Corporate Social Responsibility & Human Rights. A critical review of the Guiding Principles on Business and Human Rights for implementing the UN “Protect, Respect and Remedy” Framework

Introduction

Over the recent decades, corporations have impressively increased their potential. Their exponential growth and enlarged powers, due to a privatization process, has impacted economic, political and social affairs around the globe. While the primary responsibility for the fulfilment, protection and respect of international human rights standards is still in the hands of sovereign states, there is a growing acceptance that corporations hold some level of responsibility as well. Accordingly, the emerged concept of Corporate Social Responsibility (CSR) [1]streamlines their responsibilities and duties on environment and social welfare. Nevertheless, their impact on human rights can be analysed in how corporations manage their human resources[2], especially within developed countries where often their production is relocated. In fact, “human resource systems affect corporate performance through the management and control of employee behaviours”.[3] As a consequence, international development goals such as poverty alleviation and health improvements[4]  can be related both to a positive management of employees (directly) and workers of suppliers (indirectly).  In addition to meet CSR objectives, managers exercise their discretion on intra-organizational stakeholder relationships, and in producing effective social outcomes involving extra-organizational stakeholders. Then, appropriate international regulations in defence of human rights appear even more meaningful in respect to such decisional power.

Guiding Principles on Business and Human Rights for implementing the UN “Protect, Respect and Remedy” Framework

In 2005, the UN Secretary-General Kofi Annan appointed Professor John Ruggie as UN Special Representative on business and human rights. Secretary General Ban Ki Moon has confirmed the assignment. One of Professor Ruggie’s main tasks is to “identify and clarify standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to human rights”.[5] Accordingly, in June 2008 Professor Ruggie presented the UN “Protect, Respect and Remedy” Framework to the Human Rights Council. His intention was to enhance the following three points: first the state obligation to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication; second the corporate responsibility to respect human rights, i.e. to act with due diligence to avoid infringing on the rights of others and to address adverse impacts that occur; and third greater access by victims to effective remedy both judicial and non-judicial. On 16 June 2011, the Human Rights Council adopted resolution 17/4 endorsing the Guiding Principles on Business and Human Rights for implementing the UN ‘Protect, Respect and Remedy’ (hereinafter the Guiding Principles). The principles represent the first and unique global standards for preventing and addressing the risk of adverse impacts on human rights linked to business activity. Their overall aim is to combat human rights violations in those countries where corporations usually relocate their production and in states where there is a combination of weak governance and little respect for human rights. However, they were not aimed at creating new regulations or filling any legal gaps, being an interpretation of existing international human rights instruments, codes of conduct and best practices.

The Guiding Principles make explicit reference to a “duty to protect” which means that states have legal obligation to protect their own population from human right abuses. In international law this concept has been broadly used in other contexts, such as the crime of genocide[6].  It is therefore meaningful to observe how this precautionary effect is now directed also to enterprises activities.

The core of the doctrinal discussion is whether companies are subject to any direct international legal obligation to respect human rights. Some authors convincingly provide a positive answer[7] while others sustain the opposite. The Guiding Principles prescribe that states (where the company is headquartered) should force companies to report on their social impacts and on those of their subsidiaries abroad.[8]However, while strongly encouraged, corporations cannot be compelled as the Principles are not legally binding. Authoritative doctrine argues that, as a consequence, a way to prevent and redress violations of human rights committed by companies outside their registration country is to adopt measures with extraterritorial implications or to assert direct extraterritorial jurisdiction in specific instances[9]. To some extent, it can be critically argued that the Guiding Principles open to series of alternative approaches instead of addressing the problem by themselves.

