Tuesday, November 28, 2017

Snapshot Presentation "Embedding Human Rights Due Diligence in the University"--at the United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

I made a snapshot presentation this afternoon at the UN Forum for Business and Human Rights. The presentation, "Embedding Human Rights Due Diligence in the University" sketched out a program of research that has three principle objectives. The first is to get a sense of the ways which universities have actually begun to think about the effects of their operations in human rights terms.  The second is to develop a set of resources for universities and university stakeholders to help these institutions comply with their responsibilities to respect human rights within the constraints of their own domestic legal systems in in a away compatible with emerging international norms. The third is to begin to think about the way grievance mechanism can be developed and operated by, in or through the university to aid those institutions in the implementation of strategies to conform their operations to human rights norms.  

The PowerPoints and a brief Concept Note follows.

Concept Note
"Embedding Human Rights Due Diligence in the University"  

While it is fairly common to think about human rights in terms of the normative rights embedded in and forming part of the autonomous human person, and perhaps also of the resulting obligations of institutional actors--states, enterprises, religious institutions, and others to protect them, one rarely thinks of the university in this regard. Yet universities, like other institutions, have duties and responsibilities to protect and respect human rights to the same extent as other institutions--and perhaps more so in cases where the university is itself an instrumentality of the state. To fail to embed human rights within university administration violates not just law but likely the ethical and corporate responsibility that many universities have loudly proclaimed for their own. 

This initiative has three basic objectives: (1) to map human rights compliance by universities especially with respect to human rights due diligence; (2) to develop a toolkit through which universities may better embed human rights in their activities and operaitonalize HRDD in their operations, and (3) to consider options for grievance mechanisms at the university level in the context of licensing, procurement, investment, employees, students, and the communities university operations impact.


In recent years, global public actors have begun to expand the focus of compliance with emerging standards of business and human rights to small and medium sized enterprises, even those with fairly small cross border footprints.[1] In the usual course of discussion about the application of human rights principles to the operations of business enterprises, universities are usually excluded from the conversation. Yet, as employers and significant actors in the marketplace, universities ought not be excluded from consideration as an economic actor of some significance to global markets for knowledge production, invention, the exploitation of technology and the exploitation of the productive capacity of its labor force--faculty, graduate students, research assistants, and staff.

In recent years the European Commission has expressed the view that corporate social responsibility, including those responsibilities centered on the human rights impacts of business activity, ought not to add regulatory burdens but can be recognized as an opportunity for corporations and their stakeholder communities. This is particularly important for universities, which serve as the great training grounds for future leaders of public and private enterprises, develop useful models and theories of citizenship, and serve as role models for future generations. Yet little is known about the role that business and human rights, and CSR generally, plays in the operations of the modern, globally oriented, university. This study is meant to provide a first and important step to generate data on the engagement by universities of business and human rights. It is also meant to help universities think about their efforts towards responsible entrepreneurship by raising questions on the possible ways they could improve their business in a sensible manner compatible with their teaching, research and service mission. The questionnaire will also help universities identify further actions they might take to strengthen their operations, reputation and performance


We expect to develop the survey in a way that harmonies with prior survey efforts, particularly that of the E.U. Commission's “Awareness Raising Questionnaire on Corporate Social Responsibility for Small and Medium Size Business,”[1] and the University of West Virginia Business and Human Rights Survey of Small and Medium Sized Enterprises.[2] We expect to have IRB approval as necessary. We will distribute the survey via internet but also provide hard copies on request and follow up via telephone, e-mail and personal visits. We will also use social media as useful to "get the word out".

Clearly, we will not be able to initially sample all universities globally. We intend to derive our samples from a blended group derived from a cross section of several major global university ranking systems. These will include The Academic Rankings of World Universities produced by Shanghai Jiao Tong University; the QS World University Rankings (HQ in London); and the Times Higher Education University Rankings (U.K.). From these rankings we will divide our sample regionally (Latin America; Asia; North America, Europe and Africa), expecting to sample about 300 of the top ranked universities from each region form the last decade. We will also then consider the global implications of our sample regional data.

We expect to develop a survey of about 30 questions, all optional and all anonymous. The survey questions will seek distinct types of information grouped around (1) awareness issues and (2) structure and implementation issues. With the first the focus will be on determining the extent of knowledge of human rights international soft law instruments. With the second we will seek information about corporate structures for identifying and dealing with human rights issues, including human rights due diligence. Part of the anticipated difficulty of crafting survey questions will be one of communication. We have sensed that the term “human rights” has become politically charged. While it is important to further the objectives and knowledge of human rights, part of what we will be collecting data on is the potential divergence between “engaging” in human rights (what universities do) and conceptions of human rights (what universities think human rights actions are). 
The Importance of the Issue to External Operations

We have initially identified four key areas where the human rights obligations of universities are at their most extensive.  These include (1) licensing; (2) research and teaching partnerships; (3) internal operations; and and community relations.  Each of these areas describe operational sets that tend to impact what, in a business conduct, would heavily impact human rights.

