Business and human rights: hasten slowly?

Does the emerging field of business and human rights (BHR) risk developing a credibility problem?

The overall BHR challenge is in some ways the opposite of any credibility problem -- it is rather an awareness, uptake and implementation problem.

But it is arguable that from a strategic perspective, building that awareness and responsiveness to BHR issues and principles (by business and finance, as well as governments, civil society, and consumers) is best served by guarding against over-expansive claims in the name of BHR.

An Australian report this week illustrates both the potential and current limitations of efforts to promote business respect for human rights standards.

The report (here) is the latest by 'No Business in Abuse' to look at the responsibilities of a parent transnational corporation (and its creditor financial institutions) where one of its company's operations include running controversial offshore detention centres for the Australian government pursuant to that government's strategy to control irregular migration.

The report highlights the scope, faced with such issues, for advocacy actions that might influence corporate compliance with human rights standards, directly and through prompting creditors and others with commercial leverage to influence the company's conduct. The report shows how this scope exists regardless of whether one can yet be categorically clear about any binding legal obligations on companies.

But (at the risk of sounding churlish on what is important and persuasive work), the report also to me illustrates a credibility risk for BHR advocacy.

It makes two calls, the first of which is so far beyond the company's power to achieve that it undermines the force of the report. The company is called on to do something it has absolutely no legal or other power to do (release detainees into humane conditions in Australia).*

Is it petty or too provocative to say that the field of BHR will have evolved when such recommendations are more realistic?

On this note, this week's The Guardian also carried a story (here) on this company and issue and report, but also referenced a Stanford University legal opinion. I have not read it, but its claim that the company's employees may be involved in 'crimes against humanity' in these detention centers is (in legal terms) a massive over-reach. That grave international crime requires a systematic attack on a civilian population -- however bad conditions might be in those centers, the business of detention can hardly be described as an 'attack'.

Advocacy efforts need alarm bells rung, but alarmist analysis arguably does not achieve the principal aim -- to influence corporate conduct and so improve human rights protection. The company quite understandably was able reasonably to reject the Stanford analysis...

BHR advocacy needs to call out problematic business behaviours, but also offer practical and achievable alternative actions for business actors.

Jo

* I note that the recommendation goes on to suggest (as an alternative to Australian relocation), relocation to some setting with equivalent humane conditions. 

Rio Olympics 2016: Business and Human Rights

We are approaching the Games of the XXXI Olympiad in Rio de Janiero.

Global sporting events raise important business & human rights issues.

Mega sporting events involve contracting and procurement on a vast scale, along with financing, insuring and other commercial dimensions to preparing and hosting the games.

Global organisations such as the IOC (Olympics) and FIFA (football) wield considerable potential power of a positive sort in terms of how their procurement and contracting (etc.,) activities could incentivise supplier and service-provider conduct that is objectively pro-social, or at least basically human rights compliant.

John Morrison at the Institute for Human Rights and Business has led work on mega sporting events and human rights -- see this dedicated site.

For one report critical of the human rights impacts of the games, see 'The Exclusion Games' (report here, and short video here).

I found it very difficult to find, on the IOC's own site, a simple and clear statement on human rights impacts (including as to relationships with commercial partners and providers).

There is of course the IOC's famous Charter, but that is not the same thing.

On this issue, you may have seen the recent launch by FIFA of a report it commissioned by business & human rights expert John Ruggie into human rights issues in FIFA's own conduct. This of course comes ahead of the somewhat controversial football World Cup in the Gulf...

JF

Business, human rights and income inequality

What role does business have in addressing income inequality?

Does the way in which we now ask this question risk a gradual shift that wrongly pulls the focus away from its proper subject, which is the duties and policies of the regulatory state? 

How did I arrive at these remarks?

1. Very few reasonable people would dispute that income inequality (globally, and within various countries and cities) is a major issue of our time.

2. Very few business leaders would dispute the trend towards greater interest in / scrutiny of the social impact of business practices by social, consumer, market / investor and regulatory stakeholders.

Yet it is not particularly obvious, putting 1 and 2 together as issues, that one aspect of being a responsible business is to take steps to address income inequality -- a highly complex policy puzzle and socio-economic phenomenon (insofar as I understand it myself... ), one not easily fixed by simply appealing, for example, for greater bona fide corporate adherence to national taxation regimes.

At very least, is it not obvious that compliance by business with fundamental human rights standards (or even some fulsome embrace of these norms, beyond mere compliance) would necessarily have any real impact on income inequality.

Approached in terms of the legal standards that comprise the global human rights architecture, sure, there are perhaps some issues for example around wage levels that would differentiate 'employment' from 'servitude'.

I am sure that a case can be made that better performance by business actors on recognised human rights standards might materially improve (narrow) the income inequality margins.

