Erratum: Market Fundamentalisms: Business Ethics at the Altar of Human Rights (Human Rights Law Review (2005) vol. 5 (1) 10.1093/hrlrev/ngi001);Market fundamentalisms: Business ethics at the altar of human rights

Human Rights Law Review

Volumn 5, Issue 1, 2005, Pages 1-26

  Baxi, Upendra ^a  

^a UNIVERSITY OF WARWICK   (United Kingdom)

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EID: 23944513371     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngl018     Document Type: Erratum

References (82)

1. Baxi, The Future of Human Rights (New Delhi: Oxford University Press, 2002) at 153.
2. See Globalization and its Impact on the Full Enjoyment of Human Rights, 15 August 2001, E/CN.4/Sub.2/2000/13.
3. See the Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, 13 August 2003, E/CN.4/ Sub.2/2003/12/Rev.2 (2003); hereafter cited as 'Norms'. For the Commentary on the Norms, see E/CN/4/Sub.2/2003/38/Rev.2 (2003). The latter document refers to 'paragraphs' rather than 'Articles'; The provisions are here described as Articles. Further, all citations to the Norms are derived from the last document above.
4. See, for background analysis, Weissbrodt and Kruger, 'Norms on Responsibility of Transnational Corporations and Other Business Entities', (2003) 97 American Journal of International Law 901.
5. See also Muchlinski, Multinational Enterprises and the Law (Oxford: Blackwell, 1995) at 592-7 and the literature cited therein.
6. E/C.10/1984/S/5 (1984); (1984) 23 International Legal Materials 602.
7. At the University of Nottingham Annual Student Conference (March 2004) at which the author first presented this theme, Daniel Agulree (doctoral fellow, the Irish Centre of Human Rights, Galway) mentioned a warming instance of this trend: An Irish company was named and shamed, under the Norms, for its contribution to the construction of Israeli Wall in Palestine.
8. Already the Confederation of British Industries has begun the itinerary of lamentation over the baleful impact of the UN Norms on developing countries! See, for example, Guardian, 8 March 2004, the CBI statement in Guardian, 4 March 2004 and the Amnesty International response (in the Letters to Editor column) in Financial Times, 9 March 2004.
9. Stone, in Legal Systems and Lawyers Reasonings (Sydney: Maitland, 1964), described this as the salient item, in the judicial toolkit of common law interpretation, in the entire assemblage of the categories of 'illusory reference' (at 235).
10. Galtung's much ignored analysis remains decisive - see Galtung, Human Rights in another Key (Oxford: Blackwell, 1994). All this, in addition, points to the differences between corpus, genre and text in human rights instruments.
11. See, generally, the discussion in Baxi, supra n. 1. The Future of Human Rights (New Delhi: Oxford University Press, 2002) at 153.
12. This is intended to refer to the special vocabularies of contemporary international human rights norms and standards. Each landmark instrument develops its own semiotic ranges and somewhat specialised languages. The International Bill of Rights thus differentiates languages of implementation into regimes of instant obligations as well as 'progressive implementation'; the latter is a special dialect entailing various metaphors of obligations to respect, protect, and promote social, economic and cultural rights. The Convention on the Elimination of Discrimination Against Women 1979, to take another example, through General Comments and related reporting obligations, now embraces within the meaning of discrimination 'violence' against women. The author will not pursue this important theme here save to say that tasks of linguistic/paralinguistic and semiotic analysis of different dialects of human rights remain pressing.
13. A history of how the United Nations system selects experts for norm formulation is yet to be written, but when written it will expose the chance and circumstance, within scattered networked hegemonies, that define the system that brings only a certain 'class' of epistemic actors/ actants/figures to this task. Their sensitivity to suffering, as Douzinas devastatingly reminds us, may often be confined to the suffering induced by a bad wine! See Douzinas, The End of Human Rights (London: Hardt, 2002).
14. These include 18 treaties, 11 other multilateral instruments and guidelines under the United Nations, International Labour Organisation and related supranational auspices, 3 industry/commodity group initiatives, 6 union/trade initiatives, 13 'self-imposed company Codes' and 5 NGO Model Guidelines. Each of these, of course, harbours an infinite variety of complex and contradictory elements of articulatory practices. The author here invites critical engagement by the reader with this rather extensive perambulatory recital.
15. Incidentally, despite the internet explosion, not all archives remain co-equally available. For example, try tracking down the UN Draft Code of Conduct of Multinational Corporations, 1984; to obtain access to this requires difficult forms of access to pre-web literature, now, alas, an affair of the hoary academic past! So much then for the 'information society' global explosion of human rights knowledge!