Licensing issues have been most widely reported in the media. Licensing issues thrust the university into global production chains, especially with respect to products that may be sourced in developing states.  These are precisely the issues that have exposed large apparel brands to substantial scrutiny for the human rights consequences of their sourcing decisions and have increasingly thrust university's into the oversight of the production of the products produced through licensing agreements.  Some universities have established a "Licensing Oversight Committee (LOC), which makes recommendations to the university about its trademark licensing policies and includes appointed representatives from the faculty, student body and administration." (Georgetown 2017)). Universities increasingly resort to third party certification programs to ensure that licensed products meet minimum human rights related norms (U. Washington 2017).  In some cases, the university has come to these determinations only after pressure was applied by stakeholders, especially students (U.Washington 2017). 

Research and teaching partnerships raise a number of human rights concerns. Education programs abroad raise issues of academic freedom and of student and faculty rights--in addition to issues of the fair treatment of local workers. The problems become more acute where universities establish campuses in other states.  There all of the issues of subsidiary operations, common to profit making enterprises, may also apply.  More sensitive, perhaps, is the increasing development of "bespoke" education programs for paying clients.  Internet based mass learning schemes also raise issues that have not been well researched. In all of these cases, it is difficult to discern the extent to which universities have embraced, much less implemented, human rights sensitive programs. The use of the Guiding Principles and its human rights due diligence systems remains elusive. 
The internal operations of universities, if course, are at the core of the global human rights project.  In this case universities resemble modern enterprises in many respects. The issues include labor,  corruption, internal grievance procedures that work, and so-called "diversity issues."  These are considered in a more detailed example below.
 Lastly, community relations tend to center the university within the social fabric of its physical operations. Universities have become deeply embedded in issues of sustainability, but have largely failed to connect sustainability to human rights.  University investment policies, highly politicized with respect to some investment, also touch on the sort of human rights issues that have become an important element of the operation of banks and sovereign wealth funds.  And lastly, issues of relations with key stakeholders--students (e.g., fraternities) and local communities (land use, energy use, etc.) also impact human rights issues. In all of these decisions, universities do not yet have the systems of decision making that embed human rights related concerns in self conscious and meaningful way. 
The Importance Of The Issue to Internal Perorations—The Example Of University New Style Eugenics Programs.

While a university’s responsibility to respect human rights is broad, it might be helpful to contextualize the nature of that responsibility by an example from the heart of the developed world. The example is meant to suggest the breadth of the issue and its importance not just in the developing world and traditional host states, but in developed states as well. The issue of the human rights responsibilities of universities has become acute recently at universities like the Pennsylvania State University, in the context of the conditions of employment related to its health and wellness programs. These programs have spotlighted an emerging issue in private governance centering on the embrace by economic actors on eugenics programs applied to their labor forces meant to significantly affect the lifestyle and personal choices of their employees as a condition of continues employment.[3]

While universities may be unaware, there are substantial international human rights dimensions of university eugenics programs used instrumentally to affect deeply personal life style choices of employees for the benefit of the employer and with the objective of increasing the operating margins of the university. It suggests that though legally permissible within the domestic legal orders of most states, these programs may tend to violate the social license of these institutions and may adversely impact the human rights of its employees under emerging principles of corporate social and human rights responsibilities. For many universities the breach of social license norms, and human rights expectations may start with a lack of consultation, and the willingness to bend these new eugenics programs to benefit the enterprise rather than the individuals for whose welfare these programs are ostensibly created.[4] The issues are not confined to the university, but touch on an increasingly popular means of using the management of employee health and wellness as a technique of reducing the production costs of operating a business.[5]

As a matter of core principle, and consistent with emerging principles of international human rights norms, I continue to emphasize that, like any other institutional organ, an enterprise (like a university) must exercise substantial restraint and sensitivity when it seeks to manage or to appropriate to itself a power to manage or control the personal choices of individuals in ways that touch on the human dignity and personal autonomy of the individual. In many highly developed Western states, the protection of human dignity and personal autonomy is a matter of constitutional commitment. At its limit, of course, that protection serves as a rationale for the suppression of slavery and the incidents of slavery as a matter of law. But between slavery and complete personal freedom there is a large space within which the state, and the enterprises it permits to operate within its borders, permit some control of autonomy. That space, of course, is essential for the operation of a free society, and is usually grounded, in the area of human economic activity, on the boundaries within which enterprises may hire labor to meet its specific objectives.

