So just to kind of be on the same page, I'm aware, I just felt like I need to briefly
at least define what I mean by business and human rights.
Just for the sake of this presentation, of course, it can pack much, much more into an
actual definition of this business and human rights or much, much less, depending on where
you stand.
But I see, at least for the sake of today, business and human rights as concerned on
the one hand with the justification, definition, delineation of corporate human rights responsibilities.
So where do those responsibilities actually come from?
How do we justify them on what grounds?
Do we justify them?
I'll get to that later on.
And then on the other hand, the conceptualization and assessment of accountability measures.
So how do we then hold corporations accountable for those human rights responsibilities that
we have come up with?
And very often it is in a way that me as a business analyst, I'm more concerned with
the conceptualization of responsibility.
And if I look to the legal discourse, that's where the accountability piece comes in.
The important thing, I think, is that we bring those two things in coherent ways together.
So this discussion on responsibilities on the one hand and accountability on the other
hand started, at least in the academic discourse, started to emerge, say, in the 1980s and 1990s.
And many of you have probably kind of started to read into the business and human rights
discourse.
And if I say started to emerge, I mean, kind of a systematic international coordinated
in some sense, discourse.
I think you see first contributions in the late 1980s.
Of course, if you do find sporadic earlier writings, but then it really starts to take
off in the 1990s.
Today I would call it one of the most significant kind of discussions within the broader field
of discourse on corporate responsibility, not social responsibility, but more all in
comparison corporate responsibility.
I think within this broader field, I think this is one of the most dynamic, most significant
and not just in an academic sense, but also in the policy discourse, in practice.
It's becoming increasingly relevant also in those domains.
It's also very interesting.
I think that the Dr. Koko Orteer at the University of Joste, we've discussed before, students
from many different disciplines engaging business and human rights.
And I think that's a signature element of the discussion today, at least as such.
And it's not always that way.
I think it's still today also still heavily dominated by the by legal disciplines, but
it has become very interdisciplinary, at least if you look at the broader discussion.
Another interesting fact, I think, about human rights is how fluid and permeable the boundaries
of the field are in terms of where the scholarship ends and where does activism, for example,
start, where the scholarship and human rights practice start.
And if you look at also business and human rights teachers, you often see that they wear
different hats at the same time.
They're scholars, teachers, they may also be activists, they may sit on the boards of
NGOs pushing business and human rights issues.
And I think it has a lot to do with the inherent normativity of human rights.
At least speaking for myself, I would find it, and I know there are scholars who would
disagree with me on that point, but I would find it very difficult to do business and
human rights research without this kind of normative, I wouldn't call it activist, but
with this normative edge.
I think the reason why many of us are in the field of business and human rights scholarship
is because we feel that it's not all well in reality and that we need to push this agenda
in one way or the other.
I think that's the reason why many of us get into scholarship and it's also the reason
why we jump back and forth between doing scholarship and pushing the agenda also through other
channels, be it in terms of advancing legislation or doing activism work in NGOs and so on.
There's many different ways of how to do that.
But I think we see that very, I guess business and human rights is not unique in that aspect,
but I think we see it in a very pronounced way in the business and human rights field.
I pushed the wrong button again.
So you see, I'm not a Mac user, so that's okay.
I might just make it come up every time I need to switch the slides.
I think that's fine.
So I guess I mentioned that already.
The agenda of the presentation.
The aim is really in a very basic sense.
So there's no particular points I think that I want to advance tonight.
And there's no particularly elaborate arguments that I want to present.
So the aim is really to provide you with an interdisciplinary introduction to the field
and just give you some thoughts that hopefully many of you from the different disciplinary
angles can hold on to.
And maybe to some extent also understand perhaps where the other ones are coming from to some
degree.
The agenda introduction is already behind us.
I've done that already.
I will start with just a very brief, and I think I might skip most of that part because
I think you may have heard about this already.
Just a brief history of business and human rights.
We already started discussing this a little bit now.
And then I will go a little deeper on the unlearning piece.
So what do we actually have to unlearn about business in order to kind of make space for
business and human rights?
Probably also unlearning corporate responsibility.
So it's not just about unlearning business as usual, but it's also about unlearning perhaps
corporate responsibility as usual.
And skip to one.
Before that, we also look at this from the human rights perspective.
What about human rights do we have to unlearn in order to make space for businesses to come
in into this discourse?
And once that is done, I think we've set the ground to then look at it from the more positive
side.
What does learning business and human rights mean?
And there I will just give you a brief glimpse and also not a complete, there is no claim
of completeness there, but just a brief glimpse on what justification strategies in that sense
look like in the different disciplines.
So how do ethicists or business ethicists justify human rights responsibilities for
business?
How do lawyers justify those in a very basic sense?
