we ask both too much and too little.
It is too much to expect companies to comply with all of the human rights obligations of a state, such as fair elections and trials, protecting freedom of religion, or providing health care. It is too little to expect companies to be concerned only with their legal obligations, as opposed to broader ethical responsibilities to do business honestly, contribute to charitable causes, treat their workers with respect, and simply to be good neighbors in the communities in which they operate. This broader approach was initially known as Corporate Social Responsibility, and it often offers a much better way to influence corporate behavior than merely to throw the phrase “human rights” around.
The United Nations Guiding Principles on Business and Human Rights were adopted ten years ago. This is the first authoritative UN framework to address business impact on all human rights. What, in your, are their strengths and shortcomings?
The UN Guiding Principles remain the most significant articulation of the connection between business activities and human rights. Unfortunately, they suffer from a number of weaknesses.
First, the Principles are very expansive, both in their application to all human rights and to all “business enterprises regardless of their size, sector, operational context, ownership, and structure.”
Second, the Guidelines explicitly do not create “new international legal obligations” and thus remain exactly what their title implies. i.e., a set of guidelines or recommendations that businesses are free to adopt or reject. States do not accept any new obligations either, although they are required under current human rights law “to protect against human rights abuses [which remain undefined] by third parties, including business.”
Third, confusing the non-binding “responsibility” of business with the legally binding “obligations” of the state undermines the latter without strengthening the former. Such confusion offers yet another opportunity for critics to denigrate human rights as meaningless, since any actions taken by businesses remain purely voluntary.
After several failed attempts, there is a renewed effort to draw up a legally binding treaty on transnational corporations and other business enterprises with respect to human rights. Do you think that the treaty should recognize transnational corporations as subject of international law having international legal obligations or do you think that the treaty should rather lean on and reinforce the state’s regulatory powers? What would be the most effective way forward?
The UN began in 2014 to discuss adopting a “legally binding instrument” to regulate business activities that lead to “human rights abuses”. A second draft of the detailed instrument was presented in 2020, but governments continue to have serious disagreements over its substance and scope. For example, the African Group and many developing countries maintain that the instrument should apply only to transnational business, not domestic enterprises. The European Union observes that text has “substantial shortcomings” and “a number of elements that are unclear or ambiguous, in particular regarding issues of scope of the LBI, the regulation of civil and criminal liability, applicable law and jurisdiction, or the relationship with existing international instruments on judicial cooperation.” The UK calls the draft “too vague to be workable” and believes that “the legal liability provisions create unrealistic burdens on business”. The US under both Obama and Trump refused to participate in the “open-ended intergovernmental working group” discussing the proposed text.
The proposed binding instrument does little beyond asking that states regulate business in ways that are already within every country’s jurisdiction.While a treaty might focus additional attention on the need to hold companies accountable, the continuing lack of consensus and the expansive nature of the text are, in Shakespeare’s words,
“full of sound and fury, signifying nothing”.
Many are of the opinion that today’s world is somewhat similar to the “Gilded Age” of the late 19th century’s America that was marked by the rise of corporate giants who stifled competition. As result of transnational as well as platform-based business models, monopolies are increasingly emerging. How in your view does monopoly power impact on human rights?
Monopolies, anti-trust laws, and the concentration of power in the areas of communication, media, and technology certainly have profound impacts on today’s societies. Rights – such as freedom of expression, the right to privacy, and the right to free and fair elections – do provide the context in which the extent of government regulation of such power should be considered. A state’s obligation to ensure economic and social rights must also be borne in mind, since concentration of private economic power, tax avoidance, and distortions in a country’s economy may undermine the government’s ability to fulfill such rights.
At the same time, human rights do not require that states adopt any particular economic system. Even a rights-based approach will not automatically answer the question of how to balance issues of economic policy, taxation, employment, and the “best” form of development. Other political and ethical principles -- including fairness, equity, and how wealth and power are best distributed in a free society – must also be taken into account.
Anti-trust concerns, in particular, are complicated matters in which the “public interest” is one factor that must be weighed against the impact of monopolies on competition.
These and similar issues should be determined primarily by decisions based on politics and economics, and human rights on their own cannot offer simple answers.