Human Rights Responsibilities Research Articles

How to Study Public Negotiation of Responsibilities: A Communicative Approach to Business and Human Rights Research

ABSTRACTThis article proposes a communicative approach to business and human rights research, the key objective of which is to understand business responsibility for human rights as discursively constituted. We show that a communicative approach makes it possible to examine how the nature and bounds of business responsibility come about as a negotiation between a range of societal actors that contribute to public discourse on human rights. Given that such an approach is novel in the context of human rights research, the article provides an introduction to the methodological foundations of a communicative framework, maps out the range of applicable methods within the framework, and reviews existing studies. To illustrate, the article presents a study which exemplifies a communicative approach to business and human rights. This study investigates the development over the past 20 years of public discourse on business responsibility for human rights. The article concludes by pointing to gaps in knowledge and potential issues for further research drawing on a communicative approach to business and human rights.

Why Central Banks Need to Take Human Rights More Seriously

Most central bankers think that there is a tenuous connection between the operations of central banks and human rights. Their responsibility is to concentrate on the relatively narrow set of macro-economic variables that are relevant to their mandates and to leave to their country’s political leadership the decisions dealing with the complex and politically sensitive variables that affect the functioning of the economy and society. This position is no longer tenable. Climate change is forcing the central banking community to rethink their view of their responsibilities. The recent release of the Network for Greening, the Financial System’s first comprehensive report on climate change as a source of financial risk, is the latest indication that central banks are beginning to take environmental risks more seriously in their monetary and financial operations. Their focus on climate change is inevitably pushing central banks to start paying more attention to other environmental risks and to social considerations more generally. In other words, central bankers are being inexorably pushed to consider the relationship between central banking and human rights, particularly economic and social rights. This article briefly describes this relationship and its implications for central banks. It makes two points in this regard. First, central banks have human rights responsibilities. Second, both their monetary and financial operations have unavoidable human rights impacts which need to be incorporated into their decision making and governance procedures. In order to make these points the article is divided into three parts. The first part discusses the human rights responsibilities of central banks. The second part discusses how they should deal with their human rights responsibilities. The third part is a conclusion.

Transnational Corporate Responsibility in Domestic Courts: Still Out of Reach?

Despite some modest progress, corporate responsibility for human rights abuses in domestic courts remains elusive. In U.S. federal courts, Alien Tort Statute (ATS) litigation is now more precarious than ever before. While there have been some potentially important developments in English courts, judges are reluctant to extend responsibility to parent corporations for harm caused by the operations of foreign subsidiaries. Although U.S. and English courts have been concerned with distinct doctrinal issues, the overall picture appears to be one of deference to the corporation and its anatomized form, and to the goal of promoting investment abroad.

The Human Rights Responsibility of Corporations – the Limits of Soft Law and why a Treaty Is Needed

This contribution addresses the nexus of business and human rights and the question whether the 2011 United Nations Guiding Principles on Business and Human Rights (UNGP), a soft law instrument, is sufficient to protect victims of corporate human rights abuses. It first defines the regulatory gap between national legislation and transnationally operating business enterprises and details what the current human rights law framework has to say on the issue, focusing on the shortcomings of the UNGP. The contribution then turns to the current negotiations on a legally binding instrument. It details two changes in the content of the draft treaty, that made its adoption more likely: the omission of direct legal liability of corporations and the expansion of the scope. Finally, the author addresses the advantages of a binding treaty.

