The Business of Human Rights

On February 14, 2013, the United Nations Human Rights Office of the High Commissioner for Human Rights consulted with stakeholders on the Working Group’s most recent report concerning the U.N. Guiding Principles. Specifically, this round-table focused on indigenous peoples and business and human rights issues. The specific stakeholders include indigenous peoples, States, business enterprises, and other organizations. Although no proceeding have come out (that I can find) these are the issues that were placed on the agenda:

“1) Focus: What specific issues and challenges should the Working Group take into account in drafting this report?
2) Existing guidance and standards: What existing standards and documents should the Working Group take into account in drafting this report?
3) Existing practices and initiatives: What existing practices and initiatives should the Working Group take into account in drafting this report?
4) What focused insight can the Working Group bring to the issue of business impacts on indigenous peoples, given the role and thematic scope of other UN bodies on the rights of indigenous people?”

I’m looking forward to hearing what the outcome of the proceedings are . The groups and peoples that have been invited to participate all have their own agendas and interests. While I think this trend is changing, I think that traditionally indigenous peoples have not been invited to participate in a conversation of this magnitude about business and human rights. Some of the questions that this meeting raises touch on business and human rights paradigms but also crosses literature on other topics and other disciplines. Specifically, while the actions of the corporations certainly affect indigenous communities,how do you address the diverse nature of each of the communities. While some of the issues that are being face exist across cultures, many of t hem are specific to the State where these indigenous communities are located, sometimes even within state. Is the report seeking to address these issues in the specific or is it trying to achieve a more universal framework? Will the outcome of this report reflect a general consensus, unanimity or dissension?

Needless to say, I’m looking forward to seeing the final report.

Business & Human Rights: Another Shot at What Makes An Issue A Business & Human Rights Issue


This blog is focused on business and human rights, but what does that mean? For someone like me who has focused a lot more on business law than human rights law, it raises a whole host of questions. I suspect (perhaps because of my business law background) my view of business and human rights issues is much narrower than others who concentrate their efforts in this area.

In an earlier post, Jena noted, I think correctly, “[U]ntil you get the relevant constituencies to understand just how broad based the idea is of what constitutes a potential ‘human rights impact’ for businesses, you won’t be able to bring together all of the parties who can contribute to a solution.” I agree, but I would argue this is a different issue than determining what is a business and human rights issue.

For me, it is worth narrowing the field of business and human rights to cover those issues that raise unique and specifically business-related human rights violations. Thus, I would draw a distinction between a “business and human rights” issue and human rights issues that happen to intersect with the business world. These latter issues are not less significant than business and human rights issues. Instead, they are broader human rights issues that are not unique to businesses or how they operate on a global stage.

I recognize the risk that narrowing the scope can marginalize, or at least minimize, concerns about the issue raised. On the flip side, though, one can go in the other direction by being over inclusive and convert business and human rights issues into what amounts to issues related to the human condition. A holistic view has its merits, but I am of the view that narrowing the field to more business-specific concerns is more likely to lead to significant improvements in the nearer term.

On Wednesday the College of Law was incredibly fortunate to have Walter Echo-Hawk come and speak as part of theCOL’s McDougall Lecture Series. For over thirty five years Mr. Echo-Hawk has been working on litigation and legislation that affect the Native American community here in the United States. He is also an accomplished scholar (I picked up his book, In the Courts of the Conqueroryesterday and can’t wait to read it).

Wednesday’s lecture should be of particular interest for those who practice in the BHR area. The UN has identified business and human rights impacts vis a vis indigenous communities as an area of particular concern that they would like to assess over the coming months. Justice Echo-Hawk’s comments on The Rise of Human Rights in Native America provided a timely discussion of a paradigm shift that is beginning to happen in indigenous communities worldwide.

From Left to Right – Dean Joyce McConnell, Justice Walter Echo-Hawk, Prof. Bonnie Brown and Associate Dean Anne Lofaso 

His talk explored issues of racism, colonialism, protective features of federal Indian law as well as how emerging norms under international law for indigenous communities can help inform how we address our legal structures here. Truly, I cannot do his talk justice. If you have an hour to spare, I highly recommend that you see it for yourself.

