Human Rights Law Review 5:1 0 The Author 120051. Published by Oxford University Press. All rights reserved. For Permissions, please email:
[email protected] doi:1O.1093/hrlrev/ngiOO
Market Fundamentalisms: Business Ethics at the Altar of Human Rights Upendra Baxi*
Abstract In this article the author explores what he terms 'an emergent traderelated, market-friendly paradigm of human rights', in contrast to the paradigm of human rights enshrined in the Universal Declaration of Human Rights (UDHR). It focuses on a reassertion of the UDHR paradigm in relation to corporate governance and business conduct, looking specifically at the Proposed Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights ('Norms'). The article examines, in this respect, five central themes: the intertextuality of the Norms; the 'network' conception of trade and business conduct; ways of categorising human rights obligations; duties regarding implementation of the Norms; and, finally, related ethical theory concerns.
1. The Proposed Norms on Human Rights Responsibilities of Transnationals and Other Business Enterprises In The Future of Human Rights,' the present author developed a contrast between the paradigm of the Universal Declaration of Human Rights (UDHR) and the emergent paradigm of the trade-related, market-friendly paradigm of human rights by which it was confronted. In this article a particular set of practices of resistance, which takes the form of full reassertion of the UDHR paradigm in * Professor of Law, University of Warwick (
[email protected]). This article is a revised
version of a chapter that is due to be published in Baxi, The Future of Human Rights, 2nd edn (New Delhi: Oxford University Press, 2005). 1
Baxi, The Future of Human Rights (New Delhi: Oxford University Press, 2002) at 153.
Human Rights law Review 5:1 (2005), 1-26 HeinOnline -- 5 Hum. Rts. L. Rev. 1 2005
2
HRLR 5 (2005), 1-26
relation to corporate governance and business conduct, is addressed. What is indeed remarkable is the fact that the articulation of this reassertion occurs under the auspices of the United Nations system, which otherwise fosters contemporaneously somewhat assiduously the trade-related, market-friendly human rights paradigm. The United Nations Commission on Human Rights and, particularly, the SubCommission on the Promotion and Protection of Human Rights, provide important sites of critique and renewal. The Sub-Commission thrives on dialogical interaction with the non-governmental organisation (NGO) communities; and often its expert consultants (howsoever named) emerge from within these communities, or at the very least remain extraordinarily sensitive to activist critique of contemporary economic globalisation. 2 This article focuses on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights ('Norms'), formulated by a Working Group of five independent experts. The adoption of the Norms, together with the Commentary by the Sub-Commission (on 13 August 2003), marks the first step in a long and perilous journey towards their final adoption. 3 The Norms, now transmitted to the Human Rights Commission, remain open to further consideration within and outside the United Nations system and the comments and responses received stand slated for further consideration by March/April 2005. In the interim, the Sub-Commission's Working Group stands mandated to assemble information from all relevant sources concerning implementation processes, as well as to further innovate these processes where necessary. The Norms, and the accompanying Commentary, 4 had a very short gestation compared with the archetypal endeavour that produced a stillborn United Nations Draft Code of Conduct on Transnational Corporations. 5 Even more remarkable is their enunciative audacity, unfazed by glittering histories of past failures. Twenty-three articles provide an arsenal of general and specific obligations. Transnational corporations and other business organisations stand conceived as networks of corporate governance and business conduct. Ideologies of voluntarism stand replaced by those of regulation 2
See Globalization and its Impact on the Full Enjoyment of Human Rights, 15 August 2001, E/CN.4/Sub.2/2000/13.
3
See the Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, 13 August 2003, E/CN.4/Sub.2/2003/12/Rev.2 (2003); hereafter cited as 'Norms'. For the Commentary on the Norms, see E/CN/4/Sub.2/2003/38/Rev.2 (2003). The latter document refers to 'paragraphs' rather than Articles'; The provisions are here described as Articles. Further, all citations to the Norms are derived from the last document above. See, for background analysis, Weissbrodt and Kruger, 'Norms on Responsibility of Transnational Corporations and Other Business Entities', (2003) 97 American Journalof InternationalLaw 901. See also Muchlinski, Multinational Enterprisesand the Law (Oxford: Blackwell, 1995) at 592-7 and the literature cited therein. E/C.10/1984/S/5 (1984); (1984) 23 International Legal Materials 602.
4
5
HeinOnline -- 5 Hum. Rts. L. Rev. 2 2005
Business Ethics at the Altar of Human Rights
3
and implementation. What is more, the Norms have been produced interactively by consultation with affected interests, including business and industry, trade unions and human rights NGOs. The Norms undoubtedly take global citizen action seriously. This interactive mode of production of the Norms fosters and furthers legitimacy as well as imperils it. If the communities of human rights and social activism have already begun to deploy the Norms as stratagem, 6 emergent too is the silhouette of global a potent human rights 7 corporate resistance. Contestation is inevitable, as are future compromises. What makes the Norms, and the Commentary, precious is the now-proclaimed zero tolerance for egregious forms of business conduct and practices that transgress human rights and constantly reproduce human rights violations. This single-minded pursuit of a human rights-oriented future for globalisation and human development is perhaps the only pertinent way ahead. This article explores five related themes. First, the dense intertextuality of the Norms and the Commentary; second, the 'network' conception of trade and business conduct; third, ways of categorising the range of general and specific obligations; fourth, duties of implementation; and, fifth, some related rather intransigent ethical theory concerns that may not be ignored any longer. The author does not explore here the archival histories of the Working Group and the antecedent discursive formations concerning social responsibility of business.
2. The Dense Intertextuality of the Norms The ever-proliferating forms, and formats, of 'soft law' production entail immense orders of self-referentiality. Each 'soft law' declaration thrives on multiple, even protean, references to the litany, even the litter, of prior textual enunciations. This process may be named as self-generating normative cannibalism, or self-devouring conspicuous consumption. Either way, this complicates practices of reading enunciatory texts. In any event, many soft-law declarations remain worthy, for their artistry, of the Turner Prize on Contemporary Art! Of course, no human rights text may by itself stand alone in splendid isolation; each derives its normative strength by reiteration of prior texts in the circuit of semiotic overproduction of human rights norms. Understandably, all later 6
At the University of Nottingham Annual Student Conference (March 2004) at which the author
7
first presented this theme, Daniel Agulree (doctoral fellow, the Irish Centre of Human Rights, Galway) mentioned a warming instance of this trend: an Irish company was named and shamed, under the Norms, for its contribution to the construction of Israeli Wall in Palestine. Already the Confederation of British Industries has begun the itinerary of lamentation over the baleful impact of the UN Norms on developing countries! See, for example, Guardian. 8 March 2004, the CBI statement in Guardian. 4 March 2004 and the Amnesty International response (in the Letters to Editor column) in Financial Times, 9 March 2004.
HeinOnline -- 5 Hum. Rts. L. Rev. 3 2005
4
HRLR 5 (2005), 1-26
human rights texts necessarily refer to prior innumerable cultural software of 'hard' as well as 'soft' international law. This intertextuality raises questions concerning the integrity of human rights enunciatory instruments. At what point does such an amalgam begin to threaten to produce categories of 'meaningless reference'? 8 -'the intelligibility question'. Are there ways of determining thresholds for meaningful reference to prior texts?-'the optimality question'. The optimality question poses at the first sight merely a legislative drafting question. Should the preambulatory recital to any 'hard' or 'soft' instrument be as comprehensive as humanly possible, as is the case with the Norms, or should it be parsimonious, referring only to foundational, core or key texts developing the international standards and norms of international law? How is this determination to be made? We may note here that, unlike their national counterparts, human rights legislative draftspersons enjoy even morecontingent location, all too often task-specific, within the ever-expanding institutional network of the United Nations system. Independent Experts, Special Rapporteurs or even Expert Groups remain guest artists within the system, working with sparse servicing secretariats, a usually compact and circumspect group of career-bound officials. The relatively freestanding human rights draftspersons, drawn from the worlds of academia and now social and human rights movements, often err on the side of caution and cite every available normative titbit, lest the jurisdictional egos of any agency or official within the system may adversely affect the career and future of the norms they propose. Exuberant intertextuality of norms thus partly reflects the endless 'turf' wars within the United Nations system. Besides the problem of internal (within United Nations) legitimacy, the optimality question also relates to legitimation with the communities of the eventual bearers of human rights responsibilities. If too little invocation of prior texts weakens the legitimacy of the instant (draft or finally adopted) human rights instrument, too much recourse makes it selfdefeating. The norm of optimality exists at the rather indeterminate thresholds of too 'little', and too 'much'. It raises the question of the integrity of the instrument because the prior corpus of 'hard' and 'soft' law further refers to similar anterior norm productions. However, different instruments entail very different norm-senders, -addresses and -receivers, 9 and, while they may speak to the high purpose of promoting and protecting human rights, they 8
Stone, in Legal Systems and Lawyers Reasonings (Sydney: Maitland, 1964), described this as the
salient item, in the judicial toolkit of common law interpretation, in the entire assemblage of the categories of 'illusory reference' (at 235). 9
Galtung's much ignored analysis remains decisive-see Galtung, Human Rights in another Key (Oxford: Blackwell, 1994). All this, in addition, points to the differences between corpus, genre
and text in human rights instruments. See, generally, the discussion in Baxi, supra n. 1.
