The Business of Human Rights

18 Feb

On Hiatus...

Jena | February 18th, 2014
hiatus

Faithful followers (the few, the proud, the dedicated) ... this is just a quick note to let you know that, due to a number of reasons that are not worth mentioning, I am taking a break from blogging for the next little while. I have a backlog of topics that I need to get to so look for me again at the end of May where I will (hopefully) have caught enough on other things to give this the attention it deserves…

7 Feb

Speaking of NAPs ...

Jena | February 7th, 2014
wnl46hf_-00_netherlands-flag-4-x-6-inch

Yesterday, the Netherlands government released the official English version of its National Action Plan. The 14 page proposal details current initiatives in the Netherlands to implement the Ruggie Framework as well as results from its consultations with industry, civil society and “other experts” in the field.

The Report is rich with acknowledgments of areas that needs to be improved and provides a spotlight on the current debates in the business and human rights field. Among the challenges identified:

  • Using the language of due diligence to help companies understand the “social impact” their operations have on communities.
  • Using embassies to raise awareness of business and human rights issues on the ground.
  • Engage in a risk analysis of potential human rights impacts by sector.

One key theme that ran through the NAP was the need for the government to participate in the discussion surrounding supply chain risks. Rather than reacting to crises, consultants felt that the Dutch government could take a “proactive stance in order to fulfill its duty to protect.” As result, the Dutch government is aiming to work on structural changes (particularly in identifying risks with Dutch supply chain companies) not merely on “incident management.”

You can access the English version here .

Gold-letter-A-1-

It’s time to put the A back into National Action Plans.

31 Jan

A View of BHR in Germany

Jena | January 31st, 2014
Screenshot for Joanne

Joanne Bauer, one of the academics who is very active in the business and human rights field, spent last semester in Germany, analyzing business and human rights issues.

Her thoughts and perspective on this can be found here.

24 Jan

I have often bemoaned that US legal academics are way behind in the field of business and human rights research. And, while that is still true, it looks like we are finally trying to close the gap. As anecdotal proof, I offer the following:

Each year the Corporate Practice Commentator annually polls law teachers for top ten articles in the field of corporate and securities law. As part of the process, Robert Thompson, editor for the periodical, provides business law faculty with a list of “corporate and securities articles published and indexed during the calendar year” (in the Current Index of Legal Periodicals). The Current list has close to 600 articles on it. Of those articles, we have eleven that explicitly discuss business and human rights issues. While that might not seem like a lot (and is probably not all of the BHR articles published – in fact if you know of some, please email me and I’ll include it), it is certainly more than I’ve seen in the past and as one small indicator of where we are, I find it heartening nonetheless.

In fact, it’s inspired me to do this each time the list comes out. Hopefully, the numbers will keep on rising.

Trend

The list is below.

  • Bang, Naomi Jiyoung. Justice for victims of human trafficking and forced labor: why current theories of corporate liability do not work. 43 U. Mem. L. Rev. 1047-1096 (2013).
  • Bang, Naomi Jiyoung. Unmasking the charade of the global supply contract: a novel theory of corporate liability in human trafficking and forced labor cases. 35 Hous. J. Int’l L. 255-322 (2013).
  • Blitt, Robert C. Beyond Ruggie’s guiding principles on business and human rights: charting an embracive approach to corporate human rights compliance. 48 Tex. Int’l L.J. 33-62 (2012).
  • Hristova, Mirela V. The Alien Tort Statute: a vehicle for implementing the United Nations Guiding Principles for Business and Human Rights and promoting corporate social responsibility. 47 U.S.F. L. Rev. 89-108 (2012).
  • Martin, Jena. Business and human rights: what’s the board got to do with it? 2013 U. Ill. L. Rev. 959-999.
  • Narine, Marcia. From Kansas to the Congo: why naming and shaming corporations through the Dodd-Frank Act’s corporate governance disclosure won’t solve a human rights crisis. 25 Regent U. L. Rev. 351-401 (2012-2013).
  • Savelsberg, Joachim J. Writing human rights history—and social science encounters. (Reviewing Aryeh Neier, The International Human Rights Movement: A History.) 38 Law & Soc. Inquiry 512-537 (2013).
  • Shavers, Anna Williams. Human trafficking , the rule of law, and corporate social responsibility. 9 S.C. J. Int’l L. & Bus. 39-88 (2012).
  • Steinhardt, Ralph G. Kiobel and the multiple futures of corporate liability for human rights violations. 28 Md. J. Int’l L. 1-27 (2013).
10 Jan
Clifford Chance
For the inaugural “New Publications” section, I wanted to cover a recent publication by the law firm Clifford Chance. The publication, a briefing note put out by the firm, covers the recent UK National Action Plan that was released this fall (a copy of the plan is available here).

