Business and Human Rights Part XI--Elaboration; What is Specific to Human Rights

This Blog Essay site devotes every February to a series of integrated but short essays on a single theme.  The Ruminations Series in 2009 produced a month long series of aphoristic (ἀφορισμός) essays, meant to provoke thought rather than explain it. The hope was that, built up on each other, the series would provide a matrix of thoughts that together might lead the reader in new directions. 

For 2010, this site introduces a new series--Business and Human Rights.  The series takes as its starting point the issues and questions raised by John Ruggie, the United Nations Special Representative of the Secretary-General (SRSG) on business and human rights, in a global online forum 

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.  The forum is currently focused on the corporate responsibility to respect human rights, the second pillar of the framework. The forum is divided into sections, each of which contains multiple topics with space for discussion and comment.

New Online Forum for U.N. Business and Human Rights Mandate, United Nations Press Release, New York and Geneva, Dec. 1, 2009. Each of the Essays will consider one of the topics raised in the online consultation.  My hope is to help generate discussion and to encourage further discussion of the issues within the framework fo the consultation  framework. 

Part XI: Human Rights Due Diligence--Elaboration:  What is Specific to Human Rights.

The SRSG has suggested a relationship between the conventional understanding of business risk management, and the management of the human rights risks of corporate operation. The basis of that relationship centers on process--patterns of approaches to managing risk.  At the same the SRSG emphasizes the substantive differences between conventional fields of risk management, and human rights risk management. 

The term 'risk management' is familiar to companies.  However, it generally refers to mitigating risks to the business, whereas human rights due diligence is about mitigating risks to the rights of others.  While the two are often related, infringing the rights of others may not always present risks to the company.  So while human rights can and should be incorporated into existing corporate processes where possible and appropriate (see also Integration), they cannot always be folded into systems for other business issues.  

United Nations Special Representative of the Secretary-General on Business & Human Rights,   Elaboration:  What is Specific to Human Rights.  This process/substance convergence/divergence serves a fundamental template for approaching much of the elaboration of the Second Pillar responsibility to respect.   While the substance of the responsibility may be new, the methods available to corporations to meet these responsibilities are well established in other, and similar, substantive contexts.  That approach makes Second Pillar responsibilities both comprehensible and the objects attainable without substantial costs to corporations in terms of learning new managerial behaviors.

The emphasis on process familiarity, substantive expansion is elaborated.  "Companies that already have systems in place to manage risks and issues related to safety, ethics, and environmental impacts often ask what else is needed to meet their responsibility to respect human rights -- in other words, what is specific to human rights."  Id.  The SRSG suggests that the substantive distinction of human rights can be understood in two aspects--the rights to be incorporated in corproate managerial culture and the rights holders who are the object of corporate human rights management.

First, of course, are the specific internationally-recognized rights (see content of the corporate responsibility to respect human rights).  Human rights may overlap with issues already addressed in company practice, such as working conditions, but human rights go beyond labor rights and include topics that many companies do not currently cover.  Furthermore, human rights are a defined set of global norms, whereas other issues may arise in response to specific operational contexts or national or local legal requirements.
Second, respecting rights requires respecting rightsholders.  That, in turn, entails treating people with dignity and on the basis of equality and non-discrimination, and engaging them in informed and inclusive dialogue about activities affecting their lives.  

United Nations Special Representative of the Secretary-General on Business & Human Rights,   Elaboration:  What is Specific to Human Rights.

This general framework suggests a number of questions:

• Does the above description capture what is specific to human rights?
• What are the potential benefits and pitfalls of considering human rights due diligence as part of risk management?
• What elements of systems to manage safety, ethics, or social and environmental impacts might be particularly relevant for human rights?  (See also Integration.)
• What do the specific features of human rights imply for whether and how human rights due diligence should be integrated into other processes, or stand alone?

Id.

With respect to the scope of rights to be incorporated, the SRSG suggests that corporations, like states (under the First Pillar), must look to international law and policy, rather than strictly to the incorporation (in bits and pieces) of such law and policy within the domestic legal orders of the states in which they operate. Then, like states, companies are expected to transpose these international obligations into their own governance framework. In this sense, corporations and states are treated in parallel. Both look to the same sources for normative conduct rules. Both have an obligation to transpose those rules within their domestic or corporate legal orders. And both must meet these obligations without regard to obligations arising from the operation of domestic law on parts of the operations of multinational corporations.

With respect to rights holders, the SRSG suggested the cultivation of a direct relationship between corporations and stakeholders grounded on the normative rules derived form human rights. Again, the parallel with the state duty to protect is inescapable. Corporations, like states, have responsibilities to those who operate within their jurisdictions. The jurisdictions of states, of course, are easy enough to discern—they are generally defined by the national territory. But the jurisdiction of functionally differentiated governance enterprises, like multinational corporations, are harder to discover. For that reason, it makes sense for the entity with the best sense of those jurisdictional limits—the corporation itself—to make those limits known. Just as states must be sensitive to the application of rights to individuals within its territory, so too must entities be sensitive to rights holders.