I was delighted to have been asked to join a group of brilliant scholars at the Canadian Forum for Business and Human Rights Inaugural Conference, “Corporate Accountability in Canada: At the Crossroads of Scholarship, Legislation, Litigation, Policy-making, and Community Resistance.”The conference. I was organized by Dr. Akinwumi Ogunranti, an assistant professor and business advisor for the University of Manitoba Faculty of Law’s Marcel A. Desautels Centre for Private Enterprise and the Law, in collaboration with Dalhousie University’s Schulich School of Law Marine and Environmental Law Institute, and the University of Essex’s Human Rights Research and Education Centre.
My presentation is entitled “Between the Eagle, the Bear, and the Dragon: Canadian Business and Human Rights Through the Lens of National Security;” Remarks delivered at the Canadian Forum for Business and Human Rights Inaugural Conference, “Corporate Accountability in Canada: At the Crossroads of Scholarship, Legislation, Litigation, Policy-making, and Community Resistance.” University of Manitoba, Winnipeg, Canada, 14 November 2025.
My remarks are perhaps descriptively summarized this way:
The current framework of the business and human rights projects, and with it sustainability and climate change related norms and objectives, were envisioned and elaborated at a time when national security, and waivers from general law/norm structures were increasingly viewed as obsolete and narrowly applied. Over the last decade, however, national security has become an increasingly potent concept in the business and human rights/sustainability context. To some extent it is being driven by the United States and the People’s Republic of China, each of which, from vastly different starting points, have developed structures of national security regimes trough which human rights and sustainability are realized. Europeans have also begun to attend again to national security, but with greater wariness. Canada occupies a space between these regulatory powers. Canada must both navigate around these developing frameworks while advancing its own national vision and priorities. These remarks will focus on two points. The first is the way that these national security regimes might impact Canadian firms inside and outside of Canada. Second, it will consider the Canadian national security landscape as it might begin to affect business and human rights along with sustainability efforts.There is more here than that, of course. The remarks suggest the broad outlines of the revolutions in social organization and the way it expresses the realities it is is meant to shape as well as express. Choosing the starting point of normative structures substantially shapes the world around it. What is that starting point? States have already chosen: human rights or national security. But even these are avatars of more fundamentally determining premises around which it is possible to order the reality within which ideas are normalized and values based "decision-making" may be undertaken as if it was to be assessed against unmovable "truths." Human rights becomes code for a cluster of ordering premises that are grounded on a global convergence based imperative that is framed around the ordering of relations from out of the state to all of the subjects of its power, bit now undertaken as a contextually relevant pass through of norm making generated at the international level. It serves as a living souvenir of what was thought to be natural and permanent condition of human collective reality before COVID. National security, on the other hand, serves as code for the fracture of this global ordering by shifting the ordering premise from human rights (how ever conceived). It orders the world by reference to the needs and solidarity of human collectives organized in and through states. It seeks to protect and advance that collective both within its territories through development and contextually driven collective self-actualization and beyond their territories by protecting national productive forces, including the value of its normative constructs. States that embed human rights through a national security lens see the world quite differently than those who embed national security through a human rights lens. Reality expressed in the authority of values, norms, and pathways to engaging with "stimuli" then follows. The United States and China are brothers in arms on this point, though they adopt quite different approaches in defense of their respective political-economic models. Europe stands at the other end; or it did before the start of the 2nd phase of the Russian invasion of Ukraine. And Canada, like many states in the Global South, inhabit the middle--using both lenses to mediate their relationships with apex States, and in the process transforming national security and human rights into instruments of national autonomy and protection against the giants which cannot be avoided. Human rights and national security, in that context are no longer themselves, but become instruments toward other ends.
The text of the Remarks follow below along with the accompanying PowerPoint. ACCESS EXTENDED REMARKS HERE: Backer_REMARKS_V2.0__CFBHRconference_2025; ; ACCESS PPT HERE: Backer_CanadaBHR_PPT
Between the Eagle, the Bear, and the Dragon and Within the Global Flows of Economic Activity: Canadian Business and Human Rights Through the Lens of National Security
Remarks delivered at the Canadian Forum for Business and Human Rights inaugural conference
“Corporate Accountability in Canada: At the Crossroads of Scholarship, Legislation, Litigation, Policy-making, and Community Resistance.” University of Manitoba, Winnipeg, Canada, 14 November 2025
Larry Catá Backer
W. Richard and Mary Eshelman Faculty Scholar; Professor of Law and International Affairs
Pennsylvania State University | 239 Lewis Katz Building, University Park, PA 16802 1.814.863.3640 (direct) || lcb11@psu.edu
Summary/Abstract:
The current framework of the business and human rights projects, and with it sustainability and climate change related norms and objectives, were envisioned and elaborated at a time when national security, and waivers from general law/norm structures were increasingly viewed as obsolete and narrowly applied. Over the last decade, however, national security has become an increasingly potent concept in the business and human rights/sustainability context. To some extent it is being driven by the United States and the People’s Republic of China, each of which, from vastly different starting points, have developed structures of national security regimes trough which human rights and sustainability are realized. Europeans have also begun to attend again to national security, but with greater wariness. Canada occupies a space between these regulatory powers. Canada must both navigate around these developing frameworks while advancing its own national vision and priorities. These remarks will focus on two points. The first is the way that these national security regimes might impact Canadian firms inside and outside of Canada. Second, it will consider the Canadian national security landscape as it might begin to affect business and human rights along with sustainability efforts.
