College of Law

I spend a lot of time on this blog looking at corporate responsibility for minimizing human rights impacts within their spheres. It is my primary area of focus within my scholarship and the area that I feel where we have the greatest ability to impact change.

However, I was reminded that there are two other very important pillars in the three pillar Protect, Respect and Remedy framework (the foundational document for the subsequent Guiding Principles).

Yesterday, I was fortunate enough to attend a workshop hosted by the U.S. Department of State in conjunction with Harvard Law School’s Pension Project Workshop. The workshop was entitled Promoting Labor and Human Rights Through Investment. As the name would suggest, there was a lot of discussion regarding what role institutional investors can and should have in promoting human rights issues within corporations.

The conference was fascinating – it felt like I learned a seminar’s worth of material in seven hours. There were many themes that emerged throughout the day – too many to put all in one post. But, one thing that struck me as a I looked around the room was – despite the many issues that the United States has in struggling with this issue – I have reason to remain hopeful; of the more than fifty participants who were involved in the workshop during the day, almost half of them were from the federal government. Representatives from the Department of State and the Department of Labor were there to take part in a conversation that, in order to be successful needs to take place on all levels of government.

I also learned that it’s more than just appearances – there are different agencies throughout the federal government that are taking concrete steps to try and implement the State’s duty to protect.

Here are just three examples:

• The Department of State recently issued a document entitled U.S. Government Approach on Business and Human Rights

• The Department of Labor has produced a toolkit for responsible business on the issue of reducing child labor and forced labor

• President Obama’s administration has issued Executive Order 13514 requiring federal agencies to report on their sustainability efforts.

These actions highlight the fact that, although imperfect, there is still movement here in the United States on the State’s Duty to Protect. And I’m not the only one taking note. On their recent country visit to the United States, the U.N. Working Group for Business and Human Rights commented that it “welcomed the US Government’s political leadership in supporting and committing to the implementation of the GPs. Government agencies at both federal and state levels are making notable efforts to address specific business-related human rights challenges.”

Generally, my own philosophical viewpoint on business and human rights issues is that in order to effect change in this area we will need to focus our efforts on changing business practices. While I still believe this is true, yesterday’s workshop reminded me that if used wisely, the United States can have an incredible role to play as well.

One of the things that I have noticed in my burgeoning career as a scholar in this area, is a general lack of language here in the United States that discusses BHR issues with human rights language, even when they clearly implicate international norms and human rights treaties.

However, there are always exceptions.

Writing in an OVEC newsletter in February 1998, Ronald Goodman (a former OVEC board member who has since passed) discussed the issue of surface mining as a human rights related issue.

Goodman took a pretty strong stance on what he and others have called mountain top removal. Goodman advocated for a complete ban of the practice, calling it “ecocide” and saying that the practice was devastating the West Virginia ecosystem. However, Goodman went further and discussed the impact of mountain top removal from a human point of view. Specifically, Goodman said this:

“The terrain and the beauty of the terrain are part of the “skin,” a portion of the essential identity of our mountain people. This extension of their social, economic and psychological existence is being amputated, blasted and scraped away by mining technology. The effects on the human residents are similar to those of warfare on civilians. Many people are disoriented, traumatized, fearful and angry. Many residents have moved away, not simply to find jobs elsewhere, but because their “commons”, their “homeplace,” their homeland is being destroyed. ... This is a great wrong according to the United Nations’ universal declaration of human rights.” (emphasis mine)

Goodman did not elaborate on this point – he did not discuss what specific “wrongs” (of those he discussed earlier) triggered violations of the Universal Declaration of Human Rights. However, some of the accusations that Goodman laid out above seem to evoke this feeling from the Declaration’s preamble “Whereas recognition of the* inherent dignity* and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world …”

In essence, Goodman’s charges contradict the notion that the people who live in the mountains in West Virginia were able to live their lives in dignity. His analogy that West Virginians may feel the same way that civilians feel in the wake of warfare also serves to bring the message home – recall that, at the time, Americans were aware of the warfare happening in places like Kosovo (and violence had recently ended in Rwanda) – events that freely led people to discuss human rights issues and use words like genocide. Goodman’s use of language – both in terms of the use of “ecocide” and his explicitly bringing in the Universal Declaration of Human Rights was a brilliant piece of advocacy that was way ahead of its time.

