Saturday, January 23, 2010

When the Human Rights Obligations of Corporations Under National and International Standards Conflict: A Proposed Method for Analysis and Action

The Special Representative to the Secretary General of the United Nations, John Ruggie, has been engaged in the valuable exercise of seeking broad input as he refines a transnational framework for business and human rights. An important participatory vehicle for individuals and organizations interested in contributing to the developing transnational framework for regulating the human rights impacting conduct of economic enterprises was launched through the global online forum, The purpose of the forum is to gather input for the SRSG as he develops guiding principles to operationalize the U.N. "Protect, Respect, Remedy" framework, as requested by the Human Rights Council. See press release, Dec. 1, 2009.

The consultation project was targeted to the second pillar of the three pillar framework.
The U.N. "Protect, Respect, Remedy" framework is made up of three pillars: the state duty to protect against human rights abuses by third parties, including business; the corporate responsibility to respect human rights, which means to avoid infringing on the rights of others; and greater access by victims to effective remedy, judicial and non-judicial. At least initially, this forum will focus on the corporate responsibility to respect human rights, the second pillar of the framework. These topics will remain in place through February 2010, although they may be amended in response to how the discussion proceeds.
Welcome to the online consultation for the United Nations Special Representative of the Secretary-General (SRSG) on business & human rights. One of the more interesting and complex of the issues posed by the SRSG through this consultation involves an issue of implementation of the second pillar respect obligations of corporations--what are a company's obligations when international and national noms conflict?

Companies sometimes face situations in which national law or local practice conflicts with international human rights principles. National authorities generally require compliance with their laws; local communities may demand observance of traditional practices; while others may advocate adherence to international human rights standards, as might the company itself for reasons of principle and consistency.

There are places in which law (including United Nations or home state sanctions) prohibits companies from operating, or where the risk of becoming involved in international crimes is so great that companies should refrain from doing business there. But the vast majority of cases do not fall into these categories, leaving companies left with the challenge of finding ways to honor the principles of international human rights standards without violating national law.

Companies faced with this situation have taken different approaches:

* Some multinational companies left South Africa during Apartheid to avoid having to implement discriminatory practices, while others stayed and explicitly disobeyed segregation laws, challenging the government to enforce its own legislation.

* To honor the spirit of freedom of association where it is curtailed by the government, some companies have encouraged workers to form their own representative structures, facilitated elections of worker representatives, provided education on labor rights, and trained local management on how to respond constructively to worker grievances.

* Companies in the internet and telecommunications sector have responded to government challenges to free expression and privacy by working with human rights advocates to develop guidance on what steps companies should take when faced with such challenges.
United Nations Special Representative of the Secretary-General on business & human rights; The Corporate Responsibility to Respect Human Rights,What are a company's obligations when international and national noms conflict?
The SRSG posed four questions:
[1] What principled guidance can the SRSG provide to companies faced with conflicts between national and international norms?
[2] How should the nature of the rights at risk and the severity of possible abuses be taken into account when dealing with such conflicts?
[3] How might multinational companies address this situation differently from domestic companies?
[4] What examples can you cite of a company having grappled with conflicts between norms, and how would you evaluate the effectiveness of the company’s actions? Id.
The problem posed by the SRSG goes to the heart of the second pillar obligation of companies to respect human rights--the way in which that obligation is to be implemented.  The SRSG defined implementation to include "topics that companies grapple with when working to meet their responsibility to respect human rights."  Welcome to the Online Consultation, Discussion Topics.  Considered together, the questions posed suggest the contours of analysis.  That analysis requires systematization of decision elements with respect to which companies are already well versed.  What follows is an effort to pose a reasonable way of thinking through the issues at the heart of the question posed when companies face decision where national and international norms conflict.  The analysis and framework owes much to Christine Bader, whose work is gratefully acknowledged.

Complexity arises when national law conflicts with those international instruments, in which case legal compliance could undermine the responsibility to respect. In such situations, which have come up under South Africa’s Apartheid regime and in relation to, inter alia, freedom of association, gender discrimination, and most recently free expression and privacy in the internet and telecommunications sectors, experience suggests a decision tree for companies.

Each stage of this process results in either an acceptable solution whereby the company can comply with domestic requirements without risking infringement of human rights, or suggests the framework within which further action can be considered.  The process is designed both to confront the issue of conflict, reduce the contours of that conflict to its essential essence, and then refine the actual nature of the conflict with respect to its impact on human rights. 