Dear Participants; dear attendees,
1. Setting the Stage.
I am delighted to be here with you today. My great thanks to the organizers and all who made this event and my presence possible.
This Canadian Forum for Business and Human Rights reminds us, like the U.N., Forum on Business and Human Rights used to in its heyday, of the extraordinary power of incredibly creative and thoughtful people coming to together to think through some of the most persistent and fundamental challenges of human collective organization within an equally fundamental commitment to the elaboration and operationalization of, and of a solidarity with, a set of generative principles about the protection of shared fundamental understandings of the dignity of the human person, and of the human person in social/political/economic/religious/and cultural communities, in whatever form understood, expressed through the oftentimes quite substantial diversity of approach to the way in which collectives understand themselves and, on that basis, elaborate political-economic orders. Unity in diversity was the fundamental cognitive principle embedded in the UN Guiding Principles of Business and Human Rights, along with the more controversial functional premise of principled pragmatism.
Those sentiments are easy to pull together in and as text. Yet, more than a decade after the endorsement of the UNGP, they are proving to be more challenging to manifest in behaviors where their expression is needed most—not at the point where theory meets operationalization, but at the point where concrete decisions produce equally concrete adverse impact s. And those impacts, once thought to be centered on the human, human rights, are now understood to include and perhaps are better centered on the environment in which humans have a duty to sustain.
It is in that context that I am delighted to be able to share a few thoughts with you, and perhaps then to engage in extended discussion, at this marvelous conference, on the human rights environment in a world that has veered sharply from a convergence model, to one deeply committed to sovereign rights, to national security, and to the instrumentalization of human rights and sustainability toward those ends. These developments are, in the longer run, neither bad nor good, but they substantially affect the structures, premises, and conditions within which it is usefully possible to discuss human rights and sustainability in the current environment, and even more difficult to discuss these for states “in the middle”—states like Canada caught between the emerging hegemons of a post-global imperial order in which everyone else must find a place if they are to survive and perhaps preserve what they can of themselves.
Dear Participants; dear attendees,
2. Human Rights and National Security Inter-Penetrations and their Consequences
The current framework of the business and human rights projects, and with it sustainability and climate change related norms and objectives, were envisioned and elaborated at a time when national security, and waivers from general law/norm structures were increasingly viewed as obsolete and narrowly applied. One need only follow the jurisprudence of the European Court of Justice to see that through the end of the 20th century, it appeared that issues of national security and national peculiarities were increasingly narrowed and superseded, in a sense, by the larger principle that only through interdependence could national security be preserved.
That, perhaps, might have contributed to German policy that embraced dependence on Russian oil and gas to power Germany—mutual dependence in a converging world would make it harder for anyone to break the rules, especially where that breaking involved violence. And it recentered human rights as a political mechanism by trading economic interconnection for the power to engage with States the human rights approaches of which were deficient when measured by European standards. That was very nicely encased in the EU-Cuba Political Dialogue and Cooperation Agreement (PDCA), which supports Cuba's economic modernization but insists ion a framework for dialogue about capacity and human rights.
Yet even as the European West, as a human rights orthodoxy, hurtled more enthusiastically toward the manifestation of this position of strength through dependence, and thus of its faith in a world the values-principles based cognitive cage of which would be populated by all States, the normative rug was pulled out from under it. And that conceptual rug was pulled out from under it by precisely those forces of fracture—forces coming from the Global South, the Marxist-Leninist States, and the newly normatively tumultuous United States—that by 2022 and the 2nd invasion of Ukraine by Russia, suggested that the normative starting pint of a unitary glob al standard for social collectives, one built in part around human rights, had now become a set of competing visions of fundamental ordering including the ordering, understanding, and realization of human rights and sustainability objectives, that were contextual, historically driven, and shaped by quite distinct and incompatible value norm systems around which post-global empire was being organized. That organization—The Chinese Belt & Road Initiative, the America First Initiative, and the European rear guard Brussels Effect regulatory projects, defined the first tier reorganization of the normative structures of global order, and with it of human rights and sustainability.