HeinOnline -- 5 Hum. Rts. L. Rev. 4 2005
Business Ethics at the Altar of Human Rights
5
speak differently, and even in many different tongues or human rights 10 dialects. This raises the second issue: intelligibility. The more numerous the references to the amalgam of 'hard' and 'soft' law, the greater are the crises of legibility, intelligibility and human rights action-based understanding. Not everyone outside the charmed circles of the self-selecting norm-makers, 1 and, unfortunately, even within these, actually knows every word of each text, and accompanying context, thus cited and invoked. Nothing else than a fully fledged reality check concerning intelligibility among norm-senders, -addresses and -receivers remains conducive to the future of human rights. On a very rough count, simply because the text of the Norms refers to at least 56 instruments, 1 2 the dense intertextuality needs unravelling. The count is rough indeed and must remain so because of the inherent indeterminacy at play, and war, in at least five categories: 'hard' treaty and custom-based obligations; 'soft law' constitutive elements within 'hard law' formations: initially 'soft' enunciations that somehow convert themselves into regimes of 'hard' law; 'hard law' enunciations that ultimately soften; and 'soft law' enunciations too variously 'soft' as to defy predictions of future hardening. The author may not here, for reasons of space, elaborate or exemplify these distinctions further, but no reflexive student of human rights norm-creation may remain innocent of these patterns of normative hybridity, now and yet again, writ large on the Norms. This peculiar form of intertextuality remains worrisome for the future of human rights if only because it tends to produce continuing forms of human rights illiteracy for the human rights cognoscenti as well the laity. Not merely 10
This is intended to refer to the special vocabularies of contemporary international human rights norms and standards. Each landmark instrument develops its own semiotic ranges and somewhat specialised languages. The International Bill of Rights thus differentiates languages of implementation into regimes of instant obligations as well as 'progressive implementation': the
latter is a special dialect entailing various metaphors of obligations to respect, protect. and promote social, economic and cultural rights. The Convention on the Elimination of Discrimination Against Women 1979, to take another example, through General Comments and related reporting obligations, now embraces within the meaning of discrimination 'violence'
against women. The author will not pursue this important theme here save to say that tasks of linguistic/paralinguistic and semiotic analysis of different dialects of human rights remain pressing.
11
A history of how the United Nations system selects experts for norm formulation is yet to be written, but when written it will expose the chance and circumstance, within scattered networked hegemonies, that define the system that brings only a certain 'class' of epistemic actors/actants/figures to this task. Their sensitivity to suffering, as Douzinas devastatingly reminds us, may often be confined to the suffering induced by a bad wine! See Douzinas, The End
12
of Human Rights (London: Hardt, 2002). These include 18 treaties, I I other multilateral instruments and guidelines under the United Nations, International Labour Organisation and related supranational auspices, 3 industry/ commodity group initiatives, 6 union/trade initiatives, 13 'self-imposed company Codes' and
5 NGO Model Guidelines. Each of these, of course, harbours an infinite variety of complex and contradictory elements of articulatory practices. The author here invites critical engagement by the reader with this rather extensive perambulatory recital.
HeinOnline -- 5 Hum. Rts. L. Rev. 5 2005
HRLR 5 (2005), 1-26
6
the human rights and social movements constituencies, but also transnational chief executive officers (CEOs) may, with a measure of justice, claim unfamiliarity with all the instruments of the so-called networked knowledge bases. 13 Too many, even exuberant, references to past sources legitimate enunciation of new norms; at the same time, encyclopaedic references complicate understanding and generate new forms of human rights illiteracy, particularly the more pernicious form of the 'illiteracy of the literate'. The political economy of excess of self-referentiality in the production of contemporary human rights production invites careful thought.' 4
3. The Network Conception of Corporate Governance and Business Conduct Corporate governance and business conduct have hitherto been thought of in terms of the legal liability of business entities, and not in terms of human rights responsibilities. 15 The Norms now accomplish two outcomes. First, all business entities remain subject to the disciplinary regimes of 'human rights' and 'international human rights' inclusively described as constituted of: ... civil, cultural, economic, political, and social rights, as set forth in the International Bill of Human Rights, and other human rights treaties, as well as the right to development, and rights recognized by international humanitarian law, international refugee law, international labour law, 6 and other relevant instruments adopted within the United Nations system.] Second, 'business enterprises', defined generically by Article 21 of the Norms, include: ... any business entity, regardless of the international or domestic sphere of its activities, including a transnational corporation, contractor, subcontractor, supplier, licensee, or distributor; the corporate partnership, or other legal form used to establish the business entity; and the nature of the ownership of the business entity.
13
14
Incidentally, despite the internet explosion, not all archives remain co-equally available. For example, try tracking down the UN Draft Code of Conduct of Multinational Corporations, 1984; to obtain access to this requires difficult forms of access to pre-web literature, now, alas, an affair
of the hoary academic past! So much then for the 'information society' global explosion of human rights knowledge! See Baxi, 'The Politics of Reading Human Rights', in Cali and Meckled-Garcia (eds), Fin de Legalisation (London: Routledge, 2005) (forthcoming).
15
See Muchlinski, supra n. 4 at 57-89; International Council for Human Rights, Beyond Volntarism: Human Rights and Developing International Legal Obligations of Companies
(Switzerland: Versoix, 2002) at 45-64; and Baxi, 'Bringing Judas Back to the Last Supper: The Tasks of Republican Criminology in Service of Globalization', in Dhavan Sankardass (ed.),
16
Prison and Punishment: Indian and InternationalPerspectives (New Delhi: Sage, 2000) 261. Article 23, Norms (emphasis added).
HeinOnline -- 5 Hum. Rts. L. Rev. 6 2005
Business Ethics at the Altar of Human Rights
7
The Norms shall be presumed to apply, as a matter of practice under two situations: where 'a business enterprise has any relation with a transnational corporation' or where 'the impact of its activities is not entirely 1 local'. 7
This is an extraordinary articulation. The Norms construct the alphabet, grammar and library of business ethics of this veritable new human rights genome project! Here, no possibility of junk human rights genes, as it were, may be envisaged! All forms of business entities attract all norms and all standards of human rights. The heavily networked conceptions of both human rights and business enterprises forbid any eclectic approach writ large on company codes and, of course, the so-called United Nations Global Compact. On this perspective all human rights obligations matter coequally, regardless of the source, contingency and vicissitude of origin (treaty, custom, treaty-based custom or allied and ancillary forms of 'soft' law'), no matter how diverse the range of specific and general duties thus prescribed or how difficult the implementation or actualisation of the enshrined human rights. The Norms do not, of course, and rightly so, provide any absolutist conception of human rights (that is a world of human rights, beyond the Realpolitik, not subject to national reservations and derogations), but they do legislate a universal conception, which mandates fulfilment and realisation as a paramount duty of all centres/networks of power and domination. To say 'human rights' is always to say chokingly a very great deal and also to always participate in an economy of excess! The network conception of corporate governance and business conduct points to the web of interconnectivity of within-nation and cross-nation business entities that so paradigmatically define the forms of contemporary globalisation. Production, supply, distribution, commodity and service chains increasingly, and heavily, intermesh the global with the regional, national, supranational and the intensely local. Severance of interlocking and intertwining constitutive elements that constitute business activity, enterprise and entities is no longer, on this conception, possible. Devising human rights-oriented regimes of surveillance at any fixed nodal point is insufficient, because the very notion of 'nodal' points reaches its vanishing point in a post-Fordist and postmodern global economy. Critics may justifiably assail the runaway invocation of a human rights regime thus comprehensively framed in relation to all business entities and conduct. Although said to be primarily targeting 'transnational corporations, larger business, and any firm with connection to transnational corporations', the Norms may even extend (in the words of one its principal authors) to 'corner bakeries, dry cleaners, and other small "mom and pop" types of 17
The third situation is where 'the activities of a business enterprise involve violations as indicated
in paragraphs 3 and 4'. Article 21. Norms (emphasis added).