The decision analysis process can be understood as consisting of four analytical and decisions stages.  Each is identified, and then amplified in more detailed in the "Commentary" section that follows.  It is meant to provide a template for stakeholders (and their lawyers) for working through these situations in a way that minimizes conflict,and keeps the focus on the objective of maximizing human rights benefits to corporate decision making while respecting lawful state power within its own territory. 

Decision Framework:

1. Explore whether there is a way to reconcile the conflict between standards;

2. If no reconciliation possible then attempt to negotiate an exception or solution with the State;

3. If mediation or informal discussion with State officials is unsuccessful, then challenge the law;

4. Where challenge is unsuccessful consider whether operating in the jurisdiction in question is still feasible, assuming that the company is now forced to choose between national and international standards.


1. The exercise of reconciling standards van involve the efforts of a number of departments in the corporation. Lawyers might be tasked to determine whether there are reasonable ways to avoid conflict, or whether reasonable alternative interpretations of national or international law is feasible; industry standards or local practice might be reviewed; officials might reach out to international bodies or local civil society elements for interpretation. Additionally, the company might review its planned actions in light of its objectives. Many times it may be possible to find alternative means to the same objective that avoids conflict. These processes are usually informal but can also lead to a decision to invoke formal processes for definitive interpretation (and thus lead to stage two).

2. In this stage, there is an assumption that reconciliation is impossible and alternative means of avoiding conflict are not feasible. Now both formal and informal contacts must be made with the appropriate State officials to seek top mediate the conflict. This may involve a number of alternative approaches, from negotiating an agreement with the State (with the object of reaching an agreement that avoids violation of human rights norms), to seeking protection under bilateral investment treaties that incorporate international standards, to seeking legislative change in an appropriate manner.

3. It is possible that discussions with State officials may not produce agreement that satisfies the requirements of international standards. In that event, the company miust determine whether it ought to challenge the inconsistent national legislation. Challenge may take one of two forms in most cases. Usually this course suggests a legal challenge to inconsistent state law. Sometimes it may suggest political challenge. In the latter event, it may be important to solicit the help and counsel of local civil society elements. Special sensitivity ought to be exercised when engaging in challenge in countries with weak government or in conflict zones.

4. Only when lawful challenge proves unsuccessful does a company actually face the issue suggested by the problem--reconciling inconsistent national and international obligations to respect human rights. In that case, the company must make a decision based on the greater good in terms of human rights. The example of Google's well publicized initial determination to engage in business in China in the face of national censorship requirements provides a good illustration of the nature of the decision. In that case, Google decided that there was more human rights benefits to providing some greater amount of information to Chinese customers than to abandon China altogether.   Google, Testimony:  The Internet in China, February 15, 2006.  It is important to remember that decisions made in this context are dynamic. They require constant review as circumstances change. Where the human rights benefits diminish in the face of continued inconsistency in legal requirements, then the company must reevaluate its business decision in order to meet its "respect" requirements under the three pillar mandate. Again, Google provides a good illustration.  The Company publicly sought to reevaluate its agreement to comply with Chinese censorship rules in the aftermath of  cyber attacks on its operations.  See, Google, A New Approach to China, Jan. 12, 2010.

All of these steps could be more effective if taken in collaboration with peer companies, nongovernmental allies, and where applicable the home state. This is especially useful where these collectives can develop models of decision and analysis that are context specific--the example for labor issues, or for issues peculiar to a particular industrial sector. It might also provide a useful area to stimulate collaboration between industry and civil society groups.

Engaging in the analysis suggested by this decision tree has a number of advantages.  It clarifies issues relating to the decision. It helps to naturalize human rights within the conventional patterns of corporate routines for making business decisions. In a sense, the decision tree approach suggested here is similar to decision processes whenever businesses must make a decision in the face of conflict and uncertainty. It also provides a method for minimizing the situations where conflicts of this kind actually arise.  It is meant to provide an analytical framework for  eliminating false conflict by rigorously reducing the scope of conflict to its essential elements.  Lastly, it provides a method for reducing the danger of treating human rights issues as either unmanageable or special (in the sense that it represents a class of issues that are unnatural within the corporate decision making context).

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