Especially over the last several decades, national security has become an increasingly potent concept in the business and human rights/sustainability context. And the concept of nation al security has broadened as well, intensifying both its politics and connections to issues of human rights and sustainability. In Canada, for example, the Public Safety Canada website[1] describes national security as focuses first on the protection of the safety and security of Canadians at home and abroad through multi-faceted endeavors that require cooperation “across a diverse range of initiatives and programs.” These include anti-hate initiatives, bias sensitivity, diversity and identity, counter terrorism, counter proliferation (weapons), protection of critical infrastructure, cyber security, multilateral defense and preparedness (e.g. Five Eyes partnering), countering foreign interference e, information sharing within the State apparatus, and research security.
These also produce a politics, the scope and nature of which is evidenced in the shifting notions of national security embedding in public facing documents of the U.S. National Security Strategy[2] from 2006 through 2024 and now beyond. The changes reflect not only changes in the nature and source of threat, but also in the definition of threat and the mechanisms that may be deployed to meet these threats, and to some extent project U.S. power outward to serve those ends. These extend increasingly to human rights and sustainability, leveraging its normative framing toward national security ends, but at the same time importing its politics into the national security arenas. The changing breadth and orienting principles of identifying national security concerns and approaches to meeting those concerns are apparent, for example in a comparison of the approaches of the Trump and Obama-Biden administrations with respect to Climate change.[3]
It is within these trajectories of policy and legality that one might usefully consider, for example, the way that each of the areas of concern to Canadian national security produce an environment where the interpenetration and alignment of human rights legalities, and the development of standards for and the administration of national security regimes are unavoidable. The consequences are unavoidable in the current environment: the structuring of a mutual weaponization--national security regimes as a means of furthering the objectives of compliance and diligence based human rights regimes applied in business in the legal and private spheres; and human rights as a means of furthering and amplifying sanctions and markets constraining regimes. The process is incomplete, and its complexities are only now being confronted. All of these areas have substantial implications for economic activity and the generation of human rights impacts, both positive and negative.
Consider, for example, the issue of supply chain due diligence, human rights obligations of private actors under legal and markets driven (private law) regimes, and the growing interface of both with national security and sanctions regimes of states engaged in multi-vector warfare. The issue has surged to the foreground in the course of the Russo-Ukrainian war since its start in 2014 and the tactic used by Russia in its invasion of Ukraine after 2022.[4]
The weaponization of sanctions regimes, and the heightening of barriers to trade touching on sensitive technologies, and related objects and processes (know-how for example) have been at the center of non-military engagement with Russia (and indirectly China and Iran). These are, in turn, aligned with the development of more intensely applicable regimes of culpability of market actors based on diligence driven complicity notions (as a compliance vector under formal legal or markets based private law diligence and prevention-mitigation-remedial regimes) grounded in complicity.[5] Its challenges are particularly acute where everyday objects and technologies can move within complex global production (primary and secondary market) chains to produce downstream effects that may be human rights harming and that may also reduce the effectiveness of sanctions regimes in conflict situations.
To some extent this trajectory of policy/action predates the UNGPs and its sensibilities/language and is part of the larger conversation about the values and sources of leadership and guidance through which international economic activity may be undertaken, managed, protected, Those trajectories have not been driven by the more esoteric conversation within the U.N. apparatus in Geneva or New York, but rather by the needs and ideologically necessary imperatives of the United States and the People’s Republic of China, each of which, from vastly different starting points, have developed structures of national security regimes trough which human rights and sustainability are realized. That places both the U.S. and China at the peripheries of the business and human rights context centered in the U.N.. apparatus; at the same time it suggests a re-centering of the business and human rights framework toward the security-sanctions model.
That, in turn produces a substantial challenge not just for States, in their elaboration of a principles and structural framework, but also for economic enterprises that must navigate these elaborations. Among the larger challenges for enterprises are those touching on the purpose and character of economic enterprises, the activities in which they engage, and their compliance consequences. For the first, the conversation between national security and human rights feeds the development of a movement away from the autonomy of private markets, and of the relationship between states and private markets. For both, though to different ends, the enterprise and the economic activities which they generate are increasingly understood as instruments of the State or of public purpose. Economic enterprises move away from a model of personal autonomy in spaces free of state interference in individual choices, to one in which the enterprise is better characterized, in part, as a privatized unit of the State administrative apparatus through which policy is fulfilled (human rights) or state objectives realized (national security).
