This chapter provides an overall context for the book. After tracing the transition from ‘business or human rights’ to ‘business and human rights’ (BHR), it highlights certain prominent strands of the current BHR discourse which are problematic. For example, narratives around the ‘business case for human rights’, multistakeholderism and ‘smart mix’ regulation may mask an attempt on the part of businesses to control the narrative of human rights and undermine both rights and rightsholders. The recent focus of business leaders on the ‘purpose of the corporation’ should also be seen in this light and taken with a pinch of salt. Against the backdrop of this worrying trend, the chapter outlines what ought to happen in future to make transformative changes to the role and purpose of business in society and how corporations are run in a humane manner. The chapter also provides a brief description of other chapters contained in this Handbook and sketch some of the other BHR themes or issues that are not dealt with in the book, but deserve serious attention.
There is a tendency today to interpret business and human rights (BHR) as a part or a subset of broader corporate social responsibility (CSR) approaches. However, a closer look at the history of both discussions shows that the relationship between CSR and BHR is more complex. While the two movements may seem similar, compatible or complementary in promoting responsible business conduct on the surface, CSR may turn out to be counter-productive to the BHR agenda at a more fundamental level. The argument supporting this view proceeds in three steps. First, the chapter traces the historical evolution of the BHR movement from its origins to its current institutionalization in policy, in practice and as an academic field. The second step outlines the main conceptual and practical differences between BHR and CSR. More specifically, it substantiates the view of BHR as a critique of CSR and elaborates on CSR’s potential to slow rather than to bolster and support current progress in BHR. This second step is informed by the historical insights in the first part. The third step draws some conclusions and implications from the first two. Specifically, it briefly outlines and assesses three different scenarios for the future of BHR: (1) coexistence between the two discussions; (2) cooptation of BHR by CSR frameworks; (3) replacement of CSR by BHR.
Beginning in 1980, survivors of human rights abuses have used an eighteenth-century US statute, the Alien Tort Statute (ATS), to seek civil remedies in US courts. While the early cases were filed against individual defendants, lawsuits in the 1990s began to target corporate defendants. Although the US Supreme Court affirmed the application of the ATS to human rights claims in a 2004 decision, decisions issued in 2013 and 2018 sharply restricted the scope of the ATS. Under the new interpretation of the statute, only a handful of cases are likely to survive. This history reflects a path common to the struggle for human rights accountability. Survivors of abuses and human rights advocates seek means to hold perpetrators accountable and to deter further abuses. Efforts that have even limited impact are quickly duplicated by others. As the initiatives multiply, they provoke a backlash that limits their reach. Despite the setbacks, these efforts to hold perpetrators accountable inspire new, creative responses. True to this model, ATS litigation played an important role in the movement towards corporate human rights accountability. The cases contributed to rapid growth in the use of litigation to challenge corporate abuses. And fear of litigation provided an incentive for corporations to participate constructively in multiple business and human rights initiatives. This chapter traces the rise and fall of the ATS as a mechanism to hold corporations accountable for human rights abuses, from its enactment in the eighteenth century to the Supreme Court decisions that limited the modern application of the ATS.
John Gerard Ruggie
The chapter is organized into six parts, including an Introduction. Section II highlights some of the broad systemic factors that shaped the global economy and polity from the 1990s into the mid-2000s, the peak of the most recent wave of globalization. Section III summarizes the key features of two very different UN-based initiatives proposed around the turn of the century, both seeking to better protect human rights from corporate harm: the ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ (Norms) and the UN Global Compact. Section IV outlines and illustrates the conceptual constructs underlying the development of the Guiding Principles, while Section V does the same for their dissemination and implementation. Section VI, the Conclusion, offers some reflections on the Guiding Principles’ experience for this and possibly other complex and contested domains of global rulemaking.
Mark B. Taylor
The spread of human rights due diligence has been one of the important innovations in recent efforts to secure responsible business conduct. Human rights due diligence encompasses not only the investigation and the identification of risk, which is a practice common to other forms of due diligence, but it describes the internal systems that can form the basis to transform business practice towards ongoing respect for human rights. The chapter locates human rights due diligence in the overall normative framework set out by the UNGPs and explores key concepts central to human rights due diligence, in particular the notions of respect, responsibility, risk and leverage. The chapter also considers due diligence a regulatory technique used in policy and law to encourage business respect for human rights in the context of transnational systems of production. The chapter considers some of the critiques of human rights due diligence and suggests that the ways in which human rights due diligence will be regulated and enforced will display significant levels of diversity, even as the core elements of due diligence – self assessment, actions to respond to risks detected, accounting for those actions – are likely to remain at the heart of definitions of responsible business.
Justine Nolan and Nana Frishling
Supply chains are an essential feature of today’s global economy and growing demands for corporate human rights accountability are now enveloping the myriad of corporate actors and activities within a company’s supply chain. Human rights due diligence is increasingly seen as the primary tool to address corporate accountability for human rights violations in the supply chain. This chapter elaborates on the continuing refinement of the parameters of due diligence and highlights some of the emerging best practice standards, such as the recent guidelines published by the UN and OECD. It then turns to examining how human rights due diligence is being implemented, and the gap between theory and practice. Evidence suggests that companies are primarily relying on social auditing as the mechanism for implementing due diligence. We argue that the continued reliance on social auditing as a primary tool for conducting due diligence is not likely to lead to better outcomes for the rights of supply chain workers because social auditing is, in and of itself, an ineffective tool for achieving meaningful and consistent human rights improvements.
