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.

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

Private sector engagement: the new lazy?

Is there a chronic laziness among those who work on getting business more involved in pressing social issues?

Have we gone from largely neglecting the private sector as a development, peace and human rights actor (my 2015 book Regulating Business for Peace) to an opposite extreme, where one just adds 'engage business' and the agenda will take care of itself?

Moreover, in swinging to this position of often unreal, under-explored and under-theorised expectations, is there a tendency to avoid issues just when they become their most 'pointy' and practical?

What exactly is meant when we implore policymakers, civil society and others to 'engage' with business in meeting the sustainable development and corporate responsibility (etc) agenda?

The immediate prompt for this first blog for 2016 was my reaction to reviewing a draft article on engaging business in the prevention of mass atrocities. Like so many other participants in debates on the changing role and expectations of business in society, the author fell down (in my view) by glossing over things just as they become their most practical and important.

In that author's case, it was a repetitive, unhelpful and ultimately lazy tendency to exhort the private sector to 'contribute' to peacebuilding and conflict prevention -- but without spelling out what activities and approaches that might involve in practice (much less in specific contexts).

Now its all very well and good to invite constructive engagement by business actors (and encourage policymakers to facilitate this).

But what does it mean for a business to 'contribute' to the SDGs, to peace-making or peacebuilding, to human rights protection and promotion? What does it involve, what should they be doing more or less of, or do differently, with whom, and how? Where does the context matter so much that one cannot talk of 'engagement' or 'contribution' without couching it in the specifics of settings whose dynamics differ so much?

In a 2014 blog post I delivered a similar rant, suggesting (with apologies to EM Forster) that it is not enough to repeat the magic spell of 'engagement' as if by saying 'only connect' we will witness the flowering and flourishing of innovative, meaningful schemes and initiatives whereby business actors fulfil the roles now increasingly expected or hoped of them in relation to the sustainable development agenda.

That earlier rant is here.

Private sector engagement, partnerships for development etc are very hard. We seem afraid to be honest, as if merely repeating the exhortations to partner will do the trick. A less lazy approach that offers some concrete ideas rather than fluffy 'contributions' will help underpin the rhetoric with some more credible analysis -- and action.

Jo