Decolonizing the Business and Human Rights Debate: Need of the Hour!


The rise of transnational corporations (TNCs) as major players in the neo-liberal economic setup has shaken the existing power relations between State and Corporations. The constant forces of globalization powered by movement of ‘global capital’ is reshaping the influence of businesses over policy making. With these changes at play, the locus standi of human rights in the business sphere remain a moot point. Nevertheless, three decades of efforts to regulate TNCs resulted in the endorsement of the United Nations Guiding Principles on Business and Human Rights by the Human Rights Council.[1] After years of consultations with multiple stakeholders, John Ruggie managed to put together a set of guiding principles which reconceptualized the changing role of companies, state and businesses. But throughout this wave of optimism, a “top-down” approach towards formulating principles of business and human rights remained the preferred method of discussion. For far too long, this approach has dominated the foundation of various international texts. The principles seem far removed from the lived realities of the many it is supposed to help yet much scholarship revolves around the three pillars of the principles. This creates a need to decontextualize the Guiding Principles and provide an unbiased view of the same. To rethink the geographies of the emerging academic debates on the issue this comment will employ Third World approaches to International Law (TWAIL) to unearth the colonial roots of the debate surrounding business and human rights which has often prolonged the endless cycle of civilizing of the economies through constant contextualization of the topic.


Anghie argues that the extension of international law to the non-European world resulted in difference or othering of those who fell out of the realm of the European doctrines of international law. The European doctrine of International Law quite easily accommodated the role of corporations for the purposes of furthering colonization. Till date, the duties and responsibilities of corporations within International Law remains debatable and this grey area is under-explored because the behaviour of States towards corporate accountability remained lackadaisical for years. A framework intended to curb corporate wrongdoings which developed in a European context can somehow create concrete changes in the largely informally organised developing economies seems wishful, to say the least. Many corporations which have been accused of major human rights violations have remained immune to prosecution or criminal conviction, but the same corporations claim mainstreaming of human rights in their supply chains and in their off-shore subsidiaries for matters concerning corporate social responsibility. The simultaneous obligation of corporations to respect human rights and on the other hand in numerous cases corporations are held liable for damages creates a governance gap because the cycle of exploitation does not seem unbroken but merely continued.

The objective of decontextualization cannot be achieved without the wider understanding of the colonial roots of international law and debates surrounding it. The corporations which perpetuate the gravest of human rights violation remain headquartered in lands far removed from the reality of the spaces where the principles ought to work. The remediating mission proposed through the guidelines seems not to be working because there is clearly no metric with which one can say that the guiding principles have had the desired effect. The absence of any metric or measure by which one can judge the achievement of the remedies provided by the principles prompted the Human Rights Council to issue a report[2] regarding the same. It must be noted that creation of the Guiding Principles is not able to effectively mainstream human rights within businesses because they do not envisage informal economies within the imagination of the Principles. This is not to say that the effort put in is redundant. But there is a need to develop an alternative context where the relationship between the individual affected by the corporation and the principles is founded on a decolonized and equal footing.

The Past Failures: From UN Norms To UN GP

The failure to curb human rights abuses through “indirect regulations” was evident therefore the more “direct obligations” option was explored. During 1970s there were several attempts to frame some codes to regulate TNCs. Several international bodies again tried to draft an international code of conduct in 1980s. However, these remained unsuccessful attempts due to many reasons. To understand the build up towards the current context of the guiding principles it is relevant to re-read the past and see what went wrong in the building up of the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights” (Norms).


