Human Rights Violations by Multinational Corporations and UN Initiatives

Review of International Law & Politıcs
Vol: 12, No: 1, pp. 121-160, 2016©

DOI: 10.19096/rilp.2016116721
Human Rights Violations by

Multinational Corporations
and UN Initiatives
MACIEJ ŻENKIEWICZ*
ABSTRACT
The article presents United Nations’ (UN) activity to the problem of human rights
violations committed by multinational corporations. The article consists of two
parts: The first part is an introduction to the problem of multinational corpora-
tions (MNCs) and human rights, it explains why the international community is
so vigorously interested in MNCs and human rights, and presents the pros and
cons for two possible ways to regulate MNCs – either indirectly via the state, or
directly through obligations under international law. The second part presents
and evaluates the most important three UN initiatives regarding business, human
rights and the recent developments: first, the UN Norms on the Responsibility of
Transnational Corporations and Other Business Enterprises with Regard to Hu-
man Rights; second, the Global Compact Initiative; and third, the activity of the
UN Secretary-General Special Representative on business and human rights. The
author discusses the content of the aforementioned norms/initiatives, scrutiniz-
ing the novel attitude toward the problem of MNCs and human rights, but also
presents and comments on the critique of them. The author especially addresses
the critique of the Ruggie’s framework, presenting the arguments of UN Secretary-
General Special Representative’s opponents and mainly disagreeing with their po-
sition. Furthermore, the article is enriched by the brief commentary on the recent
developments, namely the activity of an open-ended intergovernmental working
group on transnational corporations and other business enterprises with respect
to human rights (OEIGWG), which focuses on the question of legally binding in-
struments.
Keywords: Multinational Corporations (MNCs), United Nations, Global Com-
pact, Ruggie’s framework
* Assistant Lecturer, Chair of International Law, Department of the Faculty of

Law and Administration, Nicolaus Copernicus University. E-mail: maciej.
zenkiewicz@gmail.com
121
Maciej ŻENKIEWICZ
Introduction
T
he article presents the United Nations’ (UN) activity on the prob-
lem of human rights violations committed by multinational corpo-
rations (MNCs).1 The article consists of two parts: The first part2,
which can be treated as an introduction to the problem of MNCs and hu-
man rights, explains why the international community is so vigorously
interested in MNCs and human rights. It presents the pros and cons of
two possible ways to regulate MNCs – indirectly via the state, or directly
through obligations under international law. The second part presents and
evaluates the three most important UN initiatives regarding business, hu-
man rights and the recent developments: firstly, the UN Norms on the Re-
sponsibility of Transnational Corporations and Other Business Enterprises
with Regard to Human Rights3, secondly, the Global Compact Initiative
and, thirdly, the activity of the UN Secretary-General Special Representa-
tive on business and human rights. The author discusses the content of the
aforementioned norms/initiatives, the novel attitude toward the problem
of MNCs and human rights, and provides commentary on the critique of
them. The author especially addresses the critique of Ruggie’s framework,
presenting the arguments of UN Secretary-General Special Representa-
tive’s opponents and mainly disagreeing with their position. Furthermore,
the article is enriched by the brief commentary of the recent developments,
1 Inter alia, the following terms are in use: Multinational Enterprises (MNEs),
Transnational Corporations (TNCs), Multinational Corporations (MNCs).
2 Some parts of this article are based on the author’s previous research published
in Polish: Maciej Żenkiewicz, “Problem odpowiedzialności korporacji
wielonarodowych w prawie międzynarodowym za naruszenia praw człowieka”,
Revista Crítica de Historia de las Relaciones Laborales y de la Política
Social, Vol. 1-2, December 2010/January 2011, pp. 57-81; Maciej Żenkiewicz,
“Najważniejsze inicjatywy prawne i standardy w dziedzinie odpowiedzialności
korproacji wielonarodowych za naruszenia praw człowieka”, Studia Iuridica
Toruniensia, Vol. 9, 2011, pp. 101-139.
3 “Economic, Social and Cultural Rights: Norms on the Responsibilities of
Transnational Corporations and Other Business Enterprises with regard to
Human Rights”, UN Sub-Commission on the Promotion and Protection of
Human Rights, E/CN.4/Sub.2/2003/12/Rev.2, 26 August 2003, hereinafter ‘UN
Norms’.
122 Review of International Law & Politıcs

Human Rights Violations by Multinational Corporations and UN Initiatives
namely the activity of open-ended intergovernmental working group on

transnational corporations and other business enterprises with respect to
human rights (OEIGWG), which focuses on the question of legally bind-
ing instruments.
Problem of MNCs’ Responsibility for Human Rights

Violations
The responsibility of MNCs is a very topical issue nowadays. This prob-
lem is discussed in articles, books and seminars. However, if one wishes
to understand this problem, the question of why the MNCs have become
a target for human rights advocates and NGOs in the first place has to be
addressed. This has recently been compellingly done by Professor Ratnes
since he identified a dramatic increase in investments made by MNCs in
the developing world, where sometimes corporations can possess more
economic power than host countries. Meanwhile, a global telecommuni-
cations revolution in developing countries is increasing the capacity of
NGOs to mobilize public opinion. International institutions have played a
role, along with states becoming more hospitable to foreign investors due
to the work of the World Trade Organization (WTO) and the International
Monetary Fund (IMF).4
To discuss the possibility of holding MNCs responsible for human
rights violations, it must first be considered whether MNCs can be respon-
sible for human rights at all. Traditionally, MNCs have no legal obligations
in terms of human rights. The main objective of MNCs is to make profit
for their shareholders. This argument cannot be overlooked, even if many
companies have other obligations than profit alone, showing regard, for
example, for their operating environment and sustainability. It is another
question whether or not human rights should be considered among corpo-
rate concerns, and if so, whether such obligations should extent to cover
the human rights of their employees or over all human beings affected by
the particular corporation.
4 Steven R. Ratner; “Corporations and Human Rights: A Theory of Legal

Responsibility”, Yale Law Journal, Vol. 111, 2001-2002, p. 462.
Vol. 12, No. 1, 2016 123

Maciej ŻENKIEWICZ
MNCs have become more and more important in everyday life. The
shoes we buy, the water we drink, the energy we use – almost everything
has some connection with MNCs: it was produced, imported, sold, and
advertised by MNCs. A number of facts from the Corporate Watch Report
(2000)5 can be invoked to illustrate the scope of the power of MNCs: “as
of the 100 largest economies in the world, 51 are now global corpora-
tions; only 49 are countries. The combined sales of the world’s top 200
corporations are far greater than a quarter of the world’s economic activity.
One-third of world trade is simply transactions among various units of the
same corporation. 200 giant corporations, most of them larger than many
national economies, are now in control of well over a quarter of the world’s
economic activity. Philip Morris is larger than New Zealand, and it oper-
ates in 170 countries. Instead of creating an integrated global village, these
firms are weaving webs of production, consumption, and finance that bring
economic benefits to, at most, a third of the world’s people. Two-thirds of
the world (the bottom 20 percent of the rich countries and the bottom 80
percent of the poor countries) are left out, marginalized, or hurt by these
webs of activity. Wal-Mart, the number 12th corporation, is bigger than
161 countries, including Israel, Poland and Greece. Mitsubishi is larger
than the fourth most populous nation on earth: Indonesia. General Motors
is bigger than Denmark. Ford is bigger than South Africa. Toyota is bigger
than Norway”.6 Corporations of this size enjoy significant economic and
political influence in their operating markets.
Ratner presents three compelling reasons to support his argument for
regulation of MNCs that require efforts beyond those conventionally con-
sidered to be the responsibility of the state.7 Firstly, less developed coun-
tries look forward to investments, and sometimes pay little attention to
5 Sarah Anderson and John Cavanagh, “Top 200: The Rise of Global Corporate
Power”, Corporate Watch, 2000, <http://www.globalpolicy.org/socecon/tncs/
top200.htm>, (Date Accessed: 1 September 2015).
6 Sarah Anderson and John Cavanagh, “Top 200: The Rise of Global Corporate
Power”.
Responsibility”, p. 462.

monitoring corporate behavior, having neither interest nor resources to do

so. Secondly, the government might use corporate resources to commit its
own human rights abuses. Thirdly, MNCs that have such economic power
and operate within many countries have become more independent of gov-
ernmental scrutiny.
It has to be noted that policy and bargaining power have shifted. Devel-
oping countries are so eager to welcome investments that they may even
assist human rights violations to facilitate investment. The balance of pow-
er between MNCs and states is totally in favor of these companies. A MNC
can easily shift its activities from one state to another, choosing whichever
offers fewer regulatory burdens. On the other hand, a developing country’s
economy mostly depends on foreign investments. “It is clear that the pow-
er of multinationals can overwhelm poor nationals desperate to see inward
investments”.8 As a pertinent government advertisement from the Philip-
pines put it in 1995: “To attract companies like yours… we have felled
mountains, razed jungles, and filled swamps, moved rivers, and relocated
towns… all to make it easier for your business here”.9 These sentiments
may be considered to reflect the attitude of many developing countries,
whose economies depend on decisions made by MNCs to invest or not in
their resources of land and labor. The companies may take advantage of the
so-called “race to the bottom” between countries – because investments
may be redirected to countries with lower standards and cheaper costs,
thus countries are taking part in the “race to the bottom” to offer the lowest
inconveniences, and therefore the cheapest standard of protecting rights
such as labor rights.10 The most drastic situation is when the government
grants de facto control over the territory to MNCs, paying no attention
to possible human rights abuses occurring in that territory.11 The case of
8 Janet Dine, Companies, International Trade and Human Rights, (Cambridge:

Cambridge University Press, 2005), p. 72.
9 Janet Dine, Companies, International Trade and Human Rights.
10 Simon Chesterman, “Oil and Water: Regulating the Behavior of Multinational
Corporations through Law”, New York University Journal of International Law
and Politics, Vol. 36, 2004, p. 307.
11 This was the case of Freeport-McMoRan & Gold Inc. operating on the land of
Vol. 12, No. 1, 2016 125

Maciej ŻENKIEWICZ
South Africa and the role of diamond companies in the civil war in Sierra
Leone12 demonstrated that companies act hand in hand with governments
in abusing human rights. This is not an isolated incident. MNCs with the
capability to commit human rights violations often do so when it is ad-
vantageous to their enterprise. “They have not hesitated to adopt corrupt
means if doing so secures or sustains business ventures”.13
Indirect vs. Direct Obligations of MNCs Under International

Law
In the discussion regarding the possibility to hold MNCs responsible for
human rights violations, there has always been a dispute about the dis-
tinction between direct and indirect obligations of corporations. The great
advantage of indirect obligations of MNCs is that states are primary duty
holders in international law, and treaties regulate private parties indirectly
rather than directly. States have legislative and executive power to create
duties for companies, and the apparatus requisite to impose and enforce
those duties. States enjoy effective control over the compliance with the
obligations, because of its responsibility. When a state is able and willing
to regulate and monitor MNCs, the indirect duties seem to be the best way
to ensure compliance with international law.
Skeptics of indirect obligations point out that corrupt governments and
lax regulations, as well as lax enforcement of good regulations, are the
main impediments. Such factors as the ‘race to the bottom’ have an ef-
fect on the economic power of corporations given the arguments against
indirect obligations. Because of indirect obligations, corporations go un-
indigenous people in Papua and Texaco in Colombia; For further information

please refer to: Joanna Kyriakakis, “Freeport in West Papua: Bringing
Corporations to Account for International Human Rights Abuses under Australian
Criminal and Tort Law”, Monash University Law Review, Vol. 31, 2005, p. 95.
12 For further information please refer to: UN Security Council Resolution 1306,
U.N. SCOR, 55th Session, 4168th Meeting, U.N. Doc. S/Res/1306, 2000.
13 Surya Deva, “Sustainable Good Governance and Corporations: An Analysis of
Asymmetries”, Georgetown International Environmental Law Review, Vol. 18,
2006, p. 724.

punished in the cases when the state is reluctant or powerless to penalize

MNCs that are believed to be violating human rights.
On the other hand, there remains a significant problem with direct ob-
ligations, and that is the lack of any uniform practice accepting MNCs as
duty holders in the international arena.14 Direct obligations mean that, in
theory, the conduct of companies will be better and more effectively regu-
lated. As Ratner proposes, “if states and international organizations can
accept rights and duties of corporations in some areas, there is no theoreti-
cal bar to recognizing duties more broadly, including duties in the human
rights area”.15 Vazquez agreed with this statement, and stated his opinion
that, “international law imposes no conceptual obstacles to an agreement
among states to impose obligations directly on private parties”.16 The di-
rect obligations seem to be the best protective mechanism in case of a lack
of compliance with the international law by states.
Opponents of direct obligations believe that states can lose significant
control over compliance with the norms. The norms with direct effect di-
minish state sovereignty, “in the sense that states would no longer be per-
mitted to impose conflicting regulations”.17 Another disadvantage is that
with no effective enforcement mechanism, those norms could easily be
14 For further information please refer to: Jose E. Alvarez, “Are Corporations
“Subjects” of International Law?”, Santa Clara Journal of International Law,
Vol. 9, No. 1, 2011, p. 1; see also: Eric de Brabandere, “Non-State Actors and
Human Rights: Corporate Responsibility and the Attempts to Formalize the
Role of Corporations as Participants in the International Legal System” in Jean
d’Aspremont (Ed.), Participants in the International Legal System, Multiple
Perspectives on Non-State Actors in International Law, (London/New York:
Routledge, 2011), p. 274: “It is clear today that despite often being suggested in
scholarship, transnational corporations have no direct human rights obligations
under international law”.
Responsibility”, p. 488.
16 Carlos M. Vázquez, “Direct vs. Indirect Obligations of Corporations under
International Law”, Columbia Journal of Transnational Law, Vol. 43, 2005, p.
931.
17 Carlos M. Vázquez, “Direct vs. Indirect Obligations of Corporations under
International Law”, p. 950.
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Maciej ŻENKIEWICZ
disregarded. Niles18 stated that norms that have direct effect will create a
new legal framework, create conflicting legal requirements for companies
operating around the world, divert attention from states to companies and
leave those responsible for enforcing the implementation of these kinds of
norms totally unclear.19
UN Initiatives regarding Business and Human Rights
The UN Norms on the Responsibilities of Transnational

Corporations and Other Business Enterprises with Regard to
Human Rights20
The UN tried to adopt a code of conduct for transnational corporations in
the 1970s and 1980s, but failed to do so. The UN Commission on Transna-
tional Corporations had been preparing the draft UN Code of Conduct for
Transnational Corporations since 1977, but its last draft completed in 1990
was never adopted.21
On August 20th, 1998, the Sub-Commission on the Promotion and Pro-
tection of Human Rights22 established a “three-year period sessional work-
ing group of the Sub-Commission, composed of five of its members, taking
into account the principle of equitable geographic distribution, to examine
the working methods and activities of transnational corporations”.23 By
18 President of the United States Council for International Business.

19 Thomas Niles, “Letters to the Editor: UN Code No Help to Companies”,
Financial Times, London, 17 December 2003, p. 18.
20 “Economic, Social and Cultural Rights: Norms on the Responsibilities of
Transnational Corporations and Other Business Enterprises with regard to
Human Rights”, UN Sub-Commission on the Promotion and Protection of
Human Rights, E/CN.4/Sub.2/2003/12/Rev.2, 26 August 2003, hereinafter ‘UN
Norms’.
21 David Weissbrodt and Maria Kruger, “Human Rights Responsibilities of
Business as Non-State Actors” in P. Alston (Ed.), Non-State Actors and Human
Rights, (Oxford: Oxford University Press, 2006), p. 319.
22 Sub-Commission assists the UN Commission on Human Rights.
23 UN Sub-Commission on the Promotion and Protection of Human Rights, UN
Doc. E/CN.4/Sub.2/1998/45 (1998).

August 2000, the Working Group held their second meeting and consid-
ered David Weissbrodt’s first draft on the Norms. At their third meeting on
August 2003, Weissbrodft’s second draft included presentations of papers
on topics like the impact of transnational corporation activities on the en-
joyment of economic, social and cultural rights (prepared by C. Guissé),
and the paper on responsibilities and procedures for implementation and
compliance (prepared by A. Eide). On August 2001, the Working Group’s
mandate was extended for three years24 by the Sub-Commission. The
Working Group prepared a revised draft of the Norms, and the Sub-Com-
mission’s Resolution 2002/8 asked all parties interested in those Norms
to provide suggestions, observations or recommendations. After consul-
tations with NGOs, the revised draft of the Norms was adopted by the
Working Group and unanimously approved by the Sub-Commission in its
Resolution 2003/16 of August 14th, 2003. The Norms were transmitted to
the Commission on Human Rights for consideration, and implored inter-
ested parties25 to provide comments on the Norms.
Despite the enthusiastic welcome of the Norms by NGOs such as
Amnesty International, Human Rights Advocates, Human Rights Watch,
Christian Aid and others, the future of the Norms was uncertain. The
Norms were perceived as ambitious, but very idealistic in laying down the
obligations on transnational and other business enterprises26.
The Norms consist of a Preamble consisting of eight sections and def-
initions of key terms. At the very beginning, the Norms recall that the
Universal Declaration on Human Rights (UDHR) addressed not only to
governments but also individuals and organs of society. UDHR expressed
that the idea that companies could be treated as ‘organs of society’ is not
new in international law. Louis Henkin stated that, “at this juncture the
Universal Declaration may also address multinational companies. This is
24 UN Sub-Commission on the Promotion and Protection of Human Rights,

Resolution 2001/3, U.N. Doc. E/CN.4/SUB.2/RES/2001/3, 2001.
25 Such as representatives of governments, UN bodies, NGOs, special agencies and
others.
26 Surya Deva, “Sustainable Good Governance and Corporations: An Analysis of
Asymmetries”, p. 739.
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Maciej ŻENKIEWICZ
true even though the companies never heard of the Universal Declaration
at the time it was drafted. The Universal Declaration is not addressed only
to governments. It is a ‘common standard for all peoples and all nations.’
It means that ‘every individual and every organ of society shall strive - by
progressive measures… to secure their universal and effective recognition
and observance among the people of the member states.’ Every individual
includes juridical persons. Every individual and every organ of society
excludes no one: any company, market, or cyberspace. The Universal Dec-
laration applies to them all”.27 Two UN High Commissioners for Human
Rights, Mary Robinson and Sergio Viera de Mello wrote that corporations
were to be considered as ‘organs of society’.28 As UDHR applied this key
term to companies, “transnational corporations cannot ‘choose’ whether
to honor or breach the universal, indivisible, interdependent and interre-
lated human rights held by all people whether they invest their funds and
resources.”29 Within the Preamble, the long list of international treaties
and other instruments covering human rights, labor rights, humanitarian
rights, environmental law and international criminal law are provided, as
the Norms are to contribute in the establishment and development of inter-
national law concerning these obligations and responsibilities.30
The Commentary on the Norms31 stated that the Norms be read in the
light of this paragraph. In general, six sets of obligations can be deduced.
27 Luis Henkin, “The Universal Declaration at 50 and the Challenge of Global

Markets”, Brooklyn Journal of International Law, Vol. 25, 1999, pp. 24-25.
28 Andrew Clapham, Human Rights Obligations of Non-State Actors, (Oxford:
Oxford University Press, 2006), p. 228.
29 Julie Campagna, “United Nations Norms on the Responsibilities of Transnational
Corporations and Other Business Enterprises with regard to Human Rights: The
International Community Asserts Binding Law on the Global Rule Makers”,
John Marshall Law Review, Vol. 37, 2003-2004, p. 1223.
30 Carolin F. Hillemanns, “UN Norms on the Responsibility of TNC and Other
Business Enterprises with regard to Human Rights”, German Law Journal, Vol.
4, 2003, p. 1072.
31 “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, 2003.