In fact, it is only now, fifteen years later, that the issue of mountaintop removal is being discussed here in West Virginia in the language of human rights. Last week, I blogged about how members of the U.N.’s Working Group for Business and Human Rights visited our state to undertake an examination of surface mining from a human rights point of view. On that day, Mr. Goodman’s words came full circle.

It’s a shame that he didn’t live to see it happen.

Aerial shot courtesy of Southwings.org

Mountain shot (from it’s base) courtesy of Vivian Stockman

As I’ve mentioned in previous posts (like here) we have a tendency in the United States to look at human rights as other countries’ problems. When we do think of issues related to BHR we tend to examine them within smaller, statute-based lenses (such as worker’s rights, employment rights, safety issues). The problem with using these terms as our only focus is that it takes away from the premise that many of these same issues implicate a fundamental human right (ones held by folks here just as much as abroad).

Finally that message is coming home. Literally.

On Thursday, April 24th, members of the United Nations Working Group for business and human rights came to West Virginia. The visit was part of the Working Group’s official country visit to the United States. The purpose of the visit was to gather information regarding how businesses and states are implementing the UN’s Guiding Principles, so as part of their visit, the Working Group members met with representatives from federal and state agencies, business and industry as well as members from civil society.

West Virginia was chosen as one of the states that the Working Group visited because of its mining industry. The WG wanted to understand the impact this industry has on human rights issues. According to the initial press statement they issued at the end of their country visit, the results were eye-opening:

“In the extractives sector, the experts noted the allegations of significant human rights impacts of surface mining, particularly the rights to health and water, and the deep divisions between stakeholders on the most effective ways of assessing and addressing the impacts.”

In it’s full press release the Working Group also noted that: “coalmining provides jobs, revenue and energy production. It is an activity supported by many mineworkers and trade unions.”

I was fortunate enough to join members of the Working Group for part of their visit to West Virginia. I was present when members of the community in Lindytown and Twilight told their stories on the impact of mining on their lives and their communities. The stories were heart-felt and poignant.

Everyone recognizes that there is no easy solution to BHR issues and that the narrative is a complicated one. Business representatives point to the positive impact their industry has on economic development and jobs in the region. Government representatives typically discuss how hard it is to monitor their areas of responsibility and how a lack of resources prevents them from thoroughly investigating abuses. Community members talk about how their residents are dying of cancer at an unheard of rate.

All of these things are true.

What is also true is that the nature of these problems requires us to be creative and work together for a solution. To sometimes sacrifice short-terms gains for long-term solutions. And to always remember the human element in the midst of abstract talk of expanded risk assessment and implementation.

In the end, business and human rights issues are about the human element. It is about how industry, society and government can work together to make us thrive. That’s equally true in West Virginia as it is in Bangladesh.

Hopefully, we won’t forget it.

The Working Group’s full press statement on their U.S. country visit can be found here.

Photo explanations: Photo 1: an example of a mountain range that has been subject to mountain top removal. Photos 2-4 residents of Lindytown and Twilight discuss the impacts of coalmining on their community. Photos taken by Vivian Stockman

Next week: An early look at coalmining from a human rights lens.

A recent discussion on gender equality in Australia is worth mentioning. Australia’s Gender Equality Agency notes that while Australian women are making up more of the workforce than they ever have in the past, there is still an unequal distribution of women in the higher paid and more prestigious positions within companies and organizations. Helen Conway, the director of Australia’s Workplace Gender Equality Agency, said, “We know less than one in 10 executives of directors at ASX 500 level are women and Australia’s female workforce participation rate lags comparable countries such as Canada. Lifting Australia’s female workforce participation is critical to boosting national productivity while also ensuring Australia is maximising its investment in training and education.” Meanwhile, the President of the Australian Council of Trade Unions, Ged Kearney, said “Australia ranks amongst the highest of OECD countries for women’s education but the participation rate for mothers with children below school age is amongst the lowest and the gender pay gap remains at 18.3%.”