In 1998 the United Nations Sub-Commission on the Promotion and Protection of Human Rights in its Resolution 2003/16 approved the Norms. The Norms were an extraordinarily forward-looking document which informed the TNCs about their obligations towards citizens. Some scholars even considered the Norms as the “most promising” step towards establishing a binding commitment over the TNCs.[3] The Norms referred to several human rights institutions which reflected the expansive nature of international law in the post-cold war era. The move towards a binding obligation was an important step however there was stiff opposition from the TNCs as and when it was placed as a discussion paper. While the widening of the scope of legal liability of the corporations was reflected in the Norms, there were major doubts regarding the document itself. The operative part of the Norms contained positive duties on part of the corporations, but it also had many vague terms such as “primary responsibility”, “sphere of activity and influence” and an undeclared acceptance about the paradigm shift of the responsibility of protection of human rights from State to TNCs. In the increasingly complex business market, it’s almost impossible to know the contours of limitation of sphere of influence of a TNC’s business. This ambiguity regarding use of excessive legalism and reference to wide range of international human rights instruments added to the confusion. Lack of clarity as to the scope of liability became a major cause of dissatisfaction rendering the Norms to be rendered as of no legal standing by the Human Rights Council.[4] The Norms unduly degraded the status of States as primary holders of responsibility for protection of human rights. The Western governments vehemently opposed this downgrading of responsibilities from States to Corporations. The Norms did not conform to the positivist view of international law which coupled with the arbitrary and vague language made it difficult to be endorsed. For the given reasons, John Ruggie decided to start from the scratch and decided to not consider the Norms as the starting ground towards building up of the Guiding Principles.


The failure of the Norms reflected that the Corporations did not desire to be bound by any positive obligations. The Norms were developed in a context where the focus remained on the larger corporations. These larger corporations had influence on the lives of many beyond the confines of one particular country. The response of the western governments reflects that the dismissal of Norms was also because of the aligned interests of the corporations with the western governments. The Norms were created and dismissed not only for their vagueness but also because their seemed to be a lack of interest among the governments of the developing and underdeveloped economies regarding preservation of their interest. Ruggie mentions that “nearly fifty international consultations on five continents, numerous site visits to individual firms and local communities, extensive research, and pilot projects to road test key proposals” were consulted.[5] Even though scholars such as Carolin have suggested that “the process leading to the adoption of the Norms was inclusive and the consultation was broad” and views “from a wide range of stakeholders, including governments, NGOs and the business community, had been received.” However, a review of the submissions available reveal that hardly any governments from the Asian or the African continent bothered to submit. There could be many reasons for non-submission ranging from lack of political will to that of lack of financial resources. The submissions by the governments remain a critical pivot for solidification of the concept of a more western driven understanding of sustainability in businesses. Some Non-Governmental Organisations such as Christian Aid mentioned the need for focusing on the potential of UN Norms to specifically contribute to developing countries. Overall, the submissions by governments reiterated that states do not get displaced as primary bearers of responsibility for human rights. The top-down approach towards understanding human rights in business remained devoid of the participatory role which can be played by civil society organizations. Melish and Meidinger have argued that an explicit role of the civil society organisations within the guiding principles would have reinforced the mandate and sent a stronger message.  But that is a debate beyond the scope of this comment.

Human Rights v. human rights

There have been two major types of human rights practice which have influenced the formation of international texts as described by Jochnik. He has described it as the Human Rights (top-down) versus human rights (bottom-top). The difference as he explains is that the former is usually led by major Western civil society organizations like Amnesty International, Human Right Watch lobbying liberal democracies and engaging in formation of international rights framework. Whereas for the human rights camp, the approach has been to empower local stakeholders and movements through grassroots activism. The way the guiding principles had been drafted reflected a more top-down approach. Jochnik concludes that Ruggie’s approach “significantly delivered” for the Human Rights. A binary perspective resulted in the dominance of a narrow view as to how the texts would translate into reality. Ruggie preferred the idea of principled pragmatism which did not believe in the superiority of voluntary approaches[6] but believed on focusing “what works best in creating change where it matters most.”[7] One of the primary evidence of the top-down approach not having worked in to observe how the Third Pillar (Access to remedy) remains under implemented. The Working Group has explicitly stated that the right-holders should be offered a “bouquet of remedies” without ‘the fear of victimization’.[8]  The lack of effective implementation of access to remedies cannot be said to be a direct result of the drafting of the text but it is symptomatic of the absence of a localized understanding of the human rights risks and absence of approaching the issue of corporate human rights abuse in a wider sense. It is important to note that for any form of remedy to deliver it needs to remain diverse and dependent upon the cultural context, local beliefs and authorities. The emerging forms of remedies might not even conform to the context of the Guiding Principle but may prove effective. This creates a tension in how the Principles remained deep rooted in an understanding where the ideas of diverse forms of legal perspectives remain unaccommodated.

