Tuesday, 28 October 2014

Business and human rights: mind the gap

Is there some risk that the current greater attention to the human rights responsibilities of business misses the mark?

Last week here in Oxford I chaired a session at a 1-day meeting on the evolving normative framework on the place of transnational corporations and other business enterprises in international human rights law.

I put aside here all the debates about the form and pace at which further international legalisation might occur in this area.

Instead I return, at risk of repetition, to a steady refrain of this blog.

This is the argument that society is justified in narrowing the 'governance gap', that is in seeking to make the social responsibilities of business actors commensurate with their levels of influence. But it should avoid doing so in ways that tend to obscure the principle that governments are and should be the primary duty-holders. In human rights terms, it is tolerably clear that whatever the responsibilities of non-state actors, the state has certain duties to protect, respect and fulfill human rights -- including by regulating the activities of business actors that have an impact on those rights.

This is a cousin of the argument, also typical of past posts (here), that the current attention to the private sector's role in helping meet sustainable development goals is welcome and/or inevitable, but should not result in shifting the burden from states.

How did last week's meeting prompt this return to something noted in recent posts (see for instance here)?

It seemed to me that some participants at the meeting had lost a certain perspective on the source and nature of the bulk of unfulfilled or violated human rights in the world. At some points some participants painted corporations as responsible for the bulk of unmet needs and abused rights in the world. Now there is undoubtedly a serious mismatch between companies influence and their degree of accountability and responsibility, but they hardly account for the most serious human rights abuses evident in the world today, and are to my mind certainly not obviously responsible for public goods that might fulfill human rights.

Participants' desire to find ways to close the governance gap cannot be faulted, but I wonder if we're seeing something else happening in recent years. In the field I work in, 'business and human rights' has become far more topical, attracting funding for advocacy and capacity-building programmes. This is welcome, especially considering that the issue had been under-scrutinised.

Yet even if one considers 'human rights' to involve the full range of social and economic rights (such as a right to education) and not just civil and political ones (such as a right to freedom of speech), and even if one acknowledges the huge influence that business entities have in the world and on the shape of its governance, this does not alter the facts. The great bulk of the aggregate of abused or unfulfilled rights in the modern world result from the acts or omissions of states -- including the omission to regulate abuses from non-state sources such as corporations.

To focus advocacy campaigns on what business should be doing to protect human rights is a justifiable strategic decision for a rights advocacy group. It is after all an area I work on myself. It suffers from widespread lack of awareness on the part of governments, businesses, victims. Yet more than once in recent months I've had the sense that the human rights movement has found a new issue and, frustrated with the intransigence or incapacity of governments, might pursue the wrong point in its growing focus on business and human rights.

The main point is the duties of states, not the responsibilities of corporations. To argue otherwise is ironically to afford business actors far more significance and legitimacy than makes sense for those trying to narrow the 'governance gap.'


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