This paper considers the UN efforts to introduce a legally binding Treaty on corporate accountability for human rights impacts in the context of other proposed legislation at country level, on the one hand, and existing voluntary initiatives like the UN Guiding Principles (2011), on the other. What we are interested in is whether the proposed Treaty signals a transition from voluntary initiatives (based on moral commitments) to law (that is, a focus on compliance), and the extent to which it might stimulate or hinder links between judicial and non-judicial initiatives. The scholars who have explicitly addressed these two divides are – Michael Sandel, on theory v. practice; and Amartya Sen, on law v. morality. We engage with their views, in sections II and III respectively, seeking to build an integrated approach to help us overcome these dualisms. We further consider John Ruggie’s “principled pragmatism”, a strategy that he uses to build the Protect, Respect and Remedy (henceforth, PRR) Framework; and we invoke arguments from casuistry as well as a practice-focused deontology (Thomas Donaldson’s) in favour of an ethics ‘beyond cognition’, which we consider better suited than either utilitarian or principle-based theories to guide the debate on human rights. This is because it allows us to take non-rational factors into account (such as emotions and personal affiliations), when judging the kind of common good we consider worth pursuing. In the last section of the paper, we investigate whether and how might the Treaty illustrate the two divides, trying to (a) distinguish between purely legal elements and those of a wider nature, to do with morality; and (b) understand what might help bridge the gap between theoretical commitments to the universality of human rights and various practical challenges. Our aim is not to evaluate the Treaty, from a legal viewpoint, or suggest improvements to it (lawyers are better placed to do that); rather, we seek to investigate the way in which the proposed Treaty – which is the first attempt to address the challenge of transnational business and human rights in international law – combines moral and legal aspects, and what this tells us about the world we live in.
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Ruggie explains: “legally, the parent company and each subsidiary are construed as a ‘separate legal personality’, subject to the individual jurisdictions in which they are incorporated. Therefore, the parent company is generally not liable for wrongs committed by a subsidiary, even where it is the sole shareholder, unless the subsidiary is under such close day-to-day operational control by the parent that it can be seen as being its mere agent. This makes it extremely difficult for any jurisdiction to regulate the overall activities of multinationals, and it can prevent victims of corporate-related human rights abuses from obtaining adequate remedy” (2013, p. xxxiii)
The 2013 Resolution, titled “A modern understanding of CSR”, “Emphasises that the current global economic crisis arose from fundamental errors with respect to transparency, accountability, responsibility and from short-termism, and that the EU has a duty to ensure that these lessons are learnt by all (…); strongly advocates corporate social responsibility (CSR), and takes the view that CSR – if implemented correctly and practised by all companies, not only larger firms – can make a great contribution towards restoring lost confidence, which is necessary for a sustainable economic recovery, and can mitigate the social consequences of the economic crisis; notes that when business assumes a responsibility for society, the environment and employees, a win-win situation is created that serves to broaden the basis of trust necessary for economic success; takes the view that making CSR part of a sustainable business strategy is in the interest of businesses and of society as a whole; points out that many businesses – especially small and medium-sized enterprises (SMEs) – are setting an outstanding example in this field (…) Believes that when assessing the social responsibility of a company, it is necessary to take into account the behaviour of companies operating within its supply chain and, where applicable, of its subcontractors” (European Parliament, 6 February 2013, paragraphs 2–8).
The Motion “Strongly condemns the practices by which companies temporarily establish themselves in regions for a limited period only, during which time they are entitled to settlement benefits (…); Emphasises that the business sector also has a responsibility to achieve the 2020 strategy goals; encourages companies to extend their activities which fall within the CSR philosophy beyond their industrial bases, and to take into consideration the long-term stability and growth of the regions in which they are established; stresses that in cases where restructuring cannot be avoided, companies must fulfil their legal obligations under EU and national law, prioritising the information of and consultation with employees, and the opportunity to review alternatives put forward by the social partners; calls for a local dialogue, comprising all stakeholders, in order to discuss the best possible arrangements in cases of restructuring” (European Parliament 2018/2633, paragraphs 8 and 12–14).
See Business and Society Exploring Solutions, an online shared resource on non-judicial grievance mechanisms (an initiative of UN Special Representative John Ruggie) http://www.baseswiki.org
One example of employee regulation is employees of Amazon, Google, Microsoft, Facebook, Salesforce and Wayfair’s calls for their companies to cut ties with Immigration and Customs Enforcement so as not to be complicit in the family separations at the US/Mexico border, following President Trump’s ‘zero tolerance’ policy (since 2018 onwards).
