Mary Robinson on Corporate Social Responsiblity

2012-01-29T15:33:00.002-05:00

Lawyers for Better Business (L4BB), an online publication and network to enable lawyers to become champions of corporate responsibility, has recently posted a very interesting conversation with Mary Robinson, L4BB, Smart Mix, Interview of Mary Robinson Conducted by Kathryn Dovy (Jan. 2012). PDF Version HERE (registration required).

(Pix from The Elders)

Mary Robinson is president of the Mary Robinson Foundation – Climate Justice and former chair of the International Advisory Board for the Institute for Human Rights and Business, which from January 2012 has been chaired by Professor John Ruggie. Ms. Robinson served as President of Ireland from 1990 – 1997 and UN High Commissioner for Human Rights from 1997 – 2002. This was her last interview as chair of the IHRB advisory board.

The subject of the conversation was corporate social responsibility--an area of legal and normative development at the international level that has been on Ms. Robinson's agenda for a number of years. Ms. Robinson's opinions are particularly important both because of her influence in global soft law governance circles and, perhaps more importantly, because she represents the center of the views of this circle.

Ms. Robinson starts, of course, with an effort to situate the new U.N. Guiding Principles of Business and Human Rights at the center of international efforts to create a global standard for the assessment of the conduct of business and the framework for the evolution of the substantive standards by which such actions are assessed.

The starting point for any conversation and the most important development is that there is now a global standard. The UN “Protect, Respect and Remedy” Framework and the Guiding Principles set the baseline for conversations about corporate responsibility for human rights. The fact that the UN Human Rights Council unanimously endorsed them underlines the truly global nature of this debate. The work of Professor John Ruggie over the past six years to get us to this point has been incredibly important and there has been a real sea change in the understanding of the human rights impacts businesses can have. (From Interview of Mary Robinson, supra).

More astutely, perhaps, is Ms. Robinson's distinction between the sort of CSR to which her efforts are directed, and traditional notions of CSR. "I also think it is important to make a distinction between corporate social responsibility on the one hand which can incorporate many actions including charitable giving or philanthropy and the corporate responsibility to respect human rights which is part of a wider discussion on social sustainability." (Ibid.). Yet, that statement both looks forward to a bvroader conversaiton about corporate social responsibility and ignores the very real difficulties of that sort of conversaiton. To suppose that CSR has now begun to take a new turn is to focus on European efforts. In Asia, the view of CSR remains quite firmly routed in ideas of philanthropy. Environmental sustainability remains a political issue and human rights is viewed sometimes suspiciously as a mechanism for an unequal conversation about the basic obligations of states and economic actors. See, e.g., Larry Catá Backer, Corporate Social Responsibility in Korea, Law at the End of the Day, Dec. 1, 2011; Corporate Social Responsibility with Chinese Characteristics, Law at the End of the Day, Nov. 9, 2011; The Power of Soft Law in Japan: Voluntary Codes, The Power of Non-State Based Authority and the Regulation of Business Behavior in Japan, Law at the End of the Day, Oct. 16, 2011; Ibid., Multinational Corporations, Transnational Law: The United Nation's Norms on the Responsibilities of Transnational Corporations as Harbinger of Corporate Responsibility in International Law. Columbia Human Rights Law Review, Vol. 37, 2006.

In considering the death of the great advocate Sir Geoffrey Chandler in 2011, Ms. Robinson suggested the deficiencies in the current insistence on formalist distinctions between sodt and hard law.

(From Peter Mason, Sir Geoffrey Chandler obituary:Former Shell executive and advocate of ethical business principles, The Guardian U.K., April 10, 2011 ("As a senior Shell executive in 1976, he swam against the corporate tide to instigate and introduce the company's first Statement of General Business Principles. This was well ahead of anything other multinationals were even contemplating at the time and – despite Shell's misdemeanours since then – represented a cutting-edge acknowledgement that companies have a moral duty to behave responsibly on social and environmental matters. . . . In semi-retirement, Chandler devoted much of his time to promoting the concept of corporate social responsibility, writing numerous articles and book chapters, speaking with humour, passion and a certain spikiness on the subject. A robust thinker who was persistent and outspoken, he was nonetheless fun to work with, and became a great influence on some of the leading lights in the business ethics sphere – including John Elkington, who coined the triple bottom line concept of companies working for "people, planet and profit", and John Ruggie, the Harvard professor charged with delivering a UN framework on business and human rights. Ruggie credited Chandler "more than any other single individual" with bringing that task to the UN's attention."))

"In regard to the point he made, I think one of the problems is that human rights law is sometimes seen by lawyers as soft law which is just not accurate. The treaties states sign and ratify create obligations upon them. One of the other challenges we have is that human rights are often overly politicized when in reality the core concepts of dignity and respect are difficult to disagree with. " (From Interview of Mary Robinson, supra). This might be remedied by the subtle, pewrhaps all to subtle, efforts at acknowledging governance polycentricuty through the distinctions between the hard law based governance obligations under the state duty to protect human rights and the social norm and international standard governance basis of the corporate responsibility to respect. Lamentably, such efforts were softened between the time of its initial conception and its final appearance in the Guiding Principle. But Ms. Robinson remains hopeful. "Thanks to the UN Guiding Principles, we now know and understand that there are duties for governments, responsibilities for corporations and a need to improve access to remedy for victims – in reality law schools and business schools should all be developing courses focusing on this topic. " (From Interview of Mary Robinson, supra).