For the second, one starts with a notion that economic activity is free of State interference and a core human right of autonomy in economic choices and activity, to one increasingly in which the space so allocated to free choice exists only in those spaces that exist beyond the primary needs of States to fulfill human rights policy through economic actors, or to be bound by the limits and sensibilities and deployed to the ends of nation al security (modernization in China) and the protection of national productive forces against foreign interference in the United States. It is in that context, then, that one might begin to understand both the trajectories and breadth of the ways in which the conception of the UNGP 2nd Pillar corporate responsibility to respect has been shrinking and if not shrinking, then changing.
For the third, the increasing administrative superstructure on business or economic activity shifts the focus of business from the generation of wealth through that activity to the fulfillment of compliance oriented directives from the State. This is neither bad or good, but it does affect the way in which the cultures of economic activity, and the expectations for behaviors and valuing effort, shift. That produces another, and not necessarily “bad” shift in the way in which the core and peripheries of economic activity are elaborated. Where once the production of wealth through economic activities, with national security and human rights compliance stood at the peripheries, now human rights and national security compliance (in law and operations) occupy the center and the value enhancing objectives of economic activities move to the peripheries. That is that wealth production assumes a different conceptual framework in which it is both measured and assessed as a function of its advancement of national security and human rights—however the two are aligned—and that, indeed, it is national security and human rights that now constitute the center of the value of production, the remainder being left to value produced that can be measured in money.
Dear Participants, Dear attendees
3. From Interpenetration to Instrument—Human Rights Sanctions and the Human Rights Project
These very brief and preliminary thoughts that invites consideration of the larger question which they suggest—does human rights and sustainability drive national security measures and structures, or is the reverse true—that national security sensibilities and principles drive the framing and prioritization of national human rights measures?
Perhaps one way at starting to consider that question revolves around the issue of human rights and sustainability related sanctions regimes. That then brings to the open the issue of peripheries. More simply stated: are States that drive a national security privileging approach to mandatory human rights related measures at the periphery of human rights normativity, or are human rights/sustainability normative projects necessarily at the periphery of national security, within which is serves as one but not a core factor.
The American one might be usefully framed both by its 2024 NAP and its signature BHR sanctions project, the Uyghur Forced Labor Prevention Act (UFLPA). UFLPA occupies a space at the center of several critical trajectories. One of them is the human rights and sustainability positive efforts at "just transitions" to non-carbon based transport. Another is the collision of human rights impacts assessments where there may be substantial disagreement about the measuring stick--this is especially acute with respect to Chinese policy in Xinjiang, and intensified because of the passions invested in the principles and judgments from all stakeholder sides. And the third is the effects of national interests in the calculation of human rights impacts as well as the choices of sanctions focus. In the latter case, it is interesting, for example, that though the allegations range across a broad set of human rights impacts, UFLPA focuses on forced labor.
Compliance under UFLPA is built around the creation of a rebuttable presumption that goods from Xinjiang are produced with forced labor. Compliance, then, involves one of two choices--(1) procure goods or services elsewhere (and ensure there are no connections to Xinjiang); or (2) rebut the presumption. Without irony, UFLPA provides that one way to rebut the presumption is to show that the goods etc. have no connection to Xinjiang. The other is to conduct due diligence on products that have a connection to Xinjiang, including inquiries from the relevant administrative agency to show that the goods were not produced with forced labor.
Overall, the government’s enforcement strategy counsels that to comply businesses should engage in heightened due diligence in order to identify potential supply chain exposure to companies operating in XUAR and connected to abuse of Uyghur and other Muslim minority laborers. Compliance, then, is grounded in an intimate connection between the administration of sanctions regimes and its operationalization through systems of mandatory due diligence. Rather than generalize HRDD systems, possible under the UNGP framework, the opposite occurs: the U.S. focus on sanctions regimes, rather than on regimes of mandatory human rights due diligence measures, limits the use of mandatory measures to those specific and functionally differentiated activities with respect to which the State may have a special interest. As for the rest, private markets driven compliance and perhaps policy is in order. Even under the Biden Administration’s 2024 U.S. National Action Plan, that framework is embraced—capacity building and nudging of and in markets and the reservation of mandatory measures in and through sanctions-based regimes.