This problem remains stark considering the rights of the indigenous populations are affected by the operation of multinational corporations in their native lands. The imbalance of power between the stakeholders further exacerbates the issue. The non-recognition of land titles of the indigenous populations furthers denial of access to remedy. Such focused issues require innovative interpretation of the principles. Several international law principles which would be needed for implementation of the Principles are themselves colonial in nature. Doctrines of discovery and terra nullius deny indigenous population the rightful ownership of their land and weaken the case for access to judicial remedies and state’s duty to protect.[9] Anghie’s research elaborates how the colonial economies were open to Northern States and this continued despite the ‘grant’ of sovereignty. The power of these newly formed sovereign states was subdued with respect to their “dealings with foreign corporations”.[10] The Guiding Principles have also recommended creation of National Action Plans by States. Till date most of the NAPs have been created by first world countries which have the resources to conduct such detailed examinations. Some scholars have been fearful of NAP guidance being another tool of “inadvertantly neo-colonist” policies which will be “disguised as capacity building, substantially and unnecessarily narrow.”[11] 

It is imperative that the conversation surrounding business and human rights extends beyond the present narrative of a Western centric understanding of how companies should behave.



[1] United Nations, Office of the High Commissioner for Human Rights, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework’ (2011),

[2] UN A/HRC/32/19

[3] ‘UN’s Human Rights Norms for Transnational Corporations and Other Business Enterprises: An Imperfect Step in the Right Direction?’ (2004) 10 ILSA Journal of International & Comparative Law, pp. 493-523.


[5] John Gerard Ruggie (2014) Global Governance and “New Governance Theory”: Lessons from Business and Human Rights. Global Governance: A Review of Multilateralism and International Organizations: January-March 2014, Vol. 20, No. 1, pp. 5-17.

[6] Florian Wettstein (2015) Normativity, Ethics, and the UN Guiding Principles on Business and Human Rights: A Critical Assessment, Journal of Human Rights, 14:2, 162-182, DOI: 10.1080/14754835.2015.1005733

[7] Just Business: Multinational Corporations and Human Rights, John Gerard Ruggie (New York: W. W. Norton & Company, 2013


[9] – p. 33



Decolonizing the Business and Human Rights Debate: Need of the Hour!




“Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often a real loser in fees, expenses, and waste of time.”[i] (Lincoln 1850).

A recent article (Vohra 2017)[ii] pointed to the requirement of an evidence based approach towards understanding matrimonial cases and mediation. However, much needs to be understood about the requirement of inserting mediation through a legislation in the first place which has been done so through the Consumer Protection Bill, 2015. The Bill was first introduced in the Lok Sabha (House of the People) on 10th August, 2015. This bill is intended to overcome the problems which had emerged in the complex ever changing consumer rights landscape of India. The Bill includes various provisions such as establishment of Consumer Mediation Cell, Empanelment of Mediators, Preference for Nominating Mediators from Panel, Duty of Mediator to Disclose Certain Facts, Procedure of Mediation etc. One of the most striking feature in the Bill is the introduction of a dedicated chapter on mediation (Chapter V). This was done as per the recommendation of the Standing Committee on Food, Consumer Affairs and Public Distribution. The committee said that the Chapter on mediation was introduced so as to “give legislative basis to resolution of consumer disputes through mediation thus making the process less cumbersome, simple and quicker (Committee Report 2016).[iii] With the Bill pending in Parliament and scholarly criticism[iv] (Narsimhan 2015 & Pathak 2015) mounting, the provisions related to mediation also need to be critically analysed. The incorporation of the “mediation clause” in the Statement of Reason and Objects of impending Bill[v] prima facie is a commendable addition as it reinforces the importance of mediation while settling consumer disputes under the new Act. This article will explore the potential reasons as to why the introduction of mediation in the Act is unlikely to have any significant impact on the business community as mediation is already on the rise even without a legislative backing.


