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Business & Human Rights Journal (Volume 2, Issue 2)

The Business and Human Rights Journal (BHRJ) provides an authoritative platform for scholarly debate on all issues concerning the intersection of business and human rights in an open, critical and interdisciplinary manner. It seeks to advance the academic discussion on business and human rights as well as promote concern for human rights in business practice. Its scope encompasses interface of any type of business enterprise with human rights, environmental rights, labour rights and the collective rights of vulnerable groups. The Journal contains peer-reviewed articles alongside shorter ‘Developments in the Field’ items, which include policy, legal and regulatory developments, as well as case studies and insight pieces.

Editors-in-Chief: 

Surya Deva, City University of Hong Kong 
Anita Ramasastry, University of Washington School of Law 
Michael Santoro, Santa Clara University
Florian Wettstein, University of St Gallen

Volume 2, Issue 2, July 2017

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Article
5 February 2018

'What does this mean?': How UK cos. make sense of human rights

Author: Louise J. Obara

"'What does this mean?': How UK companies make sense of human rights," 25 May 2017

...Whilst much has been written about why companies should respect human rights, far less is known about what companies actually do in practice and how human rights are understood and managed. To address this gap, this article draws on empirical data collected as part of an in-depth, qualitative study that investigated how 22 large UK companies [with, bar one, an annual turnover totalling over £500 million] interpreted and managed human rights within everyday practice...

Through an analysis based on sensemaking, the article explores the meaning of human rights, the grounds used to justify corporate responsibility, and the human rights terminology and labels employed within the corporate setting. It then analyses what this understanding and discourse means for the debate about the role of private entities for the protection of human rights...

This article offers a behind-the-scenes look at how UK companies make sense of human rights and the grounds used to justify their human rights involvement...[In doing so it makes some important contributions, such as revealing]

-   the acceptance by most companies of direct human rights duties...

-   [the] finding that a moral rationale was appealed to most by companies [to justify their engagement in human rights]...

-   [the fact that] participants could clearly articulate the commercial advantages associated with respecting human rights [though] they struggled to articulate their understanding of 'the right thing to do'...[and]

-   far from it being helpful...the label of 'human rights' was viewed as controversial, political and abstract...

[refers to Nike and Shell]

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Article
5 February 2018

Human rights due diligence in law & practice: Good practices & challenges for business enterprises

Author: Robert McCorquodale, Lise Smit, Stuart Neely, & Robin Brooks

"Human rights due diligence in law and practice: Good practices and challenges for business enterprises," 10 May 2017

...[T]here is limited information available as to how companies are...conducting HRDD [human rights due diligence] consistent with their responsibility to respect human rights under the GPs [Guiding Principles on Business and Human Rights]. This article considers the practices of companies worldwide in attempting to implement HRDD...[with a focus on four broad and diverse sectors: mining and energy, financial services, health sciences and pharmaceuticals, and technology].

Based on empirical research conducted through surveys [completed by 152 respondents] and interviews [with 14 senior-level people], it analyses...the extent to which there are different consequences in terms of human rights impacts as to whether a company adopts a specific HRDD process or uses a process that is part of other processes... It examines the responses of companies with reference to the core elements of implementing HRDD: [I]dentifying actual or potential human rights impacts; taking action to address these impacts; and tracking or monitoring the effectiveness of actions... 

The research shows the difference that dedicated HRDD - in comparison with non-human rights specific processes - can make in terms of identifying adverse human rights impacts of both the company as well as those which are part of its business relationships...

More specifically, [this study] clearly demonstrates that a company which undertakes dedicated HRDD...is much more likely to identify adverse human rights impacts than through its ordinary non-specific HRDD (such as labour procedures or health and safety processes). It also showed that existing non-specific HRDD may not be adequate for raising awareness of third party impacts... [Furthermore] it strongly suggests that where HRDD is done expressly, human rights impacts of both the company itself and its business partners are significantly more likely to be identified, effectiveness of actions are significantly more likely to be tracked, human rights experts are more likely to be consulted, and a wider range of human rights are likely to be considered...

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Article
22 January 2018

Human rights due diligence as risk management: Social risk versus human rights risk

Author: Björn Fasterling

"Human rights due diligence as risk management: Social risk versus human rights risk," 11 October 2016

The UN Guiding Principles on Business and Human Rights endorse a risk management perspective of human rights due diligence, which may create ambiguities with regard to the nature of risk and the objectives of risk management. By 'human rights risk' we understand a business enterprise's potential adverse human rights impacts. Human rights risk can be contrasted to an enterprise's 'social risk' which refers to the actual and potential leverage that people or groups of people with a negative perception of corporate activity have on the business enterprise's value...

