Corporate Social Responsibility Versus Business and Human Rights: Bridging the Gap Between Responsibility and Accountability

Abstract

This article explores the evolution of business and human rights (BHR) from a lawyer's perspective and examines how it is contextually and conceptually different from corporate social responsibility (CSR) in its aims and ambitions. While CSR emphasizes responsible behavior, BHR focuses on a more delineated commitment in the area of human rights. BHR is, in part, a response to CSR and its perceived failure. This has led to a gap with two disciplines or strands of discourse that are diverging rather than converging. This article explores how the quest for accountability shapes a very different narrative for BHR, which takes it more into the realm of binding law, State sponsored oversight, and the importance of access to remedy as a measure of corporate accountability. As a result, at the current juncture, the BHR movement is drifting further away from CSR and the role of companies as voluntary and affirmative contributors to human rights realization. The author argues that BHR can draw from CSR to allow states to create incentives for businesses to promote human rights in their operations.

Notes

¹The Government of Canada states that CSR is “is defined as the voluntary activities undertaken by a company to operate in an economic, social and environmentally sustainable manner” (Department of Foreign Affairs, Trade and Development Canada 2014: para. 1).

²Buhmann argues that CSR itself may create soft law and that CSR may be understood to require companies to do more than the law requires. The focus, however, still remains on voluntarism.

³Ruggie notes that “The second principle is the corporate responsibility to respect human rights—put simply, to do no harm” (2008: para. 25).

⁴CSR codes often focus on a specific issue and even the Global Reporting initiative, the most widely adopted system for companies, is to report on their compliance in the area of social responsibility, leading to a focus only on labor rights and worker health and safety as part of its analysis.

⁵The law of international investment refers to “home states” and “host states.” Home states, refer to the state where an investor (often a TNC) is domiciled and has its legal place of incorporation, and a “host” state is the state where the investor has made its investment. See generally, Sornorajah (2010).

⁶When the Guidelines were updated in 2011, a new chapter on human rights was added. It is consistent with the UN Guiding Principles and it reinforced procedures for addressing human rights violations.

⁷The preamble stated: Realizing that transnational corporations and other business enterprises, their officers, and their workers are further obligated to respect generally recognized responsibilities and norms in United Nations treaties and other international instruments such as the Convention on the Prevention and Punishment of Genocide; the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment; the Slavery Convention and the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination against Women; the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights; the Convention on the Rights of the Child; the four Geneva Conventions of 12 August 1949 and two Additional Protocols for the protection of victims of war; the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms; the Rome Statute of the International Criminal Court; the United Nations Convention Against Transnational Organized Crime; the Convention on Biological Diversity; the International Convention on Civil Liability for Oil Pollution Damage; the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment; the Rio Declaration on the Environment and Development; the World Summit on Sustainable Development Plan of Implementation; the International Code of Marketing of Breast-milk Substitutes of the World Health Assembly (WHA); the Ethical Criteria for Medical Drug Promotion, and Health for All Policy for the twenty-first century of the World Health Organization (WHO); the United Nations Education, Scientific, and Cultural Organization Convention Against Discrimination in Education; conventions and recommendations of the International Labour Organization (ILO); the Convention and Protocol relating to the Status of Refugees; the African Charter on Human and Peoples’ Rights; the American Convention on Human Rights; the European Convention on Human Rights; the Charter on Fundamental Rights of the European Union; the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of the Organization for Economic Cooperation and Development (OECD); and other instruments (UN Draft Norms 2003: preamble para. 4).

⁸For a general discussion of critiques, see Philip Sutherland (2010: 309).

¹¹In 2005, the UN Commission on Human Rights adopted resolution E/CN.4/RES/2005/69 requesting the “Secretary-General to appoint a special representative on the issue of human rights and transnational corporations and other business enterprises” (UN Human Rights Commission 2005: para. 1). The resolution mandated the Special Representative to do the following: 1. To identify and clarify standards of corporate responsibility and accountability for transnational corporations and other business enterprises with regard to human rights; 2. To elaborate on the role of states in effectively regulating and adjudicating the role of transnational corporations and other business enterprises with regard to human rights, including through international cooperation; 3. To research and clarify the implications for transnational corporations and other business enterprises of concepts such as “complicity” and “sphere of influence”; 4. To develop materials and methodologies for undertaking human rights impact assessments of the activities of transnational corporations and other business enterprises; 5. To compile a compendium of best practices of states and transnational corporations and other business enterprises.

¹⁰“International human rights law provides a hard legal benchmark against which all companies can be judged and in accordance with they must act, regardless of whether it is convenient, profitable, or improve [sic] the company's reputation” (Bauer 2013).

¹¹“Both NGOs and corporations should view state regulatory regimes and law more generally as a backstop to their strategies: self-regulation has the potential to be much more effective at lower cost” (Bradford 2012: 271–272).

¹²For a wide-ranging analysis of whether a treaty is needed, see International Commission of Jurists (2014).

¹³The Office of the High Commissioner for Human Rights has commenced a large work plan focused on the access to remedy for gross human rights abuse (OHCHR 2015a).

¹⁴In the 2013, the US Supreme Court ruled that overseas human rights violations may not be litigated in federal courts under the Alien Tort Statute except where they sufficiently “touch and concern” the United States (Kiobel v. Royal Dutch Petroleum 2013). Cutbacks in UK legal aid funding likewise threaten the ability of British law firms to pursue overseas human rights violations. See Michael Goldhaber (2013).

¹⁵The International Corporate Accountability Roundtable (ICAR) is a coalition of leading global human rights organizations; its Steering Committee includes EarthRights International, Human Rights Watch, Human Rights First, Global Witness, and Amnesty International and has undertaken a variety of campaigns and initiatives to support national regulation of corporations in furtherance of the UNGPs. Another example of civil society coordination is found in the illegal logging area. See Forest Law Enforcement, Governance and Trade (2012).

¹⁶The United Kingdom, Denmark, Finland, and the Netherlands. For an assessment of the initial four National Action Plans, see ICAR and ECCJ, Assessments of Existing National Action Plans on Business and Human Rights (2014).