Rights as Usual

This blog post by Dr Daniel Aguirre is part of a Blog Series on Colonization in, of and through Business and Human Rights published on Rights as Usual. Dr. Daniel Aguirre is a Senior Lecturer at Roehampton University and a visiting fellow at the ICWS, School of Advanced Study, University of London. Dr. Aguirre works with NGOs around the world in the field of business and human rights.

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A solid table is built upon four legs. While three will do, and are better than none, the table will never be stable and will inadequately perform its function. The same goes for the United Nations Guiding Principles on Business and Human Rights (UNGPs), an edifice built upon three Pillars:  The State Duty to Protect Human Rights, the Business Responsibility to Respect Human Rights, and Access to Remedy. International problems require international solutions. The UNGPs, without commitments to international cooperation and solidarity remain, as suggested in this symposium, colonial in nature, and undermine Article 28 of the UDHR that states, ‘[e]veryone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.’ In the face of global inequality, social injustice, and ecological disaster, alongside unprecedented wealth, a fourth pillar of international cooperation and solidarity is required to confront an exploitative and unsustainable business model and promote a just transition to a human rights economy.

Lack of international cooperation severely hampers the implementation of all human rights law. Indeed, the United Nations has nominated independent experts to address international solidarity, with the hope of a Declaration on the topic in the future. Measures perceived to restrict economic growth are unlikely to generate the cooperation required to implement them. The business and human rights problem is a perfect example and exists due to this absence of cooperation; intense international competition for and dependency on business by States renders many unable or unwilling to regulate. The State duty to protect human rights – upon which this system depends – is insufficient to deal with a global problem. The largest corporations are major geopolitical actors that dominate much of people’s lives yet remain unaccountable for human rights and environmental impacts. The UNGPs, in failing to address cooperation and solidarity, concede that challenging the business model is unrealistic and that therefore some human rights violations and the destruction of the environment are necessary for endless, exponential economic growth.

The UNGPs are further weakened by their wobbly third pillar of Access to Remedy. Access to remedy has not been forthcoming nationally or internationally. Victims of business-related human rights abuses face major obstacles, even in Europe, to justice and access to remedy. States are loathe to hold international business accountable for rights abuses for fear of creating a hostile investment climate. Rather than representing cooperation and solidarity across borders, advances in the extraterritorial application of law by home States have been stridently opposed by most governments. Again, it seems the international community accepts business related human rights abuses as the cost of economic growth and hopes that businesses will act responsibly and regulate themselves. Incidentally, the negotiations on a UN BHR Treaty do not advance commitments to solidarity and seem set to further water down relevant obligations – demonstrating a failure of international cooperation.

Business Responsibility to Respect?

The drafting of the UNGPs was a commendable exercise in principled pragmatism that recognised the need to compromise on the interests of States, businesses, and people. As a result, gains were made – businesses no longer claim that human rights are ‘none of our business.’ The acceptance of a business responsibility to respect human rights, while welcome, means little in absence of the State duty to protect and access to remedy. Corporate governance at the national level relies on self-regulation. The State cannot monitor every boardroom and factory floor. The responsibly to respect human rights extends self-regulation to the international sphere.

The UNGPs, so as not to disrupt the global business model, essentially asks businesses to fill in where governments fail to regulate or provide access to remedy by adopting a Human Rights Due Diligence (HRDD) process to identify human rights risks and mitigation strategies. But to a risk-averse commercial lawyer, public identification of risks seems akin to accepting a duty of care, which goes against a culture of reducing risk and liability for clients throughout a supply chain of contractual relationships. In practice, risk can be contracted out through supply chains with limited liability for the parent company. If HRDD turns up persistent abuses, the buyer can simply cut ties with the supplier rather than fixing the problem. HRDD remains mostly voluntary and unevenly implemented at best. Even where HRDD is conducted, and even where there are reporting requirements, the process can be reduced to limiting business liability or box-ticking exercises.

While there is no doubt that the increasing acceptance of HRDD and the implementation in Europe of mandatory rules is positive, reliance on it leaves too much discretion to individual businesses driven by profit. Even Europe’s nascent mandatory regimes do not adequately address the meaningful participation of civil society. They narrow the scope put forward by the UNGPs. The references to consultation in the French, German, Norwegian, and EU rules allow significant leeway for covered companies to decide how they will involve stakeholders. In practice, HRDD processes need to be linked to national law and policy on environmental and social impact assessment, investment, land, contract, etc. Without strict oversight of this consultation process through clear terms and requirements, mandatory HRDD laws allow businesses to mitigate compliance risk rather than change the business model that undermines the human rights and environment of stakeholders.