Mediation and The Business Perspective

The rising power of business entities in India coupled with the lack of consumer awareness about Alternative Dispute Resolution (ADR) mechanisms has resulted in companies having the upper hand when it comes to resolving consumer disputes. It is well known that litigation and not mediation is usually the preferred mode of settling disputes in India (The Hindu 2016).[vi] A study conducted by the Centre for Public Policy Research on Commercial Dispute Resolution in India found that companies and entrepreneurs continue to prefer litigation to Alternative Dispute Resolutions (Sivaraman 2017).[vii] Remarkably, negotiation (50%) and a combination of mediation and arbitration (20%) were the favoured choices for resolving disputes between parties. The study also noted the lack of compliance for ADR process and absence of judicial backing were the main reasons for adoption of formal litigation. It comes as no surprise that the astronomically slow wheel of justice has constantly shied the Indian consumers away from launching a formal litigation unless it is compelling to do so. In some cases, a meagre compensation is meted out and that too only after an arduous length of litigation in the Consumer Courts (Times of India 2015).[viii]

This is also obvious given that consumers do not really prefer to file cases in consumer forums unless it is “economically rational”[ix] to do so, especially when the other party is a ‘big business’. This idea of economic rationality which shapes consumer attitudes is bound to impact the proposed effect of mediation as provided for in the Bill and arguably, making insertion of mediation redundant. An analogy can also be drawn from the available data on civil litigation which highlights the attitudes of the Indian population towards going to courts. Eisenberg et al[x] show that there is a fall in the rate of civil litigation in lower courts and high courts in India the past decade. This study informs us that, broadly speaking, pursuing civil litigation is not the most preferred option when it comes to resolving disputes. Therefore, we can deduce that the behaviour of a litigant in India is usually to avoid litigation and this could be the reason why mediation can hold the key to the future of dispute resolution. It is necessary to raise consumer awareness through campaigns regarding mediation procedures alongside implementation of the provisions on mediation. Unless the fear of litigation and the myth of involvement of complex legal procedures is quelled amongst the consumers, mediation claims would rarely arise and businesses would prefer formal litigation. In a country where there is a problem of judicial pendency, mediation has the potential to become the source of respite from formal litigation. Yet, it should be noted that change in business attitude is more important than having a law per se. Unless this shift is achieved, it is unlikely that any progress can be made on the implementation aspect of the law.

Unequal Parties And The Statistics Behind

The imbalance in bargaining power between parties in formal litigation is also one of the vital factors which makes mediation an attractive alternative. The rise of e-commerce has resulted in an alteration of the nature of relationship between parties involved. In many cases the other party is a multinational company and for a consumer to mediate through an empanelled mediator might ease the inequality in the power dynamics. On a comparative scale, in countries such as United States where the law[xi] requires designing and implementation of various alternative dispute resolutions methods mediators have reported 80-90 percent success rate.[xii] This could be explained as the fear of reputation loss might be higher due to a brand image oriented consumer market. This focal point of difference in consumer behaviour pattern can be, along with other factors, the root cause as to why mediation has not taken off more widely in India. There is no doubt that the choice of going to a mediator seems to be one which is extremely appealing and can be the potent agent of change in consumer litigation but at the same time it is conditioned by external factors. Therefore, the very choice of going to mediation which is now made available through the legislation is a great step towards consumer empowerment. It is the opinion of some scholars that consumers would be attracted to online dispute resolution more than formal litigation due to its relative convenience, and significantly lesser cost. (Mann 2009)[xiii] However, it must be noted that mediation is on the rise even before the introduction of this Bill and a look at the General Statistical Report by the Bangalore Mediation Centre (hereafter BMC) reveals the same.[xiv]

Table I: Data on the mediations from 01/01/2007 to 28/02/2017 by BMC.

