Law Profs Critique the UN Guiding Principles on Business and Human Rights
Two recent SSRN postings offer provocative critiques of the UN Guiding Principles on Business and Human Rights. First, Professor Tara J. Melish has posted, “Putting ‘Human Rights’ Back into the Guiding Principles on Business and Human Rights: Shifting Frames and Embedding Participation Rights.” The abstract follows:
Abstract:
This book contribution responds to an important and timely question: How, looking forward, can we take the U.N. Guiding Principles on Business and Human Rights (GPs) “beyond the end of the beginning,” ensuring that cumulative, step-by-step progress is in fact made in improving companies’ real-world and on-the-ground compliance with human rights standards? Finding the specific proposals made by the former SRSG John Ruggie, and largely echoed by the volume’s editors, wanting in this regard, the contribution recognizes the basis of those proposals as resting upon a highly inaccurate, but politically powerful, frame that has been widely promoted in international circles to defend the GPs and distance them from human rights NGOs. That frame serves not only to dramatically misrepresent the reasons human rights groups have been so uniformly critical of the GPs, but also, most consequentially, creates a cognitive frame that leads almost inevitably to proposed “intermediate pathways” forward that bear little relationship to the actual problems diagnosed. The piece argues that a new frame for situating international debate on the GPs is critically needed. Part I offers what the author sees as a far more accurate frame. Parts II and III then use this frame to rethink answers to the two key questions identified by the volume’s editors for constructively taking the GPs “beyond the end of the beginning”: How can “empowered civil society participation” effectively be incorporated into the GPs’ “dynamic logic”? And, what role, if any, does a human rights treaty instrument have to play?
Second, Karen Bravo of Indiana University School of Law posted the abstract for “Business and Human Rights, A Call for Labor Liberalization.” The abstract follows:
Abstract:
In the business and human rights agenda developed under the auspices of the United Nations, nowhere are human persons recognized as beings endowed with agency – the power to act on their own behalf. Instead, they are acted upon by state or corporate entities. This Chapter calls for the addition of labor liberalization to the United Nations’ business and human rights agenda. Labor liberalization is both an avenue for facilitating the agency of human persons, and a potential bridge between trade liberalization and human rights.
After a long drawn out and often contested process, under the auspices of the UN, the project of business and human rights has won the support of the major players – states, transnational corporate entities, and stakeholder NGOs. However, the work of Special Representative John Ruggie, resting on the pillars of state duty to protect, business’ responsibility to respect, and the provision of access to remedy by victims, maintains a view of labor, in its individual and collective capacity, as a passive object to be acted upon. Pursuant to this paradigm, labor rights implementation and protection spring from nationality and domicile, not simply from the existence and recognition of the human person.
A necessary precondition to the meaningful recognition, implementation, and enforcement of the reinvigorated business and human rights agenda is the synchronization of economic calculus with implementation of human rights obligations. This entails liberalization of labor from the nation state constraints to which it is subject. Labor is hindered in its ability to operate in the global sphere, with a consequent negative impact on its ability to engage fully in the transposition and enforcement of the labor rights espoused in the core internationally recognized human rights.
Global competition and collaboration between and among labor and capital are more likely sources of the implementation of a business and human (labor) rights agenda than is reliance on current global labor standards, and the protect, respect, and remedy framework. The liberalization of labor will allow human labor providers to compete and collaborate with capital on the global stage.