The Australian government recently took issue with the persistent gender inequality in the workplace. Starting next year, organizations with more than 100 employees will have to submit a report to the Workplace Gender Equality Agency that will show the following:
– Gender composition of their workforce;
– Gender composition of their governing bodies (i.e. boards);
– Total remuneration payments of women and men for the reporting period;
– Availability and usage of flexible working arrangements for employees and arrangements supporting employees with family or caring responsibilities; and
– Consultation with employees on issues concerning gender equality in the workplace.

“Achieving progress on workplace gender equality requires organisational leadership and a cultural shift at the workplace and individual level. WGEA is developing a range of campaigns, educational materials and tools aimed at shifting the dial on this persistent economic and social issue, ” continued Helen Conway.

The discussion is interesting because it highlights the varying weight that different countries place on issues such as gender equality. Australia has determined to focus on increasing female representation throughout all aspects of its workforce. Other countries have much more basic challenges (like laws that explicitly preventing women from working). This raises particular challenged for transnational corporations whose operations span a multitude of countries.

Pirates around the world are shaking in fear.

After two years, two oral arguments, and a multitude of briefs, the Supreme Court has finally issued its opinion on the use of the Alien Torts Statute (ATS) in human rights abuse cases. On Wednesday, the court issued a unanimous ruling limiting the rights of foreign victims of human rights violations to bring their claims in US courts.

The court focused on the extraterritoriality of the claims – holding that because the conduct took place outside of the United States, ATS does not apply.

In order to get the unanimous ruling it appeared as if the court crafted their holding very narrowly. Chief Justice Roberts, writing the majority opinion stated “The question here is not whether petitioners have stated a proper claim under ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign.” According to the court, it does not. In reaching its decision, the court distinguished between violations of international law (what the court called the law of nations) and violations of international law abroad. As Chief Justice Roberts wrote: “The ATS covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach – such violations affecting aliens can occur either within or outside of the United States.”

In addition, the court distinguished the territorial application of one of the original uses of the statute – piracy- from the territorial applications of many of the human rights violations that are litigated under ATS (usually on foreign soil). The court stated that

Applying U.S. law to pirates does not typically impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences. ... We do not think that the existence of a cause of action against them is a sufficient basis for concluding that other causes of action under the ATS reach conduct that does not occur within the territory of another sovereign; pirates may well be a category unto themselves.

As such, the court concluded that having claims brought for conduct that happened in the waters (or on the soil) of another sovereign was going too far.

However, the court split sharply on other issues raised by the lawsuit: whether a suit could be brought under ATS where at least part of the conduct is alleged to have occurred here and; whether corporations (as opposed to individuals or government representatives) are completely exempt from ATS suits. The court’s opinion also leaves open the status of numerous cases pending in US courts with ATS claims.

As Justice Kennedy wrote in a concurring opinion “The Opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute.” Nonetheless, the decision was enough to have the petitioner’s claim dismissed and Shell relieved of liability.

But there is no joy for pirates, for the Court has ruled that out. (with apologies to Casey at the Bat)

Nine justices in black robes can do a lot of damage on the high seas.

It is with a ridiculous amount of pent up enthusiasm that I am announcing WVU’s inaugural business and human rights conference. The conference will take place at West Virginia University on September 23rd and 24th. Frankly, I have been itching to announce this for quite some time but I had to wait until we worked out some logistical issues before I could.

In conjunction with the conference I am putting out a call for papers ( found here ). The call for papers has much more information about the conference and our vision for the conference, however, it’s also a work in progress. So, to that end, if you have any thoughts about what (or who) you would like to see featured here, please don’t hesitate to let me know (jena.martin-amerson@mail.wvu.edu).

As planning for the conference develops I will be sure to post updates here. So follow us to stay informed!