HeinOnline -- 5 Hum. Rts. L. Rev. 7 2005
8
HRLR 5 (2005), 1-26
business local business'.' 8 The detailed description of suppliers, contractors, licensees, distributors, security personnel and others, stipulating human rights responsibilities for small vendors of multinational corporation product and process, makes it somewhat difficult to exclude smaller business sites not thus ostensibly connected. It would indeed be hard to define, in a rapidly globalising economy, when (in the language of Article 21) the impact of business enterprises 'is not entirely local'. Indeed, as we all must learn from the feminist critique, no site is ever too small for massive human rights violation. Microfacism of power manifests itself most cruelly at smaller sites with low public visibility. It may thus be argued that considerations arising from practical reason reinforce concern with small and medium enterprises, no matter how defined by the size of investment, workforce or turnover, or any other relevant factor. The Norms, however, invoke deep contention. Strategic transnational business interests cannot but contest a network conception of corporate governance that makes these liable for each infraction of human rights by all and sundry associates and affiliates. Local, small and medium-sized business (no matter how defined) may, with equal vigour, similarly contend that such massive exposure to wide-ranging human rights standards not merely spells the ruin of their micro-entrepreneurial activity but also the precious opportunities they may otherwise offer for millions of impoverished to cheat their way into survival. 19 State actors may also, particularly but not exclusively in the South, voice similar concerns because strict enforcement of labour-related human rights obligations for business enterprises may swell, beyond actually existing governmental coping capabilities, the already harrowing numbers of the impoverished un-/under-employed. A recent United Nations Industrial Development Organisation (UNIDO) study sums this type of argument pretty well:
18 19
See Weissbrodt and Kruger, supra n. 4 at 910. Already the strict application of environmental standards leading to the closure of small businesses because of their propensity for pollution in many parts of the Global South has led to a critique of social and human rights activism by its supposed beneficiaries. In the author's own activist lifetime, when securing a Gujarat High Court order ensuring strict enforcement of the ameliorative Indian legislation protecting rights of contract workers, the contractors retaliated by putting people out of jobs and hiring workers only too eager to fill their shoes. The ousted workers then, in distressingly large numbers, turned up at the author's doorstep asking for suitable employment! However, the author soon realised that his best, as a non-governmental individual, was far from good enough to counter the 'job blackmail' by powerful contractors. This dilemma is also acute, even for well-resourced NGOs, who may assert the human rights of migrant and unorganised (the more accurate expression is 'disorganised') workers. Further, the increasingly stringent environmental protection standards, especially by the apex courts charged with the enforcement of fundamental human rights, have presented acute dilemmas when business closure stands ordered in ways that protect the rights to environment but only with the real life consequence/impact that results in the deprivation of the human right to earn a livelihood.
HeinOnline -- 5 Hum. Rts. L. Rev. 8 2005
Business Ethics at the Altar of Human Rights
9
Imposing inappropriate standards, which constrain the value creation role of business lead to job losses, under-investment, lack of services, and everwidening gap between developed, and developing countries.20 The ethical logics of the proposed overarching articulation of human rights responsibilities for all business activity and enterprise remain thus fraught with material (as against logical or normative) contradictions. One hopes against hope that by mid-2005, when the Norms may be finalised, some creative mediation of these material and normative contradictions may, after all, be achieved. The author dedicates this article to the labours of human rights activism aspiring to such mediation, within an (hopefully) unrealistic deadline.
4. Categorising Obligations Categorisation of human rights obligations and responsibilities directs attention to the human rights responsibilities of states and those of transnational corporations and other business enterprises. Regarding the former, the 'primary' state responsibility to 'promote, secure the fulfilment of, respect, ensure respect of, and protect human rights recognized in international as well as national law' now stands invested (by Article 1) with the obligation to ensure that 'transnational corporations and other business enterprises respect human rights'. The human rights responsibility of business entities may be summated in terms of duties of non-benefit from human rights violations; duties of influence; and duties of implementation. State responsibility is unqualified; transnational corporations and other business enterprises bear these responsibilities only 'within their respective spheres of activity and influence'. A. The Primary State Responsibility How are we to read this form of responsibility, which is nowhere articulated specifically? This is understandable because the Norms pre-eminently address corporate and business human rights responsibilities. However, far from being axiomatic, the 'primary responsibility' of states remains profoundly problematic. If one prefers a 'strong' reading of state responsibility, this immediately suggests that states owe a non-negotiable duty to translate these Norms into national legislation. A 'weak' reading, at best, merely suggests an obligation on the part of states to develop an 'operative human rights culture' for transnational and other business enterprises. An 'eclectic' reading would suggest progressive (read expediently wayward) implementation. 20 United Nations Industrial Development Organisation, CorporateSocial Responsibility: implications for Small and Medium Enterprisesin Developing Countries (Vienna: UNIDO, 2002). Of course, the United Nations Industrial Development Organisation, while presenting it, does not entirely endorse this position.
HeinOnline -- 5 Hum. Rts. L. Rev. 9 2005
1.0
HRLR 5 (2005), 1-26
A 'strong' reading of 'primary responsibility' would require all states to extend human rights responsibilities, through performances of law, administration and policy, to all macro- and micro-economic activity, enterprise and entity regardless of the issue of economic viability. They would be required to rein in the awesome power of the transnational corporations to flaunt national jurisdictions. At manifold normative levels, this does not merely involve writing/rewriting of constitutions, national as well as regional, 2 1 but a massive programme of law reform that translates without transgressing the primary responsibility of states. 22 If national laws in limine do not incorporate requisite human rights obligations, what remains of this vaunted 'primary responsibility'? Indeed, how may policy, law and public administration, including law enforcement, be adequately transformed towards due diligence and discharge of the primary obligation? Does the 'primary' obligation extend to courts and judges in their everyday work? Because courts and judges indeed constitute an ineluctable aspect of the 'state', do the Norms entail an order of specific duties of 'judicial activism' and, as a concomitant, the executive obligation of due deference towards judicial/juridical autonomy that mandate specific forms/ regimes of judicially ordained human rights-oriented accountability? In turn, any serious discussion of these aspects should at least take into account the crucial issue of within-nation budgetary/allocative resources that governments must provide in order to effectively service administration and equally implementation.2 3 Additionally, how may all these considerations apply 24 to regional and supranational institutions formed by state coalitions? The Article 1 enunciation of primary state responsibility thus remains wholly vacuous. Perhaps, a kinder description of this normative happening is that this formulation of general responsibility of states is at best a 'floating signifier', a much-vaunted semiotic resource for some contemporary postmodernist constructions of international law discursivity. B. The General Obligations of Corporate Governance and Business Conduct Many duties attach (under Article 1 of the Norms) to corporate governance and business conduct within 'the ... spheres of influence and activity' of transnational enterprises and other business enterprises. The 'spheres' remain devoid of any precise juridical articulation. However, according to the Commentary accompanying the Article, these obligations include, first, 21
For example, this raises difficult questions concerning the compatibility of the proposed EU Constitution with the Norms.
