Friday, June 01, 2018

Reflections on the Development of the Emerging Field of Business and Human Rights: Current Opportunities and Future Challenges

(Picasso Baigneurs a la Garoupe (1957) Art and History Museum Geneva)

Surya Deva, Anita Ramasastry, Michael Santoro, and Florian Wettstein, the Co-Editors in Chief of the Business and Human Rights Journal have been thinking hard about the way that the field of business and human rights has been evolving, especially since the initial issue of the Journal now more than three years ago. Much has changed and, quite usefully, they think it is time for serious reflection. To that end they are working toward the drafting, for publication perhaps in Volume 3:2 (July 2018) of the Journal, an important statement of reflections on the future of the BHR as an increasingly important academic field with multiple connections to the lives and human rights of individuals. These reflections will serve as an important and influential marker of the maturing of the field and also provide an important suggestion of its future direction.

As part of that effort they have asked members of the Journal's Editorial Board to share some of their own reflections. This request has given me an opportunity to pause for a second and reflect about what is assuming shape as a field of academic inquiry, and its likely trajectories. It also provides a moment to consider the value and consequences of those trajectories. 
My reflections follow (downloadable version here):

Reflections on the Development of the Emerging Field of Business and Human Rights: Current Opportunities and Future Challenges

Larry Catá Backer

Along with fellow members of the Business and Human Rights Journal, I have been asked for brief reflections on the growth of nosiness and human rights as an increasingly important academic field with multiple connections to the lives and human rights of individuals. This request has given me an opportunity to pause, if only for a brief time, to reflect about human rights and business as it continues to assume more and more definitive shape as a field of academic inquiry. It also provided an opportunity to reflect a little about the challenges of the field, as the community of its scholars and activists plot likely trajectories for its future as an important venue of knowledge production and as the foundation for important developments in economic, social, and commercial policy. Those reflections might be usefully grouped in nine related groups of ideas that now follow:

First, the future is likely to see the expansion and recharacterization of the scope of the objects of the field. The traditional focus on states and enterprises is grounded in the old scandals of the middle third of the 20th century. These were symptomatic of the emergence of the now dominant global economic order, a chief consequence of which was a de-centering of the state (some at least) and the governmentalization of (at least) a small class of the largest transnational enterprises. But those battles and its consequences, which effectively gave birth to the field, have now assumed a historical character. As the field enters its “new era” it may be necessary to refocus attention. Yes, indeed, the enterprise and the state have not wandered far from the center of study. But the civil society enterprise—producers of standards, guardians and advocates of individuals in transnational spaces, the sovereign commercial and financial enterprise—these and others appear now to have a growing involvement in the business of human rights in economic transactions. Leading journals, of course, may choose wisely to curate these trends rather than to serve as museum like guardians of past sensibilities and “truths” which are now receding and replaced by new orders and new realities. One should be much more interested in the shape of the America First and on China's One Belt One Road Initiatives, and on the integration of global finance and global production today the way that the 1970s was focused on the political effects of traditionally constituted TNCs on the internal politics of states well down global production chains.

Second, business and human rights will likely be transformed by issues of sustainability. The work of John Knox, as Special Rapporteur on human rights and the environment, has already pointed toward the engagement of conventional (or orthodox) business and human rights away from its classic concerns to a wider one. How that will shape the field’s self-conception and the character of scholarship remains to be seen. It will also be bound up on issues of traditional corporate social responsibility. Philanthropy, and the law of charitable giving may have as great an impact on portions of the construction of a human rights oriented economic environment as those of the more modern and esoteric international instruments. But certainly, leading journals like the Business and Human Rights Journal, might find a role as a path setter by encouraging emerging scholarship that interrogates the old boundaries between “human rights” and “environment” and applies these issues in new ways within emerging legalities. Perhaps, here, journals might serve to encourage the sort of interdisciplinary work that will advance dialogue in both fields and lead to further connection or better understanding of their differences.