Part of what often gets lost in the business and human rights debate is that there are corporations where the firm is actually keen to be responsible for preventing human rights abuses when they can. These companies usually start with strong leadership at the top that sets the tone for what is acceptable and what isn’t.

I remember as a little girl watching the Tylenol murder incident (where people were poisoned with cyanide placed into Tylenol). I specifically remembered the CEO, James Burke, speaking on television and accepting full responsibility for what happened. Thirty years later this still sticks with me.

The interview below (with Spanish subtitles for anyone who prefers that) is with Burke. In it, Burke discusses the qualities of Johnson and Johnson’s culture and how it led to the action they took when the Tylenol incident occurred. For people like me, who look to business for leadership on human rights issues, Burke’s comments are encouraging.

On January 15, 2013, the faculty of the WVU College of Law had the privilege of hosting international law scholar and Indiana University professor Karen Bravo. Bravo discussed her current research in her talk entitled Illicit International Markets. While Bravo says that she does not emphasize human rights but rather the flow of goods and services, the three examples of illicit markets she highlighted were had significant human rights implications. First, Bravo talked about the phenomenon of “wombs for rent” – is a growing population of low caste women in India who are willing to serve as surrogates for a price. Second, she touched on organ harvesting and the black market surrounding people willing to sell their kidneys. Finally, Prof. Bravo mentioned Kenyan villagers harvesting ivories from rhinos and elephants to sell in the Asian marketplace.

Bravo’s discussion focused on the interplay between illicitness and illegality, and how they function – both together and separately. She made clear that not all illicit markets are illegal especially in a global economy and vice versa. The illicitness of a market really depends on the perceptions of the society within which it exists. Perhaps moral condemnation exists or the nature of the dangerousness of the product deems it illicit. Perhaps no positive law regulates its presence in the market and that makes it illicit. Mostly, the illicitness stems from ideas of culture and cultural norms. Because illicitness is not a concrete characteristic, it can be a fluid concept especially when tied into illegality.

Bravo’s discussion of the American drug war and how it has shaped the international market was especially compelling. She noted that sometimes the illicitness or even the illegality of a thing in a certain market can make it that much more profitable and desirable to produce in another place. She also noted that oftentimes, the market will create complimentary illegal activities. For example, drugs and violence go hand in hand and seem to perpetuate one another. While the worlds of illicit and illegal markets are not synonymous, they frequently collide and co-exist.

Ideas of trade and non-judgment were also themes that ran through the discussion of the day. Goods that are coveted and readily traded in one culture (such as the ivory trinkets in Asian markets) may be deemed illicit and/or illegal in another culture. However, because the market exists, a provider will exist as well. That provider or harvester of the ivory might have other options of employment and they might not, but whose ideas of illicitness or illegality should be imposed upon him as he carries out the tasks of his occupation?

As part of my ongoing literature review section, I wanted to highlight a relevant BHR article by Tom Campbell.

In his April 2006 article entitled A Human Rights Approach to Developing Voluntary Codes of Conduct for Multinational Corporations in the Business Ethics Quarterly, Tom Campbell uses Voluntary Codes of Conduct (“VCCs”) to highlight many of the issues that the “Respect Framework” and the “Guiding Principles” later address at the UN level. Campbell discusses a general disinclination of host countries to regulate Multinational Corporations (“MNCs”) because of their economic impact. But, he also describes the need for MNCs to be held accountable for their practices especially on a human rights level. In that regard, this article is insightful and forward-looking on the issues currently at the heart of the business and human rights debates.
-Campbell suggests inserting specific human rights language in eachVCC that will give MNCs better ideas on how adhere to human rights.
-Campbell describes that VCCs can be a “functional alternative to legal regulation” or a stopgap where there is a void in regulation, act as a supplement to a regulatory, or monitor and regulate behaviors of MNCs .
-Campbell makes clear that in order for human rights to be taken seriously in the context of VCCs, the individual rights that pose the greatest concerns in any given MNC should be stated with specificity.