Indeed, to translate is always to transgress, a point that the author may not (for reasons of space) pursue here, save to say that many human languages and dialects often lack semiotic equivalents, even across the working languages adopted by the United Nations. 23 There exists, as yet, no discipline that may be named human rights economics. 24 The current controversy concerning the 'post-war' award of contracts to favoured American corporations in post-conflict Iraq raises acute questions not wholly anticipated by the authors of the Norms. 22
HeinOnline -- 5 Hum. Rts. L. Rev. 10 2005
Business Ethics at the Altar of Human Rights
1
the responsibility to 'use due diligence' such that 'their activities do not contribute directly or indirectly to human abuses'. Second, business entities 'may not "directly or indirectly" benefit from abuses of which they were aware or ought to have been aware'. Third, the Commentary explicates further due diligence obligations. In particular, business entities 'shall inform themselves of the human rights impact of their principal activities and major proposed activities' so that they can 'avoid complicity in human rights abuses'. Fourth, these shall 'refrain from activities that would undermine the rule of law as well as governmental and other efforts to promote and ensure respect for human rights'. Fifth, they 'shall use their influence in order to help promote and ensure respect for human rights'. Indeed, the Norms provide a massive detailed footnote elaborating variously these five duties. The ways in which these overarching duties raise deep ethical (and not just business ethics type) questions are addressed later. For the present, some close textual analysis remains pertinent. The Commentary deploys two discrete, and unbearable, categories: human abuses and human rights abuses. The first two obligations mentioned above address human abuses, the rest speak to human rights abuses. This distinction is indeed crucial. Not all human abuses, in the contemporaneously available constituted discourse, may necessarily constitute human rights abuses; further, not all human rights violations may remain synonymous with human abuses. It is important to stress that the Commentary seeks to impose a more stringent obligation with regard to human abuses in the second principle above. Corporate and other business entities may not profit from forms of direct and indirect human abuse. The final adoption of the Norms must then fully address the problem at least of such unjust enrichment. 25 Yet, the chains of seamless globalised production, and exchange, constitute the bleeding human rights heart, or rather the heart of the production of absolute forms of human rightlessness. Prescinding this, it is clear that failure to observe human rights standards and norms, and to generally foster the rule of law and respect for human rights, carries no dire consequence for the manifold practices of unjust enrichment. Clearly, human abuses remain more directly accessible both for the perpetrators and the victims than human rights abuses. The Commentary here adopts a phenomenological basis in sculpting the duty to avoid both direct 25
See, generally, Clapham. 'State Responsibility. Corporate Responsibility, and Complicity in Human Rights Violations'. in Bomann-Larsen and Wiggen (eds). Responsibility in World Business: Managing Harmful Side-effects of Corporate Activity (Tokyo: United Nations University Press,
2004) 50: and Ramasatry 'Corporate Complicity: From Nuremberg to Rangoon
... ,
(2002) 20
Berkeley Journalof InternationalLaw 91. Assuming that such impermissible benelits result, what
duties of reparation then follow? How may these duties effectively restitute those violated? How may we design national, supranational and global structures to remedy these forms of human violation? Put another way, how may we locate this obligation within Beitz's and Pogge's imaginatively crafted notions of global distributive justice conceptions? See Beitz, Political Theory
and International Relations (Princeton: Princeton University Press, 1997) and Pogge. World Poverty: Cosmopolitan Responsibilities and Reforms (Oxford: Blackwell, 2002).
HeinOnline -- 5 Hum. Rts. L. Rev. 11 2005
12
HRLR 5 (2005), 1-26
and indirect human abuses; accordingly, this form of business ethic forbids forum shifting. Put another way, the fact that these abuses occur under the auspices of business affiliates (including subsidiary companies, independent contractors, subcontractors, licensees, corporate distributors and business security personnel) does not dissolve network responsibility. Of necessity, this notion will attract a whole variety of diverse future application, locally and globally. However, starvation wages; slave-like labour practices; unconscionable forms of child labour; sexual harassment at the workplace; wanton disregard for worker safety and occupational health; thoroughgoing creation of environmental hazards; rape; sex tourism; using infants in camel races as a form of sport; and conscription for purposes of insurgent action clearly constitute human abuses, even when existing human rights norms and standards may not allow description of these practices as human rights abuses. This phenomenological approach to human/social suffering rests, at the end of the day, on a distinctively intuitive moral anthropology. Because all human beings everywhere, at all times and places, know from experience what human (and possibly human rights) abuses are, the second obligation tantalisingly refers to duties of abstention from direct or indirect derivation of 'benefit from abuse of which they were aware or ought to have been aware' (emphasis added). Yet, far too many human rights abusers, including transnational corporations and other business enterprises, may, at least prima facie, plead the resilient cultures of impunity on the ground of the indeterminacy of the actually existing positive international law-based human rights obligations. Determined efforts at expunction in the final United Nations adoption of the Norms and the Commentary may thus be expected. Given this possibility, the way ahead lies in exemplifying the category that renders any performance of human, and human rights, abuses a manifestly immoral and obscene public performance. The fourth and the fifth orders of general obligations may, for the purposes of analysis, be named, respectively, as the 'refrain' and 'proactive' codes of obligations. The refrain codes remain understandable in terms of the overall effete 'ethical investment' and company codes, as well as the exhortative United Nations Global Compact. Even so, these remain deeply problematic simply because we do not quite know, nor are always able to say, what may, after all, be said to undermine the 'rule of law', both nationally and globally. This remains a vexatious question indeed. Is corporate campaign funding for human rightsadverse political parties and candidates justified under the Norms? Outside those strategies and campaigns that may be said to be manifestly human rights violative, which manifestly advocate crimes against humanity (now fortunately a term of art under the Statute of the International Criminal Court) some difficult questions arise concerning the due discharge of this rule of law reinforcive obligation by transnational corporations and other business enterprises. Would massive corporate lobbying/funding for legal change repealing progressive labour law be a violation of this obligation? Do strategies pressuring for
HeinOnline -- 5 Hum. Rts. L. Rev. 12 2005
Business Ethics at the Altar of Human Rights
13
the establishment of free trade economic zones constitute violations of the 'rule of law'? How may we view and assess the Global Compact and company codes that 'self-select' among human rights norms and standards from the vantage point of this obligation and thus self-destruct these very norms? The obligation stipulating deference for 'governmental and other efforts to promote and ensure respect for human rights' (the proactive code) also raises a cache of questions. Transnational corporations and within-nation premier industrial houses, often working together, possess some awesome 'spheres of influence' negating human rights enjoyment and nullify their realisation-even their promotion and protection. How may this duty of deference be deployed to aid governmental efforts to foster respect for human rights? Should these entities be required to contribute material resources for literacy, elementary and primary education? Should, in the area of their influence, such entities be called upon to make available, at affordable prices, life-saving drugs and biotech diagnostic toolkits and programs? Do they have an obligation to respond to governmental efforts that seek to ameliorate the plight of peoples with disabilities? And how may these entities assist the Committee for the Elimination of Discrimination against Women programschriftthat calls not merely for an end to discrimination against women and violence against them but also for the eradication of prejudice? What specific human rights responsibilities may extend to mass media, cyberculture, entertainment industries and advertising, now increasingly owned by transnational entities, to avoid in all their operations performances that further entrench and enhance cultural stereotypes? Further, how may the Norms be construed to avert and forbid corporate governance/business conduct that aids and abets some gruesome, massive corporate/business-enacted human rights catastrophes, as, for example, those in Ogoniland and Bhopal? Does this duty entail any further social contract-type obligation in disinvestment programmes or public -private partnership regulatory regimes, requiring special attention to be given to ensure the continuation of affirmative action policies, programmes and measures borne by the erstwhile state/government corporations, from whom private actors have taken over? How may, finally without being exhaustive, one operationalise Article 1-mandated corporate and business solicitude for the rights and interests of indigenous peoples and other vulnerable groups at least in terms of duties of corporate 'philanthropy'? Put another way, and more generally, how may human rights values, norms and standards fully inform the 'theory' and practice of corporate social philanthropy? The further obligation to co-operate with 'other efforts' must signify duties of co-operation with the inestimable work of the NGOs. This obligation at least entails a radical transformation of corporate governance and business conduct, which, as it were, wage a war of position (in the Gramscian sense) against NGO critique, expos6, action and movement. The human rights-hostile business and corporate operations include attempts at actual harassment of NGOs, misinformation campaigns through mass media coverage, legal intimidation
HeinOnline -- 5 Hum. Rts. L. Rev. 13 2005
14
HRLR 5 (2005), 1-26
such as SLAPPS suits, attempts at co-optation 26 and capture of and control over human rights markets. 2 7 Additionally, corporate and business strategies create their own NGOs (business and industry cartels propel instant and enduring NGOs) to counteract human rights-friendly work of human rights organisations, movements and initiatives. Do the proactive duties entail a genetic mutation that, as it were, may result in the conversion of the mighty international lions into meek lambs? Furthermore, what software of management education processes that programme the lust for power and profit are needed to aid this transformation? A proactive code of obligations ought not to remain thus dangerously inchoate. It should not allow tokenism that signifies opportunistic co-operation with efforts at fostering respect for human rights. To allow such accretion of 'symbolic capital' (in the phrase regime of Bourdieu) remains, at least in the present view, in itself inherently human rights violative. C. Specific Duties Parts B-H (Articles 2-14) of the Norms enunciate a whole range of specific duties and the Commentary vastly elaborates this range further. Reasons of space forbid a detailed analysis of this admirable performance, even achievement. However, one must note that the specific obligations stand animated by the belief, and conviction, that almost all human rights norms and standards, by definition, apply to transnational corporations and other business enterprises. The author wholly endorses this welcome aspiration, but this remains somewhat beside the point because the eminently state-centric human rights discourse extends primarily to state actors, and is thus not entirely open to translocation to the real world of trade, business and industry. To this extent, the automatic affixation of obligations under international law to non-state entities articulates, to use a rather obsolete phrase regime, not elements of lex lata but those of de legeferenda, not the positive law, but the law in the making, or high on a wish list. The contrast, even contradiction, between forms of politics of insurrectionary desire (politicsfor human rights) and the politics of human rights (that is the deployment of human rights languages and rhetorics that serve the ends of management and distribution of incumbent power of domination and governance) thus remains writ large on the Norms and the Commentary. All progressive codification of international law ventures, of necessity, negotiates these two radically distinct realms of politics. The Norms succeed impressively when read as animated by the politics of desire that furnish an ideal utopia. However, in the present opinion, the Norms err on the side, not of caution, but exuberance. Even so, as Rawls reminds us all, 2 s such pursuits have a prospect of qualified success when they seek real utopias that build on available forms of moral 26 See Baxi, supra n. I at 132-88. 27 Ibid.atl19-32. 28 Rawls, The Law of Peoples (Cambridge, MA/London: Harvard University Press, 1999).
