Business and Human Rights in Verse: Poem I

This is the first of 3 efforts to approach 'business and human rights' issues in another way. Poem 1 is entitled 'Big Data'; Poem 2 'Supply Chain' and Poem 3 'Extractive':

‘Dance the Guns to Silence’: some Business and Human Rights in verse

Dr Jolyon Ford

Associate Professor of Law, Australian National University

                                                                                                                                                November 2018

I.

Big Data

Auden felt it years ago,

His senses taut and pricked with light:

The gloom that gathers when we know

We cannot know truth, or wrong from right.

Aggregate my many selves,

Average out my patterned moves;

Analyze my weakest points,

Accept the truth that the Data proves.

You are more than just the sum

Of your coded self, something more

Than the image that the moment holds.

When this drops in and tells you things

You did not know about your life,

Remember that we yearned for this;

Accept the truth that the Profile tells;

Know that if blame is even worth it now,

In truth we did this to ourselves.

                                                                                                                                 Canberra, 10 October 2018

Who is 'business and human rights' for?

Who are those doing 'business and human rights' (BHR) stuff, and for whom are they doing these things?

This post offers two reflections on the BHR 'movement'.

(I'm conscious that I'm at risk of over-thinking things about the BHR movement or 'field'. Examples of this include posts asking 'has BHR lost its way?' or one reflecting on what the field itself comprises.)

The first reflection I've used since 2016 in my Masters (LLM) course in BHR, to stimulate student thinking. It might be framed as who 'does' BHR?

The second reflection is one I offered at a recent talk at ANU's RegNet, my doctoral alma mater. It might be framed as who is BHR for?

Who 'does' BHR?

Many students study human rights with a view to 'making a difference'. Most of my students accordingly focus on classic public law and public international law subjects.

Yet -- and this is what I leave my students with each course-end -- perhaps the most effective BHR lawyers of the future will not be steeped in conventional human rights skills and knowledge. They will be people who understand contract law, corporate law, fiduciary duties of institutional investors, international trade and investment law and negotiations... they will also be students who have grasped that understanding the significance of local political economy dynamics is as important as fluency in the UN Guiding Principles on BHR: law and power, law as power.

BHR could do with more reflection, for example, on expertise, who is doing it, on how 'power law and expertise shape the global political economy' in a David Kennedy (2016) sense.

Many activists (and academics) in this field appear not only not to understand business or corporations, they sometimes seem not to want to understand them. Business and investment is something that happens out there, by some people who are probably not as nice or worldly as us.... Yet one has to question BHR strategies grounded in knee-jerk distaste for the very entities that one needs to understand (and sometimes engage with!) in order to transform problematic patterns.

Who is BHR 'for'?

Two of the BHR topics that perhaps dominate in Australia at present are (i) data, new technology and human rights; and (ii) corporate action on human rights risks in the supply chain under the intended Modern Slavery Act.

Both are important, complex, etc. Yet both, in different ways, have the effect of focusing very much on 'us' (in the first world) rather than 'them' (places where the aggregate of serious, systemic adverse BHR impacts occur).

Take the supply chains focus, which is one I'm part of. (An earlier post linked above noted that BHR is about a lot more than just 'modern slavery', as current and important and hard as that problem is).

There is a possible critique that the orientation of our current 'modern slavery' enquiries is parochial or inward looking. Its dominant vein is as follows: we must act to ensure we -- and our jurisdiction, our supermarket shelves, our wardrobes -- are not 'tainted' by association with modern slavery risk. That is not the same as saying 'we must tackle this phenomenon wherever it occurs'.

Have we succeeded if, through altered purchasing and procurement patterns (etc.) we rid Australia of any tainting trace of modern slavery, even if the phenomenon is alive and well in our region?

At least on Modern Slavery Act matters, is BHR as a movement (and so to a degree BHR scholarship) at risk of framing things as 'what can we do to rid ourselves of this human stain?' rather than 'what raft of measures will best address this topic in its own right?', that is, what works irrespective of how it affects our space?

This second reflection might be viewed as a bit unfair. After all, we (in Australia) are simply looking for ways, within our sphere of influence (so to speak), to address a global problem. And it is natural for analysis to 'begin at home' and focus on such issues. Still, its just a reflection.

Jo

Is the ethical consumer a myth?

Can informed, motivated ethical consumers act as human rights 'regulators'?

What design assumptions underpin models for regulating business human rights risk through mandated reporting?

Last week Australia's house of representatives debated the Modern Slavery Bill 2018, which would require larger Australia firms to report annually on steps taken to ensure their operations and supply chains are not tainted by human trafficking and forced labour.

The government's model would not include statutory consequences or penalties for non-compliance (non-reporting). Based as it is on s. 54 of the UK's 2015 Modern Slavery Act, the model is premised on the idea that businesses that do not report 'will be penalised by the market and consumers and severely tarnish their reputations' (Minister's 2nd reading speech, Sept. 2018).

The model is defensible in principle and regulatory theory, as I've blogged (etc.) elsewhere.

Yet as the Senate's August report noted (Recommendation 3.97), we need to 'test the proposition that reputational risk is a sufficient motivator' for widespread and meaningful reporting, and for continuous improvement in related internal due diligence practices.