First, responsibility of companies to use due diligence in ensuring that their

activities do not contribute directly or indirectly to human rights abuses.
Second, responsibility of companies to ensure that they do not benefit di-
rectly or indirectly from those abuses. Third, the companies’ responsibility
are to refrain from undermining efforts to promote and ensure respect for
human rights. Fourth, the companies’ responsibility to use their influence
to promote respect for human rights. Fifth, the companies’ responsibility
to assess their human rights impact. Sixth, the companies’ responsibility to
avoid complicity in human rights abuses. The Norms recognize six groups
of rights: right to equal opportunity and non-discriminatory treatment;
right to security of persons; workers’ rights; respect for national sover-
eignty and human rights; consumer protection; environmental protection.
According to the general provisions of implementation under the
Norms, each transnational corporation or other business enterprise shall
adopt, disseminate and implement internal rules of operation in compli-
ance with the Norms. It will periodically report to all the stakeholders on
their implementation, and incorporate the Norms into all their business
dealings or cease doing business with those partners. The UN human rights
treaty group and other international organizations should monitor the im-
plementation of the Norms through additional reporting requirements for
states adopting general comments and recommendations. The monitoring
shall be transparent and inclusive. States shall establish and reinforce the
necessary legal and administrative framework to ensure implementation
of the Norms. The most questionable paragraph expresses that companies
shall provide prompt, effective and adequate reparation to the entities and
communities that have been adversely affected by failure to comply with
the Norms. To address these issues, the culpable parties are subject to repa-
rations, restitution, compensation and rehabilitation. In the end, the Norms
kept saving the clause that if more protective standards were recognized or
emerged in international law, State law or within the industry or business
practice, those protective standards shall be pursued.
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Maciej ŻENKIEWICZ
The most important feature of the Norms is that, “they are not just as-
pirational statement of desired conduct”.32 Weissbrodt33 interjected that,
they are not a voluntary initiative of corporate social responsibility, but
they are not a treaty either. The legal authority of the Norms arises princi-
pally from their sources in treaties and customary international law, as a
restatement of international legal principles applicable to companies. This
opinion, discussed later according to the Ruggie’s activity, is rather con-
troversial. But, without a doubt, the Norms were a significant step forward
in establishing the legal obligations of business enterprises. As supporters
of the Norms believe, if the business community has to bear the costs of
implementing mechanisms, a stable and regulated society is a prerequisite
for the successful operation of a company, and the costs should be seen
as a good investment.34 The Norms were perceived as the most promising
human rights norms for MNCs because of five factors.35 First, they attempt
to draw a comprehensive list of obligations. Second, in the Preamble of
the Norms, there is a clear, specific and unequivocal reference to the UN
Charter, the UDHR and other international treaties to deduce obligations
for MNCs. Third, there is a change of approach in relation to the nature of
obligations from “should” to “shall”. Fourth, they envisage provisions for
implementations of the Norms with monitoring and adequate and effective
reparation. Fifth, the Norms are not only limited to the MNCs but extend
to other business enterprises.
The critique of the Norms generally is based on the argument that they
provide an inappropriate shift from governments’ obligations, plus place
32 David Weissbrodt and Maria Kruger, “Human Rights Responsibilities of

Business as Non-State Actors”, p. 338.
33 David Weissbrodt and Maria Kruger, “Norms on the Responsibilities of
Transnational Corporations and Other Business Enterprises with Regard to
Human Rights”, American Journal of International Law, Vol. 97, 2003, p. 914.
34 Carolin F. Hillemanns, “UN Norms on the Responsibility of TNC and Other
Business Enterprises with regard to Human Rights”, p. 1080.
35 For arguments made by Surya Deva, please refer to: “Human Rights Violations
by Multinational Corporations and International Law: Where from Here?”,
Connecticut Journal of International Law, Vol. 19, 2003-2004, p. 16.

an inconsiderate burden on companies in terms of payment of reparations,

and have the potential to lead to dangerous privatization of human rights.36
The problem with the Norms is that the most radical provisions, such as
reparations, were unacceptable for representatives of companies and for
some states.
In 2005, the Human Rights Council seemed to abandon this project
and called on the Secretary General to appoint a Special Representative
on the issue of business and human rights, with no reference to the Norms.
It is believed that it was due to “the lack of political will to adopt a truly
global instrument on business and human rights”.37 However, the Norms
still played an important role in shaping the debate regarding corporate re-
sponsibility. It was believed that they were abandoned for a new initiative
– Work of Special Representative of the Secretary-General on the issue of
human rights and transnational corporations and other business enterprises
discussed below. However, the new surprising development occurred in
on June 26th, 2014 when a new open ended intergovernmental working
group on transnational corporations and other business enterprises with re-
spect to human rights were established by the Human Rights Council in its
Resolution A/HRC/RES/26/9. The initiative once again turned the focus
of international community towards an internationally binding instrument
– such as the Norms. The development will be discussed and assessed by
the end of the article. However, some scholars believe, “it is entirely pos-
sible – even predictable – that a similar fate will greet any new mandatory
approach (like the Norms)”.38
36 For the critique of International Chamber of Commerce and International

Organization of Employers, please refer to: Andrew Clapham, Human Rights
Obligations of Non-State Actors, p. 234.
37 Patricia Feeney, “Business and Human Rights: The Struggle for Accountability
in the UN and the Future Direction of the Advocacy Agenda”, International Law
on Human Rights, Vol. 11, 2009, p. 165.
38 Anna Grear and Burns H. Weston, “The Betrayal of Human Rights and the
Urgency of Universal Corporate Accountability: Reflections on a Post-Kiobel
Lawscape”, Human Rights Law Review, Vol. 15, 2015, p. 42.
Vol. 12, No. 1, 2016 133

Maciej ŻENKIEWICZ
The UN Global Compact

The UN Global Compact39 was announced at the World Economic Forum
in Davos, Switzerland, on January 31st, 1999 by UN Secretary-General
Kofi Annan and was formally launched in July 2000 at the UN Headquar-
ters. The Global Compact is a framework for businesses that are commit-
ted to aligning their operations and strategies with ten universally accepted
principles in the areas of human rights, labor, the environment and anti-
corruption.40 Originally, the Global Compact contained nine principles
and during the Global Compact Leaders Summit on June 24th, 2004, the
tenth principle41 was added. The Global Compact is an initiative of diverse
actors such as governments, companies, business associations, labor and
civil society organizations, academic participants and the UN. The aim of
the Global Compact is “to embrace, support and enact, within their sphere
of influence, a set of core values in the areas of human rights, labor stan-
dards, the environment, and anti-corruption”.42 It pursues two complemen-
tary goals:43 making efforts to internalize the Global Compact principles as
part of business strategy and operations; and facilitating co-operation and
collective problem solving among different stakeholders.
39 To read more on the discussion between Professors Alston and Petersmann, please
refer to: Peter Alston, “Resisting the Merger and Acquisition of Human Rights
by Trade Law”, European Journal of International Law, Vol. 13, 2002, p. 815;
Ernst-Urlich Petersmann, “Taking Human Dignity, Poverty and Empowerment
of Individuals More Seriously: Rejoinder to Alston”, European Journal of
International Law, Vol. 13, 2002, p. 845; see also: William H. Meyer and Boyka
Stefanova, “Human Rights, the UN Global Compact and Global Governance”,
Cornell International Law Journal, Vol. 34, 2001, p. 501.
40 About the Global Compact, <http://www.unglobalcompact.org/AboutTheGC/
index.html>, (Date Accessed: 20 February 2014).
41 “The Ten Principles of the UN Global Compact”, Principle 10: “Businesses
should work against corruption in all its forms, including extortion and bribery”,
<https://www.unglobalcompact.org/what-is-gc/mission/principles>, (Date Acce
ssed: 20 February 2014)
42 About the Global Compact, The Ten Principles, <http://www.unglobalcompact.
org/AboutTheGC/TheTenPrinciples/index.html>, (Date Accessed: 20 February
2014).
43 Surya Deva, “Global Compact: A Critique of UN’s Public-Private Partnership
for Promoting Corporate Citizenship”, Syracuse Journal of International Law &
Commerce, Vol. 34, 2006, p. 116.

