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Article Excerpt
This article analyzes the emergence of new human rights norms for transnational corporations. It first explores voluntary norm-making approaches, which have been a staple of this issue area since the 1970s. Second, it analyzes the formulation and eventual fall of the UN Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. A final section reflects on the work of the UN special representative of the secretary-general on business and human rights. John Ruggie, and the future of norm making in this area. It is argued that these three processes constitute differing but fundamental steps toward the construction of international human rights norms for corporations and that, although norm entrepreneurs have clashed in debates over voluntary versus binding standards, norm making in this area remains healthy thanks to a now more solid international awareness regarding the corporate responsibility toward human rights. KEYWORDS: transnational corporations, international human rights, voluntary codes, business and human rights, binding norms.
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For decades, widespread human rights violations have been directly associated with the behavior of states. Weak democracies, authoritarian regimes, military dictatorships, and other forms of nondemocratic rule all around the world are generally regarded as the most prominent scenarios of disrespect to the human rights of local populations. The architecture of the modern international human rights regime, born in the aftermath of World War II partly in response to the atrocities of the Holocaust, is itself a reflection of these eminently state-centered concerns. And although conclusive data on the current state of human rights violations around the globe are elusive, governments are still believed to rank as the worst offenders.
Nevertheless, concerns over the human rights-related conduct of agents other than states have been growing since the 1970s. The end of the Cold War, the consolidation of the global economy, the rise of information technology, and the strengthening of transnational advocacy networks have contributed to effectively turning our attention to the potentially perverse impact of transnational corporations, insurgencies, paramilitaries, and other nonstate actors on human rights.
How is the international human rights system adapting to the conduct of nonstate actors? Are new human rights norms emerging to deal with them? If so, what types of norms are these, and how and why are they appearing? In this article, I explore this issue in relation to transnational corporations, which some have argued are "the most powerful non-state actors in the world." (1)
I describe three central processes that have driven the agenda in this issue area, explain why certain types of norms have won out over others, at least provisionally, and argue that although norm entrepreneurs have clashed in debates over voluntary versus binding standards, norm making in this area remains healthy, thanks to a now more solid international awareness regarding the corporate responsibility toward human rights. Transnational advocates participating in these three processes have been particularly effective in transforming the calculations of states and corporations toward respect for human rights.
I begin by laying down the key theoretical tools and concepts that will be used throughout. I then present and analyze the case study and conclude with some ideas for future research.
Some Theoretical Remarks
In this section, I introduce the key theoretical tools that are used throughout the article, drawing from distinct (but compatible) theoretical currents in international relations scholarship. I present first an "international norm dynamics" approach, as posited by Martha Finnemore and Kathryn Sikkink, which can be broadly categorized as ideational; (2) next I introduce interest-based theories that highlight actors' rational decisionmaking and then complement these with additional concepts related to ideational approaches to decisionmaking. My assumption in this article is that such existing analytical frameworks are also applicable to understanding norm-emergence processes vis-a-vis nonstate actors.
Norm Emergence and Principled Entrepreneurs
A norm is usually defined as "a standard of appropriate behavior for actors with a given identity." (3) According to Finnemore and Sikkink, a norm follows a "life cycle" consisting of three stages: norm emergence, norm cascade, and norm internalization. In the stage of norm emergence, which is the focus of this article, so-called "norm entrepreneurs ... attempt to convince a critical mass of states to embrace new norms." (4) These entrepreneurs are driven by various motives, including altruism, empathy, and ideational commitment to a cause.
Unable to coerce directly those actors whose behavior they seek to alter, whether state or nonstate, norm entrepreneurs must persuade them. Persuasion passes through a process of "meaning managing," in which norm entrepreneurs call attention to or "create" issues in a way that resonates with broader political understandings. Fundamentally, they seek to construct "frames" that suggest alternative perceptions of both appropriateness and interest. Additionally, norm entrepreneurs usually require a legitimate organizational platform from and through which they promote the new norms.
Historically, norm entrepreneurs have emerged in the form of human rights nongovernmental organizations (NGOs), grassroots organizations, international organizations, legal experts, UN representatives, academics, and even some of the same nonstate actors targeted by such proposed norms. These entrepreneurs may operate in "networks" and establish strategic linkages to exchange information, to clarify issues, to pressure their object-agents, and to bring about behavioral change in them. Indeed, they are what Keck and Sikkink have termed "transnational advocacy networks," which include "those relevant actors working internationally on an issue, who are bound together by shared values, a common discourse, and dense exchanges of information and services." (5)
Interest-based Approaches
Persuasion by principled entrepreneurs and advocacy networks in the phase of norm emergence involves political, strategic interaction between them and other actors, particularly the target agents of the new norms. Interest-based theories of international relations direct our attention to these strategic interactions between the key actors with a stake in the debate in this case, home and host states, international NGOs, corporations, and others defending their interests.
Generally, interest-based approaches to the emergence of international regimes suggest that the target actors will behave rationally, with a set of ordered preferences, and will calculate the costs and benefits of alternative courses of action in order to maximize their utility in view of those preferences. Actors may also behave as egoists, more concerned about their own absolute gains than the relative gains of others. (6)
Some scholars looking at the reasons why countries commit to international treaties highlight the importance of considering the "anticipated positive and negative effects of international laws on states." (7) In choosing to adhere to treaties, actors will factor into their decision the "likely effects," usually equated with the effectiveness of international or domestic legal enforcement, as well as the foreseeable collateral consequences of adhesion. These propositions may help explain why some norms win out over others; that is, why some norms are more readily accepted than others.
Ideas and Rational Actors
In the past decade, international relations scholars have come to recognize the importance of ideas in foreign policy making processes by rational, largely self-interested actors. In a seminal volume, Judith Goldstein and Robert Keohane argue that "ideas influence policy when the principled or causal beliefs they embody provide road maps that increase actors' clarity about goals or ends-means relationships, when they affect outcomes of strategic situations in which there is no unique equilibrium, and when they become embedded in political institutions." (8) The analysis of human rights norm emergence for transnational corporations presented here will reveal how certain ideas about the relationship between transnational corporations and human rights have led to the success of certain norms over others because they have acted as focal points and "glue" in a situation where there is no single equilibrium. These ideas have been successful in coordinating the interests of the key actors in the debate and in creating certain kinds of norms. However, this does not preclude the fact that the beliefs of other actors will lead them to prefer stronger norms, which may, however, not yet enjoy the same coordination and glue virtues. (9) Finnemore and Sikkink put it best when they argue that emergent international norms enter a "highly contested normative space where they compete with other norms and perceptions of interest." (10)
With these theoretical tools in mind, let us now...
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