Title Data as per 28/2/2017
Cases referred for mediation 56759
Cases mediated 44385
Cases Settled 28685
connected cases 6885
Solved cases 35570
Cases not mediated 10039
Cases unfit for mediation 704
Cases discontinued as one or more necessary parties did not appear for a follow-up mediation 3706
cases could not be mediated as one or more necessary parties did not appear for mediation at all 3706
Pending cases 2335
Hours put in by mediators 102098
Average time (minutes per case) 146
Average number of sessions per case 1.26


The number of cases pending at the beginning of the period was zero and it is relevant to note that the BMC has referred to a total 56759 cases from 1/1/2007 till 28/02/2017. During this time period, 44385 (~78%) were mediated and 28685 (~65%) settled. In addition, 6885 connected cases were resolved making it 35570 solved cases. Of the 10039 cases not mediated, 704 (~1.24%) were found to be unfit for mediation and 3706 (~7%) discontinued as one or more necessary parties did not appear for a follow-up mediation. And 4425 (~8%) cases could not be mediated as one or more necessary parties did not appear for mediation at all. A total of 2335 (~4%) cases are still pending. The mediators have clocked 102098 hours in order to settle the disputes. The average time per case is of 146 minutes per case with 1.26 as average number of sessions per case. The data reflects that despite the absence of a legislation incorporating mediation it was already on the rise.

Lack of Research & Possible solutions

Despite the favourable statistics presented above, there is an absence of nationwide quantitative data.[xv] Much research needs to be conducted in this area especially outside the bounds of urban consumer courts. This further discourages the companies involved in litigation to pursue mediation as there is no evidence of the same being beneficial or preserving business resources. The need to pursue further research focusing how businesses perceive mediation while resolving consumer disputes is necessary to understand its impact on consumers. Any solution to consumer related disputes needs to have a two-way approach in order to preserve the interests of both the parties. One of the solution could be further amendment of the 2015 Bill to replace voluntary with mandatory mediation. There is research to show that there is no undue pressure to accept unfair settlements in mandatory mediation in the United States (Wissler 1997).[xvi] But it should be noted that mandatory mediation programs may produce a somewhat lower rate of settlement than voluntary programs in small claims and common pleas cases (Wissler 1997).[xvii] However, it should also be kept in mind that the study quoted was conducted in an American context and therefore taking inspiration from such research might not reproduce the same results in India. Mandatory mediation can be explored in resolving consumer disputes so that it would work in the best interest of businesses as well as the consumer. A second possible solution could be resorting to online mediation. It defies common logic to notice that at a time when High Courts are serving summons to people through WhatsApp,[xviii] why cannot we implement a system whereby disputes can be resolved online or through simple mediation procedures? The advantages of shifting the mediation proceedings online are quite apparent considering the rising penetration of internet in the country.[xix] Not only would it reduce the time taken to redress the dispute but online mediation would also significantly improve access to justice. One of the initiatives of moving towards online mediation is through establishment of the Online Consumer Mediation Centre (OCMC) at National Law School of India University, Bengaluru under the aegis of Ministry of Consumer Affairs, Government of India. The aim of the Centre is to provide “for a state-of-the-art infrastructure for resolving consumer disputes both through physical as well as online mediation through its platform.[xx] This along with other initiatives such as the effort by the current government to push for digitalisation of the court system and the launch of “Tele Law” program reflects the ongoing thrust for a futuristic court system. The Tele Law program, established in partnership with National Legal Services Authority (NALSA), attempts to ease the delivery of legal aid by expert panels of lawyers stationed at State Legal Service Authorities, through digitally furnished Common Service Centres (CSCs). Armed with a team of 1,000 para-legal and video conferencing facilities, these CSCs are expected to enable community participation and capacity building in rural regions and will be launched as a pilot project in 1,800 gram panchayats across the nation.[xxi] Integration of mediation facilities within this system can be envisaged. This seems to be an apt time for pushing online mediation and promoting it within the government’s e-court framework. Despite the numerous hurdles, the very introduction of mediation is a bold step and a welcome change. It is surely on the rise as the data suggests and the legislation might end up acting as support mechanism rather than the driver for change.



[i] Abraham Lincoln, Fragment: Notes for Law Lecture (ca. 1850), 2 The Collected Works Of Abraham Lincoln 81, 81 (Roy P. Baseler, ed., Rutgers University Press 1953). These wise words spoken by Mr. Lincoln 167 years before this article was typed and it highlights two major points. Firstly, a compromise between the parties is the best solution to a dispute. Secondly, litigation is a waste of time and money.

[ii] Kritika Vohra, Mediating Matrimonial Disputes in India, Vol. 52 Econ. Pol. Wkly. (2017).

