‘From naming and shaming to knowing and showing’: human rights and the power of corporate practice

Abstract

A recent phenomenon in corporate governance discourses is a strong recourse to human rights. Human rights awareness and corporate policies have become part of the credo of ‘good’ business. This is also taken up in international institutions, such as the United Nations Guiding Principles on Business and Human Rights, which assign a distinct human rights responsibility to transnational enterprises. The article interprets this transformation through the lens of the ‘sociology of critique’. It argues that the concept of corporate responsibility for human rights represents a capacity of capitalism to absorb fundamental criticism and incorporate the very values that formed the ground for critique. The article proceeds in three steps: First, I present the corporate responsibility to respect human rights as a reaction to fundamental critique against global corporate giants that emerged as part of a broad ‘anti-globalisation’ movement in the 1990s. Second, I argue that today multinationals ‘know and show’ responsibility and make human rights a subject of management strategies and tools. Human rights are being incorporated and translated into corporate policy programmes. This allows companies to disarm most fundamental strands of criticism. Third, I draw conclusions from this perspective on the productive power of business practice and implications for critique.

Keywords:

• human rights
• business practice
• corporate responsibility
• sociology of critique
• productive power
• Boltanski

Acknowledgements

A first draft of this article was presented at the 8th EISA Pan-European Conference on International Relations in Warsaw, in September 2013. I would like to thank all participants and commentators of the panel ‘Resilience: Critique and the New Spirit of Capitalism’ for their valuable comments and critique.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Christian Scheper is a research fellow at the Institute for Development and Peace at the University of Duisburg-Essen and a PhD candidate at the University of Kassel, Germany. He holds an MA in International Relations (with distinction) from the University of Exeter (UK). His current work focuses on human rights and transnational corporations, international political economy and contemporary political theory.

Notes

1. See, for example, Florian Wettstein, ‘CSR and the Debate on Business and Human Rights', Business Ethics Quarterly 22, no. 4 (2012): 739–70.

2. See Wesley Cragg, Denis G. Arnold, and Peter Muchlinski, ‘Human Rights and Business', Business Ethics Quarterly 22, no. 1 (2012): 1–7; Stephen J. Kobrin, ‘Private Political Authority and Public Responsibility: Transnational Politics, Transnational Firms, and Human Rights', Business Ethics Quarterly 19, no. 3 (2009): 349–74; Delphine Rabet, ‘Human Rights and Globalization: The Myth of Corporate Social Responsibility?’ Journal of Alternative Perspectives in the Social Sciences 1, no. 2 (2009): 463–75.

3. See, for example, for a legal discussion on corporate responsibility and international human rights law: Steven R. Ratner, ‘Corporations and Human Rights: A Theory of Legal Responsibility’, The Yale Law Journal 111, no. 3 (2001): 443–545.

4. The European Commission, for instance, recommended the development of national action plans to implement the United Nations (UN) Guiding Principles on Business and Human Rights on the level of member states; see European Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. A Renewed EU Strategy 2011-2014 for Corporate Social Responsibility’. Brussels, 25/10/2011 (2011), 14. By the time of writing, several governments in and outside of the European Union (EU) have followed this recommendation, several others will probably follow in the near future.

5. Scott Jerbi, ‘Business and Human Rights at the UN: What Might Happen Next?’ Human Rights Quarterly 31, no. 2 (2009): 299–320.

6. Mantilla Casas and Giovanni Fabrizio, ‘Emerging International Human Rights Norms for Transnational Corporations', Global Governance 15, no. 2 (2009): 279–98.

7. See Rabet, ‘Human Rights and Globalization’.

8. Tony Evans, The Politics of Human Rights. A Global Perspective, 2nd ed. (London: Pluto Press, 2005), 90.

9. Luc Boltanski and Laurent Thévenot, On justification. Economies of Worth (Princeton, NJ: Princeton University Press, 2006).