About Tom Campbell: Tom Campbell is the director of Business and Professional Ethics at CAPPECharlesSturt University. He has written extensively on law and legal philosophy. He was the dean of the Dean of the Faculty of Law at ANU in the mid-nineties. He also on the Australian Alternative Bill of Rights.

Greeting fellow intrepid travelers,

In last week’s blog post, I discussed the idea of what is (and should be) considered a “business and human rights” issue. Among the things that I flagged that people have discussed as a BHRare: (1) tax avoidance by multinationals; and (2) diversity on corporate boards.

There were others, but I bring these two specific examples up because, it raises an interesting question for me. (As an academic, I’m allowed to think about interesting questions). That is this – by including such far-reaching issues in our BHR agenda, are running the risk of diluting the BHRmission as a whole?

In writing this blog for the past few months, I have sort of taken it as a given that my readers were starting from a common understanding of what the landscape of business and human rights is to most people. However, in discussing my research with a colleague over lunch last week, I realized that my understanding may not be universal. I was going on about my latest idea for business and human rights and with one very simple (and incisive) question he brought my rambling to a halt: “Can you give me some examples of business and human rights?” The example I gave him (its one of the scenarios discussed below but I’m not telling which one it is until next week) provided a direct link between businesses and the human rights impacts they can create.

But this conversation also gave me pause. Specifically, it made me wonder what other scenarios might be considered human rights violations? The issue can have very real consequences. One of the challenges that I found in doing this work is that many people who write on issues that touch business and human rights (labor scholars, trade practitioners, investment experts) may not even realize that they are writing on a “business and human rights” issue. That’s one reason that this is such an exciting field – it is incredibly dynamic. But it is also incredibly challenging, not least of all because it’s an additional obstacle – trying to get everyone to sit down and have the conversations that are needed.

Let me illustrate with a question: Which of the following issues could be labeled “Business and Human Rights” (or BHR as I have taken to calling it)?

A. A Dutch multinational company hires off-duty military personnel to act as security in an unstable community. The security officers assault, torture, and intimidate a number of people in the community.

It’s the last weekend of 2012, and by now I’m sure you’ve been inundated with top ten lists. However, if you’re like me, you have never before seen a “top ten” list on business and human rights issues. Until now.

This year, not one, but two organizations have come up with a “top issues” list for 2013. Charles Borden and Schan Duff (of the law firm of Allen Overy) prognosticated their Top 5 Human Rights Issues for Businesses. The article appeared in the law firm’s inaugural Business and Human Rights Review. Meanwhile, the Institute for Human Rights and Business, created not only a top ten list but disseminated it with video, thereby guaranteeing its relevance to a younger generation.

  

I won’t give away their views on things (you’ll just have to access them yourself), but, I will say this – the tenor of each of these lists seems to reflect the various markets/readership/clientele base that are at each organization’s core. As a result, there are no overlapping issues in these two lists. There is nothing ground breaking about this insight – that an organization will cater to its core audience (which lucky for me, since I don’t have an audience, I can mainly write this for myself). However, it does reflect what I think is the greatest challenge for BHR in moving the issues from principles to implementation. That issue is this – finding a means to translate BHR issues in a way that both human rights advocates and businesses can understand. So, for instance, how do “corporate governance risks” and “forced labor” issues relate? How can you get both sides to understand that, while human rights due diligence and corporate due diligence are very different things, the policies and operations that companies must institute to guard the former will almost invariably help the latter? How do you get an executive to address the needs of victims or communities in rhetoric (and actions) that they understand, instead of using a “corporate speak” that will almost assuredly alienate those communities?

Next Week – we transition to 2013 with various commentators’ top five lists of BHR issues for 2013. Stay tuned.

Picture of Christine taken from http://www.ihrb.org/images/commentary/guest/Christine_Bader_235.png