[iii] The Consumer Protection Bill, 2015 (16-9) Dept. of Consumer Aff. (Standing Committee Report) April 2016 (India) at 10.

[iv] Sakuntala Narasimhan, Consumer Protection Act An Unequal Fight, 50(5) Econ. Pol. Wkly. 20, 22 (2015); Akhileshwar Pathak, Amending the Consumer Protection Act, 1986, 50(43) Econ. Pol. Wkly. 27, 28 (2015).

[v] Consumer Protection Bill 2015 reads as:

“…[T]he provision of ‘mediation’ as an Alternate Dispute Resolution Mechanism has been added… aimed at giving legislative basis to resolution of consumer disputes through mediation, thus making the process less cumbersome, simple and faster.” (Emphasis supplied)

[vi] Editorial, Mediate, not litigate, The Hindu (May 15, 2016),

[vii] Madhu Sivaraman, Declogging Courts: Divert All That Can Be Diverted for Arbitration And Mediation, Swarajya Mag. (May 25, 2017), (Last Visited May 30th, 2017).

[viii] Vaibhav Ganjapure, Dry cleaner to compensate for damage to saree 18 years ago, Times of India (Oct. 2, 2015) (State Consumer Disputes Redressal Commission, Nagpur Circuit Bench, directed a dry cleaner to pay total damage of over Rs 7,000 for “deficiency in service” after 18 years.).

[ix] Robert S. Moog, Democratization of Justice: The Indian Experiment with Consumer Forums 142 in Beyond Common Knowledge Empirical Approaches to Rule of Law (Jensen & Heller eds. 2003). See also, Robert Moog, India’s Consumer Forums: Access and Justice for a Reasonable Price? at Centre for Law & Policy Research (June 5, 2013).

[x] Eisenberg Theodore, Sital Kalantry & Nick Robinson, Litigation as a Measure of Well-Being, 62(2) De paul L. Rev. 247–92 (2013). Work also cited in Alok Prasanna Kumar, Are People Losing Faith in the Courts? 52(16) Econ. Pol. Wkly 10-11 (2017).

[xi] Judicial Improvements Act of 1990, Pub. L. No. 101-650, tit. I, 104 Stat. 5089 (codified at 28 U.S.C. §§ 471-482 (Supp. 1992). The Civil Justice Reform Act addresses the dual problems of cost and delay in federal civil litigation.

[xii] U.S. Dep’t of State, Mediation and the Courts 4(3) Issues of Democracy 15 (1999).

[xiii] Bruce L. Mann, Smoothing Some Wrinkles in Online Dispute Resolution, 17 Int’l J.L & Info. Tech. 83, 84 (2009). (“Most people in a dispute would likely be more attracted to online dispute resolution than formal litigation because it is less costly, more convenient, operates outside the formal court structure, and does not require legal representation.”); An Online Consumer Mediation Centre (OCMC) is established at National Law School of India University, Bengaluru under the aegis of Ministry of Consumer Affairs, Government of India which could really be the starting point of a revolutionary mode of settling consumer disputes.


[xv] Alok Prasanna Kumar et al., Strengthening Mediation in India: Interim Report on Court Annexed Mediation (2016),; Vishnu Konoorayar et al., Alternative Dispute Resolution in India – ADR: status/effectiveness study (2014). Interestingly, the data available is usually restricted to urban metropolitan cities which also reflects the structural urban bias.

[xvi] Roselle L. Wissler, The Effects Of Mandatory Mediation: Empirical Research On The Experience Of Small Claims And Common Pleas Courts, 33 Will. & Mary 565, 565 (1997).

[xvii] Id.

[xviii] Online Desk, Bombay High Court Sets New Precedent, Serves Summons Via WhatsApp, The New Indian Express (Apr. 28, 2017),

[xix] Mary Meeker, KPCB-Internet Trends 2017-Code Conference (2017),

[xx] NLSIU, Online Mediation Website,

[xxi] Sayan Ghosal, Law Ministry launches digital initiatives for legal access in rural areas, Bus. Standard India, (April 21, 2017),       (last visited May 2, 2017).