10. Luc Boltanski and Eve Chiapello, The New Spirit of Capitalism (London; New York: Verso, 2007).

11. The notion ‘regime of practice' draws on Glynos' and Howarth's Political Discourse Theory. A regime is a discursive formation, with its systems of meaning, of material objects and of doing things. It has ‘a structural function in the sense that it orders. ‘a system of social practices, thus helping us to characterize the latter', Jason Glynos and David R. Howarth, Logics of Critical Explanation in Social and Political Theory (London; New York: Routledge, 2007), 106.

12. With this approach I also intend to offer a critical alternative to dominant strands of norm research in international relations, which tend to assume a rather progressive development towards increasing human rights commitments by transnational corporations, moving from ‘norm denial’ towards ‘compliance’ and ‘norm entrepreneurship’; see for example Nicole Deitelhoff and Klaus D. Wolf, ‘Business and Human Rights: How Corporate Norm Violators Become Norm Entrepreneurs', in The Persistent Power of Human Rights: From Commitment to Compliance, ed. Thomas Risse; Stephen C. Ropp; Katherine Sikkink (Cambridge: Cambridge University Press, 2013), 222–38.

13. Boltanski and Chiapello, The New Spirit of Capitalism, 28.

14. Eve Chiapello, ‘Capitalism and Its Criticisms', in New Spirits of Capitalism? Crises, Justifications, and Dynamics, ed. Paul Du Gay and Glenn Morgan (Oxford: Oxford University Press, 2013), 60–81, at 61.

15. I use ‘discourse’ in the Wittgensteinian sense of ‘language games'. Wittgenstein refers to the semantic and extra-semantic dimensions of practice. In this vein, discourse is the name of a logic or grammar of a practice, it is not limited to language and speech acts; see Glynos and Howarth, Logics of Critical Explanation in Social and Political Theory, 134f.

16. Chiapello, ‘Capitalism and its Criticisms', 63.

17. In their content analysis of corporate policy commitments Preuss and Brown found that of the FTSE 100 firms 60% had a particular human rights policy; see Lutz Preuss and Donna Brown, ‘Business Policies on Human Rights: An Analysis of Their Content and Prevalence Among FTSE 100 Firms', Journal of Business Ethics 109, no. 3 (2012): 289–99.

18. See, for example, Philip Alston, ed., Non-State Actors and Human Rights (Oxford; New York: Oxford University Press, 2005); Philip Alston, ‘Labour Rights as Human Rights: The Unhappy State of the Art', in Labour Rights as Human Rights, ed. Philip Alston (Oxford; New York: Oxford University Press, 2005).

19. See, for example, Cragg et al., ‘Human Rights and Business'; Rory Sullivan, ed., Business and Human Rights. Dilemmas and Solutions (Sheffield: Greenleaf, 2003).

20. Office of the High Commissioner for Human Rights (OHCHR), ‘Guiding Principles on Business and Human Rights – Implementing the United Nations “Protect, Respect and Remedy” Framework’ (2011). http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf (accessed 10 June 2013).

21. Ibid., §§11–24. Of course, the Universal Declaration of Human Rights already emphasised the need for all individuals and organs of society to promote respect for human rights. Thus, the guiding principles can be seen as a specification of this idea with regard to transnational corporations.

22. United Nations Human Rights Council (UNHRC), ‘Report of the Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie: Protect, Respect, and Remedy: A Framework for Business and Human Rights', UN Doc. A/HRC/8/5 from 07/04/2008 (2008). http://daccess-ddsny.un.org/doc/UNDOC/GEN/G08/128/61/PDF/G0812861.pdf (accessed 27 March 2014).

23. Organisation for Economic Co-operation and Development (OECD), ‘OECD Guidelines for Multinational Enterprises'. Paris: OECD Publishing, 2011. http://dx.doi.org/10.1787/9789264115415-en (10 February 2014).

