Sunday, February 21, 2010

Business and Human Rights Part XX--Issues: Gender

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 XX: Human Rights Due Diligence--Issues: Gender.

The SRSG reminds us that his "mandate requests that he 'integrate a gender perspective throughout his work.'"  United Nations Special Representative of the Secretary-General on Business & Human Rights, Issues: Gender.  Though the request might be read as suggesting substantive elements, integration is posed, instead, as a methodological, rather than a conceptual, challenge.  "Through formal and informal consultations, some experts have suggested that with regard to the corporate responsibility to respect human rights, integrating a gender perspective requires companies to 1) collect disaggregated data on their impacts, and 2) conduct multi-dimensional analyses with regard to their potential and actual impacts." Id.

Data disaggregation requires the collection of data broken down by gender. Data collection, though, is hardly a ministerial act.  The choice of data suggests a normative privileging that itself might legitimate emphasis in one area of human rights over others.  I have suggested the regulatory aspects of data collection in its guise as a subset of surveillance.
Surveillance is one of the critical mechanisms of this expansion of private power into what had been an exclusively public sphere. Increasingly, public bodies are requiring, or permitting, private entities to monitor and report on the conduct and activities of a host of actors. It has also come to serve public bodies as a substitute for lawmaking. Surveillance is a flexible engine. It can be used to decide what sorts of facts constitute information, to determine what sorts of information ought to be privileged and which do not matter, to gather that information, to empower people or entities to gather information, to act on the information gathered. In its domestic form it can be used to assign authority over certain types of information to private enterprises and then hold those enterprises to account on the basis of the information gathered. In its transnational form it can be used to construct a set of privileged information that can be gathered and distributed voluntarily by private entities on the basis of systems created and maintained by international public or private organizations as an alternative to formal regulation and to provide a means of harmonizing behavior without law. Together, surveillance in its various forms provides a unifying technique with which governance can be effected across the boundaries of power fractures without challenging formal regulatory power or its limits. 
Larry Catá Backer, The Surveillace State: Monitoring as Regulation, Information as PowerLaw at the End of the Day,  Dec. 21, 2007. See, Larry Catá Backer, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes, 15 Indiana Journal of Global Legal Studies -- (forthcoming 2007).  As such, one could understand this emphasis as suggesting a prioritization of gender issues in the Second Pillar responsibility to respect.  For a discussion of prioritization, see, Larry Catá Backer, Business and Human Rights Part XVII--Implementation: Prioritizing, Law at the End of the Day, Feb. 18, 2010. 
But the SRSG points to a more benign function for data gathering.  "Some have suggested that only with disaggregated data can companies identify the relationship between gender and their human rights impacts.  It is not part of a company's baseline responsibility to respect human rights to address the social formation of gender biases.  However, human rights due diligence should identify differential impacts based on gender and consequently help companies avoid creating or exacerbating existing gender biases." United Nations Special Representative of the Secretary-General on Business & Human Rights, Issues: Gender.  The subtle distinction might at first be startling--especially in an otherwise positive values based and behavior modifying approach to corporate behavior.  But closer reflection suggests the strong connection between this position--that data be gathered to mind the corporation's behavior but not that of the society in which the corporation operates--and the foundational distinction between the legal rights regimes peculiar to the First Pillar and the social rights regimes at the hart of the corporate responsibility to respect human rights.  This is made clearer by the SRSG's explanation of the meaning of a multidimensional approach to gender data.  The multidimensional approach  "means that human rights due diligence should include examination of gender issues at multiple levels -- for example, the community (e.g. are women in a particular community allowed or expected to work); and the society (e.g. is there institutionalized gender discrimination, whether by law or religion)." 
Issues of social organization, and communal mores, including those touching on the status of women, are matters for the state--and the First Pillar.  Issues of corporate involvement in issues touching on the status of women--as realized within corporate operations--are matters at the heart fo the Second Pillar.  Those issues, in that context, give rise to an autonomous set of responsibilities, the touchstone of which is not necessarily dependent on the resolution of gender status issues within a particular state.  As such, data gathering and analysis is critical for the production of corporate action that may lead to treatment of women, and responses to concerns touching on the status and treatment of women, within the corporation in ways that are distinct from those prssumed satisfactory elswhere within the state in which a corporation operates.  The object is to control the behavior of corporations, not to reform the social, political and legal structures of the states in which such corporations operate.  This is an especially important distinction in cases where multinational corporations are operating within host states that have a long history of colonialism and a strong sensitivity to interference with sovereign prerogatives. 

But this bifurcated approach also produces a set of potentially necessary tensions.  First, at its limit, it may produce a situation where the corporate responsibility to respect is inconsistent with the obligations imposed through host state law.   See, Larry Catá Backer, Business and Human Rights Part XVI--Implementation: When International and National Norms Conflict, Law at the End of the Day, Feb. 17, 2010.  Second, the distinction between the "social formation of gender biases" and "creating or exacerbating existing gender biases" through corporate policy may be both artificial and difficult to keep separate.  Indeed, one recalls the approach of the Sullivan Principles was to focus directly on corporate behavior as a means of projecting social-cultural-and legal change into the host states in which these principles were applied. "General Motors was the largest employer of blacks in South Africa at that time, and Sullivan decided to use his position on the Board of Directors to apply economic pressure to end the unjust system.  The result was the Sullivan Principles, which became the blueprint for ending apartheid."  The Sullivan Principles.  The successor Global Sullivan Principles makes these connections explicit.  The resulting political program inherent in application of corporate second pillar responsibilities may produce friction., especially if the methodological focus is understood as containing a substantive element targeting the host state.   Lastly, the nature of gender rights remains highly contested.  This produces fracture, even in the approach to data gathering.  Consider, in this regard, the connection between the Universal Declaration of Human Rights and the Cairo Declaration on Human Rights in Islam.  Their possible complementarity (or incompatibility) may substantially direct both the methodological framework within which gender issues are understood, and data harvested, as well as the analytics produced therefrom. 

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