However, the existence of this discretionary space is not meant to produce a place where autonomy and human dignity may be completely disregarded in the drive toward enterprise welfare maximization. To permit that freedom would be to allow slavery by other means--and the state of peonage, the closest model for that sort of society, has also been suppressed in most civilized states. As a consequence, enterprises ought to be sensitive to the detrimental effects of the instrumental use of their authority over their employees when they seek to that power to manage and control the human beings they employee. This responsibility to be sensitive to the detrimental effects of employer self interested actions ought to be especially strong where the mechanisms of control and management touch deeply on matters of human dignity and autonomy. That responsibility to respect the human rights of their employees may not be strictly required by law but is central to the social license of enterprises to claim a right to legitimate operation within the societies in which they operate. This notion reflects emerging consensus at the international level around the responsibilities of enterprises for the human rights effects of their activities. (e.g., United Nations Guiding Principles on Business and Human Rights (2011)) These are no less binding on universities where they act as economic actors.

Where enterprises rely principally on their raw power and expand their control of elements of production, especially human beings, for reasons other than to respect their human dignity and autonomy (for example for reasons of cost reduction or productivity gains, both quite respectable in their own right of course), the enterprise ought to bear a special duty to be sensitive to human dignity concerns in fashioning such programs. That duty increases as the human dignity and autonomy effects of these actions increase, including potential violations of privacy interests and the effects of the appropriate of the right to exploit employee information by employers. When the enterprise fails to exercise this sensitivity in its imposition of dignity and autonomy affecting projects, it may rely on its coercive power, supported perhaps the discretionary space permitted by law, to impose its will. But it will also act in ways inconsistent with the sort of respect for human dignity and autonomy at the core of our values. Individuals may conform because they must, but trust is lost and the willingness of individuals to cooperate may decrease.

Corporate eugenics programs sit at the very core of human dignity and personal autonomy. Corporate activity that affects these core issues touch on the sort of human rights effects at the center of human rights due diligence and the corporate responsibility to respect human rights. Absent substantial and comprehensively explained reasons, these merit substantial sensitivity and engagement before they are either formed or imposed. That an enterprise may impose its will in these matters in this country as a matter of law does not necessarily mean that it is the right thing to do, or that by complying with the law of the nation it has complied with its human rights responsibilities under international norms. This survey is meant to help uncover both the extent of awareness of this disjunction between the conscious scope of a university’s sense of its human rights obligations and the realities of its implementation across the regions of the globe. 

[1] See, e.g., European Commission Directorate for Enterprise and Industry, “Opportunity and Responsibility: How to Help More Small Business to Integrate Social and Environmental Issues Into What They Do” (2007), available http://ec.europa.eu/enterprise/policies/sustainable-business/files/csr/documents/ree_report_en.pdf, and European Commission, “My Business and Human Rights: A Guide to Human Rights for Small and Medium Sized Enterprises (2012), available http://ec.europa.eu/enterprise/policies/sustainable-business/files/csr-sme/human-rights-sme-guide-final_en.pdf.

[1] See, European Commission Directorate General for Enterprise and Industry “Awareness Raising Questionnaire on Corporate Social Responsibility for Small and Medium Size Business,” available http://ec.europa.eu/enterprise/policies/sustainable-business/files/csr/campaign/documentation/download/questionaire_en.pdf (the object of the questionnaire was both to generate useful data and to “This questionnaire will help you think about your company’s efforts towards responsible entrepreneurship by raising questions on the possible ways you could improve your business in a profitable and sensible manner. The questionnaire will also help you identify further actions you can take to strengthen your business, its reputation and performance.” Ibid., p. 2).

[2] West Virginia University College of Law, B&HR 2013 Survey, available http://law.wvu.edu/bhr2013/bhr-survey.

[3] See, e.g., Larry Catá Backer, “The New Eugenics--The Private Sector, the University, and Corporate Health and Wellness Initiatives,” Monitoring University Governance, July 16, 2013, available http://lcbpsusenate.blogspot.com/2013/07/the-new-eugenics-private-sector-and.html.

[4] See Larry Catá Backer, Penn State's New "Wellness Program" in the News (UPDATED Through 8 August 2013,” Monitoring University Governance, August 1, 2013, available http://lcbpsusenate.blogspot.com/2013/08/penn-states-new-wellness-program-in-news.html.

[5] The New Eugenics, supra.

1 comment:

Unknown said...

Bravo for exploring this important issue.