Third, the old focus on “law” administered through a 20th century state system may soon pass as the founding generation of business and human rights scholars also pass into history. Business and human rights scholarship has pioneered the focus on “legalities” rather than “law” and on governmentalized institutions rather than on classical political government. To some large extent, ideology has tended to sieve these investigations through the requirements of a fidelity to the classical state system and to the protection of conventional political order—even in the face of the absence of politics or order. That is understandable but reduces the value of work produced and veers away from a more rigorous (and sometimes disappointing perhaps) understanding of the accumulation of data that is the representation of the human condition that is the object of study. But at the same time, the field might find itself, and its agendas, challenged by the emerging realities of legalities, of legal orders, that are quite detached from the state, and the enterprise. The ability of business and human rights scholars to confront, study and judge these against well stated and quite transparent values will immensely contribute to the growth and authority of those who work in the field. These issues permeate the underbelly of much current discussion—from the value of a comprehensive business and human rights treaty, to the scope and legitimacy of remedial mechanisms detached from the state, to the source and practice of rule systems that affect the implementation of human rights values in economic relations.

Fourth, the field of business and human rights may soon be moving from an anchor in legalities administered by governmentalized institutions (whether public or private, business, religious or civil in nature) to one that is anchored in accountability. To move from traditional ideologies of law to the managerial ideologies of compliance and accounting may produce a parallel movement from law (as the language of articulation and implementation of norms) to data analytics and algorithms as both the means and the sources of norms. That will pose a challenge for the business and human rights field and its scholars. It may induce a move from the embrace of qualitative approaches to those that must accommodate a primary of quantitative measures. That shift will also require a substantial effort to understand the ways in which old order protections (constitutions, natural law, international standards and the like) can be transposed from old systems of legalities to new systems of managerial algorithms. Moreover, these developments cannot be detached from the rise and effects (for human rights among other things) of data value chains. This bring one to the new frontier—the rise of human rights without humans—where the framework is structured by or around machine learning and artificial intelligence The consequences for the character of the field may be profound indeed. For journals, that means, perhaps, a greater focus on transparency and on the mechanics of assessment and accountability. It may mean a larger focus on the human rights effects of real time performance based incentives and punishments grounded in judgements extracted form data. It may mean as well a greater focus on data itself—not just in its traditional respects (e.g., the human rights implications of data harvesting and individual privacy) but also on the human rights effects of building systems that are themselves operated through increasingly seamless interconnected masses of data, the consequences of which are locked up in opaque assessment measures.

Fifth, the emerging field of business and human rights also faces the same challenge as traditional scholarly field—the way that success is measured. In a world that is driven by data (the point raised in the prior paragraph), the tendency has been to constrict a reality of success on the basis of data markers that themselves may hide or be trapped by assumptions. These assumption, on reflection, may not be worth embracing. New fields like business and human rights can all too easily be lost within the enormous pressure for short term effects that is inherent in impact measures that involve counting—counting “hits”, counting “cites”, counting “product production,” etc. Modern impact measures tend to reward short but high spikes in attention that is then memorialized in evidence of a small circle of proof measures. What this creates is a greater incentive toward orthodoxy and the construction of self-promoting communities whose survival depends on constant streams of short burst reaction (by invoking appropriate countable measures). None of this can be helped. And journals are as much a captive of this mind set as scholars. But both journals and a scholarly community ought to be aware of the costs for the field (not for the careers of those better positioned to be able to take advantage of the logic of these measures). Yet the issue of quality remains a real one, and the means of creating incentives for scholarship with long term impact remains elusive. Still, it would be a pity if this new field, with human rights at its core, should not be especially sensitive to issues of marginalization, of orthodoxy and of exclusion.

Sixth, the emerging field will at some point have to face some core issues relating to its self-conception, it coherence, and the structures used to maintain business and human rights as a viable field making important contributions to knowledge. One can start with the issue of field definition. Defining a scholarly field has its value, to be sure, but it also has its dangers. One of the great contributions of business and human rights was the genius of its rebellion against the established orthodoxies of conventional scholarly fields and the restrictions of conventional scholarly agendas. Corporate and business law, international law, private law and the like either treated the “human rights elements” as secondary elements of what was assumed to be the (protected) centers of those fields, or they reacted to business and human rights issues as threats to their own coherence as a scholarly field. Business and human rights have come into its own now as a field. It is no longer merely a branch of corporate, international, private or public law. But that self-constitution also requires a definition of what it is, and what it is not. To that end, journals play a crucial role in marshalling scholarship and arranging it to manifest the working styles and missions, the structures and approaches, of those who have banded together around the study of business and human rights. In that process, journals play an important role, as does the academic community, in ensuring that the frameworks of the field neither of specific BHR perspectives, nor ought it to serve to marginalize BHR with national (or other local or communal) characteristics

