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As set out in John Ruggie?s personal web site, ?In 2005, responding to a request by the UN Commission on Human Rights (now Human Rights Council), Annan appointed Ruggie as the Secretary-General?s Special Representative for Business and Human Rights, a post he continues to hold in the new UN administration of Ban Ki-Moon. In that capacity, his job is to propose measures to strengthen the human rights performance of the business sector around the world.?[1] That appointment, and subsequent work on what was to become the Protect-Respect-Remedy framework, was to some extent bound up in the history of a previous effort to provide an international framework for the governance of multinational corporations?the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (the ?Norms?).[2]

The elaboration of what became the Norms was itself bound up in a series of extraordinary events that began to be realized in the 1960s. Pressure for regulation at a supra-national level came from virtually every state, but their respective motivations were very different.[3] First, developed nations feared competitive threats from each other. In the 1960s Europeans feared American industrial power. In the 1970s the Japanese feared the effects of trade liberalization on their export driven economy. Ion the 1980s the U.S. feared Japanese penetration of its industrial sectors and developed states feared the power of multinational corporations to use the flexibility inherent in globalization to exploit differences in local wage labor markets to move their operations and jobs outside of high consumption states. Second, developing nations feared that the continuing economic influence of the old colonial powers would give rise to economic imperialism through multinational corporations.[4] Multinational corporations were said to be able to control global media to subvert national peculiarities. [5] Their ability to participate in internal political matters, especially through corruption and suborning local elites was feared.[6] Multinational corporations were also caught participating in violent overthrows of unreceptive governments of host states.[7] The popular media began to view multinational corporations as creatures worthy of suspicion and regulation.[8] Fourth, the issue of multinational regulation became caught up in a general debate about the emerging framework of globalization. Some began to characterize these entities as the latest stage in the march toward monopoly capitalism or as the vanguard of capitalist consumerism.[9] Moreover, the basic assumptions and methods of the so-called neo-liberal model, especially in connection with globalization through private amalgamations of economic power, were also questioned by high-status Western academics.[10]

It was against this background that the United Nations, through the human rights organs in Geneva began serious work on the production of a set of rules that might directly bind multinational corporations to a set of mandatory obligations. David Weissbrodt, one of the principal authors of the Norms, explained:

In parallel with increasing attention to the development of international criminal law as a response to war crimes, genocide, and other crimes against humanity, there has been growing attention to individual responsibility for grave human rights abuses. The creators of this ever-larger web of human rights obligations, however, failed to pay sufficient attention to some of the most powerful non-state actors in the world, that is, transnational corporations and other business enterprises. With power should come responsibility, and international human rights law needs to focus adequately on these extremely potent international non-state actors.[11]

The Norms themselves were ultimately grounded on principles of direct application of human rights norms to multinational corporations and on a system of using binding contracts to establish a global network of human rights obligations enforceable against multinational corporations.[12] But the ultimate efforts were criticized, especially by developed states that thought the proposal threatened sovereignty and the current structure of international law.[13] The Norms project was ultimately abandoned.

In 2003, a working group under the UN Sub-Commission on the Promotion and Protection of Human Rights drafted the «Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights», which assumed that companies had legal obligations in relation to human rights. When the draft norms were submitted to the member states of the UN Human Rights Commission in 2004, they were rejected. Several of the member states opposed holding non-state entities directly accountable for human rights violations as they felt this would dilute state responsibility. The Human Rights Commission made it clear that the draft entailed no legal obligations. Several of the member states did, however, point out that the draft norms contained useful elements and ideas. It was against this backdrop, and following a resolution adopted by the UN Human Rights Commission, that the UN Secretary-General in 2005 appointed a Special Representative for human rights and business.[14]

The abandonment of the Norms project, and its approach continues to be criticized by one of its principal architects.[15]

Among the most influential critics of the Norms framework was John Ruggie. Mr. Ruggie agreed that the transnational corporate sector wasa legitimate object of transnational governance.[16] He suggested that ?the Norms exercise became engulfed by its own doctrinal excesses. . . . Two aspects are particularly problematic in the context of this mandate. One concerns the legal authority advanced for the Norms, and the other the principle by which they propose to allocate human rights responsibilities between states and firms.?[17] This was not idle criticism, but the foundation for an alternative approach to the construction of a regulatory matrix, at the supra-national level, for the governance of multinational corporations, grounded in the legal duties of states, the social responsibilities of corporations and the process obligations of both to their respective stakeholders.[18]

The initial appointment of Mr. John Ruggie as Assistant Secretary-General and chief advisor for strategic planning to the United Nations Secretary-General Kofi Annan from 1997-2001 began the long sequence of events that produced the Protect-Respect-Remedy framework. It was during this appointment that Mr. Ruggie was instrumental in developing, designing and overseeing the United Nations Global Compact.[19] The UN Global Compact is an initiative developed to encourage businesses worldwide to adopt within their operations and strategies ten universally accepted principles in the areas of human rights, labor, environment and anti-corruption.[20] The Global Compact is now the largest global corporate citizenship initiative in the world with 6500 signatories, 5000 from business and 1500 from civil society and other non-business organizations based in 135 countries.[21]

Mr. Ruggie also proposed and gained General Assembly approval for the Millennium Development Goals, which were signed into effect in 2000.[22] The Millennium Development Goals had an ambitious agenda; they were to be something more than a mechanical benchmarking tool, but also ?an instrument for broader social mobilization, generating innovative responses to society?s systemic challenges by, and among, all social actors.?[23] But both the Global Compact and the Millennium Development goals also served as an operational foundation to the critique of the Norms approach.