Rights in a State Of Exception. The Deadly Colonial Ethics of Voluntary Corporate Responsibility for Human Rights

It is widely accepted that voluntary corporate responsibility for human rights is a means of continuing “business-as-usual”. Corporate Social Responsibility (CSR) has been denounced as “whitewash”, with little effect in practice. I claim here that voluntary CSR is far worse than “whitewash”: it actively bolsters corporate impunity by rendering the violence of development illegible and equating resistance with irrationality or subversion. It thrives upon the state of exception that provides the permissive context of human rights violations. I make this argument by returning to the birthplace of corporate responsibility for human rights: BP’s Colombian oilfields, combining ethnographic research with trenchant critique of the colonial myths informing mainstream discussion of business and human rights. The UN has responded to the potential of voluntary CSR to detract from abuses by emphasising the importance of judicial remedy. What the analysis here reveals is how voluntary measures and provision for judicial remedy may work in opposite directions. La responsabilidad social corporativa (RSC) ha sido acusada de ser una mera fachada. Aduzco aqui que es peor aun: refuerza activamente la impunidad empresarial, ya que rinde ininteligible la violencia del desarrollo y tilda toda resistencia de irracional o subversiva. Se alimenta de un estado de excepcion que proporciona un contexto propicio a las violaciones de derechos humanos (DDHH). Regreso al origen de la responsabilidad corporativa respecto a los DDHH –los campos petroliferos colombianos de BP–, para combinar la investigacion etnografica con una critica a la mitologia colonial que da forma al debate sobre empresas y DDHH. La ONU ha reconocido que la RSC voluntaria puede ocultar los abusos, subrayando la importancia del recurso judicial cuando las medidas voluntarias no alcanzan. No obstante, este articulo subraya que las medidas voluntarias y juridicas pueden servir distintos fines.Available from: https://doi.org/10.35295/osls.iisl/0000-0000-0000-0973

Security, Business and Human Rights in the Occupied Palestinian Territory

AbstractBusinesses have increasingly recognized their responsibility to respect human rights in their operations. This has been in part guided by international initiatives, such as the United Nations Guiding Principles on Business and Human Rights, as well as guidance and regulations from states. Although these measures recognize risks associated with conflict-affected areas, contexts of occupation present unique concerns. These issues become even more complex when states send mixed messages to businesses. This is most evident when examining the discourse on and regulation of business operations linked to Israel’s prolonged occupation of Palestinian territory, especially those with operations and relationships related to ‘security’. This article seeks to highlight the frequent disregard of human rights responsibilities and obligations by states and businesses related to the occupied Palestinian territory and population, which has created a gap in accountability that civil society has attempted to address.

Human rights and extractive industries in Latin America: what responsibility of corporations and their States of origin for human rights violations in the Inter-American human rights system?

Abstract The second half of the twentieth century reached expansion of external trade, followed in some cases by improvement in democratic processes and living conditions. Nevertheless, the strong rise of economic globalization and trade among countries started to challenge the enjoyment of some human rights. Investment agreements redefine economic landscapes, but simultaneously some of them threaten civil and political rights, as well as economic, social and cultural rights. Before this situation, in the field of human rights and extractive industries in Latin America, the issue related to responsibility of corporations and their States of origin for human rights violations in the inter-American human rights system arises. Inter-American standards and prospects on responsibility for human rights abuses committed by corporations operating in a third State are discussed in this paper. We concluded that even if international standards on this issue are still strengthening, positive developments can be arising.

Exploring the Extent of Corporate Responsibility for Human Rights in UK Companies

A key debate in the business and human rights field concerns the role and extent of corporate responsibility for human rights. Whilst frameworks exist that outline which human rights companies should respect, very little is known about how businesses perceive and determine their human rights responsibilities. To explore the depth of corporate involvement in human rights, this article presents empirical data collected as part of an in-depth, qualitative study on the interpretation and management of human rights within 22 UK companies. Using a sensemaking and organising framework, the paper identifies and analyses the factors that shaped the level of engagement in human rights and the grounds used to justify this involvement. It then analyses the implications of this data for the debate about the role that private entities should assume for the protection of human rights.

Managing Human Rights Obligations of Businesses and Measuring Outcomes: What Now?