The effect is to position the U.S. and its approach, at the periphery of the now decades long effort driven by international institutions and their allies, to forge an global orthodoxy centered on, around and driven by internationally forged human rights/sustainability principles and objectives to which all must be bent.[6] To that point, however, it is possible to accept the orthodoxy of the UNGP, without embracing a principle uniform solidarity with one or more institutional or popular instruments of interpretation. From the perspective of orthodoxy, of course, that is heresy (in the ancient sense of choosing for oneself)--a fatal deviation from the correct or true path. It would follow, then, that perspective matters in assessing the value and viability of approaches to BHR systems, even among states that embrace its principles. The question, then, reduces itself from interpretive plausibility to collective discipline. Of course the disciplinary power of law is obvious, and thus perhaps a great temptation for those who, having determined the "right" interpretation, would turn to the mechanisms of law. But even without the power of law it is possible to assert disciplinary by other means--for example capacity building,[7] or indirect legality,[8] or techno-bureaucratic compliance and accountability systems.[9]
For China the framing is somewhat different though it gets to substantially the same place. China would invert these once stable orientations of center and periphery[10]. That is essentially the point of the essay. In that reorientation, China occupies the center and its political-economic model the lodestar against which international or global standards must be developed and policed. To this way of looking at the world, the European-North American conversations around human rights represents a periphery. This peripheral construction of norms and application do not align either with the aspirations, context or historical conditions of the rest of the world. China would offer an alternative, one grounded on the imperatives of Marxist Leninist theory refined substantially from its crude Soviet forms and made more flexible so easier transposition to developing and post-colonial states. That, anyway, is the theory; but in some respects it parallels that of liberal democratic leadership. True as well that this proffer is strategically projected against the current core of global liberal democratic leadership--but it is offered as an alternative with aspirations of leadership in its own right. If successful, the object is to flip the current assumptions about center and periphery in business and human rights (among other policy structures). At the end of the process, however, the rest of the global community remains located along the rim of a system still connected by spokes to a central ordering hub.
At the same time, the Chinese approach also offers another perspective on the nature effect of the interpenetration of sanctions mechanisms and human rights. Chinese human rights in the context of economic activities tends to privilege development, and collective welfare. It tends to balance the value of development to a community, and the utility of a project as a function of public objectives against the harms that may impact individuals. It tends to understand the value and role of civil and political rights, first as collective, and second as a consequence of a successful forward movement to realize economic, social, and cultural rights (in the inverse of liberal democratic approaches from the U.S. side). In the context in which collective value is strong that balancing may tilt analysis toward compensatory remedies rather than prevention strategies.
Nonetheless, in many cases the practices of Chinese and liberal democratic business and human rights tends toward the same range of results. The current objectives of Chinese Marxist Leninist business and human rights principles tends to favor legal compliance (domestic and foreign investment); to minimize risk (including human rights risks abroad); and to emphasize development and environmental concerns. But it also privileges and may well operate its human rights/sustainability policy from and through the lens of national security, broadly defined to include the protection of national aspirations for development, and a strong distaste for projection of foreign national regulatory measures (including human rights related and HRDD system requirements) into China and on its activities. Chinese sanctions mirror of the liberal democratic West but also emphasize measures against foreign espionage, broadly defined, the protection of state secretes (even more broadly defined), and an energetic system of blocking measures that target either foreign projection of rule and behavior preferences into China or that affect Chinese interests abroad.
To this is added the global inclination to deploy sanctions based regimes on individuals and institutions. These are usually attached, directly or indirectly to national security interests (especially now that those interests tend to serve as the defining architecture of national interests). The U.S. Global Magnitsky Sanctions program is well known,[11] as is its intimate connect ion with U.S. nation al security framework. Thart has been clear irrespective e of the political principles of U.S. Presidential Administrations. All have sought to “target those connected to serious human rights abuse, corrupt actors, and their enablers, represents the best of the United States' values and enduring commitment to promoting respect for human rights and combating corruption around the world,”[12] with reference to the U.S. National Security Policy. The difference over the years has been the trajectories and interpretation of both national interests/threats and the definition of adverse impact. What is not different is the interpenetration of national security into sanctions based human rights protective legal/administrative measures.
And what of the rest of the world in this division of And the rest of thew world, including Canada? One imagines that they do what they have done since Thucydides recounted the limited options of Miletus encountered the Athenian diplomats during the Peloponnesian War—they resist and may be consumed, or they do what they can to survive, to watch; and eventually choose sides. Europeans have also begun to attend again to national security, but with greater wariness. And Canada found itself between China, the U.S. and Europe, but with its own history of hum an rights engagements that more deeply put it in the middle. Indeed, Canada might be said to occupy a space between these regulatory powers. Canada must both navigate around these developing frameworks while advancing its own national vision and priorities.
That leaves the engines or objects of all of this conceptual activity—the enterprises through which economic activity is undertaken. For them, navigating compliance regimes becomes the centering function of their operations. That centers, in turn, the functions of human rights due diligence (HRDD) systems. Yet the HRDD that emerges from these discussion are not those framed in 2011 in UNGP Principles 17-21, but rather those framed by 1st Pillar elaborations of expectations and policies for which HRDD becomes the instrument. Where those compliance regimes explain in polycentric spaces, and especially where these systems are incompatible or inconsistent, then one moves from the centrality of HRDD systems, to those of the coordinating provisions of UNGP Principle 23 (hierarchies of compliance) and Principle 24 (severity and prioritization of addressing impacts). Impacts, though, also acquire a new complexion under a national security driven human rights compliance based regime: hierarchy and severity might now be measured against priority in national security that then shapes the severity of impacts otherwise.