And how do perhaps managers justify those kinds of responsibilities?
And we'll see that they're quite striking sometimes differences in that.
And the next step would be, we're not going there to kind of start to reconcile those
different foundations, right?
We start to really have a discourse that can integrate those different views.
Okay, now I'm focusing, I'm going to push the right button.
Yes.
All right.
So very briefly, the history of business and human rights.
This looks very full, but I'm just going to rush through this.
So I said earlier that the discussion really started to emerge in the 1990s and very often
the starting point of business and human rights is actually kind of almost pinpointed to the
mid 1990s, 1995, when in Nigeria, Ken Zorariva, the famous playwright and activist, was killed
by the Bacha regime and eight of his followers and fellow activists as well.
The reason was that he was kind of at the forefront from the campaigning against oil
companies in the Nitro Delta, the environmental destruction that they caused.
So as the leader of this movement for the survival of the Agoni people, the local inhabitants
of the Nitro Delta, and they have been campaigning against those companies since the 1970s, maybe
going back in Berlin, that the very center of those protests was Shell, the company Shell.
And when Ken Zorariva was arrested and tried and then ultimately executed by the regime,
that was when kind of an outcry went around the world and strikingly then, because the
protests, I mean, the problem in the Nitro Delta was not a new one.
That problem existed for 20 or 30 years or even more than that.
But it really came to an international, was escalated to a national, international scale
when Ken Zorariva was executed and led to international protests against not just the
execution of Ken Zorariva and his followers, but also against Shell.
Because the idea was, or the opinion of the international community was that Shell should
have done something against this.
Very often also, of course, the opinion was that Shell was in some sense complicit with
the Abacha regime in violating human rights and killing Ken Zorariva.
And that is often kind of seen as the starting point, because that led to a whole host of
activities and activism on business and human rights.
It put the issue of business and human rights really on an international scale.
So NGOs started to build capacity on human rights, for business and human rights issue
and as the international human rights watch and so on started to produce reports on other
businesses and so on and how they violated human rights.
Ran targeted campaigns against companies.
On the other hand, as a response, companies started to drop human rights policies.
Shell, after that incident, was one of the first companies who actually had a human rights
policy after that.
So then one thing led to the other.
Also litigation started to really take off human rights litigation in the 1990s.
Some high profile cases, Unocal and so on, that were put in front of domestic courts
and were tried for alleged human rights violations abroad.
So one thing led to the other.
And scholars jumped on board, eventually started to actually study that phenomenon.
And so the international kind of discourse started to emerge.
But this being said, I think it's important to point out that that's really not the start
of the business and human rights history.
The business and human rights history is first and foremost a local history.
It's a history of many local movements resisting corporate abuse and corporate degradation
and so on.
This has just not been recognized and seen by the larger international communities.
But if you write on business and human rights history, I think it's not sufficient to just
start with the mid-1990s.
You really need to go look at what happened actually on local grounds.
And even here, there's a long lead up, I think, to this discussion that we're having here.
Even here in Nuremberg, the Nuremberg Trials is one of the key precursors, I think, of
the business and human rights debate.
Even though it was not companies as such that were on trial, but industrialists.
But I think the trials as such, and I think that there was more than just implicit implications
there that corporations can have an impact and can have a responsibility in terms of
human rights and can be complicit in that sense in the atrocities that took place.
The accountability was attached, of course, to individuals.
But there already the thinking that human rights and businesses are not two separate
domains completely, I think, started to kind of gain currency.
And then you have things like businesses doing business in South Africa during the apartheid
regime.
You had campaigning against those which had very, very clear human rights implications.
The Bhopal disaster, which at least looking back now, is one of the seminal human rights
issues that occurred, that is at least today connected very, very directly to the business
and human rights.
So I think you need to go beyond 1995 to really understand where business and human rights
is coming from, even though the 1990s is really where the broad international discourse started.
I won't say much about those other two points, institutionalization and the international
domestic.
Those were the subsequent steps.
And also there you can go back to the 1970s.
Actually, if you look at the UN initiatives, the draft code or the OECD guidelines, that
discussion was had in the 1970s.
OECD guidelines are still around.
The draft code was abandoned in the 1990s.
But human rights didn't play a large role, at least in those discussions, if any.
But those are instruments that were then subsequently transformed into human rights, at least partly
human rights instrument.
What is interesting about, also from a research point of view, about the international level
of institutionalization is that oscillation between binding and non-binding approaches
that you can observe.
So there's always these attempts to make human rights responsibilities binding and, of course,
heavy criticism against those attempts.
And then you have more pragmatic, voluntary approaches that slowly take over and then
the tendency to, again, try to implement binding obligations.
And this is all the way from the 70s to today.
You see those kind of swings of the hang on between binding and non-binding.