(Pix (c) Larry Catá Backer)

The importance of polycentricity--of the creation of multiple simultaneously applicable systems of law--to which corporate actors may be bound, is emphasized by Ms. Robinson.

I think it is clear that following the local laws of the country in question has never been an adequate response from business leaders to human rights challenges. I also think it is important that corporate lawyers are aware that the responsibility to respect human rights is not simply a ‘do no harm’ principle but that it requires due diligence from the business and a proactive approach. To take it one step further, today we can point to examples of businesses that didn’t think they were going to have human rights problems, such as Yahoo!, Google and Microsoft. There will be others from different sectors tomorrow. The fact is that all companies can potentially have an impact on all human rights.So it is very important that local laws that do not meet international human rights standards are not used as an excuse for behaviour by business which is not in line with their responsibility to respect human rights. (From Interview of Mary Robinson, supra).

But where behavior rules of different applicable systems conflict, the advice offered is subtle and to some perhaps unhelpful. She suggests creativity, but one's which are meant to reframe the cultural milieu in which corporations operate. "here are plenty of examples of local laws which discriminate against women, against minorities, etc – when faced with these laws it is important for corporate lawyers to be creative in their responses. In countries that discriminate against women, for instance, corporate leadership showing that women can and should be able to participate equally with men can then spread to other parts of society. " (Ibid.). But, clearly, this is an ongoing project, the contours of which remain to be defined.

That reframing, not limited to the issue of gender discrimination, is the particular province of the legal profession. That is the great hope of Ms. Robinson--that lawyers will begin to incorporate the normative and process principles of the U.N. Guiding Principles as law in effect, and naturalize it within their practice. "It is important that the Guiding Principles are understood and that the new UN Working Group is closely followed by the legal profession. " (Ibid.). Yet it is even more important that, considered as law, the Guiding Principles be developed within a harmonizing interpretive framework. To this end, Ms. Robinson makes a plea for according the U.N. Working Group on the Guiding Principles something like a legitimacy boost, and to guard against a bottom up approach to interpretation that might fracture the application of the Guiding Principles and perhaps create conflict among business, governments and the civil society community. And the first step in that process, of course, is for law firms themselves to incorporate the principles of business human rights principles in their global operations.

(Pix (c) Larry Catá Backer)

In that regard, Ms. Robinson seeks to reach out to businesses from BRIC countries--Brazil, India, China and Russia. The hope, one tied to the implementation of strategies to create incentives toward harmonization of interpretation and practice--is to stress the global citizenship of the largest corporate actors and pry them from a dependence on the cultural and political imperatives (and governance cultures) of their home states.

I think it is becoming increasingly global. Business forums are today much more likely to be made up of business leaders from China, from India, from Brazil, etc which makes sense as these are the emerging economies. The country in which a company is headquartered is becoming increasingly irrelevant since the Guiding Principles are international standards. So all companies now face potential reputational risks if their practices do not respect human rights.

Additionally, organisations working in this space have an increasingly global focus. For instance it was important that the Institute for Human Rights and Business held many consultations in the global south and in particular that the Dhaka Principles for migration with dignity were created out of consultations in Bangladesh and Mauritius. Also the Business and Human Rights Resource Centre has an increasingly global network of representatives based in countries where this conversation is still relatively new. (From Interview of Mary Robinson, supra).

These companies, in turn, would provide the sort of influence and behavior template that the largest states now exercise on smaller and developing states within the state system and public law frameworks. "A challenge still exists for small and medium- sized companies in developing countries
in terms of making the Guiding Principles practical for them. The local networks of the UN Global Compact can play an important role here, working with businesses to see how they can adhere to the Guiding Principles. " (Ibid.).

(Pix (c) Larry Catá Backer)

Ms. Robinson ends with a consideration of the methodologies of deepening cultures of CSR that focus on Human Rights. These involve not merely the obvious--inducing corporate leaders top publicly advocate corporate culture changes--but also require strategic alliances within substantively distinct CSR fields.

In terms of the tipping point, it is very important that we link up the human rights responsibilities of business with environmental sustainability and corporate governance and make the responsibility to respect all human rights part of corporate sustainability as a whole. Lawyers advising corporations are very well positioned as their trusted advisors to make these connections and to rapidly increase the level of awareness amongst the business community. Similarly there is a need to share stories amongst the legal profession of their interactions with clients about this debate. It is on the basis of these shared experiences that we will get closer to having a global legal profession well-versed in the corporate responsibility to respect human rights in practice. (Ibid.).

Ms. Robinson has nicely sketched the parameters of CSR as something more than its traditional form. No longer corporate charity and good works, CSR now is embracing a more robust governance structure, but one that seeks to have a substantial effect on the authority of states to develop their own domestic legal orders, and of corporations to adhere strictly to a governance structure in which only critical internal stakeholders (officers, directors and shareholders) are of concern. The efforts are in tension with law systems at the state level. They have found a home within global governance organs--both public and private. Thsi sort of CSR is also to some extent inimical to conventional hard law; they have found a base in soft law principles. Whether this approach--polycentric, global, and social norm oriented, will begin to substantially affect the law structures of states remains to be seen. It is far more likely to do that after it has been naturalized within the behavior cultures of consumers and investors. And in that, I believe, lies the possibility of success of human rights CSR as "law."