DISCUSSION OF BUSINESS AND HUMAN RIGHTS

DISCUSSION OF BUSINESS AND HUMAN RIGHTS from an expUcitly ethicalperspective has a unique history. Prior to the last decade of the last century, it was rarely discussed or examined. This might at first glance seem rather surprising. The idea of human rights has been the subject of intense inquiry and debate now since the renaissance and on some accounts before (Lloyd 1991, Lee and Lee 2010). The pursuit of human rights has motivated revolutions, for example the American and French revolutions. Debates about their ethical, political and legal status and foundations have played a central role in academic and political discourse since the Enlightenment. In the twentieth century, the practical political challenges of embed- ding human rights in intemational law have dominated the agendas of emerging intemational institutions like the United Nations, particularly since the end of the Second World War. In contrast, the first discussion of business and human rights in intemational institutions can be traced back only to the 1980s with the draft UN Code of Conduct on Transnational Corporations (United Nations 1984). Even with this UN initiative, significant academic attention to the topic was ignited only in the early to mid-1990s (an important early work is Donaldson 1991). Surprising as this late emergence of the subject might seem, the reasons are not hard to find. Until late in the last century, it was conventional wisdom that the responsibility for protecting and advancing and etihancing respect for human rights lay with govem- ment (Ruggie 2006 and 2007). On this view, the only human rights responsibilities of the private business sector were indirect legal responsibilities. It was only in the 1990s that doubts about the efficacy of this allocation of responsibilities began to gain widespread attention, driven, it is widely agreed, by the phenomenon of glo- balization (Chandler 2003, Ruggie 2006, Kobrin 2009, Cragg 2010, Lee and Lee

©2012 Business Ethics Quarterly 22:1 (January 2012); ISSN 1052-150X pp. 1-7

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2010). By extending the economic importance and reach particularly of multinational corporations, a process encotiraged and facilitated by national and intemational laws and treaties limiting in significant ways the capacity of governments to control the movement of goods based, for example, on the conditions under which they were produced, globalization gave rise to serious questions about both the ability and the willingness of national govemments to fulfil their human rights responsibilities.

As Geoffrey Chandler points out (2003), the first red flags were raised by NGOs like Amnesty Intemational in 1991. However, the real catalyst for change was “the arbitrary execution of Ken Saro-Wiwa and eight other Ogonis” by the Nigerian Govemment in November 1995 (Chandler 2003), an event whose character and impact are explored in this volume of essays by Florian Wettstein (2012). It was subsequent to this event that human rights commitments began to appear in the voluntary ethics codes of major multinational corporations and industry associa- tions encouraged by govemment exhortations and pressed by NGOs increasingly determined to hold corporations with intemational business interests to account for human rights abuses.

An early sign that significant shifts in views about the allocation of human rights responsibilities between the public and private sectors were under way occurred in 1998 when the United Nations Sub-Commission for the Promotion and Protection of Human Rights established a sessional working group to study and report on hu- man rights and business. What followed in 2003 was a report entitled “Norms on the Responsibilities of Transnational and Other Business Enterprises with Regard to Human Rights.” At the core of the report was the proposal that transnational corporations and other business entities should be brought directly under the am- bit of intemational human rights law, humanitarian law, intemational labor law, environmental law, anti-corruption law and consumer protection law (Hillmanns 2003: 1070). That is to say, the report was calling for a dramatic shift away from the prevailing conventions and assumptions allocating the fundamental responsi- bility for protecting and promoting human rights to the State. Not surprisingly, the report aroused strident opposition on the part of a significant section of the business community and govemments (Amold 2010). While the report was never formerly endorsed by the UN, it did have two significant impacts. First, it resulted in a se- ries of recommendations that eventually led the UN Secretary General to appoint, in 2005, a special representative, John Ruggie, to take up the issue of the human rights responsibilities of transnational corporations and other business enterprises. Its second significant impact was to bring into sharp relief three key questions: Was it appropriate to bring corporations under the ambit of intemational law heretofore focused on nation states and to a lesser degree on individuals? Did corporations have human rights responsibilities beyond those set out by law whether domestic or intemational? If the human rights responsibilities of corporations did extend beyond those required by law, what exactly was the nature of those responsibilities?