Corporate and human rights:  implications from the Bhopal case

Involvements of multinational corporations in human rights abuses obtains an international echo as they often reveal dramatic workers’ conditions (e.g. Nike in Asia, Shell in Nigeria, Union Carbide in India and Yahoo! in China). These cases are a testimony of how large multinational corporations (MNCs) are responsible for gross violations of human rights occurring within countries characterised by weak legal systems.[10] The issue is linked to a legal scenario which consequently underlines a lack of international law remedies, while criminal law is subsequently recalled to assess corporate’s responsibility. The Bhopal case (1984) has been the worst industrial accident in history. In December 1984 at the Union Carbide plant (an American corporation) in the city of Bhopal (India) 27 tonnes of methyl isocyanate (a deadly gas) was released, spreading throughout the city. As a result, it have been estimated 2,000 deaths and more than 200,000 people with injuries. The environmental consequences persisted over the years after the Union Carbide negligence, continuing causing respiratory problems, disabilities and unhealthy living conditions for the population. The case predates the Guideline Principles, but it is of great significant as it highlights both the problems in assessing the causes/responsibilities of such disaster and the procedural problems that occurred during the prosecution. The cause of the disaster remains under debate, thus the responsibility has changed over the years. On one side the Indian government and local activists argue that a lack of adequate management and deferred maintenance caused a backflow of water into a methyl isocyanate tank resulting in the disaster. On the other side, Union Carbide Corporation states that this was an act of sabotage, and not in any way related to its bad management. In establishing the guilt in such as corporate manslaughter case further difficulties were emerged. They included: the required mens rea of senior officers of the company involved; the access to internal corporate documents; extradition; debates on the doctrine of the forum non convenience[11]; class action lawsuits; the required political will from the country’s government to go after big companies despite the fear of investment backlash.[12] However, it should to be questioned if the dangerousness of Union Carbide’s plant would have been limited by following the Guiding Principle. Would they have been a strong enough determent[13] or the prospective of a lawsuit against a weak government like India would still have played an important role for respecting human rights?

Conclusions: respect of human rights as an investment?

Generally, companies recognise the importance of the rule of law in the context of their investments and operations around the world. The importance of a transparent, well-functioning and just legal system has been taken in consideration for attracting investments. The Guiding Principles are certainly a necessary legal resource in the International law scenario. States and companies are asked to operationalise their responsibility for human rights. Nevertheless, the lack of direct enforceability plus the wide decisional autonomy left to the states raise doubts on their effectiveness. Nowadays, several provisions of the Constitution of India are horizontally applicable against companies, for preventing abuses by business enterprises. However, the degree of fault required for a company’s responsibility could just as easily be a negligence or strict liability standard. Compare to that, the due diligence required by the Guiding Principle is still a vague concept. Certainly, it would not be enough to fix corporates’ misbehaviours. On contrary, ‘due diligence’ from the perspective of human rights could became a parameter for attracting investors and consumers towards more responsible realities of corporate managements.

[1] CSR is thought of as ‘‘corporate choices and behaviours that go beyond firm-specific economic benefit or focus’’ Berry, G. R. (2010). Improving organisational decision-making: Reframing social, moral and political stakeholder concerns. The Journal of Corporate Citizenship, 38, 33–48.

[2] Fisher, S. L., M. E. Graham, S. Vachon and A. Vereecke (2010). “Don’t miss the boat: Research on HRM and supply chains.” Human Resource Mangement 49(5): 813-828.

[3] Jackson, S. E., Schuler, R. S., & Rivero, J. C. (1989). Organizational characteristics as predictors of personnel practices. Personnel Psychology, 42, 727–786.

[4] Human Rights Watch (2002), The Enron Corporation: Corporate Complicity in Human Rights Violation , 23 January, available at: http://www.hrw.org/reports/1999/enron/

[5] The UN Commission on Human Rights adopted resolution E/CN.4/RES/2005/69 requesting “Secretary-General to appoint a special representative on the issue of human rights and transnational corporations and other business enterprises”

[6] See, for example, Articles 1, 5 and 6 of the Convention on the Prevention and Punishment of the Crime of Genocide, GA Res 260 A (III), 9 December 1948; Articles 2 and 9 of the International Covenant on Civil and Political Rights, GA Res 2200A (XXI), 16 December 1966, 999 UNTS 171; and Articles 1, 2 and 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, 213 UNTS 222; ETS 5.

[7] Clapham, A. (2006). Human rights obligations of non-state actors. Oxford: Oxford University Press

[8] Article 1 (obligation to respect human rights) of the European Convention on Human Rights (ECHR):

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention”.

[9] Bernaz, N. (2013), “Enhancing Corporate Accountability for Human Rights Violations: Is Extraterritoriality the Magic Potion?” Journal of Business Ethics, 117(3), pp. 493-511.

[10] Grear, A. (2007), “Challenging corporate ‘humanity’: legal disembodiment, embodiment and human rights”, Human Rights Law Review, Vol. 7 No. 3, pp. 511-543

[11] Janis M.W. (1987). The Doctrine of Forum Non Conveniens and the Bhopal Case. Netherlands International Law Review, 34, pp 192-204.

[12] International Commission of Jurists (2011), Access to Justice: Human Rights Abuses Involving Corporations: India: A Project of the International Commission of Jurists, p. 48, available at: http://www.icj.org/dwn/database/AccesstoJustice-India-ElecDist-July2011.pdf

[13] Fasterling, B., Demuijnck G. (2013), “Human Rights in the Void? Due Diligence in the UN Guiding Principles on Business and Human Rights”

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