 5 of the Racial Discrimination Convention, supra note 22, requires states to regulate the activities of private parties extensively so as to prevent discrimination in areas such as the right to work, the right to form and join trade unions, and the right to housing. The Committee on the Elimination of All Forms of Racial Discrimination could increase its attention to states' regulation of corporations and ask states particularly to report on corporate behavior in light of the Norms. This same requirement could be used for reporting in connection with the Convention on the Elimination of Discrimination Against Women and the Convention on the Rights of the Child. Seealso Sub-Comm'n, Asbjorn Eide, Corporations, States and Human Rights: A Note on Responsibilities and Procedures for Implementation and Compliance, UN Doc. E/CN.4/Sub.2/WG.2/WP.2 (2001).

106 Mechanisms for individual complaints have been established under four principal human rights treaties. Racial Discrimination Convention, supra note 22, Art. 14; Convention Against Torture, supra note 75, Art. 22(4), (5); Optional Protocol to the International Covenant on Civil and Political Rights, 999 UNTS 302; and Convention for the Elimination of Discrimination Against Women, GA Res. 34/180, Art. 17 (Dec. 18,1979); seealsoEtde, supra note 105, at 12.

107 The Norms may also be useful to the special rapporteurs on the right to food; on the highest attainable standard of health; on extrajudicial, summary or arbitrary executions; and on the situation of human rights and fundamental freedoms of indigenous people. See also Eide, supra note 105.

108 Commentary, supra note 29, para. 16(b). For example, the United Nations High Commissioner for Refugees (UNHCR) employs procurement standards that call for consideration of the vendor's environmental practices. UNHCR Guidelines for Environmentally Friendlier Procurement, UN Doc. OSCEA/STS (1996). UNICEF similarly uses procurement standards specifically regarding the suppliers' compliance with national child labor laws and involvementin the sale or manufacture of land mines. See UNICEF Procurementlnformation, at <http://www.supply.unicef.org/supply/index_procurement_policies.html> (visited Oct. 22,2003). Sub-Commission Resolution 2002/8explicitly recommended that the Norms be used for the development of procurement standards, see Res. 2002/8, supra note 28, para. 4(a), but the Sub-Commission chose to focus on other implementation techniques in 2003, see Res. 2003/16, supra note 2.

109 For an example of a Web site with an extensive amount of information on business and human rights, see Business & Human Rights: A Resource Website, at <http://www.business-humanrights.org> (visited Sept. 2,2003).

110 Norms, supra note 1, para. 16.

111 World Bank Operational Manual, OP 4.2, 4.20 (Feb. 2000).

112 Article XX of the 1947 General Agreement on Tariffs and Trade states ten exceptions in which a state may use trade-restrictive measures, such as to protect public morals; to protect human, animal, or plant life or health; and to preserve exhaustible natural resources. General Agreement on Tariffs and Trade, Oct. 30, 1947, Art. XX. TIAS No. 1700, 55 UNTS 194.

113 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15,1994, Annex 1A, Agreement on Sanitary and Phytosanitary Measures, Art. 2.1, in The Legal Texts: The Results Of The Uruguay Round Of Multilateral Trade Negotiations 59 (1999).

114 Agreement on Technical Barriers to Trade, Art. 1.1., in id. at 121. The International Standards Organization (ISO) has been recognized as one such standardizing body for establishing specifications for products. The ISO has also prepared standards for management systems and has begun to consider developing corporate social responsibility standards from a consumer perspective. International Standards Organization, Advisory Group Presents Recommendations on Social Responsibility to ISO (Feb. 19,2003), at <http://www.iso.org/iso/en/commcentre/pressreleases/2003/Ref846.html> (visited Sept. 2, 2003).

115 Regional codes used to address specific issues include the Sullivan Statement of Responsibilities, 4th Application, Nov. 8, 1984, 24 ILM 1464 (1985); Irish National Caucus, MacBride Principles (1984), at <http://www.irishnationalcaucus.org> Social Accountability International, Council of Economic Priori ties Accreditation Authority, at <http://www.cepaa.org/Accreditation/Accreditation.htm> (visited Oct. 25, 2003); Partner's Agreement to Eliminate Child Labor in the Soccer Ball Industry in Pakistan (1LO/IPEC 1997).