Now we have the treaty discussions again in the Human Rights Council of the UN.
And we'll have those probably for quite a few more years at the very same time that
the UNGPs are being implemented at the domestic level.
And we see a hardening of that soft law there.
And we also have the softer approaches of implementation.
And I think that's the one key point I want to make about the domestic level.
I think what the development that we see there, particularly after 2011, is really the implementation
of the UNGPs.
So the UNGPs were published in 2011.
And then the discussion really kind of centered on the implementation of those guidelines.
And as I alluded to already before, what we see now at the domestic level is really kind
of pushed towards hardening the UNGPs by binding domestic law.
Of course, that's, again, in some sense, a very Western European point of view.
And if you look at it from a global level, perhaps not so much.
But in our context here, I think that the push is really quite strong in the direction
of hard law solutions of implementing the UNGPs.
So I'm just going to leave it at that.
And we can still go back afterwards in the discussion if you would like to discuss this
more.
So we're going to look into the UNLURPing piece.
First UNLURPing human rights and then UNLURPing business.
And as I said, this is in a very basic sense.
So if you look at how human rights have traditionally been perceived, we see that there is kind
of this dominance of a traditional, call it political or realist view on human rights,
which is that human rights are, as a very definition or in the very nature, as an instrument
against the instrument of the protection of individuals against kind of the abuse and
discretion of state power.
That is what the term human rights expresses.
And as such, human rights are seen to kind of build the limits and the boundaries also
of state sovereignty in international politics and also in international law.
So for states, there are limits of what they can regard as purely internal affairs.
So before it was maybe the idea about how we treat our people internally is our own
manner and it's not for other states to tell us how we treat our people.
And the human rights regime has as a name to change that, to say, no, there are certain
limits of what states can regard as being in their sovereignty and their discretion
about how they want to treat the people.
And that's where the very term human rights is coming from.
So from that point of view, the very term human rights is almost wedded to this idea
of drawing up those boundaries.
And that does not mean that those holding this view are completely oblivious to the
impact that businesses can have on human rights, of course.
They see that businesses can have negative impacts on human rights.
But that's not necessarily perceived as primarily the issue, responsibility or problem of the
businesses themselves, but rather it's a failure of the state protection.
And so if human rights violations or negative impacts of human rights by businesses occur,
it is the state that has failed in protecting the people from the abuse of businesses.
And it's not in a primary sense the business's responsibility to make that sure.
That's kind of the state centricism that attaches to this realist view on human rights.
But then we also have this kind of reshuffling of the world that I guess sets in very early
on, but we see a dramatic progression in the 1980s and the kind of neoliberal expansion
of global markets, transnational corporations that organize their business along global
value chains or even value networks and really start to change the logic of markets and businesses
at a global scale.
And some have called this post-Westallian world or the post-national constellations,
meaning that we're moving away from a world that is divided in these three nation states
to a world that is becoming more forest and more transnational.
And as such, of course, then the idea or the perspective on human rights starts to change
because of how much sense does such a view on human rights, a post-Westallian view of
human rights, make in a post-Westallian world?
Or does this reshuffling of the world not imply that we also have to kind of think differently
and transform the very idea of human rights and who is obligated by those human rights?
John Rawlings' famous victim was that this kind of post-Westallian world creates governance
gaps because the region, the power of states is not sufficient anymore to hold transnational
actors fully accountable for what they do.
And that it's those governance gaps that create in a way the ground on which human rights
are being violated by corporations because they can move in those spaces without being
held accountable by literally anyone.
And so then the question is, well, how do we feel those governance gaps and who is obligated
to feel those governance gaps?
And that is where the rethinking of human rights, I think, comes in because I think
addressing those governance gaps requires us at least to a certain degree to rethink
how human rights need to be framed.
So that we leave the state centrism attaching to human rights, at least to a certain degree,
that we can think up and create the tools that we need that are necessary to really
hold those actors accountable.
And that is what I mean by unlearning human rights.
So we need to unlearn this traditional idea to make space for any...
And if you look at the business and human rights discourse today, you will probably
know as well, is that actually happening in the business and human rights discourse today?
It is probably happening to some degree.
But I think the current business and human rights discourse still operates very much
in this...
Well, here I am on the fringes.
Now I say very much.
I think it is still quite a bit attached to the state centrism.
And I think you see particularly, for example, in the treaty discussion that we have at the
Human Rights Council today, where the idea of attaching direct human rights obligations
directly to businesses was rather short-lived.
And it's still kind of the dominant view that the treaty can only create obligations for
a state that is still dominant in the current treaty discussion as well.
And I think that shows that the business and human rights discourse is still kind of attaching
this to something really traditional and old paradigm.
But it's moving, I think, in a direction that is more productive.
