Abstract
The ‘Guiding Principles on Business and Human Rights’ (Principles) that provide guidance for the implementation of the United Nations’ ‘Protect, Respect and Remedy’ framework (Framework) will probably succeed in making human rights matters more customary in corporate management procedures. They are likely to contribute to higher levels of accountability and awareness within corporations in respect of the negative impact of business activities on human rights. However, we identify tensions between the idea that the respect of human rights is a perfect moral duty for corporations and the Principle’s ‘human rights due diligence’ requirement. We argue that the effectiveness of the ‘human rights due diligence’ is in many respects dependent upon the moral commitment of corporations. The Principles leave room for an instrumental or strategic implementation of due diligence, which in some cases could result in a depreciation of the fundamental norms they seek to promote. We reveal some limits of pragmatic approaches to coping with business-related human rights abuses. As these limits become more apparent, not only does the case for further progress in international and extraterritorial human rights law become more compelling, but so too does the argument for a more forceful discussion on the moral foundations of human rights duties for corporations.
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Notes
Bishop (2012) cautions, however, that if we assume moral human rights obligations for corporations, we presuppose that corporations, mere legal entities, are awarded legal rights in order to be able to fulfil such obligations, and points out that awarding such rights could in itself raise the danger that human rights are violated. As a result, Bishop proposes that the human rights obligations of corporations should be limited by limits on the rights of corporations.
So called claim-rights, like the right to education or the right to healthcare, are not natural in the second sense: they are created on a voluntary basis. Moreover, they cannot be derived from a negative conception of freedom. The ‘liberties’ follow directly on from the equal right to freedom. See Wenar (2011) for a discussion of these notions.
“The oil giant Shell has agreed to pay $15.5 m (£9.6 m) in settlement of a legal action in which it was accused of having collaborated in the execution of the writer Ken Saro-Wiwa and eight other leaders of the Ogoni tribe of southern Nigeria” (The Guardian, Tuesday 9 June 2009). See Wettstein (2012) for an interesting discussion of this case.
According to O’Neill (1996, p. 142), universal imperfect duties correspond to social virtues.
Here we use the expression “moral responsibility of a corporation” in a loose sense. We are aware that this expression hides a complex issue of collective moral agency and moral responsibility. A corporation cannot be treated as a human being, because, first, it is a legal construction, and second, responsibility is necessarily collective. List and Pettit (2011) have recently developed an interesting theory of collective (moral) agency that can be read as a theoretical underpinning of the position defended by Peter French (1984) in the 1980s debate about whether or not we may attribute moral agency to a corporation. For our purpose here, the very general and minimal assumption that it is possible to judge, from a moral viewpoint, collective decisions of an organisation like a corporation, is sufficient. We leave aside here the very difficult question of how to relate the collective responsibility to the individuals who are somehow part of the corporation. The expression ‘China does not respect human rights’ faces similar although not totally identical problems. Cf. List and Pettit (2011).
Even if one agrees with Shue (1996), who convincingly argues that the distinction between negative and positive rights is fuzzy and that there is a basic right to subsistence, it is obvious that the Framework’s scope nevertheless contains rights that go beyond subsistence.
Admittedly, in practice the line between the two types of rights is not so strict, as Shue (1996) has convincingly argued.
The SRSG neither invented, nor claimed credit for the term “Ruggie-proof”, but he does not hesitate to cite it either (see e.g. Ruggie 2011).
Cf. UNHRC 2011a, p. 13 et seq, “The responsibility of business enterprises to respect human rights is distinct from issues of legal liability and enforcement, which remain defined largely by national law provisions in relevant jurisdictions”.
The Principles might have influence on the application of the US Alien Tort Claims Act in the future. At the time of writing, however, the U.S. Supreme Court has not rendered its decision in Kiobel v. Royal Dutch Shell. In consequence we cannot tell to which extent the Principles influenced the decision.
By “diplomatic intervention”, we understand the mediation and conciliation processes under the OECD Guidelines for Multinational Enterprises through “National Contact Points”.
As human rights due diligence necessitates the involvement of stakeholders, it appears that the Principles’ due diligence process follows the logic of a social norm system that is constituted through and enforced by collective actions of stakeholders participating in the system itself, and based on disclosure (Catá Backer 2011, 203). Yet, the Principles do not contemplate the participation of affected stakeholders such as local communities, workers, customers, investors and individual rights-holders as an organised response to corporate information assessment and communication but rather as a means for corporations to fulfil their due diligence responsibility. Therefore, branding human rights due diligence as a social norm system appears to be premature and contingent on the way stakeholders will actually react to corporate human rights due diligence, and on whether stakeholders will take advantage of corporate human rights communication and consultation in order to enter into a meaningful dialogue with corporations.
We are not suggesting that all corporations would engage in such crudely rational behaviour, but that it is not unrealistic that some will (cf. Heath 2009, who suggests that agency and other economic theories based on rational behaviour would be helpful analysis tools as they operationalize “a certain form of moral scepticism” and show “what the consequences of generalised immorality would be”).
The fact that the SRSG recommends that corporations draw guidance from independent expert advice to assess appropriate action in complex cases (cf. UNHRC 2011a, p. 19) does not speak against our basic finding that the assessment of the degree of a corporation’s implication in human rights remains discretional.
In practice risk managers will probably not always think of maximising shareholder value or fulfilling other objectives, but simply deal with risks that a corporation commits itself to prevent (workplace safety incidents, legal non-compliance). Yet, it would be unrealistic to assume that the structure and decision-making processes of risk management are detached from corporate objectives and the strategies to achieve them.
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Fasterling, B., Demuijnck, G. Human Rights in the Void? Due Diligence in the UN Guiding Principles on Business and Human Rights. J Bus Ethics 116, 799–814 (2013). https://doi.org/10.1007/s10551-013-1822-z
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DOI: https://doi.org/10.1007/s10551-013-1822-z