116 North American Agreement on Environmental Cooperation, Sept. 8,9,12, & 14,1993,32 ILM 1480 (1993).

117 North American Agreement on Labor Cooperation, Sept. 8, 9, 12, & 14, 1993, 32 ILM 1499 (1993).

118 European Parliament, Resolution on EU Standards for European Enterprises Operating in Developing Countries: Towards a European Code of Conduct, Res. A4-0508/98 (1998), in Minutes of Jan. 15, 1999.

119 Guerra and Others v. Italy, 1998-1 Eur. Ct. H.R. 2101; Lopez Ostra v. Spain, 303-C Eur. Ct. H.R. (ser. A) (1994).

120 See Social and Economic Rights Action Center and Center for Economic and Social Rights v. Nigeria, Comm. No. 155/96,2001-2002 Annual Activity Report of the African Commission on Human and Peoples' Rights, Annex V, at 31.

121 Commentary, supranote 29, para. 16(c).

122 Id. For an example of a statement by an NGO on human rights responsibilities it believes all companies should follow, see Mark Curtis, Trade for Life: Making Trade Work for Poor People (2001); see also supra note 37.

123 Commentary, supra note 29, para. 16(c).

124 Id.

125 For example, Caux Round Table Principles for Businesses (1986), at <http://www.cauxroundtable.org/principles.html> Clean Clothes Campaign, Code of Labour Practices for the Apparel Industry Including Sportswear (Feb. 1998), at <http://www.cleanclothes.org/codes/ccccode.htm> and International Chamber of Commerce, Business Charter for Sustainable Development (1991), at <http://www.iccwbo.org/home/environment_and_energy/sdcharter/charter/principles/principles.asp>.

126 Although established by an NGO, the SA8000 is an example of a labeling system used to alert consumers to the conditions in which a product was produced. The SA8000, a human rights workplace standard developed by Social Accountability International (SAI), allows retail and brand companies tojoin the SA8000 Signatory Program when they have demonstrated a commitment to achieving decent working conditions in their supply chains. To become a signatory, each company defines the scope of the operations that it intends to bring into compliance with SA8000, develops a plan for achieving this goal, and issues annual progress reports to the public subject to verification by SAI before publication. Signatory benefits include the right to use the SA8000 Signatory logo. SAI, How Companies Can Implement SA8000, at <http://www.cepaa.org> (visited Oct. 22, 2003).

127 Norms, supra note 1, para. 17.

128 Id.

129 Id., para. 18.

130 See Su-Ping Lu, Corpmale Codes of Conduct and the FTC: Advancing Human Rights Through Deceptive Advertising Law, 38 COI.UM. J. Transnat'L L. 603 (2000) (discussing how company human rights codes of conduct may be used by courts to hold companies liable under deceptive advertising laws). Although not mentioned in the Norms or Commentary, states could further encourage or require businesses to file reports about their compliance with the Norms in a central office or could make the filing of such annual reports a requirement of business registration, licensing, securities law, tax law, consumer protection law, etc.

131 The California Supreme Court recently upheld the right of consumers to sue a large corporation under the state deceptive advertising laws for false statements regarding labor practices and working conditions in factories. Kasky v. Nike, 27 Cal.4th 939, 45 P.3d 243 (2002), cert, granted, 534 U.S. 3458 (2003), cert, dismissed as improvidently granted.

132 For example, the Norms as a restatement of international legal principles applicable to companies could be used to interpret the human rights violations that fall under the Alien Tort Claims Act, 28 U.S.C. §1350 (1993). Actions under the Act have been brought against several large multinational corporations. Wiwa v. Royal Dutch Petroleum, 2002 US Dist. LEXIS 3293 (S.D.N.Y. Feb. 22, 2002); Abdullahi v. Pfizer, 2003 US App. LEXIS 20704 (2d Cir. Oct. 8, 2003); Doe/Roe v. Unocal, Case Nos. 00-56603, 00-57197 (9th Cir. 2002); Sarei v. Rio Tinto PLC, 221 F.Supp.2d 1116 (CD. Cal. 2001); Bano v. Union Carbide Corp., 273 F.3d 120 (2d Cir. 2001); Bowoto v. Chevron, No. C99-2506 CAL (N.D. Cal. 1999); Doe v. Gap, Civ. No. 99-329 (filed CD. Cal. Jan. 13, 1999).