But of course, it can be debated whether this is a roadblock to actually really addressing
the government's gaps and that we really have to kind of move further away from the state
centrism or whether this is actually a healthy kind of attachment to the more traditional
ideas of human rights and just making it more conducive to also apply to different obligation
barriers.
So that's the human rights piece.
Now unlearning business already implies the question first and foremost, what kind of
business do we have to unlearn?
And the first one here on the slide is probably intuitive.
So that's kind of the old, the classic freedom alien view on corporations as profit maximizing
machines in a way.
And you could say, well, that view of business and human rights, that doesn't go together
so well.
So this is probably an understanding of business that we have to get rid of fairly quickly
if you want to make space for business and human rights.
And Friedman already basically said that corporate responsibility, the idea of social responsibility
kind of undermines not only business as such, but it undermines actually free society.
If you start to kind of impose responsibilities on businesses, we not only work towards reducing
welfare because we hinder companies from doing what they do best, which is basically maximizing
profits and being productive.
But we also undermine our freedom in a sense that we can, within the boundaries of the
law and of decent conduct and so on, we can basically do what we like to do and we can
pursue a business in the way we want to pursue a business.
We can follow our own interests in the marketplace by following the rules of the marketplace,
but we don't have to take on social responsibility.
That is not what business is for.
And if you start to kind of impose this on business people, then we take away their economic
freedom and it will ultimately backfire.
That was in a sense in a nutshell Friedman's view.
And that comes, I think, is expressed today in the broader discussion with the shareholder
value doctrine, that all businesses should do is maximize shareholder value and beyond
that they shouldn't take on much at least social responsibility.
And if they do so, then at most from an instrument perspective.
So if those responsibilities happen to also be to the benefit of the shareholders, if
they happen to also generate profits, then that could be an instance where social responsibility
would at least be discussed.
So I think Friedman even was critical towards those instrumental kind of views on co-responsibility.
And then there's the other view on business.
So if we leave this behind, then there's the other side of business.
I call it here the enlightened view of business, where the idea is that businesses do have
certain social responsibility beyond maximizing profits.
But I think that in order to set the ground for a human rights view on corporate responsibility,
we also have to unlearn those kind of ideas of business.
So we have to unlearn traditional notions of corporate social responsibility and CSR
social responsibility, I would say, has been the dominant way since I would say maybe the
1970s of framing corporate responsibility beyond profit generation.
So usually those discourses.
And of course, there's a large variety of terms that are being used today, sustainability,
corporate social responsibility, there was corporate citizenship for a while, kind of
disappeared again, creating shared value.
They all have their different kind of connotations and different directions that they take.
But very often business responsibilities frame in CSR terms.
And that's also, I think, still the dominant concept that is used in business practice.
And my thesis here would be that business and human rights is different from those CSR
views.
And in order to make space for business and human rights or set the ground for business
and human rights, we actually have to under those more conventional and traditional views
of corporate social responsibility.
And it already, I think, shows that if you read up on some of you may have done this,
if you read up on corporate social responsibility literature, or if you look at corporate social
responsibility initiatives in practice, you will in the history going back to the 1950s
or so very rarely find human rights focus in those writings or initiatives.
They're framed in different ways.
And that already shows that human rights have never been at the core of corporate social
responsibility concepts.
There might be, of course, they may have addressed certain issues that overlap with the issues
that the business and human rights discourse addresses today, but they have not used human
rights language and human rights vocabulary to do so.
And I think it's not just a semantic issue.
I think not using human rights language also has no implications on how we address.
Those issues ultimately.
Now, one of the reasons I think for that lack of human rights terminology and lack of attention
to human rights is that in the corporate social responsibilities, of course, human rights
are seen as a part of the larger regulatory and policy frame within corporate corporations
have to address certain responsibilities.
But human rights are seen as more compliance issue.
So this is the state implements certain laws and regulations that, of course, include certain
human rights protections.
And we as a business have to comply with those laws.
But we as a business do not have to address in a proactive manner human rights beyond
that regulatory frame.
Beyond that regulatory frame, it's a CSR issue.
Has nothing to do with human rights per se because human rights applies to states.
That's the tradition view.
And as such, we address it in a voluntary way.
And I'll get to that in just a minute.
Even more interesting, I think, is the fact that now that business and human rights discourse
has started to kind of really take off and start to become more prominent.
If you listen into CSR conversations and how they see business and human rights today,
very often it is perceived as a subset of the CSR discussion.
They say, well, human rights, it's just a CSR issue.
It's just another issue.
We have child labor, we have sweatshops, we have an environmental issue.
And human rights is just a new issue that now is being added to what we've done before.
But it doesn't really change the underlying concept or the underlying way of doing things.
It's just kind of subsumed under the CSR approach.
