Forthcoming in Journal of Human Rights 14(2) (2015)

Business and Human Rights in Historical Perspective

Michael A. Santoro

This special issue of the Journal of Human Rights features articles from leading

academics in Business and Human Rights (BHR), as well as timely contributions by

practitioners describing recent developments in the field. To place these contributions in

perspective for a more general human right readership, I would like briefly to describe

the central concerns of BHR and the principal historical trends that have shaped the

current state of this burgeoning area of human rights studies.

Business and Human Rights: A Brief Description of the Field

BHR is both a multidisciplinary (and sometimes interdisciplinary) academic field

drawing from, inter alia, business ethics, law and the social sciences, and a social,

economic and political justice movement involving governments and inter-governmental

institutions, as well as indigenous peoples, non-governmental organizations, and other

civil society actors. BHR advocates seek, at a minimum, to hold businesses accountable

for their own direct human rights violations and impacts. This responsibility extends

down into the supply chain for human rights violations committed by affiliates,

subcontractors, and suppliers. (Arnold and Bowie 2003) Many advocates also would

hold business, when it is capable of doing so, responsible for helping to prevent and

remedy human rights violations committed by others, including governments, even if the

company itself has no direct or indirect connection to such rights violations. Business

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thus has both a negative duty to itself avoid human rights violations in its own operations

and in its supply chain, and positive duties, when possible, to help to protect victims from

and remedy violations by others. (Wettstein 2009; Santoro 2010; See generally Shue

1996)

From an academic perspective, the core BHR issues and controversies center

around two sets of question: (1) fairness and justice, e.g. on what basis, if any, can

business be said to owe moral duties regarding human rights? (Donaldson 1989; Werhane

1985; Wettstein 2009) How extensive are the human rights duties of business in

situations where business has no direct or indirect connection to human rights violations

by states? (Santoro 2000 and 2009; Wood 2012); and (2) implementation, public policy,

and law, e.g. how might voluntary codes of conduct and other self-regulatory

mechanisms serve to bring business behavior into greater alignment with their human

rights duties? (Campbell 2006) What role should private law, state action, the United

Nations or treaties play in promoting business adherence to human rights norms?

(Weissbrodt and Kruger 2003; Deva 2004; Williams 2004)

The confluence of two broad historical shifts has shaped the contemporary BHR

landscape. The first dates back nearly seven decades to the aftermath of the Nazi

atrocities committed during World War II. The fledgling United Nations gave birth to the

modern ideal of human rights without establishing an institutional framework for holding

member states accountable for human rights violations against their own citizens. Over

time, frustration over this state accountability void ineluctably led activists to shift their

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focus to a more easily (and too often justly) vilified and vulnerable target, i.e.

multinational business, as the principal and sometimes exclusive pressure point for

preventing and redressing human rights violations. (Spar 1998; Avery 2000) Whether it is

apartheid in South Africa, the rights of indigenous people in the Niger Delta, or political

oppression and free speech rights in China, global civil society increasingly has shifted

the immediate target of pressure to business, even when the fundamental problem is

human rights violations by states. A second broad historical trend shaping the current

BHR landscape has been the expansion, mostly in legal scholarship, of the range of BHR

concerns beyond supply chain labor rights and the extractive industry to a broad array of

issues ranging from the environment and access to affordable medicines to economic,

cultural and social rights.

Human Rights Activists Shift Focus From Governments to Business

Human rights activists increasingly have shifted their focus from governments to

business for a variety of reasons. One is the emergence of a narrative that states are weak

and modern multinational corporations are nimble and crafty leviathans who overpower

or outmaneuver governments and civil society, particularly in the less developed

economies in what often is awkwardly termed the “global south.” (Korten 2001;

Chandler and Mazlish 2005) In the area of human rights, however, this weak state

hypothesis seems particularly inappropriate because the most pernicious and enduring

human rights violations are committed by governments against their own people, and it is

hard to say from the perspective of human rights victims what is “weak” about such

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rights-violating nations that range from global powers such as China and Russia to the

Myanmar and the Democratic Republic of the Congo.

The shift in focus from governments to business stems also from the human rights

accountability gap that began to take shape as early as the founding of the United Nations

in 1945. Except in rare instances where human rights violations constitute a threat to or

breach of peace, or an act of aggression, pursuant to Article 39, the UN Charter failed to

provide any mechanisms for preventing or redressing human rights violations by member

states. Even after the adoption by the UN General Assembly of the Universal

Declaration of Human Rights, the Covenant on Civil and Political Rights, and the

Covenant on Economic, Social and Cultural Rights, there are no authoritative institutions

that effectively monitor, prevent and remedy member state violations of human rights.

The 47-member United Nations Human Rights Council was created in 2006 and charged

with promoting and protecting human rights. The Council continues, however, to be

plagued by many of the same problems of its predecessor, the Commission on Human

Rights—the election of notorious human rights violators to its membership and a lack of

urgency about holding member states accountable, with the notable exception of the

Israeli-Palestinian conflict.