Professor Ruggie describes the Council’s process for creating such mandates as one that led to the UN-endorsed Guiding Principles – still the key guidance for both governments and corporations around the world: “Such mandates are created by a Human Rights Council resolution (previously by the Commission). The Council comprises 47 UN member states elected on a regional basis for three-year terms; all other states may participate fully as observers but cannot vote. Resolutions require a lead sponsor from among Council members. The UK led the creation of the initial mandate, working with 4 other core sponsors: Argentina, India, Nigeria, and the Russian Federation. This cross-regional grouping – one core sponsor from each of the 5 regional groups (African, Asian, Eastern European, Latin American, Western European and “Others”) – reflected the importance of working across north-south and east-west political divides, which is essential to achieving progress in this field. Norway took over the lead in 2006, when the Council replaced the Commission” (Ruggie 2013, p. xlvii).
The phrase is used by Abdullahi A. An-Na’im in Bauer & Bell (1999, p. 150), and (most notably, because developed into a strategic approach to business and human rights that is ultimately endorsed by the Human Rights Council) by John Ruggie in his Interim Report of February 2006 (Ruggie 2006, para 81); see also Ruggie 2010, paragraphs 4–15, and Ruggie 2013, xlii-xliii. See Appendix 2 for an account of Ruggie’s ‘principled pragmatism’ and some criticism it received. Ruggie never fully justifies this approach, at normative level; his intention is to utilise it for his specific mandate (see Appendix 2).
Sandel explains this in his book of Public Philosophy: Essays on Morality in Politics, published four years prior to Justice: “in the view of modern-day Kantians, certain rights are so fundamental that even the general welfare cannot override them (…) So Kantian liberals need an account of rights that does not depend on utilitarian considerations. More than this, they need an account that does not depend on any particular conception of the good, that does not presuppose the superiority of one way of life over others (…) The solution proposed by Kantian liberals is to draw a distinction between the ‘right’ and the ‘good’ – between a framework of basic rights and liberties, and the conceptions of the good that people may choose to pursue within the framework.” (Sandel 2005, p. 150) The difference is that between supporting a framework of rights per se, or in general, out of principle (e.g. the right to free speech), and supporting affirming some particular rights, because they serve certain ends – that is, out of utilitarian consideration, say, because free speech will increase the general welfare. (It is Sandel’s example, pp. 150–1).
This integrated model is also consistent with Onora O’Neill’s cosmopolitan view of ethics, which goes beyond utility v. principles, arguing that global responsibility must instead be based on a broad sense of obligation. (The foundations of O’Neill’s philosophy are Kantian). There is no transnational governance that could be made universally responsible for regulation, because global challenges are complex and interconnected; rights and responsibilities must be shared; global business must be seen as a global citizen, with rights that need to be recognised and responsibilities that it shares with other stakeholders (Robinson and Dowson 2012, p. 260).
Sadely, Sir John has left us earlier this month. He will be missed. See, for example, Grear and Weston (2015)Others, like Thomas Nagel and John Tasioulas, agree. The latter argues that “If human rights are not to fall victim to their own popularity, some principled way of distinguishing the genuine articles from the presumed spate of counterfeits is required (…) the international regime of human rights is not self-validating; instead, its legitimacy depends upon compliance with independent moral standards, including genuine human rights”. And he quotes the former saying that “The existence of moral rights does not depend on their political recognition or enforcement but rather on the moral question whether there is a decisive justification for including these forms of inviolability in the status of every member of the moral community. The reality of moral rights is purely normative rather than institutional – though of course institutions may be designed to enforce them” (Nagel 2002:33) (cit. in Tasioulas 2007, p. 75).
A century before, John Stuart Mill offered a judgement test, which would support Hart’s liberal position. He argued that society had no right to enforce its moral perceptions, where their violation would not cause perceptible ‘harm’ to others (Mill 1974). He believed that, in the absence of harm, diversity was a positive factor in society. His opponent, Sir James Fitzjames Stephen, argued that society could not safely be precluded from enforcing its morality at need (Penner 2002, pp. 82–86). Mill’s contribution to the issue became known as the ‘harm principle’, but it should be clarified what precisely constitutes ‘harm’.
See, for example, Amartya Sen’s arguments on the role of voluntary initiatives such as social monitoring and activist support in complementing the legal route, discussed below (Sen 2011).
Sen explains this as follows: “it’s not that the ground for something to be legislated is that it is in some pre-existing sense a ‘natural’ right, but rather that ‘advocating their incorporation in a legal system’ can be part of what we understand by the declaration of a ‘natural right’ or a ‘moral right’. The meaning of ‘rights’ in the moral sense must include this interpretation of the word – as the existence of a corresponding moral claim” (Sen 2011, p. 441).