To participate in the Global Compact initiative, a company’s Chief Ex-

ecutive Officer must send a letter, endorsed by the board of directors, to the
Secretary-General of the United Nations expressing support for the Global
Compact and its principles. By joining the Global Compact, the company
not only has to commit itself to ten principles but also obliges itself:44 first,
to set in motion changes to business operations so that the Global Compact
and its principles become part of management, strategy, culture, and day-
to-day operations; second, to publish in its annual report or similar public
corporate report (e.g. sustainability report) a description of the ways in
which it is supporting the Global Compact and its principles (Communica-
tion on Progress); third, to publicly advocate the Global Compact and its
principles via communications tools such as press releases, speeches, etc.
The Global Compact seeks to achieve its objectives by the following
engagements:45
i. Partnerships for Development: The Global Compact encourages
companies to participate in partnership projects with their stakehold-
ers in support of broad UN goals, such as the Millennium Develop-
ment Goals (MDGs).
ii. Local Networks: supporting companies in the implementation of the
Global Compact at the local level. Currently, more than 70 local
networks exist around the world.
iii. Policy Dialogues: action-oriented multi-stakeholder meetings on
specific issues related to and corporate citizenship.
iv. Learning: participants are encouraged to share examples of corporate
practices on this website, as well as to develop in-depth case studies
and analyses for publications or presentation at learning events.
v. Collective Action: a way of creating a level playing field on which
to compete, which increases the impact on local business practices
beyond the capacity of any single company.
44 How to Participate, Business Participation, <http://www.unglobalcompact.org/

HowToParticipate/Business_Participation/index.html>, (Date Access ed: 20
February 2014).
45 How to Participate, Business Participation.
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Maciej ŻENKIEWICZ
vi. Training: the Global Compact organizes several workshops and

training for participants around the world every year.
One of the most important duties of the participants in the Global Com-
pact is to comply with the Communication on Progress46 (GP) policy. The
compliant companies shall not only publish their annual report, but they
must also communicate publicly and more generally on their progress in
their commitments to the Global Compact. Apart from the business partici-
pants, a vast number of non-business participants take part in the GP. For
them, on October 31st, 2013, the Global Compact introduced a Communi-
cation on Engagement (COE) - reporting mechanism that aims to provide
non-business participants with an opportunity to engage more actively in
the initiative and to better connect with business participants. Due to the
vast number of participants, before Ruggie’s activity, it was believed that
the Global Compact is one of the most recognizable, common and influen-
tial initiatives related to business and human rights.
The Global Compact consists of ten principles in four areas.47 The
first two principles refer to human rights. The first principle stated that,
“businesses should support and respect the protection of internationally
proclaimed human rights”. This general principle is interpreted as general
within the official website48, and its scope explained that companies can
guarantee human rights through their daily activities in the workplace, in
the community and if they use security services to protect their operations,
they must guarantee that existing international guidelines and standards for
the use of force are respected.49
46 Hereafter, COP.
47 About the Global Compact, The Ten Principles.
48 UN Global Compact, <www.unglobalcompact.com>, (Date Accessed: 20
February 2014).
49 About the Global Compact, The Ten Principles. The spheres of influence,
presented above, correspond to classic dimensions of human rights’ obligations:
to respect human rights (e.g. in the workplace), to protect human rights (e.g. by
controlling the use of force deployed by security forces outside the workplace)
and to promote (e.g. by contributing to the public debate), please refer to: Andrew
Clapham, Human Rights Obligations of Non-State Actors, p. 220.

The second principle implies that businesses should make sure they are
not complicit in human rights abuses. Complicity refers to “being implicat-
ed in a human rights abuse that another company, government, individual,
group etc. is causing. The risk of complicity in a human rights abuse may
be particularly high in areas with weak governance and/or where human
rights abuse is widespread. However, the risk of complicity exists in every
sector and every country”.50 The understanding of complicity invoked in
the second principle of Global Compact is linked and should be identical
to the complicity adopted by Ruggie.51
Even though the Global Compact consists of ten principles, those rights
are very general and present “the minimalist code of conduct”.52 There is
an allegation that “the language of these principles is so general that insin-
cere corporations can easily circumvent or comply with them without do-
ing anything to promote human rights or labor standards”.53 Although, the
participation in the Global Compact has increased over the years and the
initiative has grown to more than 10,000 participants, including over 7000
businesses in 145 countries around the world, this number represents a
small proportion of what the UNCTAD had estimated (103,786 TNCs and
their 892,114 foreign affiliates54). Taking into consideration the regional
distribution of participants, the critics of the Global Compact argue that
the initiative is not so global. The third allegation is that, according to the
50 About the Global Compact, The Ten Principles.

51 On the relationship between the UN Global Compact and Ruggie’s framework,
please refer to: Ursula A. Wynhoven, “The Protect-Respect-Remedy Framework
and the United Nations Global Compact”, Santa Clara Journal of International
Law, Vol. 9, No. 1, 2011, p. 81.
52 For further information please refer to: Sean D.Murphy, “Taking Multinational
Corporate Codes of Conduct to the Next Level”, Columbia Journal of
Transnational Law, Vol. 43, 2004-2005, p. 425.
for Promoting Corporate Citizenship”, p. 129.
54 UNCTAD, based on Dun & Bradstreet’s WorldBase and national sources where
noted, <http://unctad.org/Sections/dite_dir/docs/WIR11_web%20tab%2034.pdf >,
(Date Accessed: 20 February 2014), see also: “The World Investment Report
2007: Transnational Corporations, Extractive Industries and Development”,
United Nations Conference on Trade and Development, New York and Geneva,
2007.
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Maciej ŻENKIEWICZ
survey conducted by Professor Deva, almost 25% of the Global Compact

participants are listed as non-communicating. It means that 25% of the
participants were not able fulfill a very low standard of participation in the
Global Compact, and they failed to develop a COP. This very high per-
centage of non-communicating participants seems to justify the allegation
of professor Deva that “many corporations have become the party to the
Global Compact either without realizing what it entails, or are consciously
embracing the compact as a public relations exercise”.55 The fourth allega-
tion, closely linked to the third one, is that there is no effective mechanism
to separate the companies truly participating in the Global Compact from
the companies which simply use the Global Compact mark to gain sympa-
thy from customers or its shareholders, with no serious commitment to the
Global Compact.
The third and fourth allegations are related to the problem defined as
symbolic conformity.56 This term refers to the situation when “organiza-
tions under pressure to adopt particular structures or procedures may opt
to respond in a ceremonial manner, making changes in their formal struc-
tures to signal conformity but then buffering internal units, allowing them
to operate independent of these pressures. Organizations decouple formal
structure from work activity to avoid the detection of inconsistencies and
the loss of legitimacy”57. Such practice is dangerous to any set of rules, and
it seems that it happens in connection with Global Compact obligations.
The study of D. Jamali is based on interviews with managers of a sample
of MNCs in Asia and Europe regarding their compliance with International
Accountability Standards sadly concluded that: “the findings which cor-
respond most closely to a decoupled or avoidance strategic response or
what is commonly referred to as symbolic conformity. In other words, the

for Promoting Corporate Citizenship”, p. 140.
56 Few different terms are also in use in relation to that problem: decoupling,
ceremonial conformity, creative compliance or paper compliance.
57 Dima Jamali, “MNCs and International Accountability Standards through an
Institutional Lens: Evidence of Symbolic Conformity or Decoupling”, Journal
of Business Ethics, Vol. 95, 2010, p. 625.

majority of organizations are choosing to respond in a ceremonial manner,

making changes in their formal structures to signal conformity, but then
buffering internal units and operations from the necessity of conformity.
Ceremonial conformity allows organizations to reap the social benefits of
adoption without compromising managerial freedom, autonomy, or en-
tailing serious or substantive adjustments.”58 This study suggests that the
practice exists and hampers not only Global Compact initiative but poten-
tially any set of rules regarding business and human rights, and therefore
makes the case for heightened efficacy in monitoring procedure.
Work of Special Representative of the Secretary-General (SGSR)

on the Issue of Human Rights and Transnational Corporations and
Other Business Enterprises59
Shortly after the Norms were transmitted to the Commission on Human
Rights for consideration and representatives of governments, UN bodies,
NGOs, special agencies and other interested parties were asked to provide
comments on them. The Commission on Human Rights requested the Of-
fice of the High Commissioner on Human Rights prepare a report about
existing legal initiative and standards,60 and after careful consideration of
the report61, to adopt the resolution requesting the Secretary General to ap-
point a Special Representative on this issue for two years.
The work of the Special Representative of the Secretary General can be
divided into three phases.62 The first phase, which corresponded to its ini-
58 Dima Jamali, “MNCs and International Accountability Standards through an