16. See Baxi, 'The Politics of Reading Human Rights', in Çali and Meckled-Garcia (eds), Fin de Legalisation (London: Routledge, 2005) (forthcoming).
17. See Muchlinski, supra n. 4 at 57-89; Multinational Enterprises and the Law (Oxford: Blackwell, 1995) and the literature cited therein.
18. International Council for Human Rights, Beyond Voluntarism: Human Rights and Developing International Legal Obligations of Companies (Switzerland: Versoix, 2002) at 45-64;
19. and Baxi, 'Bringing Judas Back to the Last Supper: The Tasks of Republican Criminology in Service of Globalization', in Dhavan Sankardass (ed.), Prison and Punishment: Indian and International Perspectives (New Delhi: Sage, 2000) 261.
20. Article 23, Norms (emphasis added).
21. The third situation is where 'the activities of a business enterprise involve violations as indicated in paragraphs 3 and 4'. Article 21, Norms (emphasis added).
22. See Weissbrodt and Kruger, supra n. 4 at 910. 'Norms on Responsibility of Transnational Corporations and Other Business Entities' (2003) 97 American Journal of International Law 901.
23. Already the strict application of environmental standards leading to the closure of small businesses because of their propensity for pollution in many parts of the Global South has led to a critique of social and human rights activism by its supposed beneficiaries. In the author's own activist lifetime, when securing a Gujarat High Court order ensuring strict enforcement of the ameliorative Indian legislation protecting rights of contract workers, the contractors retaliated by putting people out of jobs and hiring workers only too eager to fill their shoes. The ousted workers then, in distressingly large numbers, turned up at the author's doorstep asking for suitable employment! However, the author soon realised that his best, as a non-governmental individual, was far from good enough to counter the 'job blackmail' by powerful contractors. This dilemma is also acute, even for well-resourced NGOs, who may assert the human rights of migrant and unorganised (the more accurate expression is 'disorganised') workers. Further, the increasingly stringent environmental protection standards, especially by the apex courts charged with the enforcement of fundamental human rights, have presented acute dilemmas when business closure stands ordered in ways that protect the rights to environment but only with the real life consequence/impact that results in the deprivation of the human right to earn a livelihood.
24. United Nations Industrial Development Organisation, Corporate Social Responsibility: Implications for Small and Medium Enterprises in Developing Countries (Vienna: UNIDO, 2002). Of course, the United Nations Industrial Development Organisation, while presenting it, does not entirely endorse this position.
25. For example, this raises difficult questions concerning the compatibility of the proposed EU Constitution with the Norms.
26. Indeed, to translate is always to transgress, a point that the author may not (for reasons of space) pursue here, save to say that many human languages and dialects often lack semiotic equivalents, even across the working languages adopted by the United Nations.
27. There exists, as yet, no discipline that may be named human rights economics.
28. The current controversy concerning the 'post-war' award of contracts to favoured American corporations in post-conflict Iraq raises acute questions not wholly anticipated by the authors of the Norms.
29. See, generally, Clapham, 'State Responsibility, Corporate Responsibility, and Complicity in Human Rights Violations', in Bomann-Larsen and Wiggen (eds), Responsibility in World Business: Managing Harmful Side-effects of Corporate Activity (Tokyo: United Nations University Press, 2004) 50;
30. and Ramasatry, 'Corporate Complicity: From Nuremberg to Rangoon ...', (2002) 20 Berkeley Journal of International Law 91. Assuming that such impermissible benefits result, what duties of reparation then follow? How may these duties effectively restitute those violated? How may we design national, supranational and global structures to remedy these forms of human violation? Put another way, how may we locate this obligation within Beitz's and Pogge's imaginatively crafted notions of global distributive justice conceptions?
31. See Beitz, Political Theory and International Relations (Princeton: Princeton University Press, 1997)
32. and Pogge, World Poverty: Cosmopolitan Responsibilities and Reforms (Oxford: Blackwell, 2002).
33. See Baxi, supra n. 1 at 132-88.
34. Ibid. at 119-32.
35. Rawls, The Law of Peoples (Cambridge, MA/London: Harvard University Press, 1999).
36. Much here depends not just on the 'search for moral universals' for business but on the felt necessity to limit the extension of norms to 'only certain types of corporations and contexts'; see, Dunfee and Fort, 'Corporate Hypergoals, Sustainable Peace and the Adapted Firm', (2003) 36 Vanderbilt Journal of Transnational Law 563 at 567.
