Reflections on Surya Deva: "Mandatory human rights due diligence laws in Europe: A mirage for rightsholders?" Leiden Journal of International Law

 

Surya Deva, Professor at the Macquarie Law School, Director of their Centre for Environmental Law, for many years on the faculty at City University of Hong Kong, and formerly a member of the UN Working Group on Business and Human Rights (2016-22) is one of the leaders in the field of human rights, especially as it may be applied to economic activity. His clarity of vision and his great influence among those who move the direction of social relations and develop the structures and sensibilities of political actors and their apparatus, make virtually anything he writes worth a close read. 

It is thus with great delight that I read one of his latest articles, "Mandatory human rights due diligence laws in Europe: A mirage for rightsholders?," recently published  in the Leiden Journal of International Law (1-26. doi:10.1017/S0922156522000802)and available online. His purpose in writing, and his arguments in their support are easiñy glesned from the article's abstarct:

Mandatory human rights due diligence (HRDD) laws in the European Union (EU) – both enacted and in the making – seem to be a promising tool to harden soft international standards in the business and human rights (BHR) field, the most prominent of these being the UN Guiding Principles on Business and Human Rights (UNGPs). This article develops a two-layered critique of mandatory HRDD laws. It problematizes the very concept of HRDD as articulated by the UNGPs. I will argue that due to various conceptual, operational and structural limitations, HRDD alone will not bring the desired changes for rightsholders, because this process does not address various asymmetries of power between corporations and affected communities. The second layer of critique concerns the content of mandatory HRDD laws enacted in France, the Netherlands, Switzerland, Norway and Germany. Assessing these laws vis-à-vis six preconditions required to protect effectively people and the planet from business-related harms, it is clear that these mandatory HRDD laws are half-hearted attempts to tame business-related human rights abuses and hold the relevant corporate actors accountable. In addition to developing more ambitious mandatory HRDD laws in future, states should employ a range of additional regulatory tools that pay greater attention to achieving outcomes, drawing red lines in certain situations, and promoting access to remedy and corporate accountability.

The arguments are powerful, and they powerfully reveal the vision and analytical lens through which those arguments derive that power. That, perhaps, is among the most important insights of this article: that that UN Guiding Principles for Business and Human Rights (UNGP) serves its highest purpose as an object of signification, that is as a vessel into which one can pour ideology, and by pouring a specific ideology change the way the vessel itself is perceived and applied. That ideological flexibility explains, in part the enduring character of the UNGP--it is flexible enough to accommodate and by accommodating change its appearance, to suit the ideologies though which it is made to be understood.  

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Related to that, the article produces another significant insight--that the UNGP itself serves not so much as a framework or as a normative baseline, but as a language that can then acquire its own autonomy and normative agendas. When one speaks to or through the UNGPs, then, one invokes a language that has its own distinctive syntax, its own grammatical rules, and its own processes of extracting meaning from the words  used to communicate norm, intent, and effect. One can do much with these insights as one approaches  the UNGP.  Yet that "doing" does not always invariably point in the same direction. This article points, quite persuasively, in one direction. But there are others whose persuasiveness, grounded in different analytical lens, may prove equally powerful.  

What follows are brief additional reflections on the substance of the article.  These are developed with great thanks to Professor Deva for providing so important a platform on which it is possible to engage critically with some of the most interesting areas touching on the intersection of human rights, sustainability, globalization, and the management of power relations between the state, the market, and the masses for whose benefit (however that term is understood), at some level at least, all of this is undertaken. 

