Tuesday, February 09, 2010

Business and Human Rights Part IX--Intregration and Elements of Human Rights Due Diligence

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 IX: Human Rights Due Diligence--Elements of Human Rights Due Diligence; Integration.

The SRSG has identified four core elements of human rights due diligence:
United Nations Special Representative of the Secretary-General on Business & Human Rights,  Integration.   

Integration is not so much about information harvesting or assessment as it is about  international management control systems within which human rights due diligence is meant to be a part. 
Human rights considerations are often isolated within a company, delegated to a single person or department. That can lead to inconsistent or contradictory actions: product developers may not consider human rights implications; sales teams may not know the risks of entering into relationships with certain parties; company lobbying may contradict commitments to human rights; and buyers may place conditions on suppliers that can't be met without violating labor rights.
United Nations Special Representative of the Secretary-General on Business & Human Rights,  Integration.  The concern expressed here is a special application of a general insight that the SRSG has well developed elsewhere--the policy and legal incoherence that tends to marginal human rights in both the domestic legal orders of states and the management systems of corporations.  In the former case the result is difficulty in meeting a state's duty to protect human rights.  In the latter case, it results in an inability to respect huamn rights in fact, whatever the form of the effort by corporations.
The second challenge flows from the first. If the normative basis of law systems is fundamentally inadequate, those political systems grounded solely in such systems must, by definition, also share the similar inadequacies. The principal inadequacy identified by Mr. Ruggie was what he termed legal and policy incoherence. "Governments currently lack adequate policies and regulatory arrangements for fully managing the complex business and human rights agenda. Although some states are moving in the right direction, overall their practices exhibit substantial legal and policy incoherence. " John Ruggie, Opening remarks by UN Special Representative John Ruggie, October 5, 2009.
Larry Catá Backer, On Challenges to Operationalizing a Transnational Framework for Business and Human Rights--the View From Geneva, Law at the End of the Day, Oct. 13, 2010. Just as states must consciously overcome horizontal and vertical legal incoherence by integrating human rights into their governance activities, so, too, must corporations avoid due diligence incoherence (and managerial incoherence) by integrating human rights due diligence into their internal management and control systems.   
A company must ensure that human rights are integrated throughout a company -- not necessarily into every business unit and function, but so that its efforts to respect human rights aren’t undermined, including by the company's very business model.  The intent of integration is to make respecting human rights part of the parameters within which business is conducted -- like ethical behavior or compliance with the law.
United Nations Special Representative of the Secretary-General on Business & Human Rights,  Integration.  

But integration in the context of human rights due diligence means more than the methods of incorporation within a corporation's internal management system.  It also touches on the way in which the procedures of human rights due diligence are constructed and the  extent to which stakeholders are incorporated into the process.  "There are lessons to be learned from those who have worked on business integration for issues like safety, environmental sustainability, ethics, and anti-corruption.  Such efforts seem to indicate that it is important to consider key processes such as capital allocation and evaluation of employees and divisions; that clear accountability is critical; and that employees must be trained, empowered, and incentivized appropriately."  Id.  This may raise a number of interesting and complex issues relating to both the form and objectives of due diligence systems.  It also suggests the possible tensions in the construction of such systems  of human rights due diligence as one that is principally meant to serve as a tool of internal corporate management or as one that is meant to serve as a tool of monitoring and engagement by outside stakeholders and the state.  These two principal objectives do not necessarily produce compatible systems.

The focus of integration appears to be on the internal controls objectives of human rights due diligence.  That is a powerful element in human rights due diligence.  It is well known that top down human rights efforts tend to fail where they meet resistance at the middle management level and below.  Where top management appears to direct human rights due diligence efforts outward, there is a likelihood that middle management might view that as a signal that the efforts have no effective inward value.  They will then tend to act in accordance with that assessment.  The result will substantially affect all aspects of monitoring--from the selection of information, to the methodologies and effectiveness of information harvesting, to the signaling to lower level employees that the process is for show, and to the assessment of information.  Management will tend to receive what they expect to hear, and the probability that a constant stream of great successes will be reported, with no real effect on the internal operational  culture of the enterprise. At its worst, an extreme emphasis on outward value due diligence might signal that management doe snot care about their lower level employees. 

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