24. See Preuss and Brown, ‘Business Policies on Human Rights’.

25. See Casas and Fabrizio, ‘Emerging International Human Rights Norms for Transnational Corporations'; Jordan J. Paust, ‘Human Rights Responsibilities of Private Corporations', Vanderbilt Journal of Transnational Law 35, no. 3 (2002): 801–25; Rabet, ‘Human Rights and Globalization’.

26. Wesley Cragg, ‘Business and Human Rights: A Principle and Value-Based Analysis', in Oxford Handbook of Business Ethics, ed. George Brenkert and Tom Beauchamp (Oxford: Oxford University Press, 2010), 267–305; Cragg et al., ‘Human Rights and Business'; Florian Wettstein, Multinational Corporations and Global Justice. Human Rights Obligations of a Quasi-Governmental Institution (Stanford, CA: Stanford Business Books, 2009).

27. See, for example, David J. Karp, ‘The Location of International Practices: What is Human Rights Practice?’, Review of International Studies (2012): 1–24; Kobrin, ‘Private Political Authority and Public Responsibility’; Tineke Lambooy, ‘Corporate Due Diligence as a Tool to Respect Human Rights', Netherlands Quarterly of Human Rights 28, no. 3 (2010): 404–48; Wettstein, ‘CSR and the Debate on Business and Human Rights'.

28. Human rights (like other rights) always need to be interpreted in a given context. Not only are they subject to political contestation, they also imply a decision in individual cases. My focus on rights as practice draws on this assumption but also goes beyond it: I assume that the perspective on human rights as corporate practice shows us how the concept of rights is partly decoupled from legal discourse. While the latter acknowledges the contested character of legal norms, the need of interpretation and judgement based on a specific case, human rights via corporate practice rather mark a minimum standard of governance.

29. Ludwig Wittgenstein, Philosophical Investigations, translated by G.E.M. Anscombe, (Oxford: Basil Blackwell, 1986 [c.1958]), 5.

30. Ronen Shamir, ‘The Age of Responsibilization: On Market-Embedded Morality’, Economy and Society 37, no. 1 (2008): 1–19.

31. Michel Foucault, Discipline and Punish, translated by A. Sheridan (New York: Pantheon, 1977), 194.

32. See Geoffrey Chandler, (2003): ‘The Evolution of the Business and Human Rights Debate', in Business and Human Rights, ed. Sullivan, 22–32; Cragg, ‘Business and Human Rights’.

33. The notion ‘anti-globalisation’ obliterates many different positions and should thus be understood as a catchword, rather than a definition of political demands. Of course, many of the critical advocates were not actually positioned against globalisation per se. They rather criticised globalisation in its current form and particular characteristics, especially with regard to global justice. There are many labels that often refer to the same phenomenon, such as ‘global justice movement’ or ‘movement against neoliberal globalisation’.

34. Peter Utting, ‘Corporate Responsibility and the Movement of Business', Development in Practice 15, nos 3–4 (2005): 275–388, 383.

35. Boltanski and Chiapello, The New Spirit of Capitalism, 37.

36. Chiapello, ‘Capitalism and its Criticisms'.

37. Ibid.

38. Ibid., 38.

39. Ibid., 37.

40. Ibid., 64f.

41. Boltanski and Chiapello, The New Spirit of Capitalism, 38.

42. Chiapello, ‘Capitalism and its Criticisms', 70.

43. Ibid.

44. One should note that this definition of ecological criticism is not to be misunderstood as representing the very different facets of ecological movements, which of course incorporate various forms of artistic, social, conservative, and ecological criticisms. Chiapello's definition attempts to distil a specific characteristic here, which is the relative indifference of the ecological criticism towards the political system. ‘It is possible, for instance to be anti-democracy and pro-ecology’ (Ibid., 74).

45. Boltanski and Chiapello, The New Spirit of Capitalism, 517.

46. Ibid., 70.

47. Ibid.

48. See Ann Harrison and Jason Scorse, ‘Multinationals and Anti-Sweatshop Activism’, American Economic Review 100, no. 1 (2010): 247–73.

