Market Fundamentalisms: Business Ethics at the Altar of Human Rights

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In this article the author explores what he terms ‘an emergent traderelated, market-friendly paradigm of human rights’, in contrast to the paradigm of human rights enshrined in the Universal Declaration of Human Rights (UDHR). It focuses on a reassertion of the UDHR paradigm in relation to corporate governance and business conduct, looking specifically at the Proposed Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights (‘Norms’). The article examines, in this respect, five central themes: the intertextuality of the Norms; the ‘network’ conception of trade and business conduct; ways of categorising human rights obligations; duties regarding implementation of the Norms; and, finally, related ethical theory concerns. 1. The Proposed Norms on Human Rights Responsibilities of Transnationals and Other Business Enterprises In The Future of Human Rights, the present author developed a contrast between the paradigm of the Universal Declaration of Human Rights (UDHR) and the emergent paradigm of the trade-related, market-friendly paradigm of human rights by which it was confronted. In this article a particular set of practices of resistance, which takes the form of full reassertion of the UDHR paradigm in Human Rights Law Review 5:1 (2005), 1–26 p Professor of Law, University of Warwick (upendra.baxi@warwick.ac.uk). This article is a revised version of a chapter that is due to be published in Baxi, The Future of Human Rights, 2nd edn (New Delhi: Oxford University Press, 2005). 1 Baxi, The Future of Human Rights (New Delhi: Oxford University Press, 2002) at 153. Human Rights Law Review 5:1 q The Author [2005]. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oupjournals.org doi:10.1093/hrlrev/ngi001 relation to corporate governance and business conduct, is addressed. What is indeed remarkable is the fact that the articulation of this reassertion occurs under the auspices of the United Nations system, which otherwise fosters contemporaneously somewhat assiduously the trade-related, market-friendly human rights paradigm. The United Nations Commission on Human Rights and, particularly, the SubCommission on the Promotion and Protection of Human Rights, provide important sites of critique and renewal. The Sub-Commission thrives on dialogical interaction with the non-governmental organisation (NGO) communities; and often its expert consultants (howsoever named) emerge from within these communities, or at the very least remain extraordinarily sensitive to activist critique of contemporary economic globalisation. This article focuses on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (‘Norms’), formulated by a Working Group of five independent experts. The adoption of the Norms, together with the Commentary by the Sub-Commission (on 13 August 2003), marks the first step in a long and perilous journey towards their final adoption. The Norms, now transmitted to the Human Rights Commission, remain open to further consideration within and outside the United Nations system and the comments and responses received stand slated for further consideration by March/April 2005. In the interim, the Sub-Commission’s Working Group stands mandated to assemble information from all relevant sources concerning implementation processes, as well as to further innovate these processes where necessary. The Norms, and the accompanying Commentary, had a very short gestation compared with the archetypal endeavour that produced a stillborn United Nations Draft Code of Conduct on Transnational Corporations. Even more remarkable is their enunciative audacity, unfazed by glittering histories of past failures. Twenty-three articles provide an arsenal of general and specific obligations. Transnational corporations and other business organisations stand conceived as networks of corporate governance and business conduct. Ideologies of voluntarism stand replaced by those of regulation 2 See Globalization and its Impact on the Full Enjoyment of Human Rights, 15 August 2001, E/CN.4/Sub.2/2000/13. 3 See the Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, 13 August 2003, E/CN.4/Sub.2/2003/12/Rev.2 (2003); hereafter cited as ‘Norms’. For the Commentary on the Norms, see E/CN/4/Sub.2/2003/38/Rev.2 (2003). The latter document refers to ‘paragraphs’ rather than ‘Articles’; The provisions are here described as Articles. Further, all citations to the Norms are derived from the last document above. 4 See, for background analysis, Weissbrodt and Kruger, ‘Norms on Responsibility of Transnational Corporations and Other Business Entities’, (2003) 97 American Journal of International Law 901. See also Muchlinski, Multinational Enterprises and the Law (Oxford: Blackwell, 1995) at 592–7 and the literature cited therein. 5 E/C.10/1984/S/5 (1984); (1984) 23 International Legal Materials 602. 2 HRLR 5 (2005), 1–26