And I think that's the interest because my view is that the two things are really quite
different.
And subsuming business and human rights is just a CSR concept can be more harmful than
beneficial.
And that's why business and human rights means also unlearning this kind of understanding
for responsibility.
I want to stick with this just for a moment because what ultimately is different about
those two concepts, business and human rights and CSR?
CSR, at least in an hour, I always talk about CSR in a conventional sense.
I mean, of course, if you read into the CSR discussion, you see a wide variety of different
approaches as well.
But the conventional, I think, understanding of CSR is still also today to quite some degree
based on the fairly sharp distinction between public and private domains.
And the idea that whatever is public is in the responsibility of the state and whatever
is in the private domain, that is where business responsibility comes in.
So CSR is really seen as a private responsibility in that sense.
Whatever is public is being regulated by the state.
And by regulating those issues, the state basically draws the boundary of what the private
space of business is.
And that does not mean that within this private space, business can just do whatever they
want to do.
It still implies that within this private space, you behave and act in a responsible
manner.
So you still have to take on certain responsibilities.
But those responsibilities are seen as voluntary in a conceptual sense.
They're not imposed on us.
It's not regulation.
We don't have to comply with those responsibilities, but we address them in a proactive, voluntary
sense.
And that's very often you see this already in the definition of CSR and those conventional
definitions that it's defined as responsibility beyond compliance.
And within this private space.
And as such, it's an apolitical responsibility.
It's not a responsibility for public issues, but it's a responsibility for private interactions
and private issues.
It's apolitical in that sense.
And there is no responsibility really that businesses have for genuinely public issues,
unless those public issues.
And that's going to be important for later on, unless those issues are being privatized
by the state.
And we've seen this before, right?
Telecommunication and so on in the US, the prison system and so on that is being privatized
and handed over to private companies.
And then it moves into the private responsibility of businesses.
And because that's the case, the definition of those responsibilities is also corporate
centric.
So it's the corporation at the core, at the center of things, which defines what their
responsibilities are and which sets the priority to what needs to be addressed and what does
not need to be addressed in a priority in that sense.
So it's a corporate discretion that defines which issues kind of move into this private
responsibility.
And that leads to the last, I think, definitional element here, which is that it's very often
framed in instrumental ways because what is being addressed by the company predominantly
is what ultimately makes business sense also in some sense for the company.
A priority in a corporate centric way is something that has a material impact on the bottom line
of the business.
And so we see businesses addressing responsibilities that have an impact on the bottom line.
So that's a business case argument.
And we get back to that argument.
So now what is the implication of this?
So this is what defines conventional understanding of corporate responsibility.
What's the implication of addressing human rights through that corporate social responsibility
lens?
And I think that's the core of the issue.
What it means is basically if they start addressing human rights through that lens, what they
do is basically they pull human rights into the private realm.
So they turn human rights into a private responsibility instead of politicizing corporate responsibility.
Into the space and realm of human rights.
And it's actually quite telling that that was, for example, in the discussion about
the UN draft norms back in 2000, 2001, 2002 and so on.
That was one of the arguments of business associations against the draft norm that they
say, this is a privatization of human rights.
If we start to make, if we implement binding obligations, human rights obligations for
business, that amounts to a privatization of human rights.
And I think that is exactly that kind of mindset.
That if we hold corporations accountable for human rights, well, that must mean that we
shift human rights into the private realm of companies rather than, oh, we may hold
companies publicly accountable for their human rights conduct and as such assign actual public
responsibilities to corporations.
I think that's the big difference between those two discourses.
Business and human rights means public accountability for private actors.
It means public or political responsibilities for private actors and not privatizing human
rights.
So business and human rights from that perspective, advocates for extending public accountability
for human rights into private realm rather than extending private responsibility into
the domain of human rights.
And I think not making this distinction is dangerous for human rights because it turns
human rights into just a matter of goodwill in that sense.
That is being, human rights are then being addressed through a corporate centric way,
prioritized by instrumental outlooks, addressed in a voluntary sense.
Those elements that you have there, those will be kind of the defining elements of how
human rights are being addressed.
And from that perspective, some business and human rights scholars have made the point
that business and human rights and also historically, I think that's the case, that business and
human rights have emerged not kind of as a subset or an issue of CSR, but actually as
a response to CSR.
So business and human rights is a response to a certain perceived failure of CSR to address
the important issues that ought to be addressed by business and responsibility.
Because CSR has not done so, business and human rights has emerged as a discussion.
Say, well, here, this is where the focus of this needs to be, of business and responsibility.
And very, very briefly, actually have to have a look here.
How much time do I have actually?
Until like, I just keep talking.
Okay, perfect.
So very briefly, what is the perceived failure of CSR?
That's an interesting discussion as well.
