That development also was long in the making. When, on 20 April 2005, the United Nations
Commission on Human Rights adopted a resolution requesting that the UN Secretary‐General
appoint a Special Representative on the issue of business and human rights (United Nations
Commission on Human Rights 2005), the field was a deeply divided one. After a wide consultation of
all relevant stakeholders including in particular the business community, the independent experts of
the UN Sub‐Commission for the Promotion and Protection of Human Rights had proposed in August
2003 a set of ‘Norms on the Human Rights Responsibilities of Transnational Corporations and Other
Business Enterprises’ (United Nations Sub‐Commission for the Promotion and Protection of Human
Rights 2003; see Weissbrodt and Kruger 2003; Weissbrodt and Kruger 2005). The draft Norms
presented themselves as a restatement of the human rights obligations imposed on companies
under international law. They were based on the idea that ‘even though States have the primary
responsibility to promote, secure the fulfillment of, respect, ensure respect of and protect human
rights, transnational corporations and other business enterprises, as organs of society, are also
responsible for promoting and securing the human rights set forth in the Universal Declaration of
Human Rights’, and therefore ‘transnational corporations and other business enterprises, their
officers and persons working for them are also obligated to respect generally recognized
responsibilities and norms contained in United Nations treaties and other international instruments’
(Preamble, 3d and 4th Recital).
However, as documented in a report prepared in 2004‐2005 by the Office of the High Commissioner
for Human Rights, the 'Norms' were deeply contentious (Office of the High Commissioner for Human
Rights 2005). Some stakeholders challenged the very idea that international human rights law was
relevant to corporations: they asserted that international law could not impose direct obligations on
companies, who are not subjects of international law. Others questioned the choice of the experts of
the Sub‐Commission on Human Rights to base the 'Norms' they were proposing on a range of
instruments that were not necessarily ratified by the countries in which the corporations operate,
thus in fact imposing on business actors obligations that went beyond the duty to comply with the
legal framework applicable to their activities where such activities are located. Moreover, it was said,
the 'Norms' were inapplicable, due to the ambiguities of the standards guiding certain key questions,
such as the definition of the situations which corporations had a duty to influence : Principle I of��the
'Norms' referred in this regard to the notion of 'sphere of influence' to provide such a definition
('Within their respective spheres of activity and influence, transnational corporations and other
business enterprises have the obligation to promote, secure the fulfillment of, respect, ensure
respect of and protect human rights recognized in international as well as national law, including the
rights and interests of indigenous peoples and other vulnerable groups'); but that was considered
exceedingly vague and the source of legal insecurity for both the victims of human rights abuses of
corporations and for these corporations themselves.
Not only were the ‘Norms on the Human Rights Responsibilities of Transnational Corporations and
Other Business Enterprises’ highly contentious due to the prescriptions they contained; they also
were seen as objectively competing with the flagship initiative of the United Nations in promoting
corporate social responsibility, the 'Global Compact'. The Global Compact was first proposed by the
United Nations Secretary General K. Annan at the 1999 Davos World Economic Forum. It was
conceived as a voluntary process, meant to reward good corporate practices by publicizing them, and
to promote a mutual learning among businesses. The companies joining the process pledge to
support a set of values in the areas of human rights, labour, and the environment, and to which anti‐
corruption was added in 2004. They report annually on initiatives that contribute to the fulfilment of
these values in their business practices, through a "Communication on Progress". The companies
joining the process who fail to comply with the reporting requirement face "de‐listing": by 2011,
more than 2,000 participating companies had been thus sanctioned.
33
CRIDHO‐WP‐2013/2: O. De Schutter – Economic,Social and Cultural Rights as Human Rights: An Introduction
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