Business responsibility for human rights is emerging as an essential framework for clarifying the broader social obligations of businesses and the managers who run them. This symposium, which directly relates to the conference theme of “Improving Lives,” will explore the theoretical and practical challenges this new agenda poses for measuring human rights performance and incorporating associated processes into management systems. The symposium will advance the innovation of new theoretical and empirical insights into the management of human rights. To this end, it will highlight the opportunities that could result from mastering the measurement challenge for human rights: If consumers and investors had data readily available that assessed a company’s human rights performance, they could reward “good” companies (and punish “bad companies) and in so doing become drivers for a corporate human rights agenda. At this point, available data does not measure human rights performance but merely a company’s human rights commitment and its processes. If human rights management is genuinely improving lives, there needs to be empirical evidence showing this to be so. If empirical evidence shows that human rights management is not genuinely improving lives, this information is essential for changing BHR-related policies and practices. This symposium thus seeks to highlight innovative scholarship in the area of human rights measurement and also to surface opportunities for future research in this important domain. Business and Human Rights Measurement: The Next Frontier Presenter: Judith Schrempf-Stirling; GSEM - U. of Geneva Measuring Human Rights Performance for Investors Presenter: Casey O'Connor; NYU Stern Accounting for Human Rights: The Challenge of Meaningful Measurement Presenter: Kenneth McPhail; U. of Manchester Human Rights and Consumer Decisions Presenter: Guido Palazzo; U. of Lausanne

The Role of the State as Buyer Under UN Guiding Principle 6

Public procurement is the purchase by the public sector of the goods and services it needs to carry out its functions. It has an essential role to play in facilitating States’ fulfilment of their duties to protect, respect, and fulfil human rights. Equally, government buying accounts for a significant proportion of the overall global economy. Worldwide, it has a value of approximately €1000 billion per year and it comprises, for instance, on average 12% GDP in OECD countries. As “mega-consumers,” governments have the purchasing power to set standards that can shift markets towards sustainable production, to exercise leverage over suppliers towards this goal – and to lead by example in introducing human rights into supply chain management by establishing arrangements for human rights due diligence. In the past, however, little consideration has been given to the human rights impacts of the central state and other public bodies in terms of their role as a consumer. This lack of policy coherence undermines fulfilment of the UN Framework and UN Guiding Principles on Business and Human Rights. This submission addresses this gap by starting to clarify states’ human rights responsibilities regarding public procurement and identifying emerging good practices through which public buyers can fulfil these responsibilities. It defines public procurement and provides a brief account of its role, scale and relevance in the business and human rights context; outlines how public procurement is currently regulated under international and regional legal frameworks, with reference to instruments such as the WTO Agreement on Government Procurement (GPA), EU procurement rules and the UNCITRAL Model Law, as well as relevant policy frameworks, including those concerning “responsible global value chains”. It demonstrates how human rights can be integrated into the procurement cycle with reference to concrete examples. Measures promoting respect for human rights in public procurement emerging from National Action Plans on business and human rights (NAPs) are also considered. Finally, it presents recommendations for states and other procurement regulators, and other relevant stakeholders, including national human rights institutions (NHRIs), civil society organisations (CSOs), the UN system and business associations regarding the further development of public procurement as an element of the obligation to protect human rights in the context of business operations.

Moral competence among nurses in Malawi: A concept analysis approach.

Nurses are expected to provide comprehensive, holistic and ethically accepted care according to their code of ethics and practice. However, in Malawi, this is not always the case. This article analyses moral competence concept using the Walker and Avant's strategy of concept analysis. The aim of this article is to analyse moral competence concept in relation to nursing practice and determine defining attributes, antecedents and consequences of moral competence in nursing practice. Analysis of moral competence concept was done using Walker and Avant's strategy of concept analysis. Deductive analysis was used to find the defining attributes of moral competence, which were kindness, compassion, caring, critical thinking, ethical decision making ability, problem solving, responsibility, discipline, accountability, communication, solidarity, honesty, and respect for human values, dignity and rights. The identified antecedents were personal, cultural and religious values; nursing ethics training, environment and guidance. The consequences of moral competence are team work spirit, effective communication, improved performance and positive attitudes in providing nursing care. Moral competence can therefore be used as a tool to improve care in nursing practice to meet patients' problems and needs and consequently increase public's satisfaction in Malawi.

