Case Western Reserve Journal of International Law 52 (2020)
Crime as Cognitive Constraint
message seemed simple enough – ignore the rights that did not apply
(e.g. fair trial rights), and implement the ones that did. Ruggie
concluded that this approach was not only without any “authoritative
basis in international law – hard, soft, or otherwise,” it likewise did not
articulate an “actual principle for differentiating human rights
responsibilities based on the respective social roles performed by states
and corporations.” 158 Consequently, the draft 2003 Norms had the
unintended effect of imposing on all transnational corporations binding
standards culled from treaties that not all states have signed or
ratified. 159 This led to its demise, i.e. it was declared to have no legal
standing. 160
Working within this contestation, Ruggie capitalized on companies’
“social license to operate” to regulate corporate behavior, using human
rights law as a source of normative content rather than of legal
obligation. 161 Corporate responsibility to respect human rights means
“that business enterprises should act with due diligence to avoid
infringing on the rights of others and to address adverse impacts with
which they are involved.” 162 For this purpose, the UNGPs serve as “a
global standard of expected conduct for all business enterprises
wherever they operate.” 163 They “elaborate the implications of existing
standards and practices for States and businesses; integrating them
within a single, logically coherent and comprehensive template.”164
Principle 12 makes a direct reference to the International Bill of Human
Rights, including the ICCPR, as being the human rights framework
corruption, and authority of the countries in which the enterprises
operate.”
158. John Ruggie, Interim Report of the Special Representative of the
Secretary-General on the Issue of Human Rights and Transnational
Corporations and Other Business Enterprises, ¶¶ 60, 66, U.N. Doc.
E/CN.4/2006/97 (Feb. 22, 2006) [hereinafter Ruggie 2006 Report].
159. Id. ¶ 66.
160. U.N. Commission on Human Rights Report on the Sixtieth Session, U.N.
Doc. E/CN.4/2004/127 (2004) (affirming that the 2003 Norms “has no
legal standing” and does not give rise to any “monitoring function” on
the part of the UN).
161. JUST BUSINESS, supra note 151, at 90-94; John Ruggie, Protect, Respect
and Remedy: A Framework for Business and Human Rights, ¶ 54, U.N.
Doc A/HRC/8/5 (Apr. 7, 2008).
162. UNGPs, supra note 14, at 13 (principle 11).
163. Id. (commentary to principle 11).
164. UN Human Rights Council, A/HRC/17/31, Report of the Special
Representative of the Secretary-General on the issue of human rights and
transnational corporations and other business enterprises, John Ruggie
(Mar. 21, 2011) [hereinafter Ruggie 2011 report]; UNGPs, supra note 15,
at 13-14 (Principle 12).
170