Seventh, and another core organizing issue touches on agenda setting. It is one thing to constitute a field; it is quite another to have an agenda. It would be ironic indeed if in the constitution of the field of business and human rights one also encounters agendas that assume a rigid orthodoxy, adherence to which is a prerequisite to scholarly work. Agendas might in turn convert those who are charged with issues of quality to become guardians of content. That result may be both ironic and inevitable. Already one fears that emerging orthodoxies within the field (as new as it is) can also produce dogma and discipline heresy. Journals, like the Business and Human Rights Journal, serve the field best as guardians against this sort of narrow credo with its community of disciplining academic “priests.” Journals, faculties, and gatherings can serve as spaces where a constant debate around what constitutes the “core” of the field and its own peripheries contribute to the vibrant life of the field rather than serve as the means for administering thought. One hopes, then, that as the orthodoxies of this new scholarly field emerge, some memory is preserved of its origins and some room is left for the unorthodox. Institutions like the Business and Human Rights Journal, of course, will play a key role in those efforts. It can do so by continuing to cultivate a culture that rewards quality and innovation over convention an ideological conformity; that permits a space where its own views can be challenged, and in the challenge, improved, for the journal and for the field as a whole.

Eighth, as it emerges in its own right, the field of business and human rights ought to confront the potential pitfalls of mashing together field agendas and ideological objectives or orientations. These are particularly important in the context of the constriction of the field’s own self conceptions. Like agendas, the temptation to advance certain approved ideological positions and to marginalize (or demonize) others presents substantial risks to the integrity of the field. A field is not a political project; nor should it serve to advance a specific ideology—as appealing as it might seem at any point in time. One comes to truth from facts, one does not deploy truth to select and manage facts. A robust field ought to encourage heterodoxy and facilitate the sometimes harsh clashes of ideologies, as scholars seek to frame their scientific studies within the forms of knowing that lend meaning to the world around us. This is atask to which academic journals ought to be well suited. And yet, there has always been a danger that desire and ideology can sometimes blind scholarship to unpleasant realities. At the same time it is important to recognize that this emerging field of human rights sometimes makes it impossible for researchers to stay apart from the subject of study. Many of the best scholars in the field are truly and passionately committed to the ideals that has driven much of the progress that one encounters in domestic and international public and private spaces. And yet there ought to be a quite conscious divide between the work of the scholar as advocate—a task which the best and brightest ought to embrace with gusto—and the scholar’s role in advancing knowledge in the field. The latter can sometimes be tested where knowledge production works against the scholar’s interests as advocate. To make this work well, the scholar, and the field, must practice scrupulous transparency. This innovation would also allow business and human rights scholars to set an example for the rest of the academic community buy in effect practicing what they preach are essential behaviors to others.

Ninth, one of the great challenges for this field, eventually, will be the way it chooses to maintain its coherence. It is possible to paint everything with a human rights brush. But if everything is understood as grounded in or affected by or within the concepts of human rights then it becomes not a field of scholarship but a general principle—like due process and legitimacy which lends itself to other fields but is too broad to constitute its own. To the extent that the field may be susceptible to discipline, it is likely that this is the area where discipline will be most useful. To some extent, journals might encourage the development of notions of human rights as a generalized principle at the core of the study (and of the language and analytical framework) of other fields. But at the same time journals and scholars might think about distinguishing this more basic project from one which identifies business and human rights as its own branch of knowledge distinguishable from others. But the definition of an academic field, like the recognition of states, can be a sometimes subtle set of linkages, actions and connections. Business and human rights as a field can be strengthened, as it has been now, by the establishment of its own journals devoted to a generally recognized focus of investigation. It can be given form by the creation of faculties devoted to its studies and a curriculum that gives that study shape and boundaries (with the earlier caveat of the dangers of orthodoxy well in mind here). It can come into existence when recognized by others—especially those with power of money—the state, universities, funding institutions, think tanks, civil society organizations, enterprises, etc. And of course, here journals play a vital role.


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