A Word on National Action Plans:

National Action Plans (or NAPs) are designs put together by States for ways in which to implement the UN Guiding Principles and the three pillar framework on which their built. Under the GPs, States are reminded that they have the duty to protect their citizens from business related human rights violations. NAPs are meant to address the specific types of harms that can occur when businesses have negative human rights impacts in their community.

The beauty of briefing notes like the one provided by Clifford Chance, is that their timely – case in point: the plan was announced by the UK government on September 4, 2013. Clifford Chance published its briefing note on September 5th. Obviously, that can come at a cost – usually for in-depth analysis.The note is no exception – providing a very descriptive and “straight to point” report of the plan. It discusses the UK’s endorsement of the GPs and also discusses how the NAP includes the UK government’s encouragement for all “business enterprises … to emphasise the importance of respect for human rights to their UK and overseas suppliers.”

Other major points of the NAP discussed in the note, include:

(1) a certification process to “further implement human rights standards for private security companies”
(2) an examination of State owned enterprises for potential negative human rights impacts
(3) examination of the government procurement process to improve human rights issues
(4) working with the EU on implementing the GPs.

The United Kingdom is the first country to launch a National Action Plan under the Guiding Principles (although other countries hoped to have NAPs out by the end of last year, to my knowledge the UK is the only one out there). In fact the Clifford Chance briefing note stated that “we expect to see other EU Governments publish their own national actions plans before the end of 2013. In particular, the Dutch Government has indicated that it expects to submit a draft plan to the Dutch parliament before the end of the year.” Many other countries seem to have discussed the GPs in various publications (see the Business and Human Rights Resource Centre here, for a list) but, apart from a draft NAP from Spain (issues in November and available here) the UK has taken the lead on this issue.

Picture taken from Cliffordchance.com

22 Dec

Another Look at Implementation

Jena | December 22nd, 2013

In last week’s blog (found here), I discussed two tools that have come out to fill the need to develop human rights risk assessment. CIDSE a non profit organization that stands for “tougher global justice” recently published a policy paper that discusses a related concept “human rights due diligence.” According to the authors “This CIDSE briefing explains what human rights due diligence is and … how it should be implemented by businesses and the essential role of States in that regard.”

As the report notes, the idea of “human rights due diligence” is a newer concept that has been getting a lot of attention by businesses, civil society and policymakers. Human rights due diligence is one part of the overall risk assessment that a company should perform when undertaking an analysis of how their business affects other stakeholders. In an article that I published earlier this year (which you can fine here), I spend a lot of time discussing these concepts and how they relate: human rights due diligence and human rights risk assessment, as well as how they align with traditional due diligence and risk management concepts. The CIDSE report provides eight recommendations that for integrating the UN Guiding Principles and the Protect, Respect and Remedy Framework into existing business operations and legal structures. The recommendations seemed to be geared mainly at States and their role in protecting communities and individuals from business related human rights challenges. Among the recommendations put forth are requiring states to use the means “at their disposal” to require businesses to incorporate business and human rights issues into their operations. Another recommendation, asks states to strengthen the “regulatory process” to tie the issuance of permits with specific undertakings by businesses in human rights due diligence.

