The Business of Human Rights

A very Brief Synopsis of Larry Catá Backer’s article: 

As part of our ongoing literature review series, I am happy to feature one of Larry Catá Backer’s articles. Prof. Backer is a pre-eminent scholar in the field of BHR. His research and thoughts on matters such as this have inspired my work greatly. Being a far more prolific blogger than I could ever hope, Prof. Backer regularly publishes in his blog spot: “Law at the End of the Day.” For any of you interested in the issues raised by the article discussed below, I strongly encourage you to visit his site, particularly during the month of February, when he discusses some of these issues, specifically within the contact of National Points of Contact for business and human righs issues. It is definitely worth the read.

This paper discusses the Guiding Principles and the Protect, Respect, and Remedy framework set out by the United Nations, and how it is intended to join together political, social, and economic governance systems in order to bring about positive changes in the realm of human rights around the world. This paper also critically analyzes the Guiding Principles and the Protect, Respect, and Remedy framework (“PRR framework”). The first section of the paper gives an in depth background of what led up to the development of the Guiding Principles and the PRR framework, the second section describes the actual development of them, the third and fourth parts of the article give intricate detail and analysis of each of the sections of the Guiding Principles and PRR framework. In this article, Backer describes the PRR framework as an innovative approach to governance, but he also describes it as vulnerable.
-The first and second sections describe what John Ruggie (as a Special Representative of the Secretary-General on the issue of Human Rights and Transnational Corporations and Other Business Enterprise) worked on throughout his time with the United Nations. This section covers the failed norms and the differences between the norms and the PRR framework. Backer also notes in this section that the PRR framework is “operationalized” through the Guiding Principles which were perfected and introduced in mid 2011. The Guiding Principles involve international institutional involvement to make the governance sustainable.
-The third section delves into the actual language of the introduction to the Guiding Principles. The introduction sets out the theory and the practicalities of how to protect and govern human rights. Backer says, “If the ‘Protect, Respect and Remedy’ Framework provides the theoretical ‘authoritative focal point around which the expectations and actions of relevant stakeholders could converge’ then the Guiding Principles provide the operational focal point for the project. ” 
-The final section dissects and analyzes each of the 31 General Principles of the Guiding Principles. Each of the Principles was based on one of the tenets of the PRR framework. It is repeatedly stated that the State’s responsibility is to protect human rights and the corporate responsibility is to respect human rights. Also, access to remedy is the third underlying theme. After Backer describes each of the Principles, he concludes by enumerating the issues that the Principles present because of their inter-systemic nature. He describes the issues mainly as a result of trying to coordinate different systems of governance into one cohesive system.
-Backer concludes by saying that while “innovations are never perfect,” this new framework will at very least play a significant role in the way that governance of human rights issues will take place.

On February 14, 2013, the United Nations Human Rights Office of the High Commissioner for Human Rights consulted with stakeholders on the Working Group’s most recent report concerning the U.N. Guiding Principles. Specifically, this round-table focused on indigenous peoples and business and human rights issues. The specific stakeholders include indigenous peoples, States, business enterprises, and other organizations. Although no proceeding have come out (that I can find) these are the issues that were placed on the agenda:

“1) Focus: What specific issues and challenges should the Working Group take into account in drafting this report?
2) Existing guidance and standards: What existing standards and documents should the Working Group take into account in drafting this report?
3) Existing practices and initiatives: What existing practices and initiatives should the Working Group take into account in drafting this report?
4) What focused insight can the Working Group bring to the issue of business impacts on indigenous peoples, given the role and thematic scope of other UN bodies on the rights of indigenous people?”

I’m looking forward to hearing what the outcome of the proceedings are . The groups and peoples that have been invited to participate all have their own agendas and interests. While I think this trend is changing, I think that traditionally indigenous peoples have not been invited to participate in a conversation of this magnitude about business and human rights. Some of the questions that this meeting raises touch on business and human rights paradigms but also crosses literature on other topics and other disciplines. Specifically, while the actions of the corporations certainly affect indigenous communities,how do you address the diverse nature of each of the communities. While some of the issues that are being face exist across cultures, many of t hem are specific to the State where these indigenous communities are located, sometimes even within state. Is the report seeking to address these issues in the specific or is it trying to achieve a more universal framework? Will the outcome of this report reflect a general consensus, unanimity or dissension?

Needless to say, I’m looking forward to seeing the final report.

Business & Human Rights: Another Shot at What Makes An Issue A Business & Human Rights Issue


This blog is focused on business and human rights, but what does that mean? For someone like me who has focused a lot more on business law than human rights law, it raises a whole host of questions. I suspect (perhaps because of my business law background) my view of business and human rights issues is much narrower than others who concentrate their efforts in this area.

In an earlier post, Jena noted, I think correctly, “[U]ntil you get the relevant constituencies to understand just how broad based the idea is of what constitutes a potential ‘human rights impact’ for businesses, you won’t be able to bring together all of the parties who can contribute to a solution.” I agree, but I would argue this is a different issue than determining what is a business and human rights issue.

For me, it is worth narrowing the field of business and human rights to cover those issues that raise unique and specifically business-related human rights violations. Thus, I would draw a distinction between a “business and human rights” issue and human rights issues that happen to intersect with the business world. These latter issues are not less significant than business and human rights issues. Instead, they are broader human rights issues that are not unique to businesses or how they operate on a global stage.

I recognize the risk that narrowing the scope can marginalize, or at least minimize, concerns about the issue raised. On the flip side, though, one can go in the other direction by being over inclusive and convert business and human rights issues into what amounts to issues related to the human condition. A holistic view has its merits, but I am of the view that narrowing the field to more business-specific concerns is more likely to lead to significant improvements in the nearer term.

On Wednesday the College of Law was incredibly fortunate to have Walter Echo-Hawk come and speak as part of theCOL’s McDougall Lecture Series. For over thirty five years Mr. Echo-Hawk has been working on litigation and legislation that affect the Native American community here in the United States. He is also an accomplished scholar (I picked up his book, In the Courts of the Conqueroryesterday and can’t wait to read it).

Wednesday’s lecture should be of particular interest for those who practice in the BHR area. The UN has identified business and human rights impacts vis a vis indigenous communities as an area of particular concern that they would like to assess over the coming months. Justice Echo-Hawk’s comments on The Rise of Human Rights in Native America provided a timely discussion of a paradigm shift that is beginning to happen in indigenous communities worldwide.

From Left to Right – Dean Joyce McConnell, Justice Walter Echo-Hawk, Prof. Bonnie Brown and Associate Dean Anne Lofaso 

His talk explored issues of racism, colonialism, protective features of federal Indian law as well as how emerging norms under international law for indigenous communities can help inform how we address our legal structures here. Truly, I cannot do his talk justice. If you have an hour to spare, I highly recommend that you see it for yourself.

Part of what often gets lost in the business and human rights debate is that there are corporations where the firm is actually keen to be responsible for preventing human rights abuses when they can. These companies usually start with strong leadership at the top that sets the tone for what is acceptable and what isn’t.

I remember as a little girl watching the Tylenol murder incident (where people were poisoned with cyanide placed into Tylenol). I specifically remembered the CEO, James Burke, speaking on television and accepting full responsibility for what happened. Thirty years later this still sticks with me.

The interview below (with Spanish subtitles for anyone who prefers that) is with Burke. In it, Burke discusses the qualities of Johnson and Johnson’s culture and how it led to the action they took when the Tylenol incident occurred. For people like me, who look to business for leadership on human rights issues, Burke’s comments are encouraging.