HeinOnline -- 5 Hum. Rts. L. Rev. 14 2005
Business Ethics at the Altar of Human Rights
15
sentiment, not ideal ones that seek to transform these forms altogether. The question, framed in terms of the philosophical anthropology of emergent Norms, is: how may one read accurately the progress (the rate, direction and standing/viability) of the moral sentiment thus articulated by the Norms? Does the rampant voluntarism of the Global Compact and company codes furnish an indicator of progress in moral sentiment such that sets a further stage for development of human rights responsibilities? Does available business ethics discourse indicate a robust base for the Norms? 2 9 Is the moral sentiment emergent in some areas rather than across the board? 30 Does a moral reading of some patterns of business conduct and corporate governance suggest a 'thin' conception of human rights? 31 Does pragmatism counsel parsimony, not
exuberance? One hopes against hope that by mid-2005, the moment of final adoption of the Norms, the 'thin' approaches prevail over an 'all or nothing' approach, which will surely consign their futures to the normative recycle bin, subject to instant cyberdeletion. A summary quantitative 'headcount' of obligations specified by the Articles yields far fewer obligations than revealed by a similar count of obligations mentioned in the Commentary. 32 Qualitatively, too, the scope of obligations varies rather immensely across the Articles and the Commentary. This happens in at least two distinctive ways: first, at times obligations that may not be said to ensue from the text of the Articles emerge from the Commentary; second, not all Commentary obligations cast mandatory duties. Manifestly even a most-parsimonious code of human rights responsibilities of all business entities should include Article 3-type obligations that forbid these from benefiting from war crimes; crimes against humanity: genocide; torture; forced or compulsory labour; hostage taking; extrajudicial or summary or arbitrary executions; other violations of international humanitarian law; and other crimes against the human person as defined by international law (in particular, international humanitarian law). Equally justified stands the Commentary extension of this obligation to 'security arrangements for transnational corporations and other business enterprises' in a post-Ken Saro Wiwa world ordering. In terms of implementation, such violations ought to incur heavy civil liability for restitution 29
30 31
Much here depends not just on the 'search for moral universals' for business but on the felt necessity to limit the extension of norms to 'only certain types of corporations and contexts'; see, Dunfee and Fort, 'Corporate Hypergoals, Sustainable Peace and the Adapted Firm', (2003) 36 Vanderbilt Journal of TransnationalLaw 563 at 567. See also Dunfee, 'Challenges to Corporate Governance', (1999) 62 Law and Contemporary Problems 129. Already, the Norms deftly advance moral/human rights sentiments in the arenas of consumer and environmental rights in Articles 13 and 14. See, for example, Donaldson, The Ethics of InternationalBusiness (Oxford: Oxford University Press, 1989), who argues that few basic human rights responsibilities may extend to multinational corporations.
32
Much ofcourse depends on methods of computation: on my count the Commentary provides for more than 105 specific obligations!
HeinOnline -- 5 Hum. Rts. L. Rev. 15 2005
1.6
HRLR 5 (2005), 1-26
and rehabilitation of violated peoples and workable proposals for criminalisation 3 of such corporate conduct.
3
Part E (Article 10 and its accompanying Commentary) duties of 'respect for national sovereignty and human rights' remain wholly consistent with a 'thin' code prescribing positive obligations. Such a code would, in the author's opinion, exclude omnibus obligations articulated by the Commentary 'to respect the right to development', or even the more aggravatingly non-specific yet comprehensive obligation to 'encourage social progress by expanding economic opportunities-particularly in developing countries and most importantly in the least developed countries'. The aspiration thus articulated is laudable but overbroad. Thus, the latter obligations subjecting expansion of ,economic employment' to a rather rigorous regime of obligations (particularly Article 5 relating to child labour; Article 8 relating to 'remuneration that ensures an adequate standard of living' with further obligation 'towards progressive implementation'; and, the Article 9 insistence on workers' associational rights and collective bargaining-all variously and fulsomely elaborated by the Commentary) furnish future sites of fierce contention. Even a 'thin' normative packaging would highlight the more crucial non-negotiable elements, leaving equally vital human rights responsibility performance to achievement over designated time periods.3 4 Third, the 'transparency, accountability, and prohibition of corruption' obligations under Article 10 remain inadequately articulated by the Norms and the Commentary. As regards 'corruption', the Norms will now have to be read further in terms of the United Nations Corruption Convention 200335 and the equally recently adopted African Union Convention on Preventing and Combating Corruption. 3 6 More vexing, of course, remains the insensitivity in the Norms and the Commentary to empirical literature concerning 'corruption' and its impact on human rights, which identifies discrete forms of types of 'relationship marked by different distribution of rents between the firm and the state'. These include at least 'state capture' ('defined as shaping the formation of the basic rules of the game' via 'illicit' and non transparent private payments to public officials'), regulatory capture (via influence that 'refers to a firm's capacity to have an impact on the formation of the basic rules of the game without necessary recourse to private payment to 33 Concerning this, see Baxi, supra n. 15. 34 On this register, curiously and poignantly, the various transition times prescribed by the World
35 36
Trade Organisation agreements provide a good enough model for planning transition for progressive implementation of corporate and business human rights responsibilities. These entities may not, however, be justifiably heard to say that such extended periods are inherently unrealistic. GA Res. 58/4, 31 October 2003, A/RES/58/4: (2004) 43 InternationalLegal Materials 37. Decision Assembly/AY/Dec.22 (I), 11 July 2003; (2004) 43 InternationalLegal Materials 5; 12 IHRR 595 (2005). See, Odinkalu, 'Human Rights Mechanisms in Africa: Recent Developments in their Norms, Institutions and jurisprudence', (2003) 3 Human Rights Law Review 105 at 110-2.
HeinOnline -- 5 Hum. Rts. L. Rev. 16 2005
Business Ethics at the Altar of Hunan Rights
17
public officials') and administrative corruption ('defined as private payments to public officials to distort the prescribed implementation of official rules and 37 policies'). State capture emerges as a decisive issue on this register, crucial to developing as well as least-developed societies, and the so-called transitional post-Soviet economies. Available evidence suggests, embryonically at the very least, that human rights thresholds limit state capture, even in forms of regulatory capture. The Norms and the Commentary remain seized, however, with performances of administrative corruption thus defined. From a human rights regulatory perspective, it remains important to address forms of state and regulatory capture. One hopes that further development of the Norms differentiates these categories more adequately. Outside this framework the author is not confident that the relation between the Articles and the Commentary remain at all symmetrical. For example, the proscription in Article 5 forbidding use of 'forced or compulsory labour' develops in the Commentary as far as to outlaw deployment of child labour simply because of its use of large language describing economic exploitation 'in the manner that is harmful to ... health or development', specifically in terms of access to schooling or performing school-related responsibilities. This assumes an inter-state consensus, which is not yet at hand, concerning the human rights of the child within and beyond the United Nations Convention on the Rights of the Child 1989. This is deeply unfortunate indeed. But the question is how best to craft normativity that centimetre by centimetre paves the way to real life achievement in a zodiac of globalisation that profits by the theory of comparative advantage. Would it not be a concrete mode of achieving amelioration to prescribe that multinational and other business enterprises cease and desist from the use of child labour in ways that deeply affect schooling by a certain cut-off date, and in the interim direct a percentage of their profits to the creation of conditions which would enable developing/South states and societies to expand their efforts at child literacy and education? And here I speak to the issue even as a child labour abolition fundamentalist! 5. Duties of Implementation Part H (Article 15) addresses these duties rather admirably. The Norms and the Commentary envisage these in terms of 'initial implementation'. First is the obligation to 'adopt, disseminate, and implement internal rules of operation in compliance with the Norms'. The Commentary further specifies duties of communication in oral and written form in the language of workers, trade 37
See Heliman, Jones and Kaufman, 'Size the State, Seize the Day: State Capture, Corruption and Influence in Transition', World Bank Policy Research Working Paper No. 2444 (2000). See also. Baxi, Liberty and Corruption: The Antulay Case and Beyond (Lucknow: Eastern Book Company, 1990) for a similar typology.