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1. Deva starts by noting, quite correctly, that "human rights due diligence" (HRDD) has become something of the flavor of the month for virtually all business andf human rights stakeholders who matter ("Mandatory human rights due diligence laws in Europe, supra., pp. 1-2.). More specifically, the concept appears to have proven irresistible to states looking for ways to legislate their way out of their 1st Pillar duty to protect human rights by governmentalizing the private sector's responsibilities under Pillar 2 (explored ibid., pp. 5-9). That is fair of course; and it goes to the more fundamental insight that the UNGP as language continues to prove itself quite unruly when it comes to protecting the original integrity of the three pillar structure first described in John Ruggie's 2008 Report to the Human Rights Coouncil.  But that too is fair. HRDD, like virtually everything else in the UNGP, can be understood as a tool.  Though arranged in a particular way in the toolshed that is the UNGP as a whole, there is nothing other than one's underlying ideology of governance and government, that impedes any use HRDD as an instrument to achieve objectives that suit its user. That is both the power of the reconstruction of the UNGP, bt also, to some extent, the limiting factor in the argument that follows.  For if, indeed, (1) the language of the UNGP, especially the specific language of HRDD, is now detached from the UNGP as idea or as a set of specifically arranged and structured instructions (a position long taken by the UN Working Group in its own way), and (2) that language permits a flexible instrumentalization of its provisions; then (3) any stakeholder can pick up those instruments or use that language for their own purposes. In this case, of course, that means that what the article finds to be the critical deficiencies of contemporary HRDD (mandatory or optional) others might equally persuasively view as its greatest strength. One moves back, here, decisively from norm to politics, and from certainty to ideology. 

2.The article seeks to interrogate the potential and limitations of mandatory HRDD laws  through the development of a two layered critique. (Ibid., p. 2). The first is a macro level critique. The article seeks to problematize  the very concept of HRDD as articulated by the UNGPs. It makes an argument from the perspective of incoherence--a mainstay of late 20th century critical theory. The second is a micro level interrogation. It approaches the content of mandatory HRDD lawmaking from the perspective of disjunction: the contents of mandatory HRDD statures "merely half-hearted attempts to tame business-related human rights abuses and hold the relevant corporate actors accountable." (Ibid). That critique is undertaken in the service of a larger goal--one aimed at undermining the UNGP as an authoritative source of law and policy shaping in favor of something else. The suggestion is articulated here in the lowercase: "

HRDD should be treated merely one of the many means to ensure that businesses respect internationally recognized human rights, and states should use all available regulatory options as part of their duty under Pillar I of the UNGPs instead of focusing solely on enacting mandatory HRDD laws. ("Mandatory human rights due diligence laws in Europe, supra., pp. 2.)

Yet in the context of the arguments that follow, arguments grounded in incoherence and disjunction, the larger aims are hard to avoid. In this respect, the article is not shy about expressing , one that continues to take aim at the UNGP themselves, a project that some have been undertaking from before the endorsement of the UNGP in 2011 (Ibid.).

3. The techniques are the ancient ones of the critical legal movement of the last third of the 20th century and its grandparents, the legal realists school. The forms and techniques remain powerful.  But there is a bit of the antiquarian about it that might give one pause. The difficulty here is that to succeed using the techniques of critical pedagogy and discourse, it is first necessary to objectify the UNGP, and then to suggest that this objectification is incapable of change (its properties are inherent in its structure). The UNGP, here, would be characterized as stuck in time, place, and meaning. Thus incarnated, it becomes necessary to move beyond it to the extent that ideology or changing conditions on the ground warrant.  Yet, if, indeed, the UNGP in general, and HRDD specifically now assume the roe of lingua franca, then this exercise  will not rid its proponents of the greatest threat to their objectives, precisely because while it removes the UNGP as object, it cannot remove the role of its autonomous language in shaping discourse and in framing analysis.  The argument reminds one of the understanding of death (the critical enterprise) in the Tibetan Book of the Dead: "Alas! This illusory and feeble aggregate of form, Created from the compounded past actions and conditions, like [the flame of] a butter lamp blowing in the wind, cannot last forever." (The Tibetan Book of the Dead (Gyurme Dorje (trans); New York: Penguin Books, 2005), p. 155)