49. See for the series of events and publications Jeff Ballinger's chronology. http://depts.washington.edu/ccce/polcommcampaigns/NikeChronology.htm (accessed 2 September 2013).

50. Chiapello, ‘Capitalism and its Criticisms', 68.

51. Lance W. Bennett, ‘The Un-Civic Culture: Communication, Identity, and the Rise of Lifestyle Politics', Political Science & Politics 31, no. 4 (1998): 741–61.

52. Kumi Naidoo and Indira Ravindran, ‘A Rights-Based Understanding of the Anti-Globalisation Movement' (Working Paper Commissioned by the International Council on Human Rights Policies, 2002). http://www.ichrp.org/files/papers/74/118_-_A_Rights-based_Understanding_of_the_Anti-globalisation_Movement_Naidoo__Kumi___Ravindran__Indira__2002.pdf (accessed 10 February 2014).

53. Some exceptional activities by transnational companies had already occurred earlier. They referred to the more liberal understanding of human rights as civil and political liberties, such as the apparel company Levy Strauss that withdrew its business from Myanmar in the early 1990s, stating that it would not be possible to do business there without actively supporting a military state that massively violated human rights (see Preuss and Braun, ‘Business Policies on Human Rights’). But beyond such rather exceptional steps there was no broader development in corporate strategies to actively adhere and refer their actions to human rights norms.

54. David S. Weissbrodt and Muria Kruger, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights', American Journal of International Law 97, no. 4 (2003): 901–22.

55. UNHRC, ‘Report of the Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie: Protect, Respect, and Remedy: A Framework for Business and Human Rights'.

56. OHCHR, ‘Guiding Principles on Business and Human Rights – Implementing the United Nations “Protect, Respect and Remedy” Framework’.

57. Preuss and Brown, ‘Business Policies on Human Rights’, 290.

58. Wettstein, ‘CSR and the Debate on Business and Human Rights'.

59. UNHRC, ‘Report of the Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie: Protect, Respect, and Remedy: A Framework for Business and Human Rights'.

60. See Utting, ‘Corporate Responsibility and the Movement of Business', 383f.

61. OHCHR, ‘Guiding Principles on Business and Human Rights – Implementing the United Nations “Protect, Respect and Remedy” Framework’. § 3, Commentary.

62. The guiding principles are now in the process of being taken up by other international organisations and there are also efforts to transpose them into rules and standards on regional and national levels (for example, in the EU). For instance, the OECD Guidelines on Multinational Enterprises, which were already developed in the wake of the debate on the New Economic Order in the 1970s, have been revised for the fifth time and now include a human rights chapter that resembles the spirit of the guiding principles. Further examples are the OECD standards for export credit guaranties (‘Common Approaches for Officially Supported Export Credits and Environmental and Social Due Diligence', usually referred to as the ‘Common Approaches'), the Performance Standards of the International Finance Corporation, which inform not only World Bank projects with private companies but are also an important basis of major transnational banking standards for project finance; the European Commission has also taken up the guiding principles in its ‘CSR Strategy’ (see European Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. A Renewed EU Strategy 2011–2014 for Corporate Social Responsibility’).

63. UNHRC, ‘Report of the Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie: Business and Human Rights: Further Steps toward the Operationalization of the “Protect, Respect and Remedy” Framework’.

64. OHCHR, ‘The Corporate Responsibility to Respect Human Rights. An Interpretive Guide', HR/PUB/12/02 (New York; Geneva, United Nations, 2012), 1.

65. Casas and Fabrizio, ‘Emerging International Human Rights Norms for Transnational Corporations'; Rabet, ‘Human Rights and Globalization’; Tom Campbell, ‘Corporate Social Responsibility: Beyond the Business Case to Human Rights', in Business and Human Rights, ed. Cragg, 47–73.