To what degree has CSR actually had an impact, a real tangible impact, and to what degree
has it not?
And indeed has failed to make a difference in the 30, 40 years of this concept actually
having been quite dominant in practice also.
I tried to conceptualize this, and you see the reference down here.
So you're not going to spend much time here.
If you want to read up, it's an article, a very short article on this.
So there's two kinds of criticism, I think, that you can find.
There's more, but two maybe interesting and dominant criticisms towards CSR that you can
find in the literature.
And one I call hot air criticism, the other one, trojan horse criticism.
And hot air criticism is basically what you also probably have heard of in terms of green
washing and window dressing and so on.
The perception that CSR has served more as a PR and a marketing tool than as a genuine
instrument to actually implement corporate responsibility in a way that leads to a tangible
impact on the ground for those people who are actually perhaps violated in their right.
So the impact that there's simply not enough impact.
And if you read into organizational theory, for example, that's often that the discussion
often framed in terms of decoupling.
So the whole discussion on decoupling is basically what we often call green washing or window
dressing.
The policies, policies, the responsibility policies that businesses put in place are
decoupled from what they actually implement within their organizations or the impacts
that they generate also within their organization.
So that's more nearly in some sense, and we did discuss this before when we had our meeting,
that it's merely cosmetic in some sense.
They draw up nice processes, which we talked about the diligence processes also in the
business and human rights realm.
They draw up human rights and diligence processes or human rights policies, CSR policies, but
then they don't do the homework in terms of what needs to be done to drive into the organization.
So that's a hot air criticism that has been voiced.
And the Trojan horse criticism goes even a step further than that and has been voiced
particularly by critical management scholars, not just organizational theories, but critical
management scholars who say, well, this is not actually in some sense a coincidence that
this is happening.
And it's not just in a sense a failure of CSR.
In fact, the fact that there is no impact is the very intention of CSR.
It's not that the concept fails.
That is what it's intended for, the greenwashing.
CSR is a tool to mask that kind of business as usual that we discussed before.
It provides an air of legitimacy to business to further drive this neoliberal agenda that
they have always been pushing.
But it gets more difficult to criticize this agenda if you run against this kind of shield
of CSR.
CSR kind of serves the purpose of co-opting that criticism and legitimizing the kind of
harmful unsustainable business that they have always been conducting.
And again, the whole business case logic, the fact that you address responsibility because
it pays, kind of caters to that logic as well.
Because it ultimately drives that profit maximization agenda further, even into the realm of responsibility.
So even responsibilities are now instrumentalized for the maximization of profits.
And so the business organizations often use them as a kind of presentation of proof that
the CSR agenda is nothing else than just a promotional tool for basically maximizing
profits.
So that's the normativity of human rights then coming in there.
That is kind of then put in as a counter instrument.
The counter instrument to unmask in a sense these failed strategies or failed responsibilities
of businesses.
All right, so this is the unlearning piece.
We need to unlearn human rights, the state's interest of traditional human rights thinking.
We need to unlearn more traditional profit maximizing freedom alien ideas of business.
We also need to unlearn, I think, more conventional ideas of how we have framed co-op responsibilities
in the past because of those failures that we've seen.
And that kind of leads or maybe clears the ground when starting to think about, well,
how do we now justify human rights responsibilities for business?
How can human rights responsibilities for business kind of be put on this ground?
And that's different ways.
And in the agenda, I already pointed them out.
There's ethical ways of justifying business based on ethics.
There's also legal ways of justifying human rights responsibility of business.
And then there's more pragmatic managerial ways that you find discussion of justifying
those.
And I'm just going to briefly, I'm not going to go too much into that here so that we still
have some time to discuss afterwards.
In terms of ethical justification, what you find, those who are not familiar perhaps with
the business ethics side of human rights, you find, I think, many different approaches,
but they can be subsumed in two dominant ways of looking at this.
The first one is a moral rights approach.
And the second one is an institutional rights approach.
The moral rights approach is probably the most intuitive one.
They say, well, human rights is nothing else than the most fundamental ethical claims that
human beings or entitlements that human beings have.
And they're attached to the individual.
It's a moral right that every individual has toward its environment of facts.
And as such, it doesn't matter whether it's a state, a business, another human being or
whatnot.
We all have the same responsibilities to respect those and protect those rights.
You cannot violate those inherent moral rights of people.
So everybody is obligated by human rights.
And as such, a business ethicist, from that point of view, would say, well, then it's
not about justifying why corporations should have such obligations in the first place.
It would rather be for those who argue against this to prove why businesses should be an
exception in terms of respecting those rights.
So if we all have those rights, but all have those obligations by default, why should businesses
not have those obligations?
At least if we start from the assumption that businesses are moral actors that can have,
in a principal sense, moral responsibilities.