The Report does an excellent job of tying its recommendations to specific parts of the Guidelines and the Protect Framework. Moreover, the recommendations encompass both gradual and ambitious planks for those who would like to move the business and human rights agenda forward. I highly recommend that those who are interested in the policy initiatives that are being discussed now (or will be discussed in the future) to take a look at the report.

The full report can be found here.

20 Dec

Workers' Rights Made Fun!

Jena | December 20th, 2013

So, the other thing that happened in Geneva is I met a woman who is part of an NGO in Spain that tries to make workers’ rights fun (yup, I said fun) using cartoons and activities. Their goal is to have 1001 activities in many different languages. Their site is here…

http://www.improvingworklife.es/

Enjoy the site. We’ll be returning to full blog status in the New Year (Friday January 10th)

13 Dec
cap-and-diploma

Last week, I attended the Second Annual UN Forum on Business and Human Rights.
During the Forum’s closing session, there were times to have questions and comments from the Forum participants.

The closing session was designed to highlight what issues the Working Group should focus on going forward in 2014. One of the people who went up to comment began her comments like this: “I’m a business student and I want to speak on behalf of all business students” she then made an impassioned plea for educators to begin teaching human rights in business school, saying that if there was any hope for advancing business and human rights issues in the future it needed to come from training the future leaders.

Specifically, she noted “I have not had one course or even one discussion on human rights in my school” this needed to change- she urged, to make a difference in the world.

Well, to that anonymous business student (she didn’t identify herself), here’s what I would like to say.

First, thank you for your courage. To be able to speak truth to power is a rare gift in a young adult and one that will serve you well as you progress through your career.

Second, we hear you. It might not have yet become the norm but there are efforts to bring business and human rights into business schools, law schols and (hopefully) into undergraduate programs.

Right now, NYU leads the initiative. The School of Business has established the Stern Center for Business and Human Rights. Additionally, Joanne Bauer and Anthony Ewing at Columbia University have been pioneering in this area; convening a conference that focuses on teaching business and human rights in 2011. The conference continues to meet ever May and the participants (from law schools and business schools) spend time discussing initiatives and compare notes on how to add business and human rights into the curriculum change the educational model throughout the country and the world.

Some educators do it implicitly, by adding business and human rights issues into there existing courses – like I do in my IBT, Bus Org class at the law school and in my Business Legal Environments and Ethics at the business school. Some do it by creating whole courses from scratch, like (Erika George’s Human Rights and Corporations Seminar at the S.J. Quinney College of Law at the University of Utah).

Obviously, there is work to be done – there seems to be some natural resistance by business schools to bring this into their curriculum. While that is changing, it’s changing slowly. However, there are a couple of things that give me hope. First, the Forum this year had almost twice the amount of attendees than during its inaugural event last year (which in and of itself exceeded expectations). Second, and even more heartening, there were many more business representatives who were there than last year. While they were still significantly underrepresented compared to state and civil society representatives, the fact that they were there in any force at all means that there is a growing recognition by businesses that they need to consider this issue. Once the recognition has been made, they will naturally look to academic institutions to find people who are trained in these issues to supply their workforce. The innovative and proactive institutions will respond in kind.

Students can help too. If you are a business student and would like to see more done in this area, make your voice known, tell your universities that this should be an important part of your education; the smart ones will respond in kind.

So, to the young woman from Forum 2013, thank you for your comment and keep a look out for future developments. Who knows, we may be recruiting you in a few years to teach in one of our programs.

11 Dec
972x365_web-rennweg-christmas-zurich
I just ran across this story that I thought I would share. The issues of tax planning (or tax avoidance) and human rights has been coming up more and more these days (and it’s something I covered in a previous post here).

Wherever you fall on the tax-avoidance-as-human-rights-issue spectrum, this story of a village’s act of kindness in relation to what they did with Glencore Corporation’s tax money tells another part of the story. It put me in a festive mood. Hopefully it will for you too…

A link to the story is here.

Photo (and complimentary festive mood) taken from http://www.zuerich.com/en/visitors/christmas.html