66. Castan Centre for Human Rights Law; International Business Leaders Forum; Office of the United Nations High Commissioner for Human Rights; United Nations Global Compact Office, ‘Human Rights Translated: A Business Reference Guide’ (2008). http://human-rights.unglobalcompact.org/doc/human_rights_translated.pdf (accessed 2 January 2014), viii.

67. Michel Callon, Cécile Méadel and Vololona Rabeharisoa, ‘The Economy of Qualities', Economy and Society 31, no. 2 (2002): 194–217.

68. Sally E. Merry and Susan B. Coutin, ‘Technologies of Truth in the Anthropology of Conflict’. AES/APLA Presidential Address, 2013. American Ethnologist 41, no. 1 (2014): 1–16.

69. Michael Power, The Audit Society: Rituals of Verification (Oxford: Oxford University Press, 1999).

70. Merry and Coutin, ‘Technologies of Truth in the Anthropology of Conflict’.

71. OHCHR, ‘Guiding Principles on Business and Human Rights – Implementing the United Nations “Protect, Respect and Remedy” Framework’, § 19, Commentary.

72. Nike Inc., ‘Raising the Bar’ (2012). http://www.nikeresponsibility.com/#targets-commitments (accessed 24 April 2014).

73. Dara O'Rourke, ‘Multi-Stakeholder Regulation: Privatizing or Socializing Global Labor Standards?’ World Development 34, no. 5 (2006): 899–918; Gale Raj-Reichert, ‘The Electronic Industry Code of Conduct: Private Governance in a Competitive and Contested Global Production Network’, Competition & Change 15, no. 3 (2011): 221–38.

74. O'Rourke, ‘Multi-Stakeholder Regulation’.

75. Fair Labor Association, ‘Nike Inc.’ (2012). http://www.fairlabor.org/affiliate/nike-inc (accessed 2 February 2014).

76. Nike Inc., ‘Sustainable Business at Nike Inc.’ (2013). http://nikeinc.com/pages/responsibility (accessed 10 September 2013).

77. For an assessment of the ETI see Stephanie Barrientos and Sally Smith, ‘Do Workers Benefit from Ethical Trade? Assessing Codes of Labour Practice in Global Production Systems', Third World Quarterly 28, no. 4 (2007): 713–29.

78. We can also interpret this development in terms of the politics of translation, see Noémi Lendvai and Paul Stubbs, ‘Policies as Translation: Situating Transnational Social Policies', in Policy Reconsidered. Meanings, Politics and Practices, ed. Susan M. Hodgson, Zoë Irving (Bristol, UK: Policy Press, 2007), 173–89.

79. Luc Boltanski, On Critique. A Sociology of Emancipation (Cambridge; Malden: Polity, 2011), 129.

80. Todd Landman and Edzia Carvalho, Measuring Human Rights (London: Routledge, 2009).

81. Maplecroft, ‘Human Rights' (2013). http://maplecroft.com/themes/hr (accessed 9 September 2013).

82. Danish Institute for Human Rights, ‘Human Rights Compliance Assessment’ (2013). https://hrca2.humanrightsbusiness.org (accessed 9 September 2013).

83. See Royal Dutch Shell, ‘Human Rights' (2013). http://reports.shell.com/sustainability-report/2013/our-approach/living-by-our-principles/human-rights.html (accessed 2 February 2014).

84. Global Reporting Initiative (GRI), ‘Indicator Protocol Set Human Rights. Version 3.1’ (2011). https://www.globalreporting.org/resourcelibrary/G3.1-Human-Rights-Indicator-Protocol.pdf (accessed 9 September 2013).

85. Christel Lane and Jocelyn Probert, National Capitalisms, Global Production Networks. Fashioning the Value Chain in the UK, US, and Germany (Oxford: Oxford University Press, 2009), 258.

86. Boltanski, ‘On Critique. A Sociology of Emancipation’, 129.

87. Ibid.

88. Chiapello, ‘Capitalism and its Criticisms', 63.

89. Boltanski, ‘On Critique. A Sociology of Emancipation’, 130.