HeinOnline -- 5 Hum. Rts. L. Rev. 17 2005
18
HRLR 5 (2005), 1-26
unions, contractors, subcontractors, suppliers, licenses, distributors, natural or legal persons that enter into contracts with the transnational corporation or other business enterprise, customers and other stakeholders. Upon the adoption of such procedures further human rights education obligations arise to 'provide effective training for their managers as well as workers and their representatives' within, of course, 'the extent of their resources and capabilities'. 38 When the various entities and persons thus embraced prove recalcitrant, both in terms of duties to 'reform' and 'decrease violations', the Commentary adds a concrete obligation, not to be found in the parent Norm obligation of Article 15, of cessation of 'doing business with them'. Further obligations, according to the Commentary, entail 'disclosing timely, relevant, regular and reliable information regarding their activities, structure, financial situation, and performance', especially providing information 'in a timely manner [to] everyone who may be affected by conditions caused by enterprises that might endanger health, safety, or the environment'. The obligations stand progressively cast in terms of the 'endeavor to improve continually ... further implementation of these Norms'. Article 16 subjects 'to periodic monitoring and verification by the United Nations, other international and national mechanisms already in existence or yet to be created, regarding application of these Norms'. New, and wide-ranging, forms of envisaged implementation inflect with the human rights responsibilities of all actors, instrumentalities and platforms of power and authority at all levels (local, regional, national, supranational, international and global). The Norms thus innovate notions and strategies hitherto unimagined for implementation of human rights norms and standards. 6. Business Ethics in Relation to Human Rights The Norms and the Commentary seem to have benefited little from the exponentially growing discourse concerning business ethics. The axiology of the Norms and the Commentary assumes that all human rights responsibilities that extend to state entities extend also, both in principle, and in detail, to transnational corporations and other business enterprises. However, many a question arises concerning the source/seat of obligation. The most fundamental question is: on what ethical grounds ought corporate governance and business conduct to remain subject to any moral and social responsibility regime? The second order questions include: what ethical language may best articulate such obligations: the languages of corporate social responsibility (CSR), those of global justice or of human rights? What kinds of norms arise from these sources? To whom are the obligations owed? To shareholders or to a wide, and inherently indeterminate, and unstable, constituency of 'stakeholders'? 3 9 Who remain the 38 39
This must of course refer to small-scale other business enterprises. Elaborately defined in Article 22 of the Norms.
HeinOnline -- 5 Hum. Rts. L. Rev. 18 2005
Business Ethics at the Altar of Human Rights
19
duty bearers? How far may we justify 'one size fits all'-type normativity, regardless of the scale and economic viability of the enterprise? These, and related issues, may not be ignored in any endeavour to further promote the Norms because one person's axioms articulate another person's radical doubt! A. The Foundational Question Concerning the foundational question, even the field of emergent business ethics grapples with but does not yet quite overcome the 'corporate Neanderthalism' associated with Friedman, who wrote, 'there is one and only one kind of responsibility of business-to increase its profits'. 4 0 Of course, Friedman subjected his observation to a caveat: this duty of 'making as much money as possible' was subject to elementary obligations arising from 'the basic rules of society, both those embodied in law and ethical custom'. 4 1 However generously construed, it is quite clear that the caveat does not extend to the imposition or ascription of wholesale and retail human rights obligations/responsibilities now explicated by the Norms and the Commentary. At the most, the reference to 'ethical custom' in the caveat may suggest a range of obligations owed by the management of 'profit-making corporations with public ownership', 4 2 with some severely limited obligations entailed to 'stakeholders' (such as workers, consumers and environment, and even the much debated, in business ethics discourse, issue of corporate philanthropy). Likewise, the reference to the 'basic rules of society' may extend to important duties to refrain from, for example, 'hiring a hitman to murder a key witness against the firm in a major product liability case'. 4 3 However, outside this minimalist range, further human rights responsibilities remain indeterminate and contested. Both the key terms of the caveat do no more than counsel prudential action by managers in their pursuit of maximal competitive advantage in doing business. Even so, the foundational question in business ethics and related literature does not always attend to what the Norms characterise as 'other business enterprises'. These, as noted diversely in the business ethics literature, at least typically include wholly private firms (unincorporated business associations); statutory corporations and government companies; trusts; foundations and charitable organisations related, in one way or the other, to business and industry; and (without being exhaustive) human rights and social movement NGOs and global citizen action agencies/fora aided by business and industry (whether episodically or in a sustained mode). This latter situation becomes 40 Donaldson, supra n. 31 at 44-64. 41
42 43
See Friedman, 'The Social Responsibility of Business is to Increase its Profits', New York Times, 13 September 1970: and Johnson, 'Freedom and Philanthropy: An Interview with Milton Friedman', (1989) 71 Business and Society Law Review 11. Dunfee and Fort, supra n. 29 at 567. The author derives this felicitous range of illustrations from Dunfee, supra n. 29 at 132 (parentheses in the original removed).
HeinOnline -- 5 Hum. Rts. L. Rev. 19 2005
20
HRLR 5 (2005), 1-26
infinitely more complicated now with the United Nations system (pre-eminently the United Nations Development Programme and the World Health Organisation) pursuit of raising resources from multinational corporations, some of which remain egregious violators of human rights, in the cause of 'mainstreaming' human rights. The author is not suggesting that the already encyclopaedic Norms should be further extended counterproductively. It is suggested, however, that the issue of extension of business ethics and human rights standards across this range is relatively unexplored, in ways that renders difficult any sustained theoretical critique of the Norms. Even so, the emergent forms of business ethics discourse richly suggests that trade and commerce 'formations', 'systems' and practices ought at least to remain a 'moral free zone' or at best bear witness to extraordinary complexity of 'morals by agreement'. 4 4 Donaldson and Dunfee, in their immensely valuable work,4 5 suggest an approach they name as 'Integrative Social Contract Theory'. This approach repositions 'moral free spaces', in terms of 'macrosocial' and 'microsocial' contracts, 4 6 by notions of'hypernorms', 'hypergoals' and 'authentic norms'. 4 7 Some understanding of this language is essayed in section C below. B. The Issue of Appropriate Ethical Languages If the foundational question may be somehow 'satisfactorily' addressed, the contest shifts to the terrain of appropriate ethical languages through which we may construct the ethic of trade and business. Human rights languages, on this register, compete with those of Corporate Social Responsibility (CSR). These, put together, variously further contrast with deontological ethical languages. Exploring first, and necessarily briefly, the languages of CSR seem to have been in constant evolution, so much so that one now speaks of the third generation. 48 The first generation showed that business entities should be 44
See the path-breaking work of Gauthier, Morals by Agreement (Oxford: Oxford University Press, 1986). 45 Donaldson and Dunfee, Ties that Bind: A Social Contract Approach to Business Ethics (Cambridge, MA: Harvard University Press, 1999). 46 Students of Ehrlich will readily understand this 'unfoldment' as instancing what he memorably called the law arising out of the 'inner order of associations'. Students of Walzer may grasp this in terms of some sort of 'spheres of justice' argument: human rights or justice values, standards and norms entirely appropriate to the public spheres of governance/state conduct may thus become inappropriate impositions in the sphere of trade, commerce and business. Worse still, these may also prove counterproductive. 47 One may of course argue, following Fraser (see Fraser, 'Social Justice in the Age of Identity Politics', in Fraser and Honneth, Redistributionor Recognition? A Political-PhilosophicalExchange (London: Verso, 2003) at 34-7), 'against reductionism' and for 'perspectival dualism' in ways that suggest that governance/state conduct and markets may thus not be regarded as separate autonomic spheres but rather as sites of complex and interlocking intersections, each heavily, and historically, permeating the other. The author suspects that this provides the best bet there is for any worthwhile grounding of the Norms, which is not pursued further here for reasons of space. 48 Zadek, The Civil Corporation: The New Economy of Corporate Citizenship (London: Earthscan, 2001).