There is more here than that, of course. The remarks suggest the broad outlines of the revolutions in social organization and the way it expresses the realities it is is meant to shape as well as express. Choosing the starting point of normative structures substantially shapes the world around it. What is that starting point? States have already chosen: human rights or national security. But even these are avatars of more fundamentally determining premises around which it is possible to order the reality within which ideas are normalized and values based "decision-making" may be undertaken as if it was to be assessed against unmovable "truths." Human rights becomes code for a cluster of ordering premises that are grounded on a global convergence based imperative that is framed around the ordering of relations from out of the state to all of the subjects of its power, bit now undertaken as a contextually relevant pass through of norm making generated at the international level. It serves as a living souvenir of what was thought to be natural and permanent condition of human collective reality before COVID.
National security, on the other hand, serves as code for the fracture of this global ordering by shifting the ordering premise from human rights (how ever conceived). It orders the world by reference to the needs and solidarity of human collectives organized in and through states. It seeks to protect and advance that collective both within its territories through development and contextually driven collective self-actualization and beyond their territories by protecting national productive forces, including the value of its normative constructs. States that embed human rights through a national security lens see the world quite differently than those who embed national security through a human rights lens. Reality expressed in the authority of values, norms, and pathways to engaging with "stimuli" then follows. The United States and China are brothers in arms on this point, though they adopt quite different approaches in defense of their respective political-economic models. Europe stands at the other end; or it did before the start of the 2nd phase of the Russian invasion of Ukraine. And Canada, like many states in the Global South, inhabit the middle--using both lenses to mediate their relationships with apex States, and in the process transforming national security and human rights into instruments of national autonomy and protection against the giants which cannot be avoided. Human rights and national security, in that context are no longer themselves, but become instruments toward other ends.
Dear Participants; dear attendees
4. Canada in the Middle.
It is with that in mind that these remarks will end by briefly focusing on two points. The first is the way that these national security regimes might impact Canadian firms inside and outside of Canada. Second, it will consider the Canadian national security landscape as it might begin to affect business and human rights along with sustainability efforts.
The Government of Canada through its public facing communications appears to try to take a middle ground respecting sanctions and in or through human rights lenses.[13] Canada also has its own version of a Global Magnitsky Law,[14] but it also seeks to serve as a vessel, a conduit, through which international norms, laws, and expectations are also fulfilled. The tripod of Canadian policy on sanctions, then, is built on United Nations Act (UNA), the Special Economic Measures Act (SEMA), and its version of Global Magnitsky (Justice for Victims of Corrupt Foreign Officials Act (JVCFOA)). Canadian institutions take the position that they must balance human rights and national security. This was articulated a while ago in the speech of the Hon. Anne Mactavish before the International Commission of Jurists in Ottawa in 2013. At the same time, the Canadian governments communication on “Canada’s Approach to Advancing Human Rights” does not suggest a connection either to national security or sanctions. It speaks instead, to its adoption of key international instruments, and the promotion of capacity building and solidarity around the orthodox conception and framing of human rights.
That suggests placing national security at the peripheries of human rights, and conceiving of sanctions as instrumental rather than normative elements. And, indeed, the political culture of Canada suggests that while the three are coordinated, human rights drives the others.[15] At the same time, it is also well known that Canada occupies a space between larger powers—normative powers, economic, political, military, and ideological powers. The predilections, sensibilities and human rights-national security cognitive cages of these were briefly described earlier. Canada, may preserve what it can of itself, and that most acutely within its territories and among its instrumentalities. Canada may maintain the lively debate about the context and manifestations of its own self most powerfully within itself, and then seek to project that outward through its state apparatus, through the efforts of its people, and its economic, social, civil, and political actors.
Yet it must engage in that activity mindful of the realities of an emerging global structure in which the old and comforting presumption of collective movement toward convergence has been shattered; a world in which the ideological and perception lenses of powerful actors with which Canada must deal may no longer be compatible with Canadian values but with which Canada must interact, and sometimes quite intimately. Canadian companies will be pulled into the compliance universe of States, like the United States and China, which, at the head of larger reconstructed collectives of like-minded States, are refashioning the spaces within which normative solidarity may be built and evidenced in action. The effects on Canadian enterprises, and on the application of Canadian values is unavoidable. And these center on the core issues of the organization of normative cores and peripheries among human rights and human rights protective regimes, and national security, with sanctions as an instrumental bridge between.