That operational foundation became the framework for the construction of an alternative regulatory framework with the collapse of the Geneva based Norms project and the movement of corporate human rights based initiatives back to New York and the appointment in 2005 of John Ruggie as Special Representative to the Secretary-General on the issue of Human Rights and Transnational Corporations and Other Business Enterprise.[24] Ruggie began his mandate with a series of studies designed to elicit information from stakeholders, including the corporate sector,[25] and a set of fact finding missions.[26] Other organizations and governments also provided early assistance.[27]

Early on, Mr. Ruggie abandoned the Norm?s focus on the direct obligations of multinational corporations. Instead, he divided his focus between legal obligations, which flow from and through states, and other obligations, that more directly affect corporate entities under traditional conceptions of law. [28] The object was to identify ?the directions in which achievable objectives may lie.?[29] Legal obligations would center on an identification and harmonization of legal standards; ?achieving greater clarity of, and possibly greater convergence among, emerging standards is a pressing need.?[30] Even at this early point in the development of the framework, shortly after his appointment and the announcement of his mandate, Ruggie acknowledged that the scope of the mandate goes beyond simply the legal realm, and also includes a ?full range of governmental responsibilities and policy options in relation to business and human rights.?[31] Additionally, it encompasses all sources of corporate responsibility including legal compliance as well as social norms, moral considerations and strategic behavior.[32] At this point, Ruggie realized that ?a strategy for strengthening the corporate contribution to the protection and promotion of human rights that recognizes and leverages the dynamics at work in each of these spheres? was needed.[33]

In 2006, Ruggie produced the first of a set of annual reports based on his initial research and conceptualization of the mandate.[34] He emphasized the legal obligations of states to enforce law and of corporations to comply with legal requirements.[35] The object was to avoid the irreconcilable policy tension that doomed the Norms project.[36]

Following the delivery of the 2006 Report, Mr. Ruggie continued information gathering and consulting stakeholders. A number of events were conducted, including convening three regional multi-stakeholder consultations; civil society consultations on five continents; visits to the developing country operations of major multinational corporations in four industry sectors; four workshops of legal experts; two Geneva-based multi-stakeholder consultations, on the extractive and financial services industries; and discussions with representatives of all relevant multilateral institutions and some government officials.[37]

The 2007 report to the UN Human Rights Council was targeted at addressing the four elements that the initial mandate.[38] It also set the foundation for what was to come during the next three years of the mandate. Five clusters of standards were developed that have evolved into the three-pillar framework.[39] These clusters include: the state duty to protect against human rights abuses by third parties, potential corporate responsibility and accountability for international crimes, corporate responsibility for other human rights violations under international law, soft law mechanisms, and self-regulation.[40] A focus was on accountability and interpretive mechanisms.[41] After announcing these standards at the International Chamber of Commerce, Commission on Business in Society in Paris in April 2007, Ruggie asked that the attendees ?convene a global business and human rights forum for dialogue and information exchange? among the membership.[42] The influence of organizing work on the Global Compact is evident in this phase of work.[43]

Fourteen multi-stakeholder consultations on five continents led up to the 2008 Report[44] with concern expressed for a common need among them all ? ?a common framework of understanding, a foundation on which thinking and action can build in a cumulative fashion.?[45] The three-pillar Protect-Respect-Remedy framework was unveiled in the 2008 Report.[46] For that purpose the five clusters of standards from the previous report were pared down to the most formalistic and important principles. The framework of complementary principles now includes the state duty to protect, the corporate responsibility to respect, and access to remedies. It is necessary that all social actors involved in business and human rights play an active role in addressing and attempting to resolve these issues.[47] The Report explored governance gaps in more detail.[48] These governance gaps have created a permissive environment for wrongful acts by companies without a system for adequate sanctions or reparations; narrowing this gap is the fundamental challenge.[49]

2008 also saw the renewal of the SRSG?s mandate by the Human Rights Council.[50] The SRSG was directed to operationalize the framework, by providing ??practical recommendations? and ?concrete guidance? to states, businesses and other social actors on its implementation.?[51] The Human Rights Council stressed ?the obligation and the primary responsibility to promote and protect human rights and fundamental freedoms lie with the State.?[52] The HRC also emphasized ?that transnational corporations and other business enterprises have a responsibility to respect human rights.?[53] The emphasis was on proper regulation produced by a proper source,[54] and a limited regulatory role for corporations.[55]

The 2009 Report followed.[56] The report incorporates policy considerations touching on the global economic crisis of 2008, and the resulting pressure on stakeholders to reduce the priority of human rights concerns. The SRSG emphasized that that elements of the business and human rights agenda should be aligned more closely with the overall world economic policy agenda.[57] The body of the report considered issue of operationalization. This 2009 Report is to be followed by one in 2010 in which the SRSG is to unveil a set of applicable principles for fulfilling obligations under each fo the three pillars. Included also may be suggestions for institutionalizing the framework within a to-be-developed governance framework.

