Rethinking Mike Baab and Margaret Jungk on "The Arc of Human Rights Priorities A New Model for Managing Business Risk" (2009)

 

 

 

It is sometimes useful to revisit work as the field in which it is offered evolves. One such work that may be worth reconsidering in light of chanting approaches to human rights due diligence--and its legal effects--is "The Arc of Human Rights Priorities A New Model for Managing Business Risk" (Danish Human Rights Institute, 2009) on which Mike Baab and Margaret Jungk  consider a problem at the heart of the corporate responsibility to respect human rights and with it the mechanisms for a viable human rights due diligence system--how does a company move toward perfect compliance in an operational environment in which  perfection is impossible? They pose the question this way:

You are the Corporate Responsibility Director for a multinational company. Your operations are immensely complex, with marketing, production and distribution in dozens of countries, each with their own logistical and political challenges. * * * You recognize that your company’s operations have wide, deep impacts, and the public expects that you safeguard the welfare of your employees, local communities and customers, from hiring practices to product disposal. * * *So how do you maximize your effectiveness, ensuring that your limited time and resources are allocated correctly? How do you identify the most important human rights issues facing your company, and perform due diligence to reduce the risk of future abuses and mitigate the effects of existing ones? (Baab abd Jungk, supra, p. 4)

Baab and Jungk, supra, 5

The issue of critically important not just with respect to the operationalization of frameworks like the UN Guiding Principles for Business and Human Rights (UNGP) and its human rights due diligence system, but now increasingly importance for avoiding liability under  mandatory compliance systems such as the disclosure based systems of Modern Slavery Acts, and the more proactive requirements of legal regimes like the French Loi de Diligence, the German Supply Chain Due Diligence Law, and the EU Corporate Sustainability Due Diligence Directive. It also has some relevance to other compliance systems, for example the emerging ESG (environmental, social, governance) reporting systems imposed through rules of stick exchanges and developed as soft (private= law and market standards and expectations.

 

The issues bring into the foreground the important task of mapping human rights impacts throughout the operations of a business enterprise (an expectation built into UNGP Principle 2 for example and a subject of some effort by John Ruggie in working toward the UNGP framework ).  Baab and Jungk focused on sphere of influence, at the time a popular framework, which was eventually reconceived as leverage and built into UNGP Principle 19 and human rights due diligence.  Fundamental to both was the framing of analysis: one built on mapping spheres of influence (now the effective possibilities of leverage grounded in the nature of the relationship among entities in a production chain) and thus  based on institutional relationships. Leverage, like the extraterritorial projection of State authority in the service of international legal obligations (the essence of UNGP Principle 2, and to some extent of national mandatory human rights due diligence law), was meant to project guidance and leadership under conditions in which either the projecting interest was strong or there was a need (based on capacity) for such projection (conflict zones, etc.). States and business enterprises, then, would work in parallel--one projecting public international norms across the international overlay of the state system, the other doing substantially the same within the global system of economic production through human rights due diligence.

Baab & Jungk, supra, p. 6

 

That analytical and system organizing approach could be improved by adding (or perhaps supplanting) an operations based mapping onto the institutional framing of the sphere of influence model and its leveraging principles.  That is, they suggested that severity (a critical determinant of prioritizing responses to human rights impacts under the UNGP, as a function of connection to the company (sphere of influence/leverage) might better serve the needs of minimizing a company+s adverse human rights impacts and maximizing the value of its response.   "The Arc of Human Rights Priorities, introduced here, allows companies to incorporate other variables onto the analysis, offering a complete picture of the low-, medium- and high-priority human rights issues where a company should focus its efforts and resources. The Arc has long been offered to Human Rights and Business Department company partners, but is now being offered publicly as part of an ongoing effort to widen,strengthen and support the UN Global Compact approach." (Ibid., p. 6).  

Its application to the Coca-Cola company  may be useful to those who might consider the approach as a viable vehicle for legal compliance. But the interplay of severity and leverage in legal compliance regimes may provide some opportunities to rethinking their role in the crafting and operations of compliance systems that must meet legal as well as market expectations. This may be especially important as human rights due diligence systems now interface other legal regimes: )1) national security and sanctions regimes; (2) data protection and data use regimes; and (3) artificial intelligence rules and systems.