The shape of those challenges are already emerging. These include contests of value priorities with the United States, and the difficulty of fulfilling Canadian legal and compliance expectation in relationships with China. But it also includes the challenges of an instrumentalization of both human rights and sanctions as tools that advance national interest and ideals, or perhaps their opposite producing a situation in which the instrument is valued but its application contested. That “middleness” shapes the complexities facing Canadian enterprises as well. That was noted above but acquires a Canadian face that adds further complexity.
But Canada cannot live in its own head space—even as it seeks to project that meaningfully on global discussions. In the absence of balancing, the likelihood of conflict, and its negative human rights impacts may well move to the center of Canadian policy and normative debates. Like all other States, even the most powerful, Canada must navigate a national security-human rights universe where values are factors in the development of relationships that may require compromise. Yet those values are worth debating and promoting, even as Canada protects itself in a world in which sovereign control increasingly becomes both central to national solidarity and contingent.
Canada reflects that predilection, as well, at least at its peripheries. The insistence on the instrumental projection of human rights regimes, and its discourse, outside of Canada, but within it echoes the methodologies of human rights within national secur5ity sanctions regimes. The reluctance to project those rights frameworks inward, and as against business activity on Canada speaks to sovereign concerns at the heart of the @new@ national security. And yet, Canada is to some extent, constrained by its own constitutional rights jurisprudence an policy preferences. These echo the old convergence internationalist model that appeared triumphant np so long ago, but which has receded before the conceptual assaults of the “Eagle” and the “Dragon” with the “Bear” foraging among what falls from the mouths, claws, and perception of the others.
What that leaves Canada, then, is the protection of its own values and ways of manifesting them in and as human rights through the fundamental and transactional notions of Chinese win-win and America First transaction arrangements. These center unequal value transaction, or rather transactions in which there are no common values against which transactions are assessed. The instrumentalization of ways of looking at the world are meant to advance very real actions and reduce resistance to action as well as the power of counteractions that challenge the attainment of State objectives. Human rights, sustainability, and national security now play a central role in the politics of these efforts in a world in which convergence has lost its luster. It is in this fractious context that Canada stands between the Eagle, the Dragon and the Bear, in a field of contestation in which human rights and national security vie for the ordering premise of national relations and human collective self-conception.
Dear Participants; dear attendees
5. Obligation Flows Downhill; The Compliance Enterprise Between State and Norm.
Where does that leave economic enterprises operating in national and transitional spaces? The short answer is that enterprises may not feel much difference between human rights or national security/sanctions driven regimes. In both cases the compliance framework within which enterprises operate remains substantial; and they continue to grow. The difference is in focus and in the cluster of structuring rights that are at the forefront of enterprise compliance responsibilities. The nature of the focus on national security/sanctions frameworks produces a number of oppositional movements, two of which are worth mentioning here.
First, a national security/sanctions framework accelerates the process of incorporating the mechanisms and structures of human rights due diligence into law. There is irony here. There has been sometimes substantial resistance to the transposition of the UNGP’s human rights due diligence framework and sensibilities from its markets based grounding in expectation to a set of mandatory legal requirements where such transposition is centered on human rights as broadly understood in the UNGPs. All that resistance disappears where the mechanisms of human rights due diligence can serve as the basis for corporate compliance with sanctions regimes. One sees, that, for example within the structures of the Uyghur Forced Labor Prevention Act. It is in this sense, at least, that a movement from a human rights to a national security based regulatory regime appears to advance the march toward the legalization of human rights due diligence. But a human rights based approach would have cast the human rights net broadly. Consider in this respect the breadth of UNGP Principle 12 which identifies the International Bill of Human Rights as a minimum bucket of rights that drive HRDD but which starts from the premise that in context all human rights law and norms may be the basis for HRDD activity. A national security/sanctions regime, on the other hand, significantly narrows the range of rights identified for protection (in UFLPA it is forced labor for example).
Second, and especially in hybrid contexts where the policy narratives of human rights driven and national security frameworks grounded co-exist, economic actors are presented with the challenges of operation in a conceptual spaces that are dynamic and contested. It substantially reduces the scope of discretionary decision making but in ways that may be different depending on national security and human rights driven performance rules and expectations. It presents enterprises with a host of situations where human rights privileging regimes may make impossible compliance with national security rules and expectations. Mandatory human rights due diligence systems built on a European model and embraced to some extent in Canada, for example, may run up against the prohibitions and expectations of national security driven regulatory systems in China and the U.S., even where these also serve to advance human rights related policies.
These trajectories then create incentives to reinforce the fracture of what had once been convergence based human rights advancing strategies in global economic policy. The reduction of challenges of dealing with incompatible compliance regimes may force investment and global supply chains to seek refuge within clusters of States that coordinate their compliance regimes within a shared values structure and to shift engagement with the from investment related relationships to those limited to transactions in goods under terms negotiated between States. It is in this way perhaps, that current developments reinforce the movement toward the solidification of Belt & Road and American First groups as the future referents on the emerging post-global “global” ordering.