I just do not think that case has been made yet, or properly, or fully.

At very least, I think arguments that put 'business and human rights' and 'income inequality' together are at risk of positioning human rights as some kind of magic policy fix-all, as is often the case. So that we get arguments (in effect) that if one just applied a human rights lens to climate change = fix! (see here). Or if one just looked at income inequality from a business-human rights perspective = fix!

These comments of mine are no doubt full of holes, but are prompted by the otherwise unobjectionable and agreeable remarks of a leading scholar on business and human rights in a recent post in The Conversation: here.

Academics can (and sometimes should) be advocates. Yet they can (and often should) also be nit-picking and devoted to accuracy. In this post I am probably at risk of being seen at best as overly nit-picking, or at worst as an apologist for business.

Instead my only point is the nit-picking one that it hardly seems self-evident that if more businesses ensured their operations did not violate human rights standards (as I understand these in terms of present international law), that this would affect income inequality in a meaningful way.

Income inequality matters -- no doubt. But human rights vocabularies, standards, strategies, lenses, frameworks, etc., are not necessarily the secret to addressing this endemic and worsening issue. Nor necessarily is it the role of business to address that issue, lest we let the state and policymakers off the hook (and inadvertently ascribe far greater social influence to business than is proper or prudent).

The current fashion of focusing on business's own responsibilities can sometimes have that effect. On income inequality, it is ultimately the state that matters, and while we must demand all sorts of things of 21st century business and finance, it is the state first and foremost that has the duties and powers to attempt to address the problem of income inequality.

Jo

See previous more practical, less nit-picking posts on this issue in 2014 and 2015 around the time of Davos with its focus on income inequality: here.

Human rights, business and end users

We focus on social impact integrity in corporate supply chains, but what about corporate 'responsibility' for the downstream end-use made of a product or service?

I use the term 'responsibility' very broadly -- mostly in relation to 'liability' in the court of public / consumer / market opinion, rather than in any legal sense.

One manifestation of the shifting expectations of business in society is that some brand-conscious firms are paying far more attention to the use to which their products are put, in human rights impact terms. This is in addition to the more familiar concept of the attention to the human rights footprint of the 'upstream' supply chain through which they source components and ingredients for their products.

The sensitivities on this issue vary greatly by sector and firm and context -- this is true of corporate human rights impact generally.

One sector of interest is the pharmaceutical sector in relation to the supply of drugs capable of being used in state-administered lethal injections pursuant to a death penalty order.

Last week global pharma giant Pfizer became the last major firm to announce that it was taking steps to ensure that its products would not be procured for use in lethal injections (at least in the US).

This fell from concerns about the morality, if not the legality, of administering cocktails of drugs that did not always ensure a relatively swift and painless execution.

I blogged on this long-building issue some four years ago in relation to an EU-based firm exporting to the US: see here.

The more interesting question is whether this growing 'end-user due diligence' is capable of wider analogy to other products, or is specific to this issue...

Jo

The Governance Gap: a treaty on business and human rights?

One can be interested in promoting human rights in practice, yet question in principle the idea of a treaty process in this field.

 

Would the negotiation of some kind of binding international instrument on the human rights responsibilities of business (mainly, on the duties of states relating to these issues) really address the 'governance gap' in protection, promotion and remedy for human rights in this field?

This blog and perhaps its author are undergoing transformation -- hence the paucity of posts in 2016!

Meantime, however, here is a link to a paper published this week in which I question in various ways the enthusiasm of some academics, activists and diplomats for a single comprehensive treaty in this field... with a few caveats about the possible utility of a negotiating process.

The paper's abstract is below:

This working paper is the first to analyse whether insights into problems of ‘regulatory ritualism’ might inform contemporary debate on the merits and content of any new treaty based mechanism on the human rights responsibilities of business and financial actors. In 2015 a controversial inter-governmental working group held its first meeting towards  negotiating a future treaty. However, treaty proponents have not tied their arguments to any theory of regulatory effectiveness, nor addressed empirical arguments questioning the effectiveness of human rights treaties. This is problematic since some treaty proposals raise the spectre of state ‘compliance’ patterns marked by formalistic, empty rituals of verification. 

In setting up that possibility, the paper explores the status of debate on the merits or viability of a ‘treaty path’, canvassing the range of treaty options being proposed. Treaty opponents may over-state aspects of their case, such as the opportunity costs of drawn-out negotiations. Yet even assuming consensus is possible, treaty proponents have not shown how state acceptance of binding treaty obligations would necessarily address the ‘governance gap’ here. Proponents may confuse regulatory aims with the means for achieving these, placing undue faith in the preventative and remedial potential of binding international legal instruments.

 

Here are some links to previous posts on this topic: here.

Jo