Una historia de actores no estatales y derechos humanos en el mar: la crisis marítima de migración y las obligaciones de las embarcaciones comerciales

Este artículo presenta el papel que juegan los actores no estatales en la crisis migratoria marítima en Europa. Para ello, se realizan consideraciones acerca de las obligaciones de actores no estatales derivadas de instrumentos de derechos humanos y el derecho internacional de los refugiados. Se aduce que se ha prestado poca atención a la industria marítima y a las embarcaciones comerciales como titulares de responsabilidades en derechos humanos y, por lo tanto, ese análisis es necesario. El trabajo analiza diversos instrumentos internacionales desde la perspectiva del derecho internacional marítimo, de los derechos humanos y del derecho internacional de los refugiados. Se concluye que enfrentar el problema de la migración marítima puede implicar considerar una necesaria enmienda de diversos tratados internacionales. Adicionalmente, se sostiene que es necesario estudiar la migración marítima como un fenómeno complejo que no tiene sólo implicaciones respecto al derecho internacional en lo concerniente a los derechos humanos y al derecho de los refugiados, sino también respecto a la industria marítima.

Exploring the Link Between Human Rights, the Capability Approach and Corporate Responsibility

The capability approach is gaining momentum as a theory of corporate responsibility and business ethics at a time when the UN Guiding Principles have become a most important framework. A novel approach is now emerging that seeks to understand and specify human rights obligations of businesses within the framework provided by the capability approach. This article partially examines the triad corporate responsibility–human rights–capability approach by exploring the relationship between human rights and capabilities. Thus, it offers conceptual and practical implications for a human rights perspective on corporate responsibility. The bulk of our thesis focuses on studying Nussbaum’s and Sen’s claim that human rights are entitlements to capabilities by means of a discussion of the notion of human dignity. In particular, we show the capability approach’s ability to dissipate theoretical and practical challenges posed by the notion of dignity. This article does not offer a detailed explanation of the implications of our investigation for human rights responsibilities of business. However, an outline of its potential contribution toward unfolding those obligations, conceptually and practically, is provided.

From 'Do No Harm' to Doing More Good: Extending the UN Framework to Connect Political CSR with Business Responsibilities for Human Rights

The literature on Political CSR (PCSR) outlines the political role of corporations, but fails to offer concrete suggestions for businesses to fill governance gaps through provision of public goods. Conversely, the political role of Multi-National Enterprises (MNEs) plays a limited part in the UN Framework on Business and Human Rights, which was adopted by the UN in 2008 and forms the basis for the 2011 UN Guiding Principles on Business and Human Rights. This paper contributes to connecting the two approaches by drawing on insights from the PCSR literature to theorize on the extent of the human rights responsibilities of MNEs, and combining this with the human rights focus of the UN Framework. Drawing on the existing literature's coverage of MNEs operating in developing countries, we discuss how businesses can improve the respect for and fulfilment of human rights. We propose an 'Extended UN Framework' to help attribute political responsibilities to MNEs that reflect their political power. The Extended Framework combines the original UN Framework's 'do no harm' approach with a leverage-based approach for firms to contribute to delivering public goods that are human rights.

Transnational Corporate Responsibility in Domestic Courts: Still Out of Reach?

Despite some modest progress, corporate responsibility for human rights abuses in domestic courts remains elusive. In U.S. federal courts, Alien Tort Statute (ATS) litigation is now more precarious than ever before. While there have been some potentially important developments in English courts, judges are reluctant to extend responsibility to parent corporations for harm caused by the operations of foreign subsidiaries. Although U.S. and English courts have been concerned with distinct doctrinal issues, the overall picture appears to be one of deference to the corporation and its anatomized form, and to the goal of promoting investment abroad.