Mandatory HRDD laws can also provide the window-dressing necessary for the international community to continue its pursuit of unsustainable economic growth through a globally exploitative business model while claiming to protect human rights. The overall result becomes business as usual on the ground. Only an international commitment to ensure meaningful civil society participation and consent in HRDD processes will bring the necessary, transformative change required to protect rights and the environment.

Outside of Europe, HRDD is ineffective where businesses do not rely on brand recognition or when they are headquartered in a state without the discerning glare of a free media and civil society. For example, arms manufacturers and dealers seem completely immune to the business and human rights framework. The weaknesses in the business responsibility to respect is further demonstrated in the extractives sector where natural resources underpin economic growth. For example, oil and gas or the businesses in the transition to a ‘green’ global economy. The production of batteries required to power our green technology is built on supply chains located in rule of law vacuums characterised by conflict and human rights abuses. If the lithium mine operated sustainably and the workers throughout the battery supply chain were guaranteed their human rights the consumer’s precious devices and cars would be prohibitively expensive harming profit and growth.

Another weakness of the responsibility to respect is demonstrated by social media companies that harvest our personal data to fuel algorithmic targeted advertising with obvious risks to privacy, freedom of expression and thought. This is encouraged as it is extremely profitable. Few States consider regulating the business model, most focus on prohibited content. These potentially negative human rights ‘impacts’ are set to increase as machine learning and artificial intelligence (AI) improve. At a recent summit on AI in the UK, States identified the ‘potential for serious, even catastrophic, harm, either deliberate or unintentional, stemming from the most significant capabilities of these AI models.’ The Bletchley Declaration notes the need for cooperation on regulation, yet every State is adopting different approaches in hope of attracting the AI companies to their jurisdiction. It will be interesting to see the AI company’s HRDD risk assessments and mitigation plans for risks that threaten the existence of humanity. Without international cooperation to prevent a race to the bottom in regulation and accountability the responsibility to respect human rights will only impact on the symptoms rather than the disease.

Global Capitalism or a Human Rights Economy?

To decolonise an exploitative global economic system that results in human rights violations and environmental destruction, the system must change, not human rights. BHR discourse is unique in its attempts to fit human rights into the global economy in consultation with the alleged perpetrator. It is time for the international community to choose between global capitalism that undermines human rights for the vulnerable and a new human rights economy. Most of the world believes in human rights but doubt the international community’s willingness and ability to deliver meaningfully on complex issues of inequality and the environment without double standards. The absence of obligations on solidarity and cooperation in the UNGPs on these issues contributes to doubt. People are aware that the gulf between the rich and poor is becoming unbridgeable. The rich dominate the global economy to consolidate control over resources and technology while the poor suffer its negative human rights and environmental ‘externalities’. This situation is remarkably familiar to those studying colonisation. It undermines faith in human rights and the international community itself.

To create a human rights economy based on the international cooperation envisioned by UN Charter, the UDHR, and the twin covenants would require radical changes in international relations, international law and national regulation. The current BHR approach is unlikely to address the root causes of human rights abuse. A systemic reimagining of the role of business is required. Human rights and environmental protection must be part of all economic decision making. This includes integrating human rights law into the reform of international finance and tax policy, the reform of investment law, and the transfer of wealth and technology from developed to developing States to progressively realise economic, social, and cultural rights and to fund climate change adaptation through loss and damage. This would disrupt the global business model that leaves many states mired in debt or the host of an exploitative supply chains, doomed to repeat the destructive patterns of economic development that undermine human rights and destroy the environment. These global challenges are business and human rights issues and BHR discourse needs to address them.

Tackling the inequality between and within States and the destruction of the environment should be the priorities of decision making. Yet these have long been  opposed by the developed States of the global North. Economic, social, and cultural rights are the most relevant human rights laws but are absent from the BHR discourse. Meaningful consultation with civil society must be made central to HRDD. A pivot to a human rights economy based on a just transition from unsustainable global capitalism requires a renewed commitment to ensuring business contributes to the enjoyment of human rights, is regulated, and is held accountable for systemic abuses. The need to de-colonise BHR by including obligations of solidarity and cooperation has never been clearer. Civil society, lawyers and human rights advocates must push BHR discourse beyond the pragmatic approach of the UNGPs and dream of, then fight for, a better world.