1 Introduction
Recent decades have witnessed the exponential growth of global corporations; at the same time, the power and resources of many governments has eroded. Many of the top Fortune 500 companies have revenues equivalent to and often significantly larger than the gross domestic product (GDP) of many nation states.1 With the increasing centrality of the role played by corporations in driving global commerce and trade comes increasing levels of corporate power – political and social, as well as economic – which suggests the need for a reappraisal of the appropriate role for business in an increasingly globalized world.
Writing over four decades ago, economist Milton Friedman argued that a company’s only social responsibility is ‘to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game, which is to say, engages in open and free competition without deception or fraud’.2 He also wrote:
In a free enterprise, private property system, a corporate executive is an employee of the owners of the business. He has direct responsibility to his employers. That responsibility is to conduct the business in accordance with their desires, which generally will be to make as much money as possible while conforming to the basic rules of the society, both those embodied in law and those embodied in ethical custom.3
While Friedman referenced a narrow legal definition of a corporation’s potential social responsibility, he did recognize each company’s responsibility to conform to the basic rules of society including those based in ethical customs. Using this as a starting point, recent decades have seen the emergence of a broader understanding of a corporation’s social responsibility that seeks to embed respect for human rights in business operations. Significant developments have been taking place in factories, fields and workplaces all over the world where a variety of stakeholders have been pushing and prodding corporations to adopt operational changes that will lead to sustained compliance with international human rights standards. Sometimes business has been proactive in seeking such changes; at other times it has been reluctant or simply absent. The acceptance by the United Nations Human Rights Council in 2011 of the Guiding Principles on Business and Human Rights4 (Guiding Principles), which affirms that companies have a responsibility to respect human rights, solidifies the centrality of rights to business. For many (but not all) companies, the question is no longer: ‘Do we have an obligation to address human rights?’ Rather, it is: ‘How do we do it, at what cost, and with whom do we collaborate in addressing the problems that exist?’
The role that corporations play in domestic and international economies is fundamental. Their impact on human rights is equally important as they have the potential to make a direct and enduring impact on people’s lives. Business can be a transformative force for good. Through commercial activity driven by corporations, jobs and wages are made available, goods and services are provided and taxes are paid enabling governments to provide further goods and services. A globalized economy has generated millions of jobs over the last quarter-century. It has lifted hundreds of millions of people out of extreme poverty.5 Thereby, directly or indirectly, a vast array of human rights may be supported – from rights to work, welfare, food and shelter, health and education, to freedoms involving speech, association and movement. In short, corporations are central to the provision of many of the things that make human life more tolerable, enjoyable and fulfilling; indeed, the work and wages that corporate enterprise brings to many communities are key elements to the establishment and maintenance of individual human dignity – to which end human rights strive to meet.6
But some business practices have also eroded respect for or simply disregarded human rights. Corporations, both local and transnational, have been and continue to be minor and major abusers of human rights. Some corporations are guilty of treating workers badly – in terms of pay, conditions and working environments; some pollute the environment in ways that have dramatic and serious effects far beyond their immediate surroundings; some discriminate against indigenous peoples, or certain ethnic or religious groups, or against women, or people with disabilities, or on grounds of sexuality; and some work alongside (or inside) governments that perpetrate gross human rights abuses, such as in Nazi Germany, Apartheid South Africa and in the many authoritarian and repressive states in the world today.7
Today, many governments lack the will or capacity to protect the basic rights of their own people. Often they lack both. Companies are being forced to adjust to a much larger role – financially, socially and politically – than they have ever played or are comfortable playing. Various legal and non-legal initiatives have sprouted in the last few decades in an attempt to attach some sense of corporate responsibility to the protection of human rights. Understanding the roles and responsibilities of these companies in this new landscape and determining the practical ‘rules of the road’ for implementing such roles and responsibilities is a significant challenge. What the appropriate role is for business in an increasingly globalized world is a question that will draw diverse responses. A brief survey of some corporate approaches towards accepting (or not) the relevance of human rights to their business operations reveals both how far (some) companies have come, and how far some have to go.
2 Changing role of companies in society
2.1 Corporate catastrophe in bhopal.8
An early catalyst for recalibrating the role of companies in society was the 1984 disaster in Bhopal, India, in which more than 3,000 people were killed and tens of thousands injured in an industrial gas leak accident at a Union Carbide pesticide plant. In the aftermath of this catastrophe some blame was rightly attributed to the central and state Indian governments and their lax enforcement of safety laws and haphazard planning permissions.9 However, attention also focused on the plant operator, Union Carbide India Limited (UCIL), and its United States (US) based parent company, Union Carbide Corporation (UCC). Although UCC exercised extensive control over its Indian subsidiary (evidenced not simply by share ownership or representation on the board of directors but also by involvement in ‘key decisions regarding issues such as, technology, plant design, safety … training of employees’10), it attempted to shift the blame for the accident to its subsidiary UCIL. The reaction of these companies was generally one of obfuscation and a denial of responsibility for the calamity that ensued; liability was strictly defined by UCC and UCIL in terms of their legal accountability for the disaster. Litigation was pursued in both the American and Indian courts with mixed results.11 An action brought in the US against UCC was ultimately dismissed by the Second Circuit Court of Appeals;12 the case brought in India against UCC settled for US$470 million. Bhopal remains one of the modern world’s worst industrial accidents and, as a legal precedent, it is most noteworthy for highlighting the limitations of the law and the lack of justice ultimately delivered to those worst affected.13 In the more than 30 years since Bhopal, as corporate violations of human rights have continued to occur, what, if anything, has changed in terms of corporate and public perceptions of a company’s responsibility to act and provide redress in the face of corporate human rights abuses?
2.2 Managing global supply chains
In most industries, large companies now rely on a series of contractors and suppliers in a range of countries to produce and transport their products. Today’s global supply chains link individual workers with large and small companies across national, political and cultural boundaries. Companies do not generally own or operate the factories in which their goods are produced and they may contract with hundreds, sometimes thousands, of different suppliers annually. Nike,14 for example, sources its products from over 700 factories, engaging nearly one million workers across more than 40 countries.15 The problems associated with regulating multi-jurisdictional supply chains, along with civil society and public pressure to improve working conditions, has caused (some) companies to take a more proactive role in regulating the workplaces producing their goods.
In the mid-1990s, Nike faced allegations of using ‘sweatshop labour’ to produce its goods in factories throughout Asia. Under a barrage of media criticism, Nike first denied that it had any responsibility for the factory working conditions that allegedly included ‘physical and verbal abuse of workers, hazardous working conditions, pennies per hour wages, and anti-union efforts throughout Indonesia, China, and Vietnam, where Nike employ[ed] over 350,000 workers’.16
In response, Nike established a department tasked with working to improve factory conditions. Cont...