This article puts forward the argument that due diligence in respect of human rights risk is conceptually incompatible with the management of social risk, because social risk management and human rights due diligence vary at each step of the risk management process (risk identification, risk measurement and assessment, risk reduction measures). To resolve this incompatibility, an effective integration of human rights due diligence processes into corporate risk management systems would require an elevation of human rights respect to a corporate goal that determines corporate strategy... 

[The articles concludes that] a persuasion strategy that emphasizes the notion that business-related human rights violations may represent costs to a business enterprise not yet accounted for could have some initial success, since some costs may indeed be unrevealed through greater attention paid to human rights... 

The second conclusion is that if business corporations managed human rights risk in order to serve the goal of respecting human rights and not to address possible repercussions of human rights violations on the corporation's value, they would effectively alter the corporate purpose... Value maximization would become subject to the responsibility to respect human rights and not vice versa...

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Article
21 January 2018

Land rights at the time of global production: Leveraging multi-spatiality & 'legal chokeholds'

Author: Tomaso Ferrando

"Land Rights at the Time of Global Production: Leveraging Multi-Spatiality and 'Legal Chokeholds'," 17 July 2017

...This article utilizes [the struggles for land rights associated to two sugar cane investments] in Cambodia to reinforce the idea that attacks and deprivations of rights that take place on the ground are not only defined by the society and legal frameworks in which the rights-holders operate. On the contrary, commodity chains are such that rights and absence of them are increasingly defined by a dense network of legal and quasi-legal institutions and socio-economic arrangements that operate elsewhere and that are connected through the invisible (or visible) linkages of production, logistics and consumption...

As the case of the [Cambodian] Koh Kong plantations reveals, an effective form of critical legal chains analysis may require more than the identification of the actors that are present on the ground or of the legal structures within which they operate... Human rights scholars may have to look beyond the geography of the enclosure, reverse-engineer the chain of production, identify beneficiaries and relevant legal structures, follow the financial flows, investigate private mechanisms of certification and codes of conduct, interact with UN bodies or other legally irrelevant human rights courts...

[Overall] [h]uman rights scholars and practitioners...should engage with the local nature of violations and redefine their territoriality by embedding them into the complexity of transnational production and consumption. These actions would give visibility to the hidden chokeholds [i.e. legal structures and spaces of intervention that can be leveraged by scholars and activists] and activate dormant legal gateways, but also lead to imagining new legal structures that could be linked, connected, combined and that can curb spaces for non-legal intervention and confrontation... [refers to Koh Kong Plantation, Koh Kong Sugar Industries, Khon Kaen Sugar, and Tate & Lyle]

 

--

Note: Koh Kong Sugar's contract can be viewed at openlandcontracts.org

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Article
23 November 2017

Business responsibilities for human rights: A commentary on Arnold

Author: Nien-hê Hsieh

"Business Responsibilities for Human Rights: A Commentary on Arnold," 1 August 2017

Human rights have come to play a prominent role in debates about the responsibilities of business. In the business ethics literature, there are two approaches to the question of whether businesses have human rights obligations. The ‘moral’ approach conceives of human rights as antecedently existing basic moral rights. The ‘institutional’ approach starts with contemporary human rights practice in which human rights refer to rights enumerated in the Universal Declaration of Human Rights and subsequent international documents, and in which states are the primary duty bearers of human rights. This commentary argues that the implications of adopting one or the other approach are much greater than most scholars recognize, and that we have reason to reject the moral approach and to adopt the institutional approach instead. The commentary highlights key questions that need to be addressed if human rights are to play a central role in framing the responsibilities of business...

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Article
23 November 2017

Equipping Professionals for the Next Challenges: The Design & Results of a Multidisciplinary Business & Human Rights Clinic

Author: Joanne Bauer

"Equipping Professionals for the Next Challenges: The Design and Results of a Multidisciplinary Business and Human Rights Clinic," 22 June 2017

Since the 1990s, the subject of business and human rights has evolved from an academic critique of ‘corporate social responsibility’ as an approach to understanding business’s social impacts, to a movement and a field of study… As the field grows, so too does the demand for professionals... The need to equip professionals with the skills to analyse and address complex business and human rights challenges is steadily gaining recognition at universities across the globe... [P]rofessors share and debate teaching techniques – across topics related to global labour supply chains, extractives and social licence, and privacy and censorship – including case studies, role plays, simulations, debates and direct engagement with practitioners... This piece examines the experience of...a year-long multi-disciplinary business and human rights clinic housed at a school of public policy. Combining seminars, guest lectures, skills training, group work and discussion, field visits and self-reflective exercises, the [School of International and Public Affairs] SIPA Business and Human Rights Clinic (the Clinic) [at Columbia University] is designed to provide students cutting-edge skills with strong career potential while deepening students’ knowledge and experience of business and human rights...