This institutional void and resultant human rights accountability gap have been

filled somewhat by bilateral and multilateral state-to-state economic sanctions. However,

the moral legitimacy of economic sanctions as a tool of human rights enforcement was

undermined during the Cold War by the hypocritical conflation of moral ideals and

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geopolitical power politics. The Reagan administration, for example, repeatedly certified

El Salvador as making progress in human rights, even as well-documented reports

emerged of death squads murdering tens of thousands of citizens. (Donnelly 2007) The

hypocrisy crossed partisan political lines, so that during the Carter administration the

U.S. extended military aid to repressive regimes in Iran, Zaire, and Indonesia, among

others. (Cohen 1982) The institutional void was also filled by the emergence in the last

quarter of the 20th Century of non-governmental organizations (NGOs) such as Human

Rights Watch and Amnesty International, to pick just two of the better-known ones.

Today, a globally dispersed network of international and local NGOs are ferreting out,

publicizing, and attempting to roll back human rights abuses by states, often at great

personal risk to the individuals involved. (Korey 1999)

State-to-state sanctions and NGO initiatives can go only so far, however, in

pressuring states to honor the human rights of their citizens. Inevitably, the focus of

human rights activists began to turn to business to do its “fair share” of the human rights

heavy lifting. (Santoro 2000) In the struggle led by the great Nelson Mandela to end

apartheid a variety of external actors reinforced the courageous efforts of South Africans.

The international NGO community was joined by a coalition of nations instituting

economic and cultural sanctions. Businesses too were deeply involved. Some companies

disinvested and left in protest. Others stayed and followed the Reverend Leon Sullivan’s

Principles requiring transnational corporations to eschew apartheid in their own

operations—essentially an act of civil disobedience—and to speak out and work to end

apartheid. (Sullivan 1977) Indeed, it is disappointing that the United Nations Guiding

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Principles on Business and Human Rights adopted by the Human Rights Council in 2011

failed to heed the lesson of the most important business and human rights success story in

history by pointedly failing to reaffirm the Sullivan Principles requirement that

businesses have a moral duty to do something about human rights violations in countries

where they operate even when they are not directly or indirectly causing those violations.

Business and Human Rights and Corporate Social Responsibility: An Evolving

Relationship

A second broad historical trend shaping the current BHR landscape has been its

expansion beyond a narrow focus on supply chain labor rights issues and the extractive

industry to a much broader range of social issues that traditionally have been addressed

by management scholars under the rubric of CSR or more even more generally

international business ethics. (Enderle 1999; DeGeorge 1993) The concerns of BHR have

been extended to the environment (Joseph 2012; Bauer 2011; Hiskes 2009), economic,

cultural and social rights (Nolan and Taylor 2009), and access to affordable medicines.

(Joseph 2003; Leisinger 2005; Santoro 2006) This expansion of BHR was further fueled

by the “discovery” of CSR by legal scholars in the past decade. (McCorquodale 2009;

Buhmann 2009) It is unclear whether management scholars will embrace the BHR

paradigm to reframe international business ethics issues. As Florian Wettstein has

observed, “until very recently, human rights have played a rather marginal role in…the

conceptualization of CSR.” (Wettstein 2012) It remains to be seen, however, how

extensively BHR will transform CSR and how readily management scholars will be to

recast CSR and business ethics issues as BHR issues.

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 As BHR increasingly intrudes on the traditional terrain of CSR and legal scholars

continue to press the agenda to codify what have heretofore been pressed by business

ethicists as moral claims, it will be interesting to observe how these two disciplines

interact. Hopefully, a mutual appreciation for their essential roles will emerge and the

cross-disciplinary conversation will be synergistic. Proponents of a legal approach to

addressing social justice sometimes view ethical and moral approaches as “soft” and

vague and whereas law is “hard” and definite. The feeling from ethicists is, of course,

mutual. From the Nuremberg laws prohibiting Jews from entering selected professions in

Germany to U.S. racial segregation and Chinese criminal procedure, history is replete

with examples of immoral or unjust laws. In a just world, law and morality work hand in

hand. As the late former U.S. Chief Justice Earl Warren said, “In civilized life, law floats

on a sea of ethics. Each is indispensable to civilization.” (Warren 1992) Without moral

reasoning the justice of our laws cannot be measured. Law, in turn, places the coercive

power of governing bodies behind our most fundamental and widely shared values.

(Paine 2002) Legal scholars are at the vanguard, pushing the agenda to codify BHR

responsibilities. In turn, business ethicists can help shape the substance of emerging legal

principles so that they comport with fundamental principles of justice and fairness.

Current and Future Trends in Business and Human Rights

The articles in this special issue illustrate some of the more important current

trends in BHR. First, the United Nations Guiding Principles on Business and Human

Rights (UNGPs) are at the moment driving much of the agenda, for better or worse. They

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are generating excitement and momentum. At the same time they have been sharply

criticized from a number of perspectives. Business ethicists have criticized the lack of

moral foundation for the Guiding Principles as well as their failure to hold businesses

accountable their moral duty to act when they are able to make a difference in human

rights violations by governments in countries where they operate. (Arnold 2010; Santoro

2012) In addition, many BHR advocates question the adequacy of voluntary principles.