September is a beautiful time to visit. The mountains will take your breath away…
(photo taken from http://www.usapics.net/west-virginia-mountains.html)

With the introduction of Benefit Corporation legislation across America, the business world might want to brace for change. In December of 2012, the DC Council became most recent body to pass legislation allowing for the existence of Benefit Corporations as an alternative and innovative corporate form. The DC Council joined twelve states which passed similar legislation in the past two years and fourteen more states (including our own state of West Virginia) which are currently working on passing similar bills. This quickly emerging legislation recognizes the growing desire of some entrepreneurs and businesses to not only earn profits but also impact communities and the world at large in a positive way.

What exactly is a B Corp?

Some consider B Corps a kind of meshing of the for-profit corporation and the non-profit corporation. A B Corp commits itself to benefiting society, the environment, its workers, its community, and/or some other specific cause while still pursuing a positive bottom line. Some people say that B corps have a triple bottom line: people, planet, profit. The B Corps represents a new form of corporate entity that allows boards of directors to make decisions based on interests other than pure profit-maximization without the threat of litigation from shareholders. B Corps do not have the advantage of tax exemption like non-profits, and they are held accountable to their stated public-benefit commitment by an independent, third-party standard. In its certificate of incorporation, a B Corp must identify that it was formed to create a material positive impact on society. Basically, a B Corp is a form of incorporation which allows for stakeholder consideration along with that of the shareholders. Generally, B corps serve dual purposes. They not only intend to make money, but also to make a positive impact on the world around them.

What does the B Corp and the legislation mean?

The legislation and discussions of B Corps speaks to the growing interest in consumers to know about the companies and products they are supporting financially. Like the growth of the locavore movement, B Corps represent a new kind of consumerism and entrepreneurism. The B Corps seems to encapsulate the idea that making money and doing good can go hand in hand. Presumably, having a label as a B Corps will be an advantage in some markets against pure profit ventures much like an organic label can sway a consumer’s choice on how to spend her money. And, much like organic vs. non-organic companies, one does not preclude the other. The B Corp is simply another way to do business. At the end of the day, some people are watching where their money goes and are making consumer decisions based on the actions of the companies.

This legislation could be important for business as a whole because it allows some businesses a way to differentiate themselves to their investors, employees, and the community. It could also allow for transparency in an increasingly muddied marketplace where many companies claim to have jumped on the “green” or socially responsible bandwagon in order to increase profits. The B Corp label might allow consumers to make informed choices.

image from: http://www.thegoodneighborhood.com/2011/06/27/keepin-it-local-ppg-hosts-timely-tuesday-forum-on-benefit-corporations/

Christine Bader, one of the BHR scholars whom I have featured on this blog before, recently wrote a story regarding the relationship with businesses and human trafficking. Once again, this article pushes me to view BHR issues from a different lens. A rather consistent theme with her articles that I also explore here.

If you have a chance, the article is definitely worth a read.

The full article can be viewed here.

In their 2004 documentary The Corporation, Mark Achbar, Jennifer Abbott and author Joel Bakan delve into the ascent, characteristics, and downfalls of one of the most pervasive entities of the modern era: the corporation. The Corporation focuses on “corporations” and “corporatism” as a whole rather than dissecting any particular, singular business behemoth. In doing this, the film makers coerce viewers to think about the entirety of the issues associated with corporations rather than allowing us to point fingers at a single scapegoat. This film features an all-star list of contemporary political and economic thinkers such as Noam Chomsky, Michael Moore, Naomi Klein, and Milton Friedman whose commentaries intersperse with representatives from the corporate world. With the help from these folks inspired dialogue, the film weaves through a bevy of hefty topics such as pollution, sweat shops, privatization of natural resources, sustainable production methods, manipulative advertising to children, corporations’ effects on the biosphere, etc. In the mid-1800s, corporations were recognized as individuals in the legal system in the United States. This recognition gave them unprecedented rights and powers. Because corporations are thought of as individuals, one might wonder what kind of an individual would an entity be who has no feelings or central nervous system or an actual body. This is exactly the question that these filmmakers tackle in this two and a half hour film. The documentary uses psychiatric and psychological standards to determine that if corporations were actual individuals, they would be considered psychopaths. Everything from selfish decision making to lack of regret to unrealistic thought patterns points to psychopathic tendencies that are common amongst corporations. The Corporation has not only great breadth of topics, but also great depth. The film pinpoints specific instances of corporate ills. For example, featured throughout the film is the Bolivian workers’ struggle to regain rights to their water after a corporate privatization. Also, the film features an in depth story of investigative reporters from Fox News who got fired for refusing to disperse false information about Monsanto’s dairy cow antibiotics that were known to cause harm in humans. And, we also hear from an advertising firm who is willing to market to kids at all costs. The film succeeds in painting the modern corporation as a psychopath because is shows the lengths at which corporations will go to serve themselves above all else. The Corporation makes real the utter pervasiveness of corporations and their culture in the world today. The film seems to ultimately suggest that with such power and such beneficial legal status should come a responsibility to protect and respect her fellow citizens. One criticism I have of the movie is the one sided picture it presents. One of the most constant criticisms I have of right leaning documentaries and news coverage is how one-sided (and often inflammatory) they are. Intellectual consistency leads me to want the same thing even for those pieces with which I tend to agree more. One of the things that my time as an academic has taught me is that there is always nuance in an argument. Finding where those nuances are and using that to develop common ground would seem to me the best way to develop momentum and change.

