Responsible business in a Trump era (II)

How might the Trump era affect trends in responsible business (and its regulation)?

I am hesitant to give Trump more social media air-time than he already gets*, but the question is of broad relevance if indeed we're entering an era in which the state-business nexus has some particular features.

One of the things us regulation scholars navel-gaze about is the relative significance of public versus private forms of governance, and the scope for innovative hybrids of these in pursuit of both societal and commercial goals.

Last November, around his inauguration, I blogged on what Trump & co might mean for the responsible business agenda, in particular in relation to my own interest in policy and regulatory initiatives around that: here.

(At around the time, at least one other blogger also wrote on this topic: see here.)

In that post I speculated whether business might lead, and civil society be reinvigorated, where a new administration distances itself from promoting responsible and sustainable business practices:

"... a reluctant or recalcitrant or reclusive government [on this agenda] might indeed stimulate all sorts of unexpected enlightened activity ... often led by business and investors. This may include a greater convergence of the BHR agenda with core commercial ideas about value-creation, productivity, competitiveness and so on..."

I wrote that because I saw a possible silver lining on what otherwise was a rather gloomy outlook for this agenda at least within the US.

I still think it holds merit.

This is a long lead-up to saying that my attention was drawn to this blog-post on how corporate responsibility may in fact be mainstreamed in a Trump era, without necessarily waiting on government to lead (or the US government to lead, in a global context).

I do accept rejoinders such as those of Mark Taylor @lawsofrule that see the many possible downsides here.

Sub-question

Of course there's a sub-set of questions here: Trump will matter to the US context in terms of responsible business conduct, but the sub-question is 'Does the US context matter globally?' The world's largest and most diverse economy does not necessarily lead on innovation in responsible business or regulation or policy innovation around this.

Still, the premise of this post is that what happens in the US, and in US corporate life and cultures, matters for its own sake and will continue to matter globally.

At the global governance level, there is an argument to be made that any Trump-related leadership gap on issues affecting the responsible business agenda globally (including climate change) might be taken up by Beijing. (See here for a related comment on the potential for Trump isolationism to create leadership opportunities for Beijing).

On this blog's themes, it is so facile still to persist in assuming on responsible business issues that 'Western company or regulatory state = good', and 'Chinese state or firm = bad'. One still sees a lot of this lazy assumption, eg in the China-in-Africa debate. This ignores some interesting practice and policy-making from China, some of which may support a thesis that despite the weak underlying domestic media / civil society context, it is not inconceivable that leadership on some of these issues will come from a non-OECD country and its corporates.

Jo

Twitter: @fordthought

* Of course Trump alleges a media conspiracy to distort or not report certain issues or views...

Studying Business & Human Rights: 10 topics

Year-end brings its 'top-ten' lists in many areas. The 'business and human rights' field is no different. This was the IHRB's top 10 list of issues for 2016, published in December 2015. The institute has been soliciting inputs for this December (for 2017).

What are 10 important and/or interesting topics for student research projects on BHR?

I've recently completed delivering a new online Masters course in BHR. I produced a nominal longer list of essay topics for students, relating to the course content.

As with the IHRB list, those interested in this field will no doubt debate what should or should not be on a list of 'top 10 topics'. Some caveats: (a) a list of ten doctoral projects would look different -- this list relates to shorter student essays of about 5-8 thousand words; (b) BHR needs more country-, sector-, scheme- and supply chain-specific research, in particular directed towards business awareness and responses to the BHR agenda -- this list is more about conceptual issues and debates than topics for that sort of primary fieldwork; (c) listing good essay topics is not the same as suggesting that these are the ten most important things for a BHR course to cover; since it is about academic insight or study, nor is the list the same as saying 'these are the 10 most important, 10 most unclear or disputed, 10 most neglected, etc'; (d) the list, like the course, has a law and regulation focus: the self-consciously and inevitably inter-disciplinary BHR field still needs good intra-disciplinary work; (e) this is not held out as the top-ten just a top-ten... 

Here then is one list of 10 essay-length questions for students of BHR within a law school context:

1.  'Do mandatory schemes hold more regulatory promise in the BHR field than voluntary ones, or is this a false dichotomy?'

2. 'What, if anything, is the difference between an 'adverse impact' on human rights and a human rights violation? What are the implications of the UNGPs' use of the term 'adverse impact' for one's ability to offer businesses clear advice about the content and limits of their responsibilities?'

3. 'How, if at all, do you think the 2008/2011 UNGPs framework offers clear principles that deal with a situation where a business operation complies with its Pillar II responsibilities in all its operations but is invested in a country with a poor human rights record?'

4. 'What is the nature and extent of, and evidence for, any duty of the state to regulate the human rights impact of corporate actors abroad? Discuss, differentiating any duties in international human rights law from any duties relating to the law governing state responsibility.'

5. 'If the Talisman scenario were to arise today, how would Pillar I of the UNGPs affect what you think would be an appropriate governmental response?'

6. 'How do you define 'modern slavery'? How would you advise a corporate client on where the threshold lies between 'slavery and slavery-like practices' and employment practices that, while problematic, do not raise international human rights standards?'

7. 'What do you see as some of the wider implications for the concept of 'human rights compliance' of the trend towards corporate / financial due diligence processes?'

8. 'How would a BHR treaty / treaties most effectively and viably deal with Pillar III (access to remedy) issues? What are some models or approaches based on existing human rights (and other) treaty regimes?'

9. 'Which of these two statements do you agree with, and why? (i) "The treaty process an unhelpful distraction from national-level BHR actions by states" and (ii) "The treaty process is a necessary aspect of addressing the governance gap."'