A research agenda exists here since it is not obvious that consumers are likely to be effective at policing compliance with human rights performance by corporations. (Investors, insurers and other market actors may play this role more effectively, but that's not the issue in this post).

In addition to the fact that not all industry sectors face reputational risk in the same degrees or ways, we know from existing scholarship that it is not obvious (i.e. the empirical evidence is thin) that consumers will behave more ethically if they only have more information about the provenance and socio-enviro conditions under which things are extracted or made.

That is, the ethical consumer may be a 'myth' (e.g. Devinney et al 2010; Carrington et al 2010). There is an attitude-behaviour gap (Boulstridge and Carrigan 2000): even consumers who say, when surveyed, that ethical considerations matter to them do not necessarily change their consumption behaviours. Nor do they become activist consumers holding firms to account.

If so, we need to explore regulatory models premised on the idea that an informed, motivated mass consumer public will effectively hold corporate actors to account on statutory disclosure of human rights risk.

Jo

See too this previous post on modern slavery, on consumers as regulators (influencing behaviour of commercial actors): here.

Law and power, law as power

The potential and limits of law and legal analysis are questions about social, economic and political power.

My current Masters (LLM) students are in Week 6 of their fully online 'Business and Human Rights' course. We are currently discussing barriers to accessing an effective remedy for alleged business-sourced human rights violations. Much of this discussion revolves around transnational torts litigation, and the doctrinal + practical barriers to claimant groups.

In the discussions we have canvassed criminal law 'remedies' and I referred students to a news item about allegations against a French cement giant for its subsidiary's conduct in war-torn Syria (here). In one commentary on that news, the author says: 

"Human rights cases are rarely a question of law alone, they are about power."

This is an apposite for all students of 'Business and Human Rights' (BHR, and we are all students thereof!).

BHR scholars repeatedly self-profess that theirs is a  'cross-disciplinary' field that is nevertheless dominated by legal scholars. The field's maturation will require a far more systematic and contextualised engagement with the political economy and power dynamics of everything from transnational litigation to supply chain transparency.

Law can be powerful, even emancipatory; but power differentials and dynamics that constrain and distort this transformative potential need greater and more context-specific analysis by all of us working in this field.

Jo 

Has 'Business & Human Rights' lost its way?

Does 'business and human rights' risk becoming about everything, and so nothing?

What comprises the BHR 'field' is not neat and defined. It is evolving, as is the multi-faceted (but still gap-riddled) regulatory 'ecosystem' that governs business-human rights responsibility and remedy.

This lack of neatness, this open-endedness, is on one view both inevitable and desirable. We should not and probably cannot seek to be prescriptive about what 'counts' as a BHR issue.

Yet the question arises whether we should be a bit more strategic about what is likely to gain traction as a BHR issue, and about how widely we frame BHR, and about what we think corporations and other enterprises really have a meaningful responsibility for.

This post is prompted by a claim this week (here), related to litigation to this effect, that Unilever is somehow responsible for remedying the terrible human suffering of former employees resulting from post-election ethno-political violence in Kenya on the basis that some of the victims of this very complex, nation-wide violence were Unilever employees.

If by 'remedy' in BHR we really mean situations such as this, arguably BHR advocacy is over-reaching. If a demonstrably progressive firm like Unilever is accused of merely 'illusory' support for the UN Guiding Principles, how are we to foster meaningful engagement with other firms?

There are serious questions to be asked about how subsidiary corporate structures hamper access to forums for seeking effective remedy. Still, the underlying claim (that Unilever is responsible for compensating employee victims of violence that shook a whole country) has little basis in tort law, let alone human rights law. Championing this sort of speculative litigation (of all the BHR issues one could profile) shows a mindset that thinks the BHR phenomenon is far better established, far-reaching and powerful than it is. Ambition is fine; over-reach can just expose how under-developed things really are.

Just how useful and effective is the 'human rights' paradigm / lexicon in shifting business (and state) behaviour around social impact? However tempting it is to invoke it in support of all manner of worthy societal campaigns, is it really that effective?

BHR is about the many things potentially involved in preventing, minimising and remedying business-related human rights abuses (as well as encouraging and appropriately enrolling business in positive efforts at greater rights fulfilment and enjoyment). A central challenge in all this is to engage the attention of business and finance sector actors, informing and advising as well as accusing and chastising.

BHR is not just about the UN Guiding Principles or a narrow legalistic framing around the jurisprudence of international human rights law. Yet if websites or email updates on BHR become about listing all sorts of things that happen to involve companies, we have lost some powerful opportunity.

If BHR becomes about pretty much everything -- precarious work contract patterns; climate change and its governance; tax evasion and avoidance; corruption; mass political violence in east Africa -- it risks undermining itself. It risks alienating or confusing business audiences -- or being dismissed by them. It risks losing a vital connection with a credible, universal set of normative guarantees (human rights).

A related challenge is to remember that while BHR is somewhat in fashion in the field of human rights, it is still (tiringly and never-endingly) the state which must answer for the vast majority of human rights problems.

Jo

See an earlier articulation of some of the possible coherence challenges of the BHR field (2015, pp 6-7), here. See also this sceptical blog-post on linking the BHR phenomenon to climate change activism, here.