The added value of the UN Draft Norms as compared to existing codes on Corporate Social Responsibility and their legal status

When the United Nations was created in 1945, states were the only significant decision-makers. Even with the construction of the human rights regime in the aftermath of the Second World War, states were designated as the only duty-bearers who could violate international human rights law. States alone were held responsible for implementing human rights principles by enforcing treaty-based obligations or customary norms within their domestic jurisdictions. Today we live in a global world wherein not only states, but a variety of actors have come to play significant public roles. Some 70,000 transnational companies, together with roughly 700,000 subsidiaries and millions of suppliers span every corner of the globe. The rights of transnational companies - their ability to operate and expand globally - have increased greatly as a result of trade agreements, bilateral investment treaties and domestic liberalization. When global firms are widely perceived as abusing their power, demands for corporate responsibility and accountability has generated greater support. Instituting effective policies and practices to deal with corporate responsibility has been on the agenda of civil society actors, corporations and Governments for some time. Numerous initiatives have been adopted by companies, both individually and collectively, Governments and international organisations. All existing instruments specifically aimed at holding corporations to international human rights, labour and environmental standards are of a voluntary nature. Voluntary initiatives do have some value in that they provide minimum standards for companies to follow and raise the level of company behavior. Furthermore, voluntary codes raise consciousness about the need for standards and provide guidance for laws that could be adopted at a national level. Despite the growing number of voluntary initiatives, such approaches are often characterized by significant weaknesses. Current initiatives are rarely based directly on internationally agreed standards, are not able to effectively influence the performance of ''determined laggards'' and fail to cover many critical corporate responsibility issues. Voluntary initiatives cannot be seen as a substitute for regulation which establishes a baseline of rights, duties and consistent behaviour. The United Nations' Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights set out, in a single document, a comprehensive list of human rights obligations of companies and their reach is extensive. They deal with a variety of corporate responsibilities, including some that are traditionally dealt with outside the human rights framework such as environmental issues and consumer protection. The Draft Norms fill an important gap in the protection of human rights, applies to all companies and can help to level the playing field for companies that want to do the right thing for human rights. They are the most comprehensive effort as regards standards on corporate responsibility so far but not as unique or unforeseen as some businesses think. The Draft Norms simply attempt to restate relevant human rights law in regard to the obligations of businesses within their particular spheres of influence and activity. As reiterated in the Draft Norms, primary responsibility to protect and promote human rights in international law as well as national law remains with governments. Business cannot and should not replace government. The two should have complementary roles in protecting human rights. Even though the Norms were drafted with the intent of becoming legally binding, the Commission on Human Rights, in its decision 2004/116 of 20 April 2004, expressed the view that while the Draft Norms contained ''useful elements and ideas'' for its consideration, as a draft the proposal had no legal standing. The Draft Norms cannot be enforced and therefore have similar problems to other existing voluntary initiatives and, given the absence of any defined implementation or monitoring mechanism, have at present even fewer teeth than the OECD Guidelines. Given the divergent ongoing efforts of the international community to bring business in line with human rights, it must be foreseen that some kind of international regulation over the years will be established. Whether the Draft Norms are the answer to the corporate accountability vacuum is debatable. However, the Draft Norms are designed to incorporate and encourage further evolution and are by no means the last step in relation to corporate responsibility and human rights. It must be stressed that the Norms made an invaluable contribution to addressing the shortcomings of current approaches to corporate social responsibility and have set an important benchmark for any future normative efforts. The Draft Norms have put businesses' responsibilities at the top of the agenda and a positive outcome to the issue of accountability of corporations must be ensured. There is still a gap in understanding what the international community expects of business. Common benchmarks that provide clarity in regards to responsibility and accountability are therefore needed. The change towards corporate responsibility will not be a swift one but will take time to gain support. If the debate on corporate responsibility ends without an outcome, all stakeholders will be losers. However, the biggest losers will be companies that will be seen as putting profit before principle. The challenge for companies will grow as corporate influence continues to increase. Under international law ''every organ of society'' should be held accountable