Thank you, Eduardo, and thank you of course to Michael for the invitation and forcing
us to confront the big questions and to Anita and Michael for their contributions to this
discussion but also for your contribution as members of the UN Working Group to Business
and Rights Scholarship, both of you for your unwavering stamina and generally being all
around great people and inspiring role models for all the students in the audience.
So thank you sincerely for that.
I think one thing in common across Anita and Michael's presentations is an acknowledgement
that the tensions, frustration and confusion that Michael referred to, which are given
expression to in the contestation that we see today, are linked somehow to the contemporary
role of business enterprises in society.
And I think around that topic, overall both Anita and, or despite that, both Anita and
Michael remain, let's call them business human rights optimists, and actually Michael you
did self-identify as an optimist, so I'm glad that accords with my own assessment.
And you do see business human rights as part of the solution.
And Michael highlighted in particular the role of the guiding principles in enhancing
public debate, promoting shared values of human rights across the private sector through
national action plans, and of course Anita has touched on the differences between the
business and human rights paradigm, if we can call it that, and what went before it,
corporate social responsibility, and has also highlighted particular legislative changes
for which the UN guiding principles have been the driver at national level, both in terms
of motivation and also in terms of the specific form of legislation adopted based on human
rights due diligence, which we see in the modern slavery act, the loi de vigilance in
France and so forth.
And of course finally focusing on an emerging phenomenon perhaps of business advocacy in
favour of human rights defenders in terms of context of shrinking civic space, and in
the support of business human rights regulation counter perhaps to your intuitions about how
business might react and often does react in the face of the threat of legislation.
So as a basis of their business human rights optimism both I think Anita and Michael have
pointed to specific progressive changes, new behaviours identifiable within the corporate
sector, new institutional attitudes in government that can be plausibly linked to the guiding
principles.
But I think what the exam question encourages us to engage with is the next level and the
broader discussion and contest between optimistic and pessimistic tendencies in business human
rights and human rights more broadly, human rights discourse more broadly.
And the sorts of specific developments that Anita and Michael have described and shared
with us, I think for business human rights pessimists are just grist to the mill.
Those kinds of trends and phenomena are just doodles in the margins of history and irrelevance
in the face of the really salient truth of our time.
The climate crisis we now face linked to an economic growth paradigm which is premised
in turn on unsustainable patterns of consumption for which corporations have been a principal
driver with governments as their lackeys and international and national law and legal institutions
as both their tool and their vehicle.
The unprecedented concentrations of wealth and power we see globally and inequality despite
the rise of a global middle class and a decline in absolute poverty in line with globalisation
in recent years.
And finally also the insidious role of the tech giants now in politics, in the economy
and in our daily lives and in the very way we know ourselves and our peers.
So for business and human rights pessimists if the emergence of the business and human
rights field in tandem with the pathologies of globalisation is at best a coincidence,
it also demonstrates it to be just perhaps a benign but ultimately impotent diversion.
We're rearranging the deck chairs on the Titanic and all the work that we do around the guiding
principles and their implementation at national level is technically interesting perhaps but
ultimately not significant.
And even beyond that I think for business and human rights pessimists the field of business
and human rights as the field of human rights more broadly actually somehow explains or
at least there's a suggestion implicitly that these fields explain the catastrophic trajectory
the world has taken.
A position we can see I think reflected both on the political left and the political right
showing that pessimism and optimism about human rights doesn't necessarily cleave to
a left right distinction.
And perhaps just to give an example from business and human rights scholarship that shows that
these two tendencies I'm suggesting are not kind of completely baseless caricatures and
do exist in some way.
In the business human rights and non-financial reporting literature and specifically around
human rights reporting by corporations you could contrast for instance study by Ken McPhail
and Carol Adams.
Where they reviewed 30 reports from Fortune 500 companies specifically their human rights
disclosures in their annual reports, social responsibility reports, their websites across
the mining, pharmaceuticals and chemical sectors they subjected these reports to discourse
analysis and they found that the UN guiding principles by comparing the content of these
reports in 2008 and 2011 they found the guiding principles had actually radically altered
the meaning of corporate responsibility in those company materials.
They had decentered the state, reconfigured political power in the self-understanding
of companies as reported in their corporate social responsibility reports which they found
a significant finding.
On the other hand Genevieve LeBaron and her co-author in addressing social audit in China
in the textile sector concluded that social audits have the appearance of independence
but they're actually shaped in reality by corporate interests and influence.
Social auditors have no investigative powers, they're diagnostic but not remedial, there's
a lack of transparency over audit results, general metrics are applied, an aggregate
analysis which tends to neutralise corporate practices, there's too much information for
stakeholders to be able to navigate and utilise in advocacy and corporate controls persist
over how and what exactly is measured and overall they conclude that social audit and
its practice just serves to legitimate business as usual.
So likewise we can see this tendency I think in the scholarship around national action
plans which without really serious enquiry based for instance on work in other areas
of human rights, some of which Catherine has been one of the first proponents of, don't
really bother to engage in investigation of whether the guiding principles in the context
of national action plans has any impact at all on the way in which government and business
actors communicate with the specific content of policies that are adopted or responses
to dialogue and exposure to other people's opinions within the national action plan context.
So in sum I think for the pessimists human rights and their institutionalised forms actually
facilitate, legitimise and extend the lifespan of environmentally and socially unjust, unethical
business models and the whole structure of global economic, political and power relations.
And this diversity of tendencies from pessimism to optimism I think we can also see manifested
today beyond the business and human rights field in human rights more broadly, of course
we are familiar with a few of the high profile proponents, Samuel Moyne and his not enough
thesis, I also noticed this week Philip Alston registering swinging criticisms of human rights
as a box ticking exercise for failing to stop climate change.
