Human Rights and Corporations

David Kinley, David Kinley

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351929622
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

The erstwhile unlikely coupling of human rights and corporations is now a typical feature of corporate/community relations. High-profile corporate infringements of human rights, the rise and rise of corporate social responsibility (CSR) and on-going efforts to regulate corporate behaviour through legal regimes, at both domestic and international levels, have spawned a mountain of academic literature and commentary. This volume assembles the leading essays from this body of work. Together they frame the relationship between human rights and corporations by charting its history and salient features; tackle the conceptual perspectives of the relationship and detail the practice, problems and potential of the relationship.

Part I

Framing the Relationship

[1]

Human rights and multinationals: is there a problem?

PETER T. MUCHLINSKI

In recent years there has been an upsurge of concern over human rights and multinational enterprises (MNEs). A number of significant cases have been documented of apparent collusion between MNEs and host governments in major violations of human rights. These have been brought to public attention in the media through the actions of concerned individuals and groups, most notably by non-governmental organizations (NGOs) concerned with human rights. Among the most publicized cases have been the operations of Shell in Ogoniland,¹ BP in Colombia,² and Unocal in Burma (Myanmar), the last of these having led to landmark litigation in the United States.³ Thus, prima facie, there is a problem: multinationals can take part in alleged violations of human rights. Such allegations are not really new: concerns about the complicity of corporate and/or commercial actors in human rights violations can be traced back through the era of apartheid in southern Africa, to the use of slave labour by the Nazis in the Second World War, which has itself generated recent legal action, to the exploitation of workers on colonial plantations and to the movement for the abolition of slavery in the eighteenth century. What is new is the context in which these more recent cases are being discussed. The traditional notion that only states and state agents can be held accountable for violations of human rights is being challenged as the economic and social power of MNEs appears to rise in the wake of the increasing integration of the global economy that they have helped to bring about.

Furthermore, the increased vigilance and sophistication of NGOs, with their global networks of information, cooperation through the Internet and skilful use of the mass media, is making ignorance of, and indifference to, the suffering of workers and others who come into contact with unscrupulous MNEs less easy to sustain. On the other hand, the vast majority of MNEs do not engage in practices or relations with states that may lead to human rights abuses. Indeed, they are becoming more sensitive to the risk of becoming parties to such actions. Thus a mood is developing which sees the subjection of MNEs to human rights scrutiny as perfectly acceptable. It is the purpose of this article to look behind this situation and to examine more closely the arguments used both to deny and to uphold an extension of human rights responsibilities to MNEs. This is necessary because if MNEs are to be subjected to direct and legally enforceable obligations to observe fundamental human rights, the grounds for doing so must be strong and conceptually unassailable.

The extension of human rights into what Andrew Clapham has called ‘the private sphere’ presumes a change in legal, political and social relations which, in turn, changes the very foundations of human rights thinking.⁴ Hitherto, the only relationship between MNEs and human rights has been that of victim and beneficiary: the corporation can be protected from intrusions into its private rights on the part of the state by reference to human rights standards.⁵ Leaving the conceptual difficulty surrounding the notion of ‘corporate human rights’ to one side, what is now expected is that corporations—not unlike states—can be holders of duties to observe human rights. This goes well beyond the furthest limits of responsibility hitherto imposed by human rights law in response to violations committed by private actors. Thus far such actors could not be held direcdy responsible for violations of human rights. Rather, they could cause the state to be held responsible on the basis that it had neglected to control the activities of the non-state actor which have led to the violation of the human rights of another private party.⁶

Against this background the article will address the resulting issues, first, by looking more closely at the intellectual context in which the debate is developing; second, it will deal in more detail with the principal arguments for and against the extension of human rights responsibilities to MNEs; and finally, it will consider what conclusions can be drawn, in particular, as to the relationship between states and corporations for the observance of human rights. The ensuing discussion should not be read as being necessarily confined to MNEs alone. They are, for the purposes of this paper, the main object of analysis. However, if the applicability of human rights in the private sphere is to be accepted, then these norms must extend to all forms of non-governmental human association, whether foreign or domestic, business or non-business, unincorporated or incorporated.