[1] Harvard Unversity, Kennedy School of Government, John Ruggie, available http://www.hks.harvard.edu/m-rcbg/johnruggie/index.html.

[2].U.N. Econ. & Soc. Council (ECOSOC), Sub-Comm?n on Promotion & Prot. of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/L.8 (Aug. 7, 2003) (draft resolution prepared by Alfonso Martínez et al.), available at http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/6b10e6a7e6f3b747c1256d8100211a60?Opendocument. This document was subsequently revised. See ECOSOC, Sub-Comm?n on Promotion & Prot. of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 26, 2003), available at http://www.unhchr.ch/huridocda/

huridoca.nsf/0/64155e7e8141b38cc1256d63002c55e8?OpenDocument [hereinafter Norms]. All references to the Norms are to the revised Norms issued August 26, 2003. For the official commentary on the Norms, see ECOSOC, Sub-Comm?n on the Promotion and Prot. of Human Rights, Commentary on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/38/Rev.2 (Aug. 26, 2003), available at http://www.unhchr.ch/Huridocda/

Huridoca.nsf/(Symbol)/E.CN.4.Sub.2.2003.38.Rev.2.En?Opendocument [hereinafter Commentary]. For a report on the finalization of the statement of Norms, see ECOSOC, Sub-Comm?n on the Promotion and Prot. of Human Rights, Report of the Sessional Working Group on the Working Methods and Activities of Transnational Corporations on its Fifth Session, U.N. Doc. E/CN.4/Sub.2/2003/13 (Aug. 6, 2003), available at http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/906e3013f1cb27eac1256d82004d7fe2?Opendocument [hereinafter Report of the Working Group, Fifth Session].

[3].For an excellent summary, from which this paragraphs draws, see ., Peter T. Muchlinski, Multinational Enterprises and the Law 123?72 (1995) at 1?11, 90?115, 573?604.

[4].See Republic of Cuba, Permanent Mission to the United Nations and International Organizations With Headquarters in Switzerland, Note No. 461 to the Office of the UN High Commission for Human Rights, October 27, 2004. This concern was reflected in the work of various academics. See, e.g., Dine, supra note 58.

[5].Fleur Johns, The Invisibility of the Transnational Corporation, 19 Melb. U. L. Rev. 893, 906 (1994). These same practices infringe upon a state?s people?s right to self-determination, as history has shown TNCs ?soliciting the assistance and protection of [foreign] troops,? and ?disturbing [the] traditional subsistence economies [of indigenous peoples], rendering them economically dependant upon corporate offerings . . . thus [making them] pliable to the corporate will.? Id. at 908. ?When foreign businesses come in they often destroy local competitors, quashing the ambitions of local businessmen who had hoped to develop homegrown industry. . . . [A]fter the international firm drives out the local competition, it uses its monopoly power to raise prices.? Stiglitz, supra note 7, at 68.

[6] Id., at 905-06.

[7]. See, e.g., T. Moran, Multinational Corporations and the Politics of Dependence: Copper in Chile 252?53 (1977); Anthony Sampson, The Arms Bazaar (2d ed. 1991).

[8].See, e.g., the website maintained by the Business and Human Rights Resource Centre, http://www.business-humanrights.org. For a more formal discussion of the nature of corporate complicity in human rights and other abuses, see Andrew Clapham & Scott Jerbi, Categories of Corporate Complicity in Human Rights Abuses, 24 Hastings Int?l & Comp. L. Rev. 339 (2001). For an early example of the policy response to the perception of these abuses, see generally R.S. Barnett & R.E. Muller, Global Reach: The Power of Multinational Corporations (1974), analyzing the incentives and structure attributes of the multinational corporation that contribute to its power and lack of accountability on a global level.

[9].See, e.g., John H. Dunning, Global Capitalism at Bay? (2001) (cataloguing the influence that both TNCs and national governments have on the technological, social, and institutional development of global capitalism); Bob Milward, Globalisation? Internationalisation and Monopoly Capitalism: Historical Processes and Monopoly Capitalism 25?36 (2003) (arguing that TNCs are the current manifestation of the drive toward consolidation in the search for profit that, because of the basic contradictions of capitalism, will result in the system consuming itself).

[10].See, e.g.,

Full post as published by Law at the End of the Day on February 28, 2010 (boomark / email).

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