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4. Section 2  (ibid., pp. 3-5) provides the analytical framework. It is grounded in theoretical work anchored first in the concept of vulnerability and second in the literature that sees in markets and private activity a problem in need of management by public authorities. With respect to the former, the article criticizes HRDD for its failure to do little more than recognize vulnerability; the failure to prescribe steps to address vulnerability (imposed on enterprises as micro level economic actors rather than on states as macro level political actors) suggests convenience rather than necessity. Or better put it suggests the necessity of better aligning the (mostly public) structures of remedy in Pillar 3 to the (mostly private) structures of HRDD in Pillar 2. That is fair, but also ideologically contingent.  But it also suggests an underlying  (and somewhat ancient) notion the genealogy of which lies with the construction of Soviet Marxist Leninism in Europe, that enterprises are instrumentalities of the state but with much longer leashes. It is possible to vigorous interrogate that notion--not for its truth, but for its politics.  That last point goes to the literature on the enormity of the concentration of economic power outside the control of public bodies. Power imbalances require redressing. "In other words, the reliance on market forces to regulate corporate behaviour too has its limitations." (Ibid., 5). Standing along that statement is true enough. But detached from the systems envisioned in the UNGP, or through the invocation of the UNGP as language in the development of statutory mandatory HRDD regimes, it may lose a little of its power.  

5. Part 3 (ibid., pp. 5-9) considers the potential of mandatory HRDD--and by implication (given the analytical framing of Part 2) of its limitations and ultimately its incoherence. Here the article flirts with the semiotics of the UNGP as language, a language perhaps detached from the object (the UNGP itself) from which it arises. "HRDD has become the lingua franca in the BHR field. This is an impressive achievement in the space of just 11 years. However, the common usage of a terminology does not necessarily denote a common understanding about a given concept." That is absolutely correct. It is something that I note and wrestle with in the writing of my own Commentary on the UNGP (see Part 2 (The Meaning of Text and the Performative Politics of Commentary): Seeking Input on Project--Commentary on the UN Guiding Principles for Business and Human Rights). It is a pity that the reference to the debate focuses on only one camp; but the point is well made.A fundamental of semiotics is the recognition of the political character of meaning and the alignment between social relations, especially elite relations, and the construction "and enforcement of meaning. The article seeks to further one meaning and in that sense it advances a specific agenda that is itself tied to a rich ideology around which there is hardly any consensus. In the absence of consensus, of course, there is politics and the power of social relations. That is the basis for putting forward the "socialization, common currency, and prevention" (Ibid., 7) principles around which HRDD might be made to produce some positive value (at least from the analytical lens posited in Part 2). The effort is fair.  The first goes to semiosis--the use of common language into which new meaning may be inserted; less panic and it preserves the appearance of the naturalness of evolution toward the goals favored by those controlling meaning. In this case the semiosis extends beyond language to performance--the performance f due diligence, now re scripted though playing in what appears to be the same venue. There is indeed value in the reconstitution of the known (text and action) to manage and guide behavior. The difficulty, of course is that in the absence of a monopoly of power over words and action, the process will at best be contentious, especially where, as here, some of the more controversial stances from the so-called treaty movement appear to poke their way in.

6. Part 3.2 is particularly interesting for its elaboration of a position held by many in the Anglo-European collective of elite civil society elements--the notion that human rights (understood as some sort of unitary object, like the UNGP) are not optional for either public or private collectives (though the article focuses for the moment on enterprises--the same ought to apply given their logic to religious and social collectives, including civil society). While many would agree that the development of the 2nd Pillar and the placement of HRDD within it might, as the article suggests, aided in "socialization and normalization of the business responsibility to respect human rights" (Ibid., p. 8), the implication that this was meant--like the stage of socialism in a Marxist-Leninist state--to be a transitional condition leading one back to the glory of public regulation (either at the state or international level) might be deeply contested. It might have been more interesting to align the forward movement within the trajectories of compliance. That would have made the argument for change from disappointment that over a decade the transformations envisioned in the UNGP have not been achieved to the extent that the article would have preferred.  The problem for the article, of course, is that compliance based arguments are  made by conceding the autonomous role of markets and private engagement. It is however, the suspicion of markets and markets players that drive the form of the analysis attempted (see especially the quite interesting blended argument (ibid., p.9) with respect to which I have much sympathy.  To some extent that blended argument makes the case for compliance rather than regulatory measures, and in that sense potentially undercuts the power of an analytics bent on expropriating the guts of the 2nd Pillar into the 1st. 