Then it seems fairly intuitive that human rights are amongst the first responsibilities
that they have.
If you take an institutional rights approach, it's not so intuitive anymore.
Institutional rights approach means that you basically sign up to the more realist political
view of human rights.
So you say human rights is a term that attaches to an institutional order and that institutional
order is being put in place to hold states accountable in terms of what they do to human
beings.
And so making an argument then for why businesses should be obligated by human rights would
entail showing that there is enough similarity between businesses and governments that you
could say, well, because of this analogy between the two, if you argue for governmental obligation
to human rights obligations, you by matter of kind of a logics, you also have to include
businesses because they share those elements.
And one of the key elements, of course, is power and authority.
So if you want to make an institutional rights argument for business responsibility, human
rights responsibility, you need to be able to show that governments operate in those
kind of powerful and authoritative positions, almost like states that would justify, based
on the same arguments, to apply those responsibilities to corporations.
And I think that argument can at least be made to a certain degree.
So at least if you look at certain categories of corporations which today operate in extremely
powerful position.
And there's an interesting discourse which is now, I think, resurfacing.
So there is a discourse on corporate power, which has been largely detached from business
and human rights.
But we see this connection, not least because of John Rodney, who was written on corporate
power as well.
We see that these two discourses are slowly but surely being brought together.
Again, I think it's an extremely, not just interesting, but extremely important discourse,
that we address corporate power in the context of business and human rights.
So that's certainly something interesting for PhDs to do research in business and human
rights.
I think the whole discourse on corporate power is extremely relevant and interesting.
But from an ethical point of view, perhaps framing corporate responsibility in human
rights terms is the most intuitive domain to do so.
And I think they're really, call it tricky question, but the question where there's much
to say still is not so much about, in a very basic sense, why corporations have human rights
obligations from an ethical point of view, but how far do those obligations actually
reach?
What is the extent of those obligations?
I think there's still lots to say about that.
Where do they actually draw the line?
Where do corporate obligations start and state obligations start?
Ravi had a very clear view on this.
He said, well, whatever is protection and realization is state and whatever is respect
is business.
I'm not so sure whether this is correct delineation of the obligations.
And I think the reality is much, much more murky and much, much more messy than that.
And I think we do need models that maybe catch the complexity of defining responsibilities
in that regard better than the UNGPs.
As a policy tool, I think the UNGPs make sense.
But I think from a conceptual point of view, I think the reality is more complex than that.
That was the wrong one.
No, it works.
Thank you.
But now I'll skip one.
There you go.
Legal justifications.
Very briefly, and I'm not the expert here, so I'm going to hand this over to the lawyers.
But there's also different ways of justifying legal obligations, human rights obligations
for businesses.
Of course, lawyers come from a different perspective.
And if you read into the legal discussions, particularly the beginning of the business
and human rights discourse, the first kind of legal contributions to the business and
human rights discourse, it's really quite interesting also how those justificatory discourses
evolved in the legal space.
And you can look at, well, where do we actually find kind of connecting points in international
law?
So that's international source and domestic source.
So if you look at international source, you can say, well, where do we actually find connecting
points where we can potentially attach business responsibilities for human rights?
And one that has often been raised, of course, is international criminal law, which applies
not only to states, but also to individuals.
And so it's not so far fetched to them, make the argument, well, if it applies to human
beings, individuals, then we should also be able to extend this to legal persons.
So that's at least thinkable.
That has been an argument, of course, that has been in many, many times.
If you look at the more general international human rights law, that's especially the early
discussion when you're reading.
Very often one of the arguments was the preamble of the Universal Declaration of Human Rights.
I haven't seen it so much anymore nowadays, but in the early days, this was kind of the
argument today.
Well, look at the Universal Declaration and the preamble and what it says.
It clearly opens the door to hold not only states accountable, but also businesses, because
it says that every individual and every organ of society shall strive to promote respect
for these rights.
And I think what it says, and of course, we say, well, the Universal Declaration is not
legally binding and the preamble not at all anyways.
But I think since the central position of the declaration within the whole human rights
edifice and the human rights institutional framework, I think shows that the idea of
human rights that is being proclaimed there is not so much one to define necessarily the
relation between states and individuals, but more one to proclaim what the inherent, almost
in an ethical sense, what those inherent entitlements of individuals are.
And if you take this as a basis to read international law, then I think you may open the doors for
kind of come to a more inclusive interpretation of what the responsibilities are attached
to human rights.
And of course, the last source are new international binding instruments that have those attempts
that have always been kind of launched in the realm of international law to hold corporations
accountable, starting with the draft code in 1970s, the UN draft norms in 1998 to 2003.
Now we have the treaty again, that one is moving away from holding corporations directly
accountable.
But that can be a source.
