Using "Norms" to Change International Law: UN Human Rights Laws Sneaking in through the Back Door?

For decades, multinational businesses have self-regulated their operations with respect to human rights, largely unfettered by international law.1 In recent years, however, human rights groups have advocated that the United Nations ("UN") create clear legal obligations for multinationals respecting their human rights-related conduct. At least partly due to the substantial burden such obligations could place on international businesses, these efforts by human rights proponents have proven largely fruitless-until now. On August 13, 2003, the UN Sub-commission on the Promotion and Protection of Human Rights adopted the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights ("Norms").3 In March and April of this year, the fifty-three-member UN Human Rights Commission will vote regarding whether to adopt the Norms into international law.4 At first glance, the Norms seem benign. The document is not directly binding against corporations and has been described by some of its drafters as a mere restatement of existing international human rights laws.5 A deeper look at the Norms, and the context in which they were drafted, however, reveals that they may be the first major stepping stone toward the adoption of an international, enforceable set of legal obligations binding on transnational corporations ("TNCs"). This Development explores possible long-term effects of the Norms on international businesses by briefly (1) describing historical events leading up to the Norms, (2) summarizing the Norms' controversial content and commentaries, (3) noting what organizations both for and against the Norms are saying about the document, and (4) analyzing the Norms from legal, economic, and political perspectives. I. EVENTS LEADING UP TO THE NORMS The Norms are not the first important UN document devoted to addressing international human rights issues. The UN General Assembly adopted the Universal Declaration of Human Rights in 1948 and has not looked back.6 For instance, the UN Commission on Human Rights has authority to investigate potential violations of international human rights laws by states, thus effectively aiding in the enforcement of those laws.7 About a decade ago, the UN also added a post for a High Commissioner for Human Rights. The High Commissioner is responsible for much of the coordination and implementation of UN human rights programs.8 International discussion on human rights has proliferated in recent decades through the activities of other organizations as well. Amnesty International, founded in Great Britain by Peter Benenson in 1961, has emerged as an influential non-governmental advocate for human rights around the world.9 In the US, legal scholars have recently taken interest in the potential for private international human rights claims against TNCs under the Alien Tort Claims Act, a US law which was enacted in 1789 but largely ignored by courts until 2002, when the Ninth Circuit refused to dismiss a case filed under the Act.10 Despite these and other recent developments, however, TNCs have enjoyed a significant amount of latitude to govern and regulate their own human rights-related activities. Voluntarism and self-regulation have been the methods explicitly endorsed and employed by the UN for addressing human rights issues as they relate to business. The UN's self-regulation approach is perhaps embodied most in the Global Compact, which was established in 2000 upon a recommendation from UN secretary-General Kofi Annan.11 Even though the UN describes the Global Compact as a "direct initiative" of the Secretary-General, the nine principles which constitute the Compact are enforced purely through "public accountability, transparency and the enlightened self-interest of companies" who volunteer to participate in it.12 The UN, in fact, proudly emphasizes that the Global Compact is "not a regulatory instrument-it does not 'police,' enforce or measure the behavior or actions of companies. …