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

Abstract

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.

Background

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.

 

BIBLIOGRAPHY

[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.

[4] ap.ohchr.org/documents/E/CHR/decisions/E-CN_4-DEC-2004-116.doc

[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

[8] https://documents-dds-ny.un.org/doc/UNDOC/GEN/N17/218/65/PDF/N1721865.pdf?OpenElement

[9] https://www.iwgia.org/images/publications//0684_IGIA_report_16_FINAL_eb.pdf – p. 33

[10] https://www.elgaronline.com/view/journals/jhre/3-1/jhre.2012.01.01.xml#ref_bib-106

[11] https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2382&context=ilj

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

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