The Application of Human Rights Jurisdiction by the Netherlands to Avoid Asylum Claims by International Criminal Court Witnesses

The decision of the Dutch Supreme Court rejecting non-refoulement claims by certain witnesses before the International Criminal Court presents a massive failure to correctly and consistently interpret the jurisprudence of the European Court of Human Rights on jurisdiction. The Supreme Court argued that the Netherlands did not have jurisdiction because the witnesses were in the custody of the ICC. However, the state is bound by the ECHR to provide for non-refoulement in all of its state territory, and the ICC is clearly within Dutch territory. We will presume that the ECHR applies to this case until this presumption is rebutted. Yet, the Netherlands has willingly cooperated with the ICC in the Headquarters Agreement to retain a large degree of control over the operations regarding witnesses, and only agreed to refrain from interfering with the core duties of the ICC. This case is nothing like military control. It is also not like the SOFA or prior ICTY/ICC cases. Moreover, the ICC/ICTY cases seem to violate existing jurisprudence on escaping responsibility for human rights and the real focus of decision control is not on de jure allocation of jurisdiction but actual de facto physical control. And in this case, the Netherlands has a significant degree of de facto control over the witnesses, though it may have certain de jure duties in relation to the ICC. Lastly, the Netherlands still, regardless of the above analysis, retains some residual jurisdiction and obligation to take all diplomatic, economic, judicial or other steps it can to secure non-refoulement. Sadly, in this case, the Netherlands failed to do so.

Contextualising the corporate human rights responsibility in Africa: a social expectation or legal obligation?

ABSTRACT: It has been nearly impossible to muster global consensus on attributing companies with human rights obligations because of persisting contestations on how best to regulate corporate businesses under international law. Whilst several propositions exist including the recent UN Guiding Principles on Business and Human Rights, they mostly constitute ‘soft law’, are non-binding and essentially reinforce the same old argument that only states have human rights obligations. They have little or no legal repercussions on businesses, and provide no remedies to victims. Given the fault lines between the global North and South on the issue and the fatal impacts of transnational corporations in Africa, this article conceptualises a legal basis for demanding corporate accountability in Africa. The article utilises a doctrinal methodology, and two analytical approaches – the human right-based approach and insights from Third World approaches to international law – in establishing that since international human rights law places the protection and realisation of fundamental human and group interests at its core, its legal threshold requires that all endeavours which can impact on human rights, including abusive corporate conduct, are bound by its rules. It finds that the concept of ‘corporate human rights responsibility’ derives from international and domestic human rights law and therefore is vested with a legal basis as against the broader idea of corporate social responsibility that is based on voluntarism. With its emphasis on the protection of groups and individual duties, and recognition of corporate criminal responsibility, the African human rights and evolving criminal justice systems provide a background for conceptualising corporate responsibility in Africa differently.
 TITRE ET RÉSUMÉ EN FRANÇAIS: Contextualiser la responsabilité des entreprises en matière de droits de l’homme en Afrique: une attente sociale ou une obligation légale? RÉSUMÉ: Il a été presque impossible de trouver un consensus mondial d’imposer aux entreprises des obligations en matière de droits humains en raison des contestations persistantes sur la meilleure façon de réglementer les entreprises commerciales en vertu du droit international. Bien que plusieurs propositions existent, y compris les récents Principes directeurs des Nations Unies relatifs aux entreprises et aux droits de l’homme, elles constituent essentiellement des normes non contraignantes et renforcent l’argument selon lequel seuls les États ont des obligations en matière de droits humains. Ces normes ont peu ou n’ont aucune répercussion juridique sur les entreprises et ne fournissent aucun recours aux victimes. Compte tenu des positions divergentes entre le Nord et le Sud sur la question et les conséquences néfastes des entreprises multinationales en Afrique, cet article conceptualise une base juridique pour exiger la responsabilité de ces entreprises en Afrique. L’article utilise une méthodologie doctrinale et deux approches analytiques – l’approche fondée sur les droits de l’homme et les approches tiers-mondistes du droit international – pour établir qu’étant donné que le droit international des droits de l’homme place la protection et la réalisation des intérêts fondamentaux humains et collectifs à sa base, son seuil légal exige que tous les efforts qui peuvent avoir un impact sur les droits de l’homme, y compris les comportements abusifs des entreprises, soient soumis à ses règles. L’article constate que le concept de ‘responsabilité des entreprises en matière de droits de l’homme’ découle du droit international et national des droits de l’homme et est donc doté d’une base juridique au contraire de la conception plus large de responsabilité sociale des entreprises fondée sur le volontarisme. En mettant l’accent sur la protection des groupes et les devoirs individuels et la reconnaissance de la responsabilité pénale des entreprises, le système africain de droits de l’homme et la justice pénale évolutive fournissent un contexte pour conceptualiser différemment la responsabilité des entreprises en Afrique.