10. 'How credibly and effectively, and with what strategic consequences, can the BHR narrative (and UNGPs standards applicable to states and businesses) be linked to other major contemporary social issues such as climate change or corporate taxpaying?'

  

Trumping the responsible business agenda

What would a Trump presidency mean for the responsible and sustainable business agenda? 

Even as we question the limits of expert analysis, it keeps pouring in following Donald Trump's remarkable US presidential election victory, coming as it did with Republican capture of both legislative houses.

Well, here is my small contribution (on the issue that I follow).

Overall I think that it is hard to envisage a Trump administration pushing for governmental and regulatory action on the overall sustainability agenda, and on promoting corporate responsibility and accountability.

For instance, a Business and Human Rights 'National Action Plan' is not something one would imagine near the top of any policy agenda.

Yet there are two related points that might be made:

1. Overstating government

Perhaps we sometimes overstate the relative significance of formal institutional regulatory and policy initiatives to the furtherance of this agenda, or at least to preventing, solving and remedying adverse human rights impacts of business activity where these are a risk or reality.

In this sense, this election result may not derail or detain that agenda as significantly as one might suppose. Human rights promotion, level playing fields for responsible firms, remedial avenues, etc cannot be left to non-governmental actors. But governments cannot do everything. Without promoting an abdication of governmental roles and responsibilities, in the Business and Human Rights / corporate sustainability / responsible business field it may be that we have all focused too heavily on what governments ought to do, relative to alternate or parallel strategies to transform fundamental market and consumer incentives, mindsets, behaviours and patterns in ways that might engender faster and more profound change.

...

2. Under-estimating business

Perhaps we can (or must...) see this outcome as an opportunity to explore further the many vital and vitalised vectors and avenues for corporate, civic and consumer actions (and coalitions thereof) that do not necessarily rely on government to lead or steer.

Indeed the existence of a reluctant or recalcitrant or reclusive government on this score might indeed stimulate all sorts of unexpected enlightened activity in this sphere, often led by business and investors. This may include a greater convergence of the BHR agenda with core commercial ideas about value-creation, productivity, competitiveness and so on.

...

In short, it is not necessarily all bad news.

(There is also the question of whether / how any deceleration and adjustment on global and regional free trade agendas might affect that emerging body of work on the intersections between trade and investment regimes, corporations, and human rights.)

Jo

More generally ...

Its been nearly two months since my last blog-post -- a reflection of just how much information and analysis is 'out there', a volume and pace that does not necessarily make for better-quality decisions.

I can only use the fact of this time-lapse as a metaphor for a point made in some earlier posts about the proliferation of initiatives and normative and reporting frameworks relating to sustainable, responsible and accountable business in society (here is an example).

This flurry of activity is hard to criticise, yet should not be an end in itself, can lead to new indirect definitions of 'compliance' in business & human rights terms, and does not necessarily help us solve the underlying problems.

Business and peace: the Colombia challenge

What is the role for the business community (local and foreign) in consolidating peace agreements?

This post is from Bogota, where this week saw the signing of a peace accord with the FARC rebel group following decades of civil armed conflict.

The country faces a significant and challenging history where business, human rights and conflict / security meet.

As chronicled by academics such as Angelika Rettberg, and as manifested in business-led organisations such as FIP, Colombia is no stranger to an active role for business leaders in encouraging, facilitating and indeed funding peace-making (informal and formal peace talks at the national and sub-national levels).

However, my role here this week is to talk about what next -- the peace-building phase that the agreement now heralds.

As Rettberg has noted, the Colombian private sector (and foreign investors in the mining, energy and agricultural sectors in particular) is now well sensitized to the idea of explicit business engagement in peace initiatives. Moreover, the government has taken a strong lead on issues of responsible business conduct -- for instance, Colombia is among the first countries in the world with a National Action Plan on 'Business and Human Rights' pursuant to the 2011 UN Guiding Principles on this issue.

Nevertheless (and in the shadow of the enormous legacy of this conflict more generally), a number of difficult questions remain to be addressed about how business leaders approach the challenge of making appropriate contributions to the national peace and reconciliation process.

These questions are not easily dealt with by repeating the now-fashionable SDGs rhetoric of 'business for peace' and enhanced ideas about the private sector's developmental contributions. For one thing, it is easy to exaggerate the capacity, skill, resources, and incentives for businesses to contribute explicitly to national-level peace consolidation processes, and to have over-optimistic expectations about those contributions. Such expectations assume, among other things, a very unified private sector, whereas there are significant differences in how the conflict has touched (or not touched) different sectors in this economy.

One challenge related to this differential experience seems apparent to me: how, in a country enjoying relative peace and prosperity in the last few years leading up to the peace deal, to sustain business attention to peacebuilding imperatives with long-term transformational dynamics. The economic 'peace dividend' might displace some of the urgency around attempting fundamental changes to the ways in which business here deals with social impact, security and other issues.

Here is a recent paper I did on 'the private sector and inclusive peacebuilding' (see index).

Here are some other posts on this blog on 'business and peace'.

JF   

Business and human rights: 'taking stock'

June marked 5 years since the UN Guiding Principles on Business and Human Rights were endorsed by states in the UN Human Rights Council.

This short post is just to link to one recent set of reflections by others in this field on progress on the UNGPs 5 year's on -- five positives, and five areas of more concern.

Here are two selected accessible video and audio resources also 'taking stock' at this 5-year mark:

* Video by SOMO

* Podcast by John Ruggie, author of the UNGPs

These resources to not necessarily capture the range of views (from positive to critical) on the utility and impact of the UNGPs.

Jo

Here are previous posts in this blog on Business and Human Rights.