HeinOnline -- 5 Hum. Rts. L. Rev. 20 2005
Business Ethics at the Altar of Human Rights
21
socially responsible primarily through corporate philanthropy, not inimical to but indeed beneficial to 'commercial success'. The second generation seeks perhaps more than a veneer of ethical respectability by accentuating company engagement with social responsibility. Put another way, taking social responsibility seriously emerges as a crucial aspect of doing good business. Social responsibility here also figures often in terms of best industry standards. Aside from minimal compliance with tax and labour laws, and company/ industry-defined modes of self-regulation, the notions of 'corporate citizenship' or of 'citizens CEOs' 49 begin to take seriously risk analysis and management. A recent United Nations University study presents this in terms of the 'Principle 50 of Double Effect', providing at least for the minimisation of negative side effects. The third generation of CSR languages leads on to the now tireless talk about Isustainable development', fostered by the Business Council for Sustainable Development and related ventures 5 ' and furthered by the ever-proliferating discourse on 'good governance'. The comparative advantage of CSR languages is that they open up valuable space for interfirm and intra-industry dialogue concerning minimal social responsibilities, marking contests amidst a variety of actors, principles and 'webs of influence'. 5 2 Clearly, as a recent UNIDO study richly shows, the levels at which contestation takes place is crucial; shifting CSR discursivity to small and medium enterprises involves a whole variety of cognate but distinct considerations. This perspective, at the very least, surely invites a revisitation of the scope of the 'one size fits all' insistence on the human rights responsibilities of all business entities everywhere, even if at the end of the day one is not ever confident what CSR languages signify in terms of 'here and now' obligation of large and medium business enterprises, 53 outside the ethic of consequentialism for business and industry. 49 50
Cited in UNIDO, supra n. 20. Wiggen and Bomann-Larsen, 'Towards Improved Business Practices: Implementing the Principles of Double Effect', in Bomann-Larsen and Wiggen (eds), Responsibility in World Business: Managing Harmful Side-Effects of CorporateActivity (Tokyo: United Nations University Press, 2004) 273.
51
In ways that bring to mind Rowell's analysis (see Rowell, Green Backlash: Global Subversion of the Environmental Movement (London: Routledge, 1996)) and equally trenchant activist critiques. See, for example, Ridgeway and St Claire, A Pocket Guide to Environmental Bad Guys (and a Few Ideas on How to Stop Them) (New York: Thunder's Mouth Press, 1998) and of course the luminous discourse of Klein (for example, Klein, No Logo (London: Flamingo, 2000) and Klein, Fences and Windows: Dispatches from the Frontlines of the Globalization Debate (New Delhi: Leftword, 2002)). See also Zammit, Development at Risk: Rethinking Un-Business Partnerships (Geneva: UNRISD, 2003). It should be added that the author's description of these three generations does not do full justice to Zadek's superb analysis, supra n. 48. Braithwaite and Drahos, Global Business Regulation (Cambridge: Cambridge University Press, 2000).
52 53
The UNfDO narrative bristles, understandably, with programmatic confidence. Of course, considerable real life work needs to be done to carry the CSR languages to microsites of business
and industry and the narrative provides an account of some success stories that we may not ignore.
HeinOnline -- 5 Hum. Rts. L. Rev. 21 2005
22
HRLR 5 (2005), 1-26
Whatever be the vantage point of critique of CSR, its languages have reached some critical thresholds in ways that human rights languages have yet to acquire in relation to business and industry. Surely, the talk of 'generations' of human rights does not even remotely approximate the development of the languages of CSR. This talk, until the emergence of the Norms, did not specifically address the human rights responsibility of business and industry. In this light, one understands more clearly the dense intertextuality of the Norms. However, this indeterminate Penelope's web, finely spun by the Norms, does not by itself minimise the 'culture shock' caused to trade, business and industry, accustomed and addicted to practical logics of voluntarism and the minimal of application of human rights standards and norms. C. Human Rights as Hypernorms? The switchover to alternate languages of human rights responsibilities thus raises a hostile reception problem/situation. The initial resistance also arises from grand economic theory, which (as we know since the pioneering corpus of Coase) views the insertion of human rights standards and norms primarily in the diction of managing transaction costs; human rights languages, alongside others, then stand viewed as 'factors of production'.5 4 Rights, including human rights, constitute 'no trumps', remaining infinitely negotiable in doing business when they enter at all in management/enterprise decisions. A normative discourse that moves beyond this consequentialist frame entails some sort of commitment to egalitarian or rights-oriented notions, under which action or conduct is justified independently of the outcome of one's actions. Here, what matters are not consequences of act/conduct but 'a variety of rules, principles, or constraints involving moral duty and the nature of act itself'. 5 5 This 'deontological ethic' seems to be affirmed by the Norms, which disallow ongoing recourse 'trading away' human rights. 56 Deontological ethic raises the rather already heavily silenced issues/thematics concerning emerging approaches to global justice. 5 7 In this sense, human rights norms and standards, howsoever admirably installed by the Norms, remain ethically sensible only in so far as authorised by approaches to global justice. But all this poses considerable difficulties. In his notable extension of the theory of justice to international justice, Rawls, the foremost philosopher enunciating justice values of the law of peoples, does not find it possible to 54
55 56 57
See, for example, the analysis of various approaches of 'wealth maximisation' in Mercuro and Medema, Economics and the Law: From Posner to Postmodernism (Princeton: Princeton University Press, 1997). See Garcia, 'Building a just Trade Order for the New Millennium', (2001) 33 George Washington International Review 1015 at 1022. See, for this notion, Garcia, ibid. See Pogge, supra n. 25, and Baxi, 'The "Just-War" for Profit and Power: The Bhopal Catastrophe and the Principle of Double Effect', in Bomann-Larsen and Wiggen (eds), supra n. 50, 175.
HeinOnline -- 5 Hum. Rts. L. Rev. 22 2005
Business Ethics at the Altar of Human Rights
23
foreground for corporations and other business entities any specific duties of justice. 5s Perhaps, there is no sure way to ethically adjudicate the choice between two constitutive elements of discourse: voluntarism and enforcement. 59 Voluntarism necessarily seeks to minimise the range of human rights responsibilities extendable to trade and business. This 'mainstreaming' of human rights further entails the problem of fragmentation of the universality, illimitability and indivisibility of human rights. In contrast, the Norms suggest maximal enforcement of almost all human rights. If voluntarism entails a smorgasbord approach to human rights, in which corporate CEOs may choose to feast, enforcement is more like a prescribed Spartan diet. It entails imposition of external normativity on the 'inner order of association' (to borrow the phrase from Ehrlich) of transnational governance and business conduct. Human rights norms and standards may emerge, in this context, as 'hypernorms' that furnish a 'limited set of universal principles that constrain the relativism of [business and industry] community moral free space'. 60 The Integrated Social Contract Theory that Donaldson and Dunfee propose assumes, of course, that 'that norm-governed group activity is a critical component of economic life'. 6 1 Hypernorms are 'principles so fundamental to human existence
that ... we would expect them be reflected in a convergence of religious, philosophical, and cultural beliefs'. 62 Clearly, hypernorms, in the discourse of business ethics, do not extend to all human rights norms and standards, applicable across all forms of corporate governance and business conduct. The Norms, and the Commentary, however, presume otherwise! An important reason for this hiatus is furnished by the felt necessity in business ethics discourse to translate hypernorms further in the languages of hypergoals. 6 3 A closer analysis may well reveal the potential to bridge this gap, a task the author does not essay here, for reasons of space as well as of 58
59
60 61 62 63
See Rawls, supra n. 28 at 35-9 and 59-88. Corporate and business entities do not feature in his enunciation of eight principles of the law of peoples applicable to five types of societies, nor as any constitutive feature of the latter. On this aspect see Baxi, ibid. Of course, Rawls remains concerned with public corruption as an aspect of 'background culture, with the great wealth being in control of economic power'. He acutely asks: 'Is it any wonder that congressional legislation is, in effect, written by lobbyists, and the Congress becomes a bargaining chamber where laws are bought and sold?' (24 at n. 19). Ways of reading Rawls, superbly exemplified by Pogge, supra n. 25. yield diametrically opposed conclusions. Even so. the place of human rights responsibilities of big and small business enterprises, including transnationals, remains ambivalent in this corpus. The former refers to relative autonomous self-regulation of trade and business; the latter signifies a real life. and variegated, recourse to a rather parsimonious assemblage of moral/ethical guidelines; 'the fewer the better' remains the somewhat normative approach, guided perhaps by the difficult Hegelian theme of quality converting itself eventually into quantity. I)unfee, supra n. 29 at 146. Ibid. at 145. Ibid. at 146. See Dunfee and Fort, supra n. 29.
