Business and human rights: 'the field'

Does focusing on a singular high-profile issue advance or distort efforts to promote responsible business more generally?

Those who write and work on 'business and human rights' (BHR) tend to describe this as an 'emerging' field, although it is not self-evident what the field comprises or ought to comprise.

The question of the proper or ideal parameters of a field seems highly academic. I have argued elsewhere* that there are some downsides to the attempt to frame many wider challenges of sustainable and responsible business in the language and logic of 'human rights'. In an earlier post, for example, I questioned whether the BHR paradigm was an appropriate or useful one for addressing income inequality.**

The question of wide or narrow framing also has some very practical aspects.

In Australia, much of whatever BHR-related momentum exists in government and some business circles is increasingly coming to focus on human trafficking and 'modern slavery' issues (which are not the same thing), mainly relating to larger Australian-listed firms' overseas supply chains. For instance, a parliamentary sub-committee enquiry is afoot to assess the suitability for Australia of a legislative model based on the UK Modern Slavery Act, which includes some basic supply-chain disclosure obligations on bigger businesses.

This trafficking/forced labour focus is not the totality of the BHR conversation in Australia, but it seems to represent an increasingly and, one could argue, disproportionately big chunk of it.

To some extent, this may be true of the BHR phenomenon well beyond Australia, or at least in some circles in the United Kingdom (where many BHR conversations quickly become conversations about the Modern Slavery Act, which while an important development is merely one intervention in one set of problems in one jurisdiction.)

On one hand this elision between 'BHR' and 'trafficking/modern slavery' is to be welcomed:

• trafficking and forced labour issues are objectively important in their own right;
• 'focus' on them is not necessarily something narrow since even seen in isolation this is a big complex problem to face;
• focus on these issues aligns with Australia's reputation for innovation and commitment in addressing human trafficking through criminal law provisions and policy work;
• and a focus on this set of issues can conceivably act as a proxy for BHR issues more generally, including in sensitising business to wider BHR-related issues, increasing the scope for business to be receptive in future to initiatives that go well beyond supply chains and trafficking + forced labour issues.

This last factor is not unimportant: unless you subscribe to the overly-enthusiastic idea that the BHR paradigm has had a 'magic' effect in galvanising business engagement***, one can recognise the value of any initiative (such as one on corporate supply chains and trafficking / forced labour) that reassures yet challenges business to action even if this is action only on one aspect of BHR problems.

[In any event it may be inevitable that any Australian BHR attention focus on such overseas issues: without trivialising BHR issues arising here at home, objectively those prevalent in settings abroad are of far greater scale and seriousness. Trafficking and modern slavery issues abroad also happen to have an influential business leader, so again the special focus relative to other BHR issues may be inevitable. It may also be natural for advocacy, policy-making and business to be content to ride with one (objectively important and complex enough) set of issues: it gives advocates a sense of something happening; it gives policymakers an example of Australia's commitment to human rights; it gives big business a readily understandable and identifiable issue, target or problem-set (whereas acting on 'human rights' generally covers a very wide area of possible activity).]

Yet on the other hand, BHR is about a great deal more than human trafficking and forced or slavery-like labour. Even the sphere where 'labour rights' and internationally protected 'human rights' overlap comprises many more issues than is suggested by a focus just on corporate supply chain human rights dynamics, and then within that on human labour trafficking (etc) within supply chains.

If there is anything to this observation, it may create something of a dilemma for those interested in an overarching BHR advocacy strategy, as well as those (for example, within government agencies) interested in or required to give content to Australia's implementation of the UN Guiding Principles on BHR more generally: does one direct energies to an issue that is attracting at least some attention and interest, hoping that it will not displace other important BHR issues and themes?

'BHR' on one had comprises more than the 'modern slavery' agenda. Yet at the same time BHR (at least understood as a distinct set of claims grounded ultimately in international legal standards with, in that sense, relatively narrow application) is not necessarily equipped or suitable as the framework for tackling and resolving complex issues such as forced labour and associated human movement. 

Jo

* On the idea that some contributors sketch the field of BHR too broadly, see here, pp 6-7.

** On the income inequality question, see here.

*** On this supposed 'magic' transformation see the 'Alchemy of BHR' blogs.

Private Law, Public Goal: contracting human rights

Might a 'private law' instrument (a commercial contract) in some cases hold more regulatory potential, in human rights terms, than a 'public law' instrument such as a treaty or related legislation?

We know a lot about the compliance gap in the mainly treaty-based international human rights system, which does not apply directly to business actors.

In this context, one way to innovate on promoting compliance with these standards, at least where business actors or commercial relationships are involved, is to find ways to frame human rights obligations as contractual promises.

If the pitfall of human rights compliance is the existence of sanctions or some enforcement mechanism, the attractiveness of using private law mechanisms is the potentially more tangible commercial consequences of a material breach of contract.

There's a whole literature on this sort of thing (eg Hugh Collins' Regulating Contracts, 1999), and some practice evident in (for example) incorporating reference to the Voluntary Principles into extractive industry contracts.

Here now is another practical manifestation of it.

This week my attention was drawn* to the fact that the International Olympic Committee (IOC) has recently amended its standard 'Host City' agreement to incorporate reference to the 2011 UN Guiding Principles on Business and Human Rights.

The procuring power and commercial influence that a body such as the IOC might bring to bear in this way would seem to offer one important way to influence human rights compliance by those supplying, sponsoring and indeed hosting mega sporting events.

More broadly, one has a glimpse of the potential to steer or influence commercial behaviour by finding private law means to public law ends.

Already there is some work being done on the scope for building human rights compliance mechanisms (or at least reporting / disclosure ones) into government procurement from private suppliers and contractors: see here (Danish Institute for Human Rights).

Advocates can move beyond repeated claims of 'human rights violation' to something that might resonate more effectively or in different ways, with specific consequences, now framed as 'contractual breach'.

On one view, the human rights law student or lawyer of the future might be someone who specialises in contract negotiation or studies International Commercial Arbitration, rather than the very public-law focused discipline of human rights as it exists today.

Jo
@fordthought

See news stories on the IOC move from Human Rights Watch, and the International Trade Union Confederation.

See here this previous blog of mine on mega-sporting events, business, and human rights (Rio Olympics 2016), and these resources on that topic:

https://www.ihrb.org/focus-areas/mega-sporting-events

https://business-humanrights.org/en/major-sporting-events

* Thanks to Justine Nolan