(Responding to such concerns, the UN Human Rights Council has established a working

group to prepare a treaty to create legally binding human rights obligations for business.)

John Ruggie, the UN Special Rapporteur for Business and Human Rights, has reacted

with somewhat understandable prickliness to these criticisms, clothing the UNGPs

belatedly within the cloak of Nobel laureate Amartya Sen’s moral philosophy, and with

broad strokes dismissing (and no doubt further alienating) his critics by insisting that the

best chance for BHR progress is to be found in the UNGPs, “not in legal treatises,

journals of ethics, or the mesmerizing effects that the word ‘binding’ has on the critical

faculties of many committed activists.” (Ruggie 2015)

Which criticisms of Ruggie and the UNGPs are warranted and which not? What

have been the contributions of the UNGPs to BHR and what will be their future impact?

How much uptake has there been among businesses for the voluntary responsibilities set

forth in the UNGPs? What will John Ruggie’s legacy be in BHR? In this special issue,

business ethicist Florian Wettsein offers an evenhanded and masterful summing up of the

estimable accomplishments, shortcomings, and legacy of most attention-grabbing and

potentially impactful BHR initiative to date.

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 A second broad trend in BHR reflected in this special issue is the increasing

importance of law. While many NGOs continue to “name and shame” multinational

enterprises violating human rights, increasingly legal tactics are being added to the mix.

(Deva 2012) Lawyers have tried with limited success to use the centuries old U.S. Alien

Tort Act as a mechanism for holding business accountable for extraterritorial human

rights violations. Based on a similar British legal principle, Shell recently agreed to pay

approximately $85 million to settle a case brought in the London High Court over an oil

spill in Bodo community of the Niger Delta. A number of countries have begun to

develop “national action plans” which, among other things, would institute similar laws

governing extraterritorial violations of human rights. In considering these and other

developments in her article for this special issue, legal scholar Anita Ramasastry argues

forcefully that BHR has supplanted CSR as the dominant rubric for corporate

accountability. She offers a compelling argument that this shift represents a measure of

progress because BHR, by its nature, is concerned with imposing legally binding

obligations on companies whereas CSR is overly reliant on ethics and moral suasion to

affect business behavior.

The increasing prominence of law is also reflected in the articles in this special

issue by Celia Taylor and Toby Whitney on Section 1502 of the U.S. Dodd-Frank Act.

Taylor and Whitney offer trenchant scholarly and practitioner perspectives, respectively,

on Section 1502’s requirement that companies disclose their use of conflict minerals, i.e.

extracted in a “conflict zone” and sold to perpetuate the fighting--including tantalum, tin,

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gold, and tungsten--if those minerals are “necessary to the functionality or production of

a product.”

In addition to illustrating the increasing use of law in BHR, Taylor and Whitney’s

contributions also highlight a third important trend—the emergence of standardized

reporting obligations. Human rights are already an important component of voluntary

CSR reporting, the most prominent of which is the Global Reporting Initiative. In 2011, a

new chapter on human rights (incorporating the UNGPs) was added to the Organization

for Economic Cooperation and Development’s Guidelines for Multinational Enterprises.

As CSR and BHR reporting become standardized and widespread, business executives

will acquire that most essential of management tools—measurement. The ability to

measure and report human rights impacts is an important stepping-stone to the day when

business executives will be able to align BHR objectives with overall corporate strategy

and incentive structures.

A fourth trend reflected in this special issue is the continuing debate about

fundamental principles, even as there is much practical movement and progress. Anthony

Ewing, whose pioneering BHR course at Columbia Law School has helped train many

academics and practitioners in the field, considers an argument for expanding the human

rights duties of non-state actors in his book review of David Karp’s Responsibility for

Human Rights: Transnational Corporations in Imperfect States. At the other end of the

spectrum are the skeptics—not of human progress but at the idea of using human rights to

achieve moral betterment. George Brenkert, for example, has argued that expectations

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about the human rights duties of business should be tempered by the realities of operating

a for profit enterprise in a repressive regime such as China. (Brenkert 2009) In his article

for this special issue, Nien-he Hsieh goes one step further and questions whether business

has any human rights obligations. Hsieh shares with BHR proponents the ultimate

objective of human betterment, but he questions whether imposing philosophically

problematic human rights duties is the best way to achieve this goal.

Jennifer N. Costanza’s carefully researched article on the rights of indigenous

people in Guatemala to prior consultation is emblematic of a fifth and final trend in

BHR—a return to the grassroots. Attending the most recent United Nations Global

Forum for Business and Human Rights this past December in the august Palais des

Nations, one could not help noticing how very few representatives there were from the

so-called “global south.” There is a collective understanding among BHR activists and

scholars that the most important battles for justice and human rights are local. Costanza’s

article is a powerful reminder of this verity. While concerned global citizens and

businesses headquartered in rich countries have an important role to play, it is local

activists, indigenous people, and local NGOs that are on the front lines of the struggle.

The future of BHR will be shaped in large measure by their experience, collective

wisdom, and power.

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