Human Rights Risks in Global Supply Chains: Applying the UK Modern Slavery Act to the Public Sector

AbstractGlobal supply chains (GSCs) are organised through complex networks which leave workers vulnerable to exploitation and unprotected against abusive labour practices including modern slavery. In the past decade's, attention has focused on business responsibilities for the impact of commercial activities on human rights with little focus on the role of states as economic actors and their duties regarding their own supply chain, including through public procurement. This article analyses the application of the Transparency in Supply Chains provision (TiSCs) of the UK Modern Slavery Act (2015) to the public sector. Since 2016 commercial organisations are obliged to report on efforts to identify, prevent, and mitigate modern slavery in their supply chain. This includes over one hundred higher education institutions (HEIs). This article finds that while most reporting in the first year fall short of what is expected of institutions according to Government guidance the exercise of reporting has initiated an important process of awareness. HEIs face a steep learning curve to develop effective human rights due diligence in their supply chain however, the TiSCs obligation has proved a catalyst for a wider process of understanding human rights risks and responsibilities of the public sector, and more specifically HEIs.

The Rise of Human Rights Responsibilities R2P and CSR Different Forms of the Same New Dialect

This article recognizes the emergence of a new conceptualization of human rights obligations. It identifies this novel tendency in different families of normative mechanisms: the “Responsibility to Protect” (R2P) doctrine and the “Corporate Social Responsibility” (CSR) instruments. This article connects the dots between those mechanisms, and frames them together as a common interpretive development – the emergence of Human Rights Responsibilities (HRR) norms. Although those mechanisms regulate different entities in different spheres and settings, they both share common characteristics. The common ground of those norms is their reliance on the concept of “responsibility” to describe human rights commitments, instead of the concepts of “duty” or “obligation.” Human rights law has always considered the relationships between states and their citizens as the main source for human rights commitments. The HRR norms define new kinds of relationships as a source for human rights commitments, and at the same time modify fundamentally the content of the commitments.

In Defence of the Sphere of Influence: Why the WGSR should Not Follow Professor Ruggie's Advice on Defining the Scope of Social Responsibility

The Working Group on Social Responsibility (WGSR) of the International Organization for Standardization (ISO) will meet in Copenhagen from May 17 to 21, 2010 for what is likely to be its last meeting to work on ISO 26000, an international guide on social responsibility. One of the central challenges for the WGSR is to define the scope of an organization’s responsibility for human rights abuses committed by third parties. ISO 26000, approved by a large majority in a recent Draft International Standard ballot, answers this question largely in terms of an organization’s degree of control or over others’ conduct. This leverage-based approach is based on the concept of sphere of influence, introduced into SR discourse by Professor John Ruggie as part of the United Nations Global Compact. Now, as the Special Representative of the United Nations Secretary General on Business and Human Rights, Professor Ruggie has warned the WGSR not to take this approach because it is inconsistent with the three-part protect, respect, remedy framework endorsed by the United Nations Human Rights Council. This short paper argues that ISO 26000 should maintain its sphere of influence approach because it reflects broad societal expectations, is consistent with due diligence, does not encourage inappropriate political interference or strategic gaming, is simple and intuitive, builds on existing ISO environmental management standards, avoids making a false distinction between supporting human rights and avoiding abuses, and is a necessary part of the solution to the business and human rights problem.