HeinOnline -- 5 Hum. Rts. L. Rev. 23 2005
24
HRLR 5 (2005), 1-26
competence. Yet, it is clear that not all human rights responsibilities of transnational corporations and other business enterprises, as envisaged by the Norms and the Commentary, render themselves open to a business ethics discourse of hypergoals. This, incidentally, is illustrated in what now follows.
7. 'One Size Fits All' Normativity This question, at the end of the day, stands posed both ideologically and empirically. Ideologically, the histories of global capitalism and human rights suggest that hopes for human rights achievement may indeed be overstated. Put more manageably, in the present context, the question is: how far may the notion of business ethics orient itself fully to human rights? Can it, consistent with its originary traditions of discourse, go as far as the Norms suggest? Is there a core aspect of doing business that necessarily entails 'trading away' human rights? How may human rights implementation approaches, unlike voluntarist ones, necessarily inhibit the gigantic werewolf appetite for profits and more profits at the cost of people's rights? The empirical question is: what/which 'human rights' may apply/extend to multinational corporations and other, related, business organisations? The author here only addresses the latter question (again for reasons of space). First, the diversity of economic enterprises, as well as of international modes of production of human rights, raises the question whether human rights fundamentalist approaches adequately address and exhaust empirical and normative conceptions concerning 'social responsibility' of trade and business formations and practices. Put another way, the question is: which are the right language and rhetoric to be used-those furnished by the grammar of human rights or the wider languages of 'social responsibility'? Do human rights languages and logics adequately recast 'social responsibility' of multinational/ transnational enterprises, no matter how complex and contradictory the ways? How may we, further, locate authorship of social responsibility in the normative evolution, as well regression, of forms of inter-state consensus and conduct, fully exposed to view in the interminable wrangle concerning the forms of 'hard' and 'soft' international law? What warrants on human futures justify adequate dialectical description of stories we may choose to tell about how 'soft' law becomes 'hard' law? How may we further understand the narratives concerning the softening of the 'hard' law, conspicuously manifest in the Kofi Annan-led United Nations Global Compact that now fully enables multinational corporations to pick and choose human rights norms and standards applicable to corporate governance and business conduct? Second, there emerges the conflict between voluntarism and maximalisation; that is, between corporate self-selection of applicability of human rights norms and standards versus human rights maximisation, now abundantly exemplified
HeinOnline -- 5 Hum. Rts. L. Rev. 24 2005
Business Ethics at the Altar of Human Rights
25
by the Norms. All this raises the issues of business ethics in evolution; advocacy of maximal incorporation of human rights norms and standards is more likely to stymie their normative birthing. On the other hand, trade and business normative shopping lists may legitimate 'free choice' (in the fullest sense of that term) that may result in abortion, even amniocentesis, of progressive human rights futures. Third, implementation issues thereby also become issues of diverse fighting faiths. On the one hand, the proponents of free-market fundamentalisms may demonstrate polemically the perils of strict, comprehensive and instant implementation to the very agenda, and tasks, of the human right to development; on the other hand, the advocacy of fullest advertence to contemporary human rights may, at least normatively, suggest the lack of any half-way house amidst the often fierce clash of market and human rights fundamentalisms. Fourth, even as we may closely attend to the complexity and contradiction in human rights discursivity, the non-discursive elements do indeed matter. Reference is made here, in a shorthand language, to the issue of the impact of the current, cruel and endless 'War of Terror' and the 'War on Terror' both on the CSR and on human rights languages of corporate and business responsibilities. The New International Military Order decisively emergent in a post-9/11 world ordering marks an extraordinary revival of defence and global armament 'military-industrial complex' (to invoke a yesteryear, anachronistic, phrase). All this raises extraordinary questions for the human rights responsibilities proposed by the Norms. If this prescriptive normativity forbids, as a matter of an overarching principle, that trade, business and industry may not profit from human, and human rights, abuses, where indeed may one locate the 'ethics' of the scramble for contracts in the current 'postconflict' Iraq milieu? Does the now privileged status of the Iraq war coalition states who are favoured allocation of commercial contracts for the 'rebuilding' of Iraq violate the Norms, on the one hand, and the ever-proliferating business ethic literature concerning hypernorms and hypergoals, on the other? How may we relate, especially in the latter context, the basic principle that no one may thus profit from such abuses? The Norms and the Commentary ambivalently repudiate the rather gruelling choice expressed poignantly in the maxim 'half a loaf is better than none'. The question, put in the metaphor of the genetically modified (GM) food discourse, directs attention to the necessity of choice between the human rights 'organic' and the human rights GM 'mutated' versions of responsibility regimes of transnational corporations and other business enterprises! To conclude, somewhat abruptly, the author suggests a full range of 'precautionary principles' to further the exercises aimed at development of the Norms. The endeavour towards a wholesale mediation of free-market fundamentalism via coequal human rights fundamentalist languages and
HeinOnline -- 5 Hum. Rts. L. Rev. 25 2005
26
HRLR 5 (2005), 1-26
logics of contemporary human rights values, standards and norms raises imponderable issues that invite even further heroic feats than are now readily 64 available in the prose of the Norms and the Commentary.
64
Reference here is made to a recent contribution of political philosopher Morris Young, 'Responsibility for Global Labour Justice', (2004) 12 The Journal of Political Philosophy 365, where she, in the main and in the context of justification for anti-sweatshop activist human rights movements, rightly advocates movement from the liability-based 'blame model of responsibility' to a 'shared political responsibility model', in which the following moral passages remain pre-eminent. First, in this model of political responsibility (as distinguished from the conventional civil/criminal legal liability regimes) we accept 'a responsibility for what we have not done' simply because many 'cases of harms, wrongs or injustice have no isolable perpetrator, but rather result from the participation of millions of people in institutions and practices that result in harms' (at 377). Second, the conception of political responsibility is one in which 'finding that some people bear responsibility for injustice does not necessarily absolve others' (at 377), Third, such a conception renders problematic, in ways that the legal liability approach may not, some of 'the normal and accepted background conditions of action' (at 378). Fourth, the entire point of the shared political responsibility model is 'to bring about results' rather than to apportion blame and shame, precisely because these latter mechanisms trigger moral avoidance of shared responsibility. Fifth, at the end of the day, the shared political responsibility model 'involves coordination with others to achieve .,. change' (at 387) because it is 'more forward-looking than backward-looking' (at 388.) Sixth, overall, Young maintains that the concept of shared political responsibility remains 'generalizable and applies to any structural injustice' (at 388) precisely because contemporary economic globalisation signifies an immense order of ethical interconnectedness, It remains important to stress, in the present context, that advocacy of this approach does not altogether supplant the legal liability (both civil and criminal) approach. Young, the author suspects, would therefore welcome the proposed UN Norms: and indeed read, in the light of her analysis, that the Norms may even be said to implicitly advance the model of shared political responsibility. Even so, the question remains: does accentuated emphasis on reform/innovation of the legal liability model carry any adverse potential for the shared political responsibility model? Put another way, how best may we approach an understanding of the complementarities of both approaches? Space constraints forbid further analysis of this aspect. It is also true that the shared political responsibility approach offers a more rounded ethical language than do the fractured languages of 'corporate citizenship' or CSR. Yet it is not fully clear, given Young's distinctive emphases concerning collective moral agency of all globalised human beings and entities to work together to produce just results in the future, how all this may render the CEOs of multinational corporations, the leaders of G8, as well as the generals and foot soldiers of international and regional financial institutions, close cousins, or even ethical near-clones, of human rights activists.
HeinOnline -- 5 Hum. Rts. L. Rev. 26 2005