Institutional Lens: Evidence of Symbolic Conformity or Decoupling”, p. 634.
59 For further information please refer to: David Bilchitz, “The Ruggie Framework:
an Adequate Rubric for Corporate Human Rights Obligations?” SUR International
Journal on Human Rights, Vol. 12, 2010, p. 199.
60 “Responsibilities of Transnational Corporations and Related Business Enterprises
with Regard to Human Rights”, ECOSOC, Commission on Human Rights, Sub-
Commission on the Promotion and Protection of Human Rights, UN Doc. E/
CN.4/2004 /L.73/Rev.1, 2004.
61 United Nations High Commissioner on Human Rights, “Report on the
Responsibilities of Transnational Corporations and Related Business Enterprises
with regard to Human Rights”, UN Doc. E/CN.4/2005/91, 15 February 2005.
62 Special Representative of the Secretary-General, “Report on the Issue of Human
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Maciej ŻENKIEWICZ
tial period of two-year-appointment, was intended to ‘identify and clarify’

the existing standards and practices regarding the corporate responsibility
and accountability for transnational corporations and other business enter-
prises with regard to human rights.63 As a result of that period, the report
titled, “Business and Human Rights: Mapping International Standards of
Responsibility and Accountability for Corporate Acts”64 was published. In
2007, the Council renewed the SRSG mandate for an additional year. The
period corresponded to the second phase of his work. After identifying and
clarifying the existing standards and practices, Professor Ruggie was asked
to submit recommendations. As a result of that process, Professor Ruggie
submitted his report titled “Protect, Respect and Remedy: A Framework
for Business and Human Rights”,65 in which he based his framework on
three pillars: the State duty to protect against human rights abuses by third
parties, the corporate responsibility to respect human rights, and the need
for greater access by victims to effective remedy. The 2008 report pre-
sented not only identified a three-pillar framework for business and hu-
man rights, but also provided one recommendation. As Ruggie wrote in
Rights and Transnational Corporations and Other Business Enterprises, John

Ruggie, Guiding Principles on Business and Human Rights: Implementing the
United Nations ‘Protect, Respect and Remedy’ Framework”, Human Rights
Council, (Seventeenth session), A/HRC/17/31, 21 March 2011, (hereinafter the
Guiding Principles or the GP), for further information please refer to: Introduction
to the Guiding Principles.
63 Office of the High Commissioner for Human Rights, Human Rights Resolution
2005/69, <http://www.ohchr.org/EN/Issues/Business/Pages/Resolutions Decisio
ns.aspx>, (Date Accessed: 20 February 2014).
Ruggie, Business and Human Rights: Mapping International Standards of
Responsibility and Accountability for Corporate Acts”, Human Rights Council,
A/HRC/4/035, 9 February 2007.
Ruggie, Protect, Respect and Remedy: a Framework for Business and Human
Rights”, A/HRC/8/5, 7 April 2008, (hereinafter the Framework); For further
information please refer to: Faith Stevelman, “Global Finance, Multinationals
and Human Rights: With Commentary on Backer’s Critique of the 2008 Report
by John Ruggie”, Santa Clara Journal of International Law, Vol. 9, 2011, p. 101.

the last paragraph of the report: “The United Nations is not a centralized
command-and-control system that can impose its will on the world – in-
deed it has no “will” apart from that with which member states endow
it. But it can and must lead intellectually and by setting expectations and
aspirations. The Human Rights Council can make a singular contribution
to closing the governance gap in business and human rights by supporting
this framework, inviting its further elaboration, and fostering its uptake by
all relevant social actors”66. The Council in its Resolution67 unanimously
adopted his recommendations in principle. First, it welcomed the Report
presenting the Framework and the broad range of activities undertaken by
the Special Representative. Second, it recognized the need to operational-
ize this Framework. Third, it decided to extend the mandate of the Special
Representative for a period of additional three years.
Those additional three years, which the Special Representative was
asked to “operationalize” the Framework and to provide concrete and prac-
tical recommendations for its implementation, constituted the third phase
of Ruggie’s the work. It was decided that those recommendations should
take the form of the “Guiding Principles”, and that Ruggie should con-
tinue his research-based and consultative manner of work. The third phase
was finalized by publishing the final report titled, “Guiding Principles on
Business and Human Rights: Implementing the United Nations “Protect,
Respect and Remedy Framework.”68
As an aftermath of SRSG’s activity, a multi-stakeholder forum on busi-
ness and human rights will meet annually and a Working Group of five
experts established a three-year period of tasks such as: dissemination,
promoting implementation, best practice identification, capacity-building,
country visits, recommendations on access to remedies, dialogue, and co-
operation with relevant actors69.
66 Faith Stevelman, “Global Finance, Multinationals and Human Rights: With

Commentary on Backer’s Critique of the 2008 Report by John Ruggie”, p. 107.
67 Resolution A/HRC/RES/8/7 extending the SRSG’s mandate.
68 The Guiding Principles.
69 “Human Rights and Transnational Corporations and Other Business Enterprises”,
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Maciej ŻENKIEWICZ
Ruggie’s framework contains three pillars. The first pillar - the State
duty to protect – is based on State obligation to protect against human rights
abuses within its territory and/or jurisdiction by third parties, including
business enterprises. It states that it should clearly set out the expectation
that all business enterprises domiciled in their territory and/or jurisdiction
respect human rights throughout their operations.70 The Guiding Principles
elaborate on those points, adding that operational principles are meant to
clarify and comment on those issues. It should be noted that, “the human
rights regime rests upon the bedrock role of States. That is why the duty to
protect is a core principle of the business and human rights framework”.71
The second pillar – is to respect corporate responsibility – since it in-
dicates that business enterprises should respect human rights. To do so,
they should avoid infringing the human rights of others and should address
their involvement with adverse human rights impacts.72 Within that pillar,
the concept of the due diligence73 is of the most importance. Human rights
due diligence should include assessing actual and potential human rights
impacts, integrating and acting upon the findings, tracking responses, and
communicating how impacts are addressed. Business enterprises should
address potential impacts through prevention or mitigation or any impacts
that have already occurred should be a subject for remediation.
The third pillar - access to remedy – refers very broadly to state-based
judicial and non-judicial grievance mechanism, as well as to non-state-
based grievance mechanisms. State-based judicial and non-judicial griev-
ance mechanisms, which are of primary importance in the State duty to
protect, should form the foundation of a wider system of remedy. Not only
should states provide effective and appropriate judicial/non-judicial griev-
Human Rights Council, A/HRC/17/L.17/Rev.1, 2011, <https://documents-dds-

ny.un.org/doc/UNDOC/LTD/G11/141/87/PDF/G1114187.pdf?OpenElement>,
(Date Accessed: 20 February 2014)
70 The Guiding Principles, pp. 6-7.
71 The Framework, p. 14.
72 The Guiding Principles, p. 13.
73 The Guiding Principles, pp. 16-19.

ance mechanisms but they should also consider ways to facilitate access
to effective non-state-based grievance mechanisms dealing with business-
related human rights abuses.
Critique of the Ruggie’s Work

Although Ruggie provided two very important contributions, namely the
Framework (2008) and the Guiding Principles (2011), and were warmly
welcomed by some, others critiqued his work fervently.
The first and the most important argument against Ruggie’s work is
that the whole framework, its obligations and rules, have no binding na-
ture under international law. The architect of the UN Draft Norms strongly
criticized that, “the Special Representative of the Secretary General was
supposed to develop standards, but has instead attempted to derail the
standard-setting process and bow to the corporate refusal to accept any
standards except voluntary codes.”74 Similarly, another opponent of Rug-
gie’s work argued, “the Guiding Principles of Mr. Ruggie are, therefore,
mere orientations. They lack a binding nature for both states and corpora-
tions; complying in his way with the demand, reiteratively displayed, of
large transnational corporations. Mr. Ruggie has been the main architect
(main advisor to Kofi Annan) of the Global Compact, and his work as a
special Rapporteur has followed the ultraliberal ideological orientations
and practices of said organism.”75
It is strongly argued that binding norms should be more strongly guar-
antee compliance with human rights obligations of corporations. But is it
possible to impose obligations on corporations in an international level?
Does customary international law recognize obligations and responsibility
74 David Weissbrodt, “Keynote Address: International Standard-Setting on the

Human Rights Responsibilities of Business”, Berkeley Journal of International
Law, Vol. 26, 2008, p. 390.
75 Alejandro Teitelbaum, “Observations on the Final Report of the Special
Representative of the UN Secretary General on the Issue of Human Rights and
Transnational Corporations and Other Business Enterprises, John Ruggie”, The
Jus Semper Globar Alliance, TLWNSI Issue Brie, May 2011, p. 7.
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Maciej ŻENKIEWICZ
of corporations under international law? The very brief and clear argumen-
tation and response to the second question was presented in the Kiobel
v. Royal Dutch Petroleum case (2010),76 where the judges considered the
sources of international law reveal with respect to the existence of a norm
of corporate liability under customary international law. After a very sound
and clear reasoning, by analyzing international tribunal’s jurisprudence,
international treaties, and works of publicists (such as Professors J. Craw-
ford and Ch. Greenwood), the U.S. court reached the conclusion that “no
corporation has ever been subject to any form of liability (whether civil,
criminal, or otherwise) under the customary international law of human
rights. Rather, sources of customary international law have, on several oc-
casions, explicitly rejected the idea of corporate liability. Thus, corporate
liability has not attained a discernable, much less universal, acceptance
among nations of the world in their relations inter se […].”77 Therefore,
it is at least questionable, if not impossible, to say that international law
(especially its rules of customary character) recognizes the responsibility
of MNCs.
But the answer to the first question should be affirmative. Of course,
it is possible to impose obligations on corporations on the international
level. It should be kept in mind that the whole system of international law
depends heavily on states’ will, and can be shaped/modified by it. The easi-
est way would be to prepare an international covenant regarding MNCs’
responsibility under international law ratified by states. But many states
and MNCs oppose such solution. As an example of opposition, the UN
Draft Norms may be recalled. However, Ruggie did not want to prepare
an aspirational set of rules, which would follow the path of the UN Draft
Norms. Ruggie’s described his attitude towards his work as a ‘principled
form of pragmatism’.78 He understood that any provided set of rules meant
76 United States Court of Appeals (Second Circuit), Kiobel v. Royal Dutch Petroleum
Co., (Nos. 06-4800-cv, 06-4876-cv), Decision of 17 September 2010.
77 United States Court of Appeals (Second Circuit), Kiobel v. Royal Dutch Petroleum
Co., para. 148-149.
78 Interim Report of Special Representative of the Secretary-General, E/
CN.4/2006/97, 22 February 2006, para 81.