Dear Participants; dear attendees
6. Putting this all Together in a Preliminary Way: Flexibility, Conflict, and the Challenge of Normative Peripheries in National Security and Human Rights Orders.
Where does all of this leave us, at least for the moment? One might reduce the current state of affairs into three broad points.
First, The days are over where communities, especially elements of civil society and their allies in national and international administrative organs along with their counterparts in enterprises could, with confidence, assume that the trajectories of business and human rights might inevitably lead to a more densely compliance based order driven by the generation of international law and norms for the fulfillment of which enterprises were designated as the privatized administrative agency. The vote of the European Parliament on 13 November 2025 to make “dramatic cuts to the EU’s sustainability reporting and due diligence laws, including significant reductions in the number of companies to be covered by the Corporate Sustainability Reporting Directive (CSRD) and Corporate Sustainability Due Diligence Directive (CSDDD), and the elimination of the obligation for companies to prepare climate transition plans.”[16]
Those who insist that nothing has changed in the face of the transportive human rights narrative frameworks of the Chinese Belt & Road, and the U.S. America First Initiatives, and who ignore the movement to national security/sanctions structures may increasingly be left behind as the thrust of activity shift from that of the UNGP development period to contemporary realities. Among the more cynical it might be said that these elements remain on a human rights Titanic enjoying the tasty cuisine in the 1st Class restaurants as the ship passes that fatal iceberg. That does not mean that the contest for denomination of approach, or for the development of hybrid approaches will end, but it does suggest that the days of a consensus around a human rights driven approach alone are now over.
Second, the differences, in both norms and application, between human rights driven and national security/sanctions based human rights regimes will likely grow. Among the drivers will be the difference in approaches to human rights hierarchies and the contextual nature of human rights emphasis. That means at a minimum that the ecologies of privileged human rights will be different within Chinese and American spheres, and in both cased will be dynamic, changing with changes in the understanding of national security and the taste for legislators to convert those understandings into sanctions. Those hierarchies and resulting approaches to human rights based legalizations of enterprise compliance-based obligations are a function of and shaped by the fundamental differences between the two approaches. At the core of the difference is the way in which human rights are prioritized in human rights related systems. Where human rights fulfillment is at the center, national security and sanctions are understood as a function of and shaped by the overarching need to fulfill a State duty to protect (all) human rights or at least those that are binding on the State. Sanctions are understood as an instrument of that imperative and national security is shaped by the privileging of those objectives. On the other hand, where national security is at the center, then human rights are understood and function as an expression of national security needs and priorities, which are realized through sanctions programs. Each can be understood as an inversion, normatively, of the other.
Third, the effects of a robust national security/sanctions projects will have effects on market based behaviors and conduct. Enterprise autonomy will necessarily be constrained by the scope and requirements of sanctions based regimes. Blocking legislation, prioritization of positive human rights (e.g., ecological civilization measures in China) will effectively limit the ability of enterprises to implement conflicting behaviors or regulatory order, or to develop oppositional orders. The effect will be an indirect legalization of at least parts of what had been a larger autonomous space for private law HRDD systems under the UNGP 2nd Pillar. That leaves open the nature and basis of oppositional elements, which will not be eliminated, but rather reconstituted. But that reconstitution of oppositional elements lies beyond thew scope of these remarks. I will end by teasing you with its potential sources—those can be understood as the informal sector of political activity, mobilization, and the role of independent elements of national and international institutions. This is opposition from the bottom up and from the sidelines of ordered power, children litigating climate change responsibility, indigenous oppositions, and the like. Stay tuned.
Thank you!
[2] Required to be produced under the Goldwater–Nichols Act and submitted annually to Congress, though submission has not been consistent with that intent.
[3] 2015, 2017, and 2022 NSS.
[4] Supply Chain Due Diligence--From Human Rights to National Security and the Potential Broadening of Corporate Complicity Culpability, 2023
[6] Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 10: Lisa J, Laplante, "The United States 2024 National Action Plan on Responsible Business Conduct".
[8] e.g. the Brussels Effect.
[10] Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 6: Larry Catá Backer--"The Chinese Path for Business and Human Rights"[白 轲 "工商企业与人权的中国道路"]
[11] Human Rights and Anti-Corruption Sanctions: The Global Magnitsky Human Rights Accountability Act; https://www.congress.gov/crs-product/IF10576
[14] Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law), S.C. 2017, c. 21,Assented to 2017-10-18
[16] EU Parliament Votes to Slash Corporate Sustainability Reporting, Due Diligence Requirements, ESG Today (13 November 2025), available https://www.esgtoday.com/eu-parliament-votes-to-slash-corporate-sustainability-reporting-due-diligence-requirements/.
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