The context of the debate

Modern human rights doctrine emerged historically from the struggle of the individual property holder against the autocratic monarchic state. It is, in essence, a market-based theory of rights.⁷ Thus the first human right to emerge clearly is the right to private property. This in turn gives rise, by the nineteenth century, to a conception of human rights that distinguishes different classes of actors as to the extent of their rights. It is an exclusionary theory. As Upendra Baxi has pointed out, ‘The “Rights of Man” were human rights of all men capable of autonomous reason and will. While by no means the prerogative of “modernity”, the large number of human beings were excluded by this peculiar ontological construction.’ It has, in his view, led to the exclusion, at various times, of slaves, heathens, barbarians, colonized peoples, indigenous populations, women, children, the impoverished and the insane from being bearers of human rights.⁸ At the same time, this conception of human rights has also led to the extension of its protection to private accumulations of capital. Thus Article I of the First Protocol to the European Convention on Human Rights (ECHR) makes clear that both natural and legal persons have the right to the peaceful enjoyment of their possessions. Equally, cases have been heard by the European Court of Human Rights involving alleged violations of human rights against corporations. Corporations have been held to possess, apart from the right to property in Article I Protocol I, rights to free speech under Article 10, to a fair trial under Article 6 and to privacy under Article 8.⁹ Similar rights have been recognized in other jurisdictions.¹⁰ It is not the purpose of this article to argue that corporations should not have the equal protection of the law. However, the traditional conception of human rights accepts only this protective approach to the relationship between corporations and human rights. It is therefore a conceptual barrier to the extension of human rights obligations to private corporations.

A second contextual factor to be considered is the partial disembodiment of human rights theory from its liberal, possessive individualist origins in the wake of the Nazi atrocities in occupied Europe, which led directly to the adoption of the Universal Declaration of Human Rights in 1948 and the ECHR in 1950.¹¹ Although maintaining a liberal catalogue of civil and political rights, the Universal Declaration also extends to economic social and cultural rights, recognizing the indivisibility of such welfare values from the more traditional liberal conceptions of earlier ages. This reflects the concerns of the 1940s that societies should never return to the cruelty that accompanied traditional liberal capitalist models of economic and social organization, as witnessed particularly in the Great Depression of the 1930s. Thus, in the early postwar period, at the national level economic planning and state intervention remained central to policy-making. On the other hand, in relation to the organization of international trade and commerce, the liberal approach was adopted, with the progressive liberalization of trade and, more recently, investment being at the heart of policy-making.¹²

However, as the Cold War developed, a stratification of human rights emerged based on ideological preferences. Thus Western powers emphasized the individualistic civil and political rights agenda, as shown for example by the exclusive concentration of the ECHR on such rights, while the Soviet bloc states and their allies emphasized economic, social and cultural rights as prerequisites which justified, where necessary, even the curtailment of civil and political rights for the improvement of the welfare of the people. The resulting sense of cultural and political relativism in human rights was furthered by the rise of anti-imperialist decolonization movements in Asia and Africa. Their prime opponents were the liberal Western powers. The latter had to live with the paradox of the observance of human rights at home and their denial in overseas colonial possessions.

This disintegration of human rights theory continues to this day, despite influential voices being raised to the contrary, claiming that human rights are once again indivisible.¹³ It has the effect of redefining the contemporary participants in the debate on MNEs and human rights as ‘pro-’ or ‘anti-’capitalists, thereby making them harder to hear by the other side of the debate. The main difference from the Cold War is that the antagonists cannot be identified with specific geopolitical blocs but have taken on a transnational group character. Furthermore, the selective stratification of human rights is still possible. The Cold War rules our discourse from its grave, as does a residual consciousness of imperial supremacy. It is this that in part underlies arguments opposed to the extension of human rights responsibilities to MNEs.

A third contextual current is the rise, since the 1960s, of identity and lifestyle politics.¹⁴ This has had the effect of supplementing traditional economic/political debates with (indeed, possibly subordinating them to) those of race, gender, sexual orientation, youth culture, the ‘third age’ politics of the elderly, consumerism and environmentalism.¹⁵ This has led to an awareness of the need for individual space for self-identification and a growing impetus for individuals to detach themselves from mass movements, mass ideologies, mass religion and mass production. The impact of these trends on the debate under discussion has been considerable. The expectation that MNEs should observe human rights can itself been seen as an identity and lifestyle statement. MNEs are purveyors of lifestyles and identities through their products, services and marketing. Consumers select their lifestyles and identities through their patterns of consumption. The ‘ethical consumer’ has become a target customer for the ‘ethical corporation’. Through this discourse a new sense of what corporations and markets should be about appears to be emerging. We are rediscovering a need to control what an earlier generation would have referred to as ‘the unacceptable face of capitalism’.

Arguments for and against the extension of human rights obligations to MNEs

Working within the context outlined above, this section will now critically assess the main arguments against and in favour of extending responsibilities for human rights observance to MNEs. Some may think it almost inconceivable to argue against such a self-evidently ‘good’ idea as the extension of human rights responsibilities to MNEs. Yet there are a number of s...