to inspire a difference should be supported by states, and by the corpora-

tions themselves. As he put it: “The Guiding Principles’ normative contri-
bution lies not in the creation of new international law obligations but in
elaborating the implications of existing standards and practices for states
and businesses; integrating them within a single, logically coherent and
comprehensive template; and identifying where the current regime falls
short and how it should be improved. Each Principle is accompanied by a
commentary, further clarifying its meaning and implications.”79
The greatest obstacle for any rules regarding human rights and business
is a corporate veil, which has been well established under international
law.80 The rules developed by Ruggie (and his predecessors) regarding the
regulation of MNCs are easily interjected by the corporate veil. Ruggie
observed that: “Transnational corporate networks pose a regulatory chal-
lenge to the international legal system.”81 There are different techniques to
impose responsibility on companies,82 disregarding its corporate veil, but
79 The Guiding Principles, Introduction, point 14.

80 International Court of Justice, Barcelona Traction, Light and Power Co. Ltd.
(Belgium v. Spain), 5 February 1970, ICJ Reports 3 (1970), para. 41: “Municipal
law determines the legal situation not only of such limited companies but also of
those persons who hold shares in it. Separated from the company by numerous
barriers, the shareholder cannot be identified with it. The concept and structure
of the company are founded on and determined by a firm distinction between the
separate entity of the company and that of the shareholder, each with a distinct set
of rights. The separation of property rights as between company and shareholder
is an important manifestation of this distinction. So long as the company is in
existence, the shareholder has no right to the corporate assets”.
81 John Ruggie, “Business and Human Rights – The Evolving International
Agenda”, American Journal of International Law, Vol. 101, No. 4, 2007, p. 824.
82 “One legal challenge is the attribution of responsibility among members of a
corporate group. Many corporate-related human rights violations also violate
existing national civil or criminal law, but applying those provisions to corporate
groups can prove extremely complex, even in purely domestic cases. A range
of legal arguments has been advanced in cases involving the responsibility of
parent companies for harm caused by subsidiaries. Some rely on the parent
company’s alleged ‘negligence’ with respect to its subsidiary (prime liability),
focusing, for example, on whether the parent has established key systems or
processes, like those dealing with hazardous activities. Other arguments invoke
‘complicity’ (secondary liability) or the concept of ‘agency’ (vicarious or third
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Maciej ŻENKIEWICZ
all of them are rather exceptional and it should be noted that, “a central
tenet of corporate law is that only the firm itself is responsible for its obli-
gations. This is true not only with respect to a company’s contractual obli-
gations, but also for its tort damages.”83 Thus, even having binding norms
regarding corporations, there is still a great problem at large, for example,
a mother company responsible for its affiliates. MNCs often consist of
different separate companies, and affiliates etc. and passing responsibility
from one to another would be extremely difficult.
Furthermore, it is worth mentioning the next allegation, which can be
addressed with the primary argument, that Professor Ruggie is an advocate
for MNCs and works for the large corporative business. As it was quoted
above, he “bowed to the corporate refusal to accept any standards except
voluntary codes.”84 His critical opponents point attention to his previous
work in the Global Compact, which in their opinion “is a mere instrument
of large transnational corporations.”85 However, those two allegations are
intertwined, and for his opponent, Ruggie’s attitude not to propose binding
norms, but voluntary initiatives or codes of conduct, simply proves their
point that Ruggie represents the interests of MNCs. Professor Ruggie ad-
dressed that issue stating that: “a related criticism is that voluntary initia-
party liability), which are found in both common and civil law jurisdictions. The
responsibility of parents in joint ventures and other contract-based relationships
raises even more complex questions, though the theory of multi-agency liability
has gained traction in some jurisdictions. In short, far greater clarity is needed
regarding the responsibility of corporate parents and groups for the purposes
of remedy.” - Special Representative of the Secretary General, “Report on the
Issue of Human Rights and Transnational Corporations and Other Business
Enterprises, John Ruggie, Business and Human Rights: Further Steps Toward
the Operationalization of the Protect, Respect and Remedy Framework” A/
HRC/14/27, 2010, paras. 105-106.
83 Faith Stevelman, “Globalization and Corporate Social Responsibility: Challenges
for the Academy, Future Lawyers, and Corporate Law”, New York Law School
Law Review, Vol. 53, 2008-2009, p. 843.
84 David Weissbrodt, “Keynote Address: International Standard-Setting on the
Human Rights Responsibilities of Business”, p. 390.
85 Alejandro Teitelbaum, “Observations on the Final Report of the Special
Representative of the UN Secretary General on the Issue of Human Rights and
Transnational Corporations and Other Business Enterprises, John Ruggie”, p. 8.

tives undermine the prospect for more robust regulations or other public
sector rules. Yet, this claim is premature at best. There is little chance of
transnational firms becoming subject to legally binding regulations at the
global level any time soon. The political will or even capacity simply is not
there, and much of the corporate world would unite to fight it. In contrast,
voluntary initiatives over time may build an interest among the leading
firms for a more level playing field vis-à-vis laggards, thereby realigning
the political balance in the corporate sector”86. Ruggie stressed multiple
times87 that there is no mythical silver bullet – or one solution to solve
the overall problem. Instead, he ‘pragmatically’ presents the whole frame-
work, which with positive attitude of interested parties (mainly states and
corporations) can make a difference. As Mares writes, “Two different vi-
sions of social change collided. …Law as the pre eminent and indispen-
sable mechanism for social change versus the law at the right time, in the
right quantities, and in the right combination amongst other factors... Law,
especially international law, as the ‘silver bullet’ versus a relief in the non-
existence of a silver bullet.”88 It is hard to find a mutual understanding be-
tween the representatives of those two different visions for social change.
For Ruggie’s critics, anything less than binding norms on companies re-
garding human rights would be a surrender. Additionally, Ruggie’s percep-
tion that binding norms are not supported by states and companies, would
be another aspirational set of rules that provides no difference and would
fall into oblivion. On the other hand, Mares brings attention to one positive
aspect of Ruggie’s framework. She argued that, “Ruggie comprehensively
mapped voluntary initiatives as well as relevant bodies of law. With his
86 John Ruggie, “Reconstituting the Global Public Domain – Issues, Actors, and
Practices”, European Journal of International Relations, Vol. 10, No. 4, 2004, p.
518.
87 E.g. see chapter 2 “No Silver Bullet” in John Ruggie, Just Business, Multinational
Corporations and Human Rights (New York: W.W. Norton & Company, 2013),
p. 251.
88 Radu Mares, “Business and Human Rights After Ruggie: Foundations, the Art of
Simplification and the Imperative of Cumulative Progress” in Radu Mares (Ed.),
The UN Guiding Principles on Business and Human Rights – Foundations and
Implementation, (Leiden, Boston: Martinus Nijhoff Publisher, 2012), p. 35.
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Maciej ŻENKIEWICZ
governance outlook he discouraged a dichotomous understanding of vol-

untary and mandatory initiatives, and drew attention to their interactions
in governance regimes.”89 So it would be a misunderstanding to see only
Ruggie as a representative of one, very well entrenched position. He obvi-
ously refers to the much-hated voluntary initiatives. His proposal is three-
fold, not singular and these pillars [need to] work together. What is more,
as Cara Backer rightly pointed out, his pillars are based not only on public,
but also on private ‘power’: “We move from vague notion of corporate
social responsibility applied in an ad hoc basis by individual corporate and
state actors to the elaboration of a multi-level system of polycentric gov-
ernance.” “The process from conception to elaboration has been compli-
cated by the need to challenge the basis for conventional governance – one
grounded in the idea of the singularity of the state. The SRSG has proposed
a set of principles for the governance of economic actors operating within
and beyond the state that is grounded on both public and private Power.
The coordination of these two sources of authority, and their development
of system of behavior control will be the great challenge for the emerging
system of economic globalization in the coming decades.”90
Another briefly addressed aspect is that - the different treatment of
MNCs (or transnational corporations) and other business enterprises in
Ruggie’s work. First of all, the report itself refers to “transnational cor-
porations and other business enterprises”. The terminology was adopted
by the UN Draft Norms and inherited by Ruggie. But did Ruggie himself
somehow differentiate MNCs and other business enterprises? On the one
hand, it is stressed that there should be no differentiation; all enterprises,
small and big, should be subject to the same set of rules regarding stand-
ards which they should follow.91 On the other hand, Ruggie once again
89 Radu Mares (Ed.), The UN Guiding Principles on Business and Human Rights –
Foundations and Implementation, p. 36.
90 Larry C. Backer, “On the Evolution of the United Nations “Protect, Respect,
Remedy Project”: The State, the Corporation and Human Rights in a Global
Governance Context”, Santa Clara Journal of International Law, Vol. 9, No. 1,
2010, p. 80.
91 “The responsibility of business enterprises to respect human rights applies to all