Mia Mahmudur Rahim
This chapter delves into the initiatives to build a ‘decent work’ environment within the supply industry, using the Bangladesh RMG industry as a case study. It postulates that the government, employers and global buyers/retailers lack a sustained commitment to build a supportive environment to safeguard workers’ wellbeing. The related legislation in this regard is far from exhaustive. The employers in this industry consider their workers as a ‘fixed cost’, whereas the governmental agencies which protect workers’ rights are either corrupt, inefficient or inadequate. The chapter ponders upon the immediate need for this industry to institutionalize certain mechanisms to create active sociopolitical dimensions in labour administration. In this regard the labour relation regulation for the RMG industry may espouse the ‘new governance’ approach in labour relations, which is backed by the rulemaking power of the government. This approach exhorts the key stakeholders to rely on each other and work together on strategies designed to reach a common goal. Incorporating such approach in the labour relations of the global supply industries in developing countries can progress the creation of a ‘decent work’ environment through raising trust among the stakeholders, securing a sustained commitment of the principal actors and also creating sociopolitical facets in labour relations.
Daniela Chimisso and Sara L. Seck
Extractive industry operations have been associated with allegations ranging from complicity in egregious violations of international criminal and humanitarian law norms to violations of indigenous and local community environmental rights, as well as sexual violence perpetrated by security forces. Smaller extractive companies active in both the global north and the global south are equally implicated in rights violations, perhaps especially at the exploration stage. Less often considered, but crucially important, is the pressing problem of human rights violations arising from climate change that is a consequence of cumulative greenhouse gas emissions that are the product of the fossil fuels extracted by the oil, gas and coal industries. Extractive companies and their industry associations, as well as home state governments and international organisations, have been actively promoting human rights due diligence (HRDD) tools to prevent and even remedy select rights violations. This chapter examines these tools and their implementation in the extractives sector. The chapter first considers the wide ranging nature of human rights violations associated with extractive industries, drawing upon selected case studies. The chapter then examines the history of the use of risk assessment tools by extractive industries, and the relationship between environmental and social risk assessment and HRDD tools, including human rights impact assessment (HRIA). Finally, the chapter considers the limitations of current practices, including the overly business-centric nature of HRDD, as well as some lacunas in HRDDs with regard to environmental rights, gender equality and climate change.
The aim of this chapter is to analyse whether the business and human rights agenda is well served with national laws that focus on disclosure. The chapter will focus primarily on rules being implemented in the United States at both the subnational and national level; however, it will also discuss approaches being used in European jurisdictions such as the United Kingdom and France and the overall trend towards a transparency model for human rights protection from business activities. The increased use of disclosure-based regulation (and the resulting compliance efforts by corporations) seems to come, at least in part, as a result of the efforts by States to address the duties laid out for them in the UN Guiding Principles. As such, it seems appropriate to undertake an analysis regarding whether these laws are in fact effective at implementing the Guiding Principles. For decades now, disclosure has been held out as the ultimate curative for every corporate woe. The expansion of disclosure initiatives from mere investment-related issues to, increasingly, social policy issues would indicate that this trend will continue. Yet as this chapter demonstrates, disclosure right now is, at best, a temporary stopgap measure that can lead to limited corporate change on the issue of business and human rights. At worst, disclosure is being used by corporations as a way to obtain a reputational advantage without actually making substantive changes – by simply hiding in the light.
International law governing state jurisdiction over transnational business and human rights is not frozen in some fixed set of rules. The law evolves to reflect ongoing efforts to balance state interests in sovereignty with protection of human rights in a globalized economy. There is an inherent ‘governance gap’ between territorially bounded states and transnational business. One way to close this gap is for states to exercise jurisdiction over and to regulate transnational business activities. Present trends are shifting against impunity, albeit gradually and in a piecemeal way. International law today broadly permits, generally encourages and sometimes obligates states to exercise regulatory and adjudicatory jurisdiction over transnational business activities emanating from or affecting their territories. First, general international law permits states to exercise jurisdiction over transnational business activity, at least so long as there is a ‘reasonable link’ between the state and the activity, and a recognized basis for jurisdiction. Recognized bases include at least territorial, ‘active personality’; ‘passive personality’; and ‘effects’, ‘protective’ and ‘universal’ jurisdiction. Second, States are encouraged to exercise jurisdiction over the human rights impacts of transnational business activity by international guidelines such as the United Nations Guiding Principles for Business and Human Rights. Third, States are obligated to exercise jurisdiction over aspects of transnational business activity by various human rights, universal jurisdiction, and regional treaties, and arguably also by general principles of law. If human rights are to be shielded from infringement by transnational business, present trends toward greater embrace by states of their transnational jurisdiction and responsibilities must continue.