Human Rights Law Review Advance Access originally published online on October 28, 2006
Human Rights Law Review 2006 6(3):447-497; doi:10.1093/hrlr/ngl020
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The UN Human Rights Norms for Corporations: The Private Implications of Public International Law
*Professor, Chair in Human Rights Law, University of Sydney, Australia (davidk{at}law.usyd.edu.au).
**Barrister, Cloisters Chambers, London (rch{at}cloisters.com). Research for this article was enabled through a three-year Linkage Grant from the Australian Research Council for a project researching human rights and multinational corporations. For details and the outcome of the project, see Castan Centre for Human Rights Law, ‘Multinational Corporations and Human Rights’ (Projects) available at: http://www.law.monash.edu.au/castancentre/projects/mchr/. Themes in, and earlier versions of, the article were aired at a US Congressional Human Rights Caucus hearing in November 2004; at a session on the Norms at the Business for Social Responsibility Conference in New York, November 2004; and at a number of Human Rights and Global Economy graduate seminars at Monash University and Sydney University Law Schools and at Washington College of Law, American University in 2004 and 2005. In addition to the two anonymous referees of the article and the editorial board of the Human Rights Law Review, the authors would like especially to thank Chris Avery, Eric Biel, Scott Jerbi, Sarah Joseph, Richard Meeran, Justine Nolan, John Ruggie, John Sherman, Sune Skadegard Thorsen and Natalie Zerial for their insightful constructive criticisms, comments and suggestions, and also the last-named for her peerless editorial and research assistance.
Though many years in the making, the UN Human Rights Norms for Corporations only registered on the radars of most states, corporations and civil society organisations in August 2003 when they began to move up the ladder of the United Nation's policy-making processes. Since then they have been subject to intense, and sometimes intemperate, debate, scrutiny and controversy. A particular legal feature of the deliberations has been the focus on the closely related questions of the legal standing of the Norms in their present format (namely, an imperfect draft, and therefore, of no direct legal force), and what they might become (possibly—though not likely soon—a treaty that speaks to corporations but binds states). A potent mix of distrust and suspicion, vested interests, politics and economics has given rise to a great deal of grand-standing and cant concerning these questions and how they might be answered. In this article, the authors explore the history of the Norms and the form and content of the debate that surrounds them, in their attempt to disentangle the legal from the rest. That said, the article also focuses on the real politicking of the circumstances in which the Norms now find themselves and it seeks to offer some guidance as to where the Norms—or at least their substance, if not their form—might go from here.
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