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Article
23 November 2017

Human rights impact assessments in a Brazil land conflict: Towards a hybrid approach

Author: Irit Tamir & Sarah Zoen

"Human Rights Impact Assessments in a Brazil Land Conflict: Towards a Hybrid Approach," 19 June 2018

In recent years there has been a surge in both community- and company-led human rights impact assessments (HRIAs) thanks in part to the due diligence requirements of the United Nations Guiding Principles on Business and Human Rights (UNGPs). Community-based HRIAs, by nature, analyse impacts from the perspective of a local community. Oxfam America has promoted a community-based HRIA methodology found in Rights & Democracy’s Getting It Right tool, an approach that emphasizes a community’s human rights concerns rather than starting from a company’s perspective

...Companies have also developed tools and processes to assess the potential impact of their projects; however, they often fail to seek out the expectations or assertions of the very people whose rights they may be adversely impacting. Common pitfalls of company-led HRIAs include heavy reliance on desk research or failure to extend interviews beyond government officials and non-governmental organizations (NGOs)…

This piece suggests that company and communities work together, when possible, in a hybrid approach to assess human rights in order to create a shared understanding of impacts, solutions and remedies…The Brazil land conflict provides a unique look at a community-based HRIA process that ran in parallel with two company-led HRIAs... [refers to: Coca-Cola, PepsiCo, Usine Trapiche] 

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Article
23 November 2017

On the division of moral labour for human rights between states & corporations: A reply to Hsieh

Author: Denis G. Arnold

"On the Division of Moral Labour for Human Rights Between States and Corporations: A Reply to Hsieh," 1 August 2017

In a series of previous articles [the author] defended the claim that there are robust, theoretical justifications for concluding that corporations have human rights obligations and that those obligations are distinct from the larger set of human rights obligations that are properly attributed to states. Hsieh claims that corporations do not have human rights obligations. In this reply it is argued that even if one takes what Hsieh refers to as an ‘institutional approach’ to understanding the human rights obligations of states, corporations are nonetheless properly understood to have human rights obligations regarding those with whom they interact, such as workers, customers and community members. 

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Article
23 November 2017

Struggling to take off?: The 2nd session of intergovernmental negotiations on a treaty on business & human rights

Author: Carlos Lopez

"Struggling to Take Off?: The Second Session of Intergovernmental Negotiations on a Treaty on Business and Human Rights," 14 June 2017

...The second session of the Open-Ended Working Group on the elaboration of a legally binding instrument on Transnational Corporations and other business enterprises with respect to human rights (OEIGWG) was mandated by Resolution 26/9 of the Human Rights Council...met in Geneva on 24–28 October 2017. According to the Resolution 26/9 the first two sessions were to be dedicated to constructive deliberationson the content, scope, nature and formof the future legally binding instrument... The meeting...was generally well attended by a growing number of states and an impressive and growing group of diverse civil society organizations, failed, however, in breaking through key political impasses in the ongoing negotiations. 

... [F]ew of the most salient and recurring debates throughout the session: (1) the interface of the binding instrument with trade and investment agreements, (2) extraterritorial obligations and jurisdiction, and (3) whether a treaty would be compatible with the UNGPs...

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Article
23 November 2017

UN Guiding Principles & the legal profession: Quo vadis?

Author: Stefanie Lemke

"UN Guiding Principles & the Legal Profession: Quo Vadis?," 17 May 2017

This piece explores the critical role played by lawyers in promoting the UN Guiding Principles on Business and Human Rights (UNGPs)… Lawyers can play an important role in addressing corporate responsibility to respect human rights...A law firm’s advice can…have a critical impact on a client’s appropriate business operations, which, in turn, might also mean that a (corporate) client’s human rights abuse could be directly linked to the law firm’s services through its relationship with the client...[therefore] law firms too have a responsibility to respect human rights, as providers of legal services to corporate clients and business enterprises themselves.

... This piece looks at the possible conflicts lawyers may face when applying the UNGPs, discusses latest debates and trends in this area, and explores how lawyers can discharge their dual responsibility... [refers to: Chevron]

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