7. Part 4 (bid., pp. 10-16) makes a well grounded argument about the limits of HRDD. First, reviving arguments made by those still embracing the fundamental approaches of the now long abandoned Norms, the article suggests that the jurisdictional scope of HRDD is either underinclusive or unrelated to the realities f the connection between economic activity and rights. The argument is worth considering more closely.  And it is a convincing argument for the core position of the article that HRDD is not enough--for states. Yet it may be less useful in making the same case of insufficiency for business. That is the real conceptual difficulty here--that HRDD cannot be all things to all people precisely because it was never meant to serve that function. Yet nothing prevents states from doing what their own politics--and the imperatives of th contemporary global order--appear to impede.  To lay this at the feet of the UNGP in general and HRDD in particular may be not as helpful to the resolution of the problem that the article quite correctly seeks to address. The article also makes an argument from the perspective of operational and structural limitations. The arguments are important in their own right.  But are they relevant given the conceptual framework within which the analysis is attempted? Assuming that the identified operational limits both exist and significantly impede, there is nothing but inertia that constrains states and other political actors from reshaping the form and operation of HRDD as they transpose it from a process-structure adapted to the private corporation operating in transnational markets, to one that is aligned with national constitutional orderings and political objectives. That it is not attempted is neither inevitable under the UNGP nor necessary.  Again, politics and capacity--and a taste for regulation--rather than the normative-structural-conceptual limits of the UNGP  may be the villain here. This is a point that the article makes forcefully and well developed in its Part 5 (though with a different objective in mind). Lastly, the idea that HRDD specifically, and the UNGP more generally, may serve as the vehicle for tackling the critical issues of the organization and operation of the global economic system  is both unrealistic and misjudges the quite specific contribution that the UNGP was meant to make.  One an, of course, make of the UNGP what one wills.  But to argue that  a system that was not created to manage the structures and operations of globalized economic activity fails for failing to do just that may prove a distraction. 

8. Part 5 (ibid., pp. 16-18) includes the article's most important contributions. First the distinction between HRDD as process and as outcome is critically important as both an analytical and normative tool. Its exploration and consequences merit further study.  It gets the the heart of much of the criticism of a disclosure based compliance regime onto which mHRDD has been grafted. That point is well taken. The article then offers a set of six conditions under which, given the analytical lens of Part 2 and the pragmatic analysis of Parts 3-4, the process oriented approaches to mHRDD can advance the important objective of "encouraging businesses to take seriously their human rights responsibilities." (Ibid., p. 16 ("require holistic HRDD, capture as many businesses as much as feasible, address power imbalances, go beyond process, draw certain ‘red lines’ and provide for effective access to remedy" (ibid.)). Bravo.  Each of these conditions merit serious consideration, though the direction that they might lead do not necessary take up to the same place advocated in the article. The reason, of course, is that  the direction of these six conditions are a function o the ideology and analytical lens adopted. Yet that this produces a range of plausible variations of approach also suggest the power of the framework in Part 5. The value of this exercise lies in what it points to--the UNGP are indeed both a process and a vehicle (or the language with which) social transformation of the most radical kind may be attempted--one without much disturbing the facade of continuity or the language of ordinary discourse. That, in turn, helps one position Part 6 (ibid., pp. 19-25;"Mandatory HRDD laws in Europe: A half-hearted attempt?"), and its analysis of the current state of mHRDD law making. Given the parameters of analysis, the conclusions are sound. . .and the criticism well deserved.  On the other hand, a shift of perspective may produce a different result. But that change may do little to overcome fundamental criticisms: (1) the strategic narrowing of coverage; (2) the preservation of the administrative character of the provisions; (3) the difficulty of embedding regimes of human rights and environmental tort as part of HRDD; (4) the fundamental problem of aligning value and diligence in the way that corporations account to themselves for their activity; (5) the use of HRDD as a gateway for the regulation and suppression of markets (eg in tobacco, petroleum, etc.) and its alignment with the practices of sovereign investing organs; (6) the role of HRDD as a vehicle for socialization and the connection between compliance and socialization; (7) the role of HRDD and the evolution of the core principles of corporate governance, corporate personality and the legal construction of production chains; (8) the way in which SOEs, SWFs and other private manifestations of state power can be embedded in systems designed to guide private activity; and (9) the role of data and data analytics in the constitution of both transparency and accountability regimes.