John Ruggie and “The Norms”

I imagine John Gerard Ruggie knew he was throwing a bomb when he released his interim report on the Norms earlier this year. But perhaps that’s exactly what Kofi Annan had in mind in naming him as his Special Representative on the issue of human rights and transnational corporations.

Approved by the UN Human Rights Commission in 2003, the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights set out a range of obligations directly and universally applicable to corporations acting across borders. At one end of the spectrum, there’s a duty not to engage in genocide or torture, but the resolution also finds international legal obligations to ensure equal opportunity on the basis of inter alia language, social status, or age; to pay workers at a level ensuring “an adequate standard of living”; and to act in accordance with fair business, marketing and advertising practices. (The principal drafter of the Norms was University of Minnesota lawprof David Weissbrodt.)

It’s a pretty maximalist document, and Ruggie’s report doesn’t shy from a strong critique. He labels the exercise as one that “became engulfed by its own doctrinal excesses.” On its legal premise, he concludes: “What the Norms have done . . . is to take existing State-based human rights instruments and simply assert that many of their provisions now are binding on corporations as well. But that assertion itself has little authoritative basis in international law – hard, soft, or otherwise.”

But I don’t think that Ruggie is trying to take down the move towards greater corporate accountability to international norms, as this report out of AEI last week seems to imply. On the contrary, Ruggie has been working as both an academic (check out this article in particular) and as an insider (from 1997 to 2001, as an assistant secretary general with responsibility for the Global Compact) to enhance recognition of the important place of corporations in the global order – he is a rare example of someone doing really interesting scholarly work and then effectively applying it in a novel institutional framework. NGOs have been critical of the interim report (see the materials linked here, from Amnesty), but mostly in measured tones, perhaps understanding that Ruggie is ultimately ally not foe.

The report itself, after nicely summarizing existing responses to corporate abuses (“fragments of collaborative governance,” including codes of conduct, the Alien Tort Statute, the Global Compact, and internal corporate governance mechanisms) offers “principled pragmatism” as an alternative to the Norms approach. It’s a much more accretive, take-what-you-can-actually-get approach. The result would be something lumpier than the Norms approach, with differential standards sector-by-sector. Ruggie’s approach also deploys social norms and expectations by way of advancing corporate accountability to human rights values, implicitly questioning whether international law is a necessary tool here.

Ruggie’s work as SR continues through this year, with various fact-finding activities and expert workshops as described on his public page. This could be an important undertaking, albeit one mostly under the radar screen of policymakers and the media.