And I think these kind of iconoclastic interventions are no doubt satisfying for their proponents
and can certainly be headline grabbing at least among peers and sometimes they reach
a wider media, political or public audience but are they valid and are they helpful, of
course we can't fully discuss this now but I think I would at least say that I have reservations
about their validity when presented as true at a very high level of generality and if
they are analyzed in terms of the relevant counterfactual propositions.
I mean are we really convinced that globalization would not have happened in the 1990s without
the broader legitimating discourse of human rights, you know it's not when you, I think
when you lay it out like that a very credible proposition.
Nevertheless I don't suggest that these kinds of views or critiques should be excluded from
the human rights discourse, I think they are important rhetorical contributions to debate
especially if they help us in the human rights world to avoid an orgy of self-congratulation,
if they help us to push the horizon or the ambition level of human rights norms and our
expectations of human rights institutions forward and also to signal the structural
constraints of the world in which human rights in here.
On the other hand I think this type of grandiose human rights pessimism can be criticized for
sucking the oxygen away from the more modest scholarship and research that tells us actually
a great deal more about how things work in the world, how people, bureaucracies, markets
and individual market actors behave and interact with each other.
It also tends not to faithfully I think reflect the power and potential of human agency in
the face of structural constraints, you could identify that as the sort of Gramscian or
post-Marxist perspective.
I think pessimism, undue pessimism also creates false expectations, a straw man that's easy
to knock down, an unnecessary, because of that unnecessary disillusionment that actually
can feed despair and fatalism in very negative ways.
And finally because of that we do risk forfeiting by indulging I think pessimistic tendencies
the advances that have been made and brought improvement to the lives and lived experience
of real people.
And I think yes we do see elements of this in the context of current advocacy and debates
for instance around the issue of UN guiding principles versus business and human rights
treaty, some of which tends to oversimplify the issues.
There are on the one hand over claims about international human rights law treaties per
se which would be disabused I think by studies in other fields within human rights, which
is not to say I think business human rights treaty would not add value in this space.
And on the other hand in the business human rights guiding principles treaty debate I
think we also under represent what has been achieved in the business human rights area
in a very short space of time and Anita and Michael I think have substantiated that.
And finally I think we can show that while business human rights is continuous with the
broader human rights field in many ways and shares some of its limitations, business human
rights actually does destabilise some assumptions and aspects of the paradigm of international
human rights law and norms and institutions.
In an article I'm currently developing for a special issue of the Nordic journal on human
rights with Joe Ford from the Australian National University on domestic implementation of business
and human rights we recall that as Anita did the origins of the field of business human
rights were of course concerns over the adequacy of national and international legal systems
and institutions in preventing human rights impacts of business actors and value chains
transcending state based jurisdictions.
In essence the externalities of transnational markets.
Still business human rights norms and initiatives in certain respects remain anchored in national
systems of government and human rights protection.
For instance remediation occurs principally via national judicial or non-judicial grievance
remedy mechanisms, national action plans and legislation remains principally at the national
level in terms of defining specific responsibilities for business and government actors on due
diligence.
On the other hand business human rights inheres in and spurs actual novel forms of human rights
advocacy through transnational networks and transnational litigation, self-regulatory
schemes and hybrid co-governance mechanisms in the area of business and human rights which
partly at least transcend the national paradigm and also because of that the statist paradigm
for which human rights has been criticised.
So I think what's really essential to recognise about business human rights is that it does
render visible the market as a site of the denial of rights and also as a constraint
on states and indeed on individual business actors in a way which just was not visible
before 2011 and the guiding principles.
Equally business human rights takes domestic institutionalisation of human rights forward
in new ways with disruptive potential.
It addresses new business directed activities by recognised national human rights actors
including central government and national human rights institutions.
The business human rights and guiding principles imply new human rights functions, completely
novel human rights functions for government and completely novel human rights function
also for market actors who were just previously not recognised as part of the domestic implementation
machinery for human rights.
And fourthly a novelty is the domestic institutionalisation of human rights via the domestic components
of associational or hybrid governance mechanisms.
So these developments are not perhaps yet significant drivers of change in the world
but I think they may contain their seeds by opening discursive space for new identities
and in turn definitions of rights and duties eventually sounding at the level of power
relations.
Yesterday I was in Strasbourg which is why I couldn't unfortunately be with you here
for a hearing of the parliamentary assembly of the Council of Europe on Business and Human
Rights in their human rights committee where a parliamentarian somewhat naively asked if
business models and corporate pay could be human rights issues.
And that's a question you could scarcely have heard formulated in that setting 20 years
ago when the idea that business could abuse human rights even through their own direct
operations was barely imaginable or cognisable within human rights law discourse.
And this is only something that we see now because of the guiding principles that that
idea has been established.
And I think we are seeing business human rights reach now into the area of business models
in a number of other demonstrable ways.
We think about fast fashion and how the discourse around textile supply chains is actually now
washing on the shores of the very business model of matte garment and textile companies.
We see that in food and beverage where again it may just once have been a question of looking
at company supply chains but it's now challenging the notion of bottom of pyramid strategies
and the very product types and their compatibility with human rights in the context of global
non communicable disease epidemics.
And we also are now just beginning thankfully to have discussions about big tech, the monetisation
of our personal data and filtering as a negative influence on public discourse.
So here I think we see exactly the kind of mission creep that we would expect and want
to see in terms of the continuing evolution of business human rights discourse really getting
to the core of the issues.
And on this base I see grounds for hope and also that business human rights can be part
of the solution if it's not a complete solution.
Thank you.