proved to be pragmatic and included the following principle, “neverthe-

less, the scale and complexity of the means through which enterprises
meet that responsibility may vary according to these factors [size, sec-
tor, operational context, ownership and structure] and with the severity of
the enterprises adverse human rights impacts.”92 The differentiation was
criticized,93 but it was presented in the first part of this article, as a differ-
ence between large MNC operating in the ‘fragile’ sectors like mining or
extractive industry94 and domestic firm established and operating only in
e.g. a Western Europe country. Without doubt, MNC will have bigger pos-
sibility and temptation to violate human rights standards more than small
domestic company. Therefore, it shouldn’t a surprise that Ruggie argued
that, “human rights due diligence will vary in complexity with the size of
the business enterprise, the risk of severe human rights impacts, and the
nature and context of its operations”95, and such differentiation should be
regarded as justified.
Assessment
Two main achievements were widely attributed to the SRSG’s mandate.
First, it generated a profound shift within the dynamics of the business
and human rights debate, from a deep polarization among stakeholder
groups in 2005 to a greater shared understanding of business and human
enterprises regardless of their size, sector, operational context, ownership and

structure.” – For further information please refer to: The Guiding Principles,
point 14.
92 “The responsibility of business enterprises to respect human rights applies to all
enterprises regardless of their size, sector, operational context, ownership and
structure.”
93 Robert Blitt, “Beyond Ruggie’s Guiding Principles on Business and Human
Rights: Charting an Embracive Approach to Corporate Human Rights
Compliance”, Texas International Law Journal, Vol. 48, 2012-13, p. 80.
94 For further information please refer to: Caroline Kaeb, “Emerging Issues of
Human Rights Responsibility in the Extractive and Manufacturing Industries:
Patterns and Liability Risks”, Northwestern Journal of International Human
Rights, Vol. 6, 2008.
95 The Guiding Principles, point 17 (B).
Vol. 12, No. 1, 2016 149

Maciej ŻENKIEWICZ
rights challenges. Second, it has secured wide multi-stakeholder support

for the ‘Protect, Respect and Remedy’ Framework and the Guiding Prin-
ciples for its implementations as the foundation for better managing those
challenges.96 The power of Ruggie’s influence through his unique work
can be explained through two issues: First, a few of Ruggie’s Guiding
Principles were tested by various corporations in various sectors in differ-
ent countries.97 Second, the Guiding Principles themselves were subject to
extensive consultations with Human Rights Council delegations, business
enterprises, associations, civil society groups, expert multi-stakeholder
meetings and posted online for public comments98. It does not automati-
cally mean that the all parties open to consultation were satisfied, or that
all of their proposals were accepted. However, it was the first time this
problem was discussed within such a broad group representing various
interests. Ruggie’s work did not go unnoticed and it definitely influenced
other initiatives. The European Union stated that, “there is no doubt that
the success results from the inclusive approach of a process where states,
business actors and civil society were fully associated.”99 What is more,
the European Commission adopted a Communication on Corporate Social
Responsibility and called the states to adopt a National Action Plan for
the implementation of the Guiding Principles100. So far, 7 EU states have
96 Recommendations on Follow-Up to the Mandate, Mandate of the Special

Representative of the Secretary-General on the Issue of Human Rights and
Transnational Corporations and other Business Enterprises, 2011, <http://www.
business-humanrights.org/media/documents/ruggie/ruggie-special-mandate-
follow-up-11-feb-2011.pdf>, (Date Accessed: 20 February 2014), p. 2.
97 Guiding Principles, point 11 of Introduction.
98 Guiding Principles, point 12 of Introduction.
99 EU Comments on the Draft Guiding Principles for the Implementation of the
UN ‘Protect, Respect, Remedy’ Framework, D (2011) 702 246, 31 January 2011,
<http://www.business-humanrights.org/media/documents/ruggie/eu-comments-
on-draft-guiding-principles-31-jan-2011.pdf>, (Date Accessed: 1 September
2015).
100 “A Renewed EU Strategy 2011-2014 for Corporate Social Responsibility”,
European Commission, COM (2011) 681, 25 October 2011, see also: Alexandra
Gatto, Multinational Enterprises and Human Rights, Obligations under EU Law
and International Law, (Cheltenham, Northampton: Edward Elgar, 2011).

adopted the Plan101, but much more have committed to developing the Plan
or are in process of doing so.102
The Guiding Principles have influenced other institutions to introduce
or amend the already existing instruments regarding CSR. The institutions
include the OECD,103 the World Bank’s International Financial Corpora-
tion, the European Commission, and even the International Organization
for Standardization.104 The Guiding Principles were endorsed within the
UN system as an example for the Global Compact.105 Ruggie’s critics and
his supporters primarily agree on one thing, namely that the legal postur-
ing towards human rights, multinationals corporations and corporations in
general are now more nuanced.
The Newest Development in This Field within the UN

The newest development in this area can be divided into two spheres. One
which follows the work of SRSG’ activity and one – brand new – which
once again turns the interest of the international community towards the
possibility of the binding legal instrument. Therefore, this represents a re-
turn to the ideas embedded in the UN Norms.
Working Group
As an aftermath of SRSG’s activity is that a multi-stakeholder forum on
business and human rights will meet annually. The Working Group (WG)
of five experts established a three-year period where they will launch tasks
such as: dissemination, promoting implementation, best practice identifi-
101 Denmark, Finland, Italy, Lithuania, Netherlands, Spain and UK.

102 <http://business-humanrights.org/en/un-guiding-principles/implementation-
tools-examples/implementation-by-governments/by-type-of-initiative/national-
action-plans>, (Date Accessed: 1 September 2015).
103 The OECD Guidelines for Multinational Corporations were revised to include
new standards from the Guiding Principles.
104 ISO 26000.
105 “The U.N. Guiding Principles on Business and Human Rights: Relationship
to U.N. Global Compact Commitments”, Office of the High Commissioner
for Human Rights, <https://www.globalcompact.de/sites/default/files/jahr/
publikation/gps_gc_note.pdf>, (Date Accessed: 1 September 2015).
Vol. 12, No. 1, 2016 151

Maciej ŻENKIEWICZ
cation, capacity-building, country visits, recommendations on access to

remedies, dialogue, and cooperation with relevant actors.106 The WG, in
the words of one of its experts, “helps to stop the slide of the GPs into
insignificance and the strategy adopted by the WG to achieve its man-
date helps to prevent this risk”107. Generally, the WG’s activity follows
and shares Professor Ruggie’s attitude. By organizing sessions and forums,
submitting reports to the Human Rights Council and the General Assem-
bly, and by undertaking country visits to assess the progress and challenges
associated with its mandates, the WG promote and work on implementing
Ruggie’s framework. The WG promotes the framework of National Action
Plans, which “are understood to offer a tool for governments to articulate
priorities and coordinate the implementations of the GPs.”108
Binding Treaty
A new trend has initiated since 2004 to discuss the possibility of an inter-
nationally binding instrument. It is still too early to assess the initiative,
due to the fact that it is a work in progress. There is pressure instigated by
the international community to find an effective way to hold corporations
responsible on a global platform, especially after the US Supreme Court’s
Kiobel case109, Scholard advocated that the, “continued engagement in
106 “Human Rights and Transnational Corporations and Other Business Enterprises”,
Human Rights Council, A/HRC/17/L.17/Rev.1, 2011.
107 Michael K. Addo, “The Reality of the United Nations Guiding Principles on
Business and Human Rights”, Human Rights Law Review, Vol. 14, 2014, p. 137.
108 Larry C. Backer, “Moving Forward the UN Guiding Principles for Business and
Human Rights: Between Enterprise Social Norm, State Domestic Legal Order,
and the Treaty Law that Might Bind Them All”, Fordham International Law
Journal, Vol. 38, 2015, p. 469.
109 Supreme Court of the United States, Kiobel v Royal Dutch Petroleum Co, (133
S Ct 1659 (2013)), Judgment of 17 April 2013. In this judgment the Supreme
Court refused to apply Alien Tort Claims Act as a tool for holding responsible
companies which violated human rights. For further information please refer to:
Ralph G. Steinhardt, “Kiobel and the Weakening of Precedent: A Long Walk for
a Short Drink”, American Journal of International Law, Vol. 107, 2014; Robert
Bird, Daniel Cahoy and Lucien Dhooge, “Corporate Voluntarism and Liability
for Human Rights in a Post-Kiobel World”, Kentucky Law Journal, Vol. 102,
2013-2014.

what may be, thanks to Kiobel, a fresh opportunity to step beyond the cur-
rent limitations of national and international legal imagination to challenge
the state and corporate sensibilities of a globalized neo-liberal world order
must be taken very seriously, placed high on the global agenda with all ‘the
urgency now’.”110
The new open-ended intergovernmental working group on transna-
tional corporations and other business enterprises with respect to human
rights were established by the Human Rights Council in its Resolution A/
HRC/RES/26/9 on June 26th, 2014. However, its mandate indicates that the
Group shall be dedicated to conducting constructive deliberations on the
content, scope, nature and form of the future international legally binding
instrument on Transnational Corporations and Other Business Enterprises
with respect to Human Rights.111 During its first session, held on July 10th,
2015, the Group adopted conclusions regarding a legally binding instru-
ment.112 But based on the A/HRC/RES/26/9 Resolution on the elaboration
of an international legally binding instrument on transnational corpora-
tions and other business enterprises with respect to human rights, the ques-
tions of a legally binding treaty is on the table.
Conclusions
It is too early to assess the work of the open-ended intergovernmental work-
ing group on transnational corporations and other business enterprises with
respect to human rights. However, some conclusions are drawn from the
broader picture of UN activity regarding MNCs and human rights. The UN
is certainly active in supporting progress for a solution. But is it effective
at the same time? First, its activity was directed toward the Norms, which
were supposed to provide a binding legal instrument. However, the proj-
110 Anna Grear and Burns H. Weston, “The Betrayal of Human Rights and the
Urgency of Universal Corporate Accountability: Reflections on a Post-Kiobel
Lawscape”, p. 44.
111 UN Document, A/HRC/26/L.22/Rev.1, 24 June 2014.
112 There is only draft report available. Final version will be introduced in the
framework of the 30th regular session of the Human Rights Council, held from
14th of September until the 2nd of October 2015.
Vol. 12, No. 1, 2016 153