In his “Elements of a Theory of Human Rights”, Sen questions the purely legalistic approach, saying that we should examine “whether legalisation is the pre-eminent, or even a necessary, route through which human rights can be pursued” (Sen 2004, p. 318). Instead, he sees human rights “as pronouncements in social ethics, sustainable by open public reasoning” (Ib., pp. 355–356).
Here is a detailed account of Ruggie’s view: “Yet how do companies know they respect human rights? Do they have systems in place enabling them to support the claim with any degree of confidence? In fact, most do not. Their approach in a sense has been highly ‘legalistic’: focused on the requirements of their legal license to operate, and only slowly discovering that in many situations meeting legal requirements alone may fall short of the universal expectation that they must operate with respect for human rights – especially, but not only, where laws are inadequate or not enforced (…) What is required, therefore, is human rights due diligence – not merely the transactional kind you do before a merger or acquisition, but an ongoing process whereby companies manage the risk of human rights harms throughout the life cycle of a project, with a view to avoiding or mitigating them. Broadly speaking, such a due diligence process should include four elements: a statement of policy or other form of commitment on human rights; assessing human rights impacts; integrating the findings into company culture and processes; and tracking as well as reporting performance. Companies need to assess the potential and actual impacts of their own activities, and of the relationships associated with those activities – be they with suppliers, joint venture partners, security forces, government agents, and others. Heightened due diligence should be practiced in operating contexts where things are more likely to go wrong, such as conflict affected areas. Secondly, I want to stress the role played by site-level grievance mechanisms to which affected individuals and communities can bring corporate-related concerns. They are especially important for companies with large physical footprints on their areas of operation, such as extractive and infrastructure projects. Yet when one surveys what companies actually do, more often than not one finds a replay of the “legalistic” approach I’ve already mentioned: if it isn’t required by law, we don’t need to do it. Companies thereby deny those who are adversely affected by their activities an opportunity to resolve issues that may be readily remediable. At the same time, they deny themselves an early-warning system signalling when all is not well before disputes escalate into major campaigns or lawsuits. It is astonishing how many major human rights-related confrontations between individuals or communities on one side, and companies on the other, begin as relatively minor grievances that companies ignore or dismiss” (Ruggie 2009).
See Ford and O’Brien (2017), who are in favour of seeking initiatives – whether voluntary or legal – that help promote regulatory effectiveness and avoid formalistic ritualism.
Donaldson identifies a set of ten international human rights and discusses some minimal duties that must be observed in respecting them. He is not the first to establish a correlation between rights and duties, but he is unique in applying this to corporate human rights. He links the concept of minimal rights with a threshold of morally acceptable corporate behaviour thus: “If I have a right to physical security, then you should, at a minimum, refrain from depriving me of physical security (…). It would be nice, of course, if you did more: if you treated me charitably and with love. But you must at a minimum respect my rights. Hence, it will help to conceive the problem of assigning minimal responsibilities to multinational corporations through the question, ‘What specific rights should multinationals respect?’” (Donaldson 1990, p. 66).
Donaldson rejects the metaphysical view of rights, “that simply formulated rights, such as the right to liberty or property, exist in some simple, eternal, moral firmament” (Ib., p. 78). Instead, we need detailed formulation of each right, and a procedure for weighing various rights against each other. He insists on this requirement to provide specific descriptions of rights, especially international ones, and their application in concrete situations.
One model includes five general principles for psychology professionals, namely beneficence, fidelity, integrity, justice, and respect for people’s rights and dignity. These are considered ultimate ethical goals. Other sources talk of ten fundamental standards or principles (APA Code of Ethics 2017), sometimes reduced to five – dignity, fairness, prudence, honesty, openness, and prevention of suffering (Francis and Murfey 2016, p. 197). Another model is that of Donaldson (1990) who – as we have seen – talks about ten fundamental rights, which he considers fundamental at international level.
See, for example, Ford and O’Brien (2017). See McCorquodale et al. (2017).All the reports are available on the UN Office of the High Commissioner for Human Rights website at https://www.ohchr.org/EN/Issues/TransnationalCorporations/Pages/Reports.aspx
“Principled pragmatism – the way forward for business and human rights” (OHCHR, 7 June 2010)The author is grateful for helpful comments by Michael Santoro, Molly Land, Malcolm Rogge and Jordi Vives Gabriel, as well as incisive questions and useful suggestions received from two anonymous reviewers.
