The Business of Human Rights

I spent some time last week reading the International Corporate Accountability Roundtable’s new report on using U.S. securities laws to affect business and human rights issues. The Report, entitled,“Knowing and Showing,” Using U.S. Securities Laws to Compel Human Rights Disclosure, provides a pretty compelling case for adding human rights impacts to the issues that need to be disclosed by publicly traded companies.

Given the rule-making that the SEC has undertaken recently (around conflict minerals and climate change for instance) the agency already seems to be heading in that direction. It seems that the smart money would be for companies to get ahead of the regulatory curve by allowing their human rights risk assessments to be recorded as part of their disclosure efforts. The Report, which was written by ICAR, was “reviewed, edited and endorsed” by Professor Cynthia Williams of Osgoode Hall Law School, a pioneering scholar on issues that intersect within securities regulation and human rights.

ICAR logo taken from http://accountabilityroundtable.org/
Photo of Prof. Williams taken from http://www.osgoode.yorku.ca/faculty/williams-cynthia

In 2003, Susan Aaronson asked, “what are the human rights obligations of global capitalism?” In her article (found, here) Aaronson highlights many business and human rights issues that are still with us ten years later.

Specifically, Aaronson, in two pages quickly highlights many of the themes and challenges in holding transnational corporations accountable under the law for human rights violations. She does so by discussing a number of court cases that have been brought in the U.S. against TNCs for human rights violations.

According to Aaronson, the majority of the cases are brought under two laws, the Alien Tort Claims Act of 1789 and the Torture Victim Protection Act of 1992. While the use of ATCA will be substantially reduced in light of the Supreme Court’s decision in Kiobel, the issues highlighted in the complaint are still relevant and analyzed succintly by Aaronson. She points to issues such as vicarious liability as a grounds for liability, the use of subcontractors as a relationship fraught with legal pitfalls, and the way that these lawsuits could hinder development in the countries that need it most.

Also, Aaronson’s article points out that some of the cases were brought by the International Labor Rights Fund, providing early examples of something my collegaue, Anne Lofaso, has been pointing out for quite some time: that labor issues are human rights issues.

In a previous post here, we discussed the Millennium Development goals and their focus on human rights. But exactly how will the Millennium Development Goals be implemented and who will be responsible for this implementation?

In order for the implementation of policies and/or programs to be successful, it is helpful if there is a clear guide outlining who is accountable, for what they are accountable, and how the accountability will be monitored. Without such a guide, it is difficult to be organized and clearly follow a path to successful implementation.

In the past, accountability for human rights has mainly been shown as governments being accountable to those they govern. Accountability appears to be the cornerstone for the Millennium Development Goals (MDG) and has three dimensions: Responsibility, Answer, and Enforcement.

The MDG can offer a potential step forward for three reasons. First, when framed in terms of responsibility to human rights, accountability becomes a matter of legal obligation rather than charity or discretion. Second, by putting human rights principles at the center of the process of setting new goals, it fosters active participation of all involved. Third, by giving power to those marginalized, they gain the ability to enforce rights and seek redress for the wrongs committed against them.

So, as you may have noticed, the blog took an (unwilling) break over the last two Fridays. I had hoped to have some deep introspection about WVU’s recent conference on business and human rights and what it all means, however, there is a lot to process still, two weeks later. Here’s what I will say: I was humbled and grateful for all of the participants who presented their papers and shred their thoughts. There are many things about a business and human rights framework that give me pause but, the one thing I am encouraged by is how many brilliant and dedicated minds are working to create solutions.

During the conference Dean Joyce McConnell, stated that she believed we were at a moment in history – a crossroads – where a business and human rights framework will grow and develop, hopefully in a thoughtful and sophisticated manner. I believe she is right, and that moment is here. I am happy to be a part of the work that keep things moving forward in anyway that I can.

Finally, there are many people who I need to thank for the work that was done. However, I need to publicly acknowledge the gratitude I have towards the UN Working Group on Business and Human Rights who supported this project. I am awed by the work that this group is doing, especially given that there are only five members on the Working Group. Thank you so much for your support. I am particularly grateful to Working Group member Dr. Michael Addo who traveled so far to attend.

One technical note: we videotaped most of the proceedings, however, we are currently unable to stream them. Keep watching this space for information on when all of those videos will be available on-line.In the meantime, we have compiled some photos showing highlights from the conference.