So we can always change, we can internationalize, we can create new instruments that would actually
go in the direction of holding corporations directly accountable.
I think the interesting, the really interesting developments today, this is human rights discourse,
however, I think you find in the domestic law.
So the application, for example, of domestic tort law, not even referencing human rights,
but the application of domestic tort law, for example, in the UK, to human rights case,
you can see how far can we actually use our tort law to hold corporations accountable
for the human rights conduct abroad.
And then of course, in addition to that, what we see is this emergence, we discussed this
before as well, this emergence of new specialized law that really reference human rights more
directly.
That's an aim to hold corporations in domestic domains directly accountable for the human
rights conduct abroad.
And I think that's really the development that we need to keep an eye on and observe
today in terms of those justifications.
And then finally, the pragmatic justifications, let me talk to you about those, our Olympics,
I don't want to say too much about this anymore.
There's two ways that you see human rights obligations for businesses being justified
in more pragmatic, say, managerial ways.
The first one is the business case, the classic business case argumentation for human rights
responsibility.
And second one is the social license to operate an argument.
I think those two things are slightly different argumentations that you find in the literature.
The business case argumentation is really, it's an appeal to companies own interest and
say, well, you have human rights obligations because that's actually in your own interest.
And by addressing human rights in a positive sense, you may create a better reputation,
you may have less fluctuation in terms of your employees, your employees might be more
motivated and more productive because they work for a good company.
And so on in a negative sense, you could say, well, you may avoid litigation costs, you
may avoid reputational losses and so on.
Therefore, you should make sure that you respect human rights in your operations.
And there is, I'm not denying the importance of those arguments.
I think those arguments have actually been instrumental in bringing us in terms of responsibility
and also human rights responsibility to the point where we are now.
I think the fact that many companies have started to actually look into these issues
is because they really believe that there is a business case for doing so.
Without that argument, I think we would be nowhere near where we are today.
But there's also clear limitations, I think, to such an argumentation, especially if you
use them as a justification for why corporations should be implementing those things.
There's normative limitations, of course, saying you should be addressing those responsibility
because ultimately it pays for you.
As always, a flip side of it, and the flip side is, well, if it doesn't pay for you,
then you probably shouldn't be addressing it.
And we know that the business case argumentation is highly contextual and situation dependent.
In some situations, it may pay.
In other situations, it may not pay.
And for a long time, many corporations have been flying under the radar, violating human
rights, just happily making a lot of profits.
And they're still doing so.
So just saying in a very channeled sense that human rights responsibility pays, that's not
what's actually happening out there.
And we're just, I mentioned that before, I think we're just happy that corporations actually
truly believe that it does pay or a large part of corporations truly believe that it
does pay.
But what happens if they find out that it doesn't?
So will they then go back into the old way?
There's also empirical limitations to that.
And that's a whole body host of contributions addressing the correlation between profits
and principles, trying to come up with, does ethics and human rights respect, does that
actually pay?
And there are problems attached to those studies in terms of methodology.
They also may, the picture that they draw over the whole body of literature is actually
fairly mixed.
So you certainly do not come to a conclusive answer that yes, in any situation, human rights
respect does pay empirically.
And then the social license to operate.
The idea there is that the license of the corporations to do business in communities
depends on their legitimacy within the community.
And the legitimacy within the community is based on social expectations.
So what does the community and the society expect of businesses?
And if a business is over a long period of time works and acts against those social expectations,
it will eventually lose the support from the communities and societies.
And it gets very, very difficult to not just be profitable, but to actually survive as
a business in those contexts.
And that argumentation, that's actually the argumentation that John Robbie used in the
UN guiding principle.
The guiding principle based on social expectations and the social license to operate.
And I wouldn't call this purely instrumental.
I think that's beyond, it's somewhere between an ethical argumentation and the purely structural
strategic business case argumentation.
But there's also limits to this kind of argumentation because time and time again, we have seen societies
and communities embrace values that are highly problematic.
And treating minorities, for example, in highly problematic ways.
And that constitutes in a way then the social expectation.
So just blindly following what is expected can probably not be the end of the story of
business and human rights.
So the cooperation is an act that has to critically reflect on what those expectations are and
whether the expectations themselves are human or not.
From what perspective.
So who determines actually the moral legitimacy of social expectations and whose expectations
are account in different communities and so on.
And I think that's it.
So those are the three I have to spare you a conclusion because there is no way of conclusion.
The point was to provide you an overview without a conclusion.
And so the benefit of this is that we have at least a little bit of time to discuss.
So we have three justifications towards the end.
Those you will find in the literature in various forms and bringing them together into conversation.
I think this will be the next step.
And if you're interested in that conversation, I remind you of the textbook that you can buy.
All right.
Thank you very much.