Maciej ŻENKIEWICZ
ect was abandoned and then refocused Ruggie’s work. As aforementioned,

SRSG has provided a decent amount of work during and after his mandate.
After Ruggie’s mandate, his theory was followed within and outside the
UN system. Scholars speculate that Ruggie’s work provided potential to
improve the system, but if misused, could corrupt systems as well. The
Guiding Principles could “become either a gateway or an obstacle in a
long battle about the production of international law and national legal
regulation of the activities of business enterprises.”113 The application of
the Framework, in its crucial element –National Action Plans – retains
its two-face potential.114 Right now, the discourse is at its crossroads, and
there are only two probable solutions.
First is to take a step forward. Without disregarding the work of SRSG
– the Framework and the Guiding Principles, and being fully aware of its
shortcomings, the theory may strengthen the current system by adding a
fourth pillar115 and support the progress of National Action Plans. By doing
so, it may be close to achieving the ultimate goal to provide an internation-
ally binding instrument.116
But, the second solution is to take a step back. Since the work of SRSG
may progress into the wrong direction, then there may be no place to cor-
and the Treaty Law that Might Bind Them All”, pp. 458-459.
and the Treaty Law that Might Bind Them All”, p. 540.
115 For civil society participation, please refer to: Tara J. Melish and Errol Meidinger,
“Protect, Respect, Remedy and Participate: ‘New Governance’ Lessons for
the Ruggie Framework”, in Radu Mares (Ed.), The UN Guiding Principles
on Business and Human Rights – Foundations and Implementation, (Leiden,
Boston: Martinus Nijhoff Publisher, 2012), p. 333.
116 As an example of such an attitude, please refer to: Resolution drafted by Norway
and supported by 22 other countries, which includes a request that the existing
UN Working Group on Business & Human Rights prepare a report considering,
among other things, the benefits and limitations of legally binding instruments.
A/HRC/26/L.1, It was originally tabled on 12 June, then updated on 17 and 23
June 2014.

rect it and thus it has to be disregarded.117 However, and the idea of creat-
ing an internationally binding treaty, embraced by the Norms, could still
be promoted.
I strongly believe that the internationally binding instrument is a great
idea. I prefer to accept the UN’s support of the Guiding Principles and pro-
vide the necessary progress for the operationalization of the GPs, than dis-
regard it and start from the beginning. Since the theoretical work has been
implemented and experimented, if the GPs and the system built upon are
not perfect, it is my opinion that it is better to build upon and improve the
theory rather than simply disregard it118. After IGWG’s first session, I have
a feeling that prolonged dispute about treaty regarding MNC will result
with no treaty at all – due to the lack of support of states. Unfortunately,
the conclusion is that NGO’s, represented inter alia by ‘Treaty Alliance’
may take the risk of betting everything on one gamble – all in or nothing. I
don’t deny them the right to do so. However, I would prefer to have at least
something – an operational GP and functioning NAP, instead of a vague
promise of a legally binding treaty.
117 “Treaty proponents view the Guiding Principles framework as falling short in
their aims to provide adequate remedies and resistance to their efforts as a means
of sabotaging the necessary progression to the legal framework for the regulation
of corporate conduct that would expose upstream corporate entities to liability
well downstream in the supply chain”, Larry C. Backer, “Moving Forward the
UN Guiding Principles for Business and Human Rights: Between Enterprise
Social Norm, State Domestic Legal Order, and the Treaty Law that Might Bind
Them All”, pp. 466-467.
118 Even David Weissbrodt admits that the GP may play an important role in that
process: “… it will take cooperation between all of these parties to determine
how to create an effective access to remedies. Perhaps, the specific suggestions
of the Norms could be of value in this process. There is still much work to be
done, but if States and businesses become completely aware of the Guiding
Principles and committed to implementing their standards, they can use the
Guiding Principles as a framework to greatly reduce human rights abuses by
transnational corporations and other business enterprises”, David Weissbrodt,
“Human Rights Standards Concerning Transnational Corporations and Other
Business Entities”, Minnesota Journal of International Law, Vol. 23, 2014, pp.
170-171.
Vol. 12, No. 1, 2016 155

Maciej ŻENKIEWICZ
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Vol. 12, No. 1, 2016 159

Maciej ŻENKIEWICZ
Biography of the Author

Maciej Żenkiewicz received his Master’s Degree in Law, cum laude at
the Nicolaus Copernicus University (NCU) in 2008, finished Ph.D. studies
(2008-2012), works as an Assistant Lecturer, Chair of International Law,
Department of the Faculty of Law and Administration at NCU and col-
laborates as a researcher in the Charlemagne Institute For European Stud-
ies (Universitat Internacional de Catalunya). He is a recipient of a Diploma
in Spanish Law, jointly with the University of Warsaw and the University
of Valencia in Spain and Diploma in An Introduction to English Law and
the Law of the European Union from the University of Cambridge. He has
been employed as an Assistant Consul in the Consulate Office of the Re-
public of Peru. He participates in various moot-courts, as a participant (Jes-
sup – 2006, FDI -2008), coach (Jessup -2008, 2009, 2010, Telders – 2008;
FDI 2009, 2010) and arbitrator (FDI – 2010). He conducted his research
as visiting fellow in Lauterpacht Centre for International Law, University
of Cambridge, U.K (2011, 2015). He served as Electoral Observer in Eu-
ropean Union’s Election Observer Mission during presidential elections
in Peru. He participated in various national and international conferences,
presenting and publishing the articles in Polish and English. His research
areas include responsibility of multinational corporations in international
law, expropriation/nationalization in international investment law.

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Vol: 12, No: 1, pp. 121-160, 2016©

Human Rights Violations by

* Assistant Lecturer, Chair of International Law, Department of the Faculty of

122 Review of International Law & Politıcs

namely the activity of open-ended intergovernmental working group on

Problem of MNCs’ Responsibility for Human Rights

4 Steven R. Ratner; “Corporations and Human Rights: A Theory of Legal

Vol. 12, No. 1, 2016 123

124 Review of International Law & Politıcs

monitoring corporate behavior, having neither interest nor resources to do

8 Janet Dine, Companies, International Trade and Human Rights, (Cambridge:

Vol. 12, No. 1, 2016 125

Indirect vs. Direct Obligations of MNCs Under International

indigenous people in Papua and Texaco in Colombia; For further information

126 Review of International Law & Politıcs

punished in the cases when the state is reluctant or powerless to penalize

Vol. 12, No. 1, 2016 127

UN Initiatives regarding Business and Human Rights

The UN Norms on the Responsibilities of Transnational

18 President of the United States Council for International Business.

128 Review of International Law & Politıcs

24 UN Sub-Commission on the Promotion and Protection of Human Rights,

Vol. 12, No. 1, 2016 129

27 Luis Henkin, “The Universal Declaration at 50 and the Challenge of Global

130 Review of International Law & Politıcs

First, responsibility of companies to use due diligence in ensuring that their

Vol. 12, No. 1, 2016 131

32 David Weissbrodt and Maria Kruger, “Human Rights Responsibilities of

132 Review of International Law & Politıcs

an inconsiderate burden on companies in terms of payment of reparations,

36 For the critique of International Chamber of Commerce and International

Vol. 12, No. 1, 2016 133

The UN Global Compact

134 Review of International Law & Politıcs

To participate in the Global Compact initiative, a company’s Chief Ex-

44 How to Participate, Business Participation, <http://www.unglobalcompact.org/

Vol. 12, No. 1, 2016 135

vi. Training: the Global Compact organizes several workshops and

136 Review of International Law & Politıcs

50 About the Global Compact, The Ten Principles.

Vol. 12, No. 1, 2016 137

survey conducted by Professor Deva, almost 25% of the Global Compact

55 Surya Deva, “Global Compact: A Critique of UN’s Public-Private Partnership

138 Review of International Law & Politıcs

majority of organizations are choosing to respond in a ceremonial manner,

Work of Special Representative of the Secretary-General (SGSR)

58 Dima Jamali, “MNCs and International Accountability Standards through an

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tial period of two-year-appointment, was intended to ‘identify and clarify’

Rights and Transnational Corporations and Other Business Enterprises, John

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66 Faith Stevelman, “Global Finance, Multinationals and Human Rights: With

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Human Rights Council, A/HRC/17/L.17/Rev.1, 2011, <https://documents-dds-

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Critique of the Ruggie’s Work

74 David Weissbrodt, “Keynote Address: International Standard-Setting on the

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to inspire a difference should be supported by states, and by the corpora-

79 The Guiding Principles, Introduction, point 14.

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