One of the presumptions that has informed much of the work on corporate accountability for human rights violations is based on a variation of the classic “profit maximization” framework – namely that, because corporations are primarily focused on maximizing shareholder interests, corporate motivations necessarily eschew any social goals that conflict with the profit maximization mantra. This idea was made most famous by Milton Friedman’s article written in the 1960’s (and which I’ve covered here). However, other scholars have taken that idea and formulated some ancillary thoughts regarding the consequences of the profit maximization model for corporate behavior. Among the most popular iteration of that idea was done in the documentary The Corporation (which I’ll blog about next week), however, even before then, others have taken the notion of profit maximization through its intellectual paces using other disciplines as their foundation. One such article is covered here below.

In their Harvard Business Review article from1982, Kenneth E. Goodpaster and John B. Mathews, Jr. ask a significant question which also serves as the title of the piece: Can a Corporation Have a Conscience? . The men let the cat out of the bag early when they say, “Organizational agents such as corporations should be no more and no less morally responsible (rational, self-interested, altruistic) than ordinary persons.”

The authors define the responsibility of persons in order to properly project those responsibilities onto corporations: (1) people are held accountable for the decisions that they make, (2) people have responsibilities to others based on their relationships with them, and (3) people have responsibilities to make decisions. While it may be too big of a leap for some to transfer these individual qualities that represent responsibility onto corporations, the authors say that the shift is a valuable one and it should be made. They say, “If a group can act like a person in some ways, then we can expect it to behave like a person in other ways.”

To conclude the article, the authors tackle some of the objections to the analogy as corporations as a morally responsible “person.” One such typical objection is that corporations are just artificial legal constructs and not actual persons so they should not be held responsible like individuals. The authors rebut that notion by saying that nobody is considering corporations persons in a literal sense. But, there are certain aspects of corporations that function like those of people as in decision-making or goal creation. With these types of activities, a sense of responsibility can and should attach. Another common objection to the analogy is that businesses are by their very nature bigger and more powerful than individuals and to unleash their power in a morally forceful way could lead to “moral imperialism.” So this argument basically says that these corporations could throw their power behind some unsavory forces. But, the authors say that while this is a serious concern, it is important to note that power is affective whether it is purposefully wielded or not. Action and inaction can both speak volumes. Moreover, the idea of imperialism should be more feared when moral reasoning is absent than when it is in use.

The authors make clear that whether corporations like it or not, they are a force to be reckoned with in our society. Like any entity with power, corporations should recognize their responsibilities to the society they service and serve. And, in that recognition, they should use a moral and ethical vocabulary to reach the best results possible. That, in its essence, would be a corporation successfully using its conscience.

Goodpaster and Matthew offer foundational work that is later developed by Professor Joel Bakan in “The Corporation” in which he describes corporations as psycopaths. Stay tuned next week to see my review of the movie.