37. See also Dunfee, 'Challenges to Corporate Governance', (1999) 62 Law and Contemporary Problems 129.
38. Already, the Norms deftly advance moral/human rights sentiments in the arenas of consumer and environmental rights in Articles 13 and 14.
39. See, for example, Donaldson, The Ethics of International Business (Oxford: Oxford University Press, 1989), who argues that few basic human rights responsibilities may extend to multinational corporations.
40. Much of course depends on methods of computation; on my count the Commentary provides for more than 105 specific obligations!
41. Concerning this, see Baxi, supra n. 15.
42. On this register, curiously and poignantly, the various transition times prescribed by the World Trade Organisation agreements provide a good enough model for planning transition for progressive implementation of corporate and business human rights responsibilities. These entities may not, however, be justifiably heard to say that such extended periods are inherently unrealistic.
43. GA Res. 58/4, 31 October 2003, A/RES/58/4; (2004) 43 International Legal Materials 37.
44. Decision Assembly/AY/Dec.22 (II), 11 July 2003; (2004) 43 International Legal Materials 5; 12 IHRR 595 (2005).
45. See, Odinkalu, 'Human Rights Mechanisms in Africa: Recent Developments in their Norms, Institutions and Jurisprudence', (2003) 3 Human Rights Law Review 105 at 110-2.
46. See Hellman, Jones and Kaufman, 'Size the State, Seize the Day: State Capture, Corruption and Influence in Transition', World Bank Policy ResearchWorking Paper No. 2444 (2000).
47. See also, Baxi, Liberty and Corruption: The Antulay Case and Beyond (Lucknow: Eastern Book Company, 1990) for a similar typology.
48. This must of course refer to small-scale other business enterprises.
49. Elaborately defined in Article 22 of the Norms.
50. Donaldson, supra n. 31 at 44-64.
51. See Friedman, 'The Social Responsibility of Business is to Increase its Profits', New York Times, 13 September 1970;
52. and Johnson, 'Freedom and Philanthropy: An Interview with Milton Friedman', (1989) 71 Business and Society Law Review 11.
53. Dunfee and Fort, supra n. 29 at 567.
54. The author derives this felicitous range of illustrations from Dunfee, supra n. 29 at 132 (parentheses in the original removed).
55. See the path-breaking work of Gauthier, Morals by Agreement (Oxford: Oxford University Press, 1986).
56. Donaldson and Dunfee, Ties that Bind: A Social Contract Approach to Business Ethics (Cambridge, MA: Harvard University Press, 1999).
57. Students of Ehrlich will readily understand this 'unfoldment' as instancing what he memorably called the law arising out of the 'inner order of associations'. Students of Walzer may grasp this in terms of some sort of 'spheres of justice' argument: Human rights or justice values, standards and norms entirely appropriate to the public spheres of governance/state conduct may thus become inappropriate impositions in the sphere of trade, commerce and business. Worse still, these may also prove counterproductive.
58. One may of course argue, following Fraser (see Fraser, 'Social Justice in the Age of Identity Politics', in Fraser and Honneth, Redistribution or Recognition? A Political-Philosophical Exchange (London: Verso, 2003) at 34-7), 'against reductionism' and for 'perspectival dualism' in ways that suggest that governance/state conduct and markets may thus not be regarded as separate autonomic spheres but rather as sites of complex and interlocking intersections, each heavily, and historically, permeating the other. The author suspects that this provides the best bet there is for any worthwhile grounding of the Norms, which is not pursued further here for reasons of space.
59. Zadek, The Civil Corporation: The New Economy of Corporate Citizenship (London: Earthscan, 2001).
60. Cited in UNIDO, supra n. 20.
61. Wiggen and Bomann-Larsen, 'Towards Improved Business Practices: Implementing the Principles of Double Effect', in Bomann-Larsen and Wiggen (eds), Responsibility in World Business: Managing Harmful Side-Effects of Corporate Activity (Tokyo: United Nations University Press, 2004) 273.
62. In ways that bring to mind Rowell's analysis (see Rowell, Green Backlash: Global Subversion of the Environmental Movement (London: Routledge, 1996)) and equally trenchant activist critiques.
63. See, for example, Ridgeway and St Claire, A Pocket Guide to Environmental Bad Guys (and a Few Ideas on How to Stop Them) (New York: Thunder's Mouth Press, 1998) and of course the luminous discourse of Klein (for example, Klein, No Logo (London: Flamingo, 2000)
64. and Klein, Fences and Windows: Dispatches from the Frontlines of the Globalization Debate (New Delhi: Leftword, 2002)).
65. See also Zammit, Development at Risk: Rethinking Un-Business Partnerships (Geneva: UNRISD, 2003).
66. It should be added that the author's description of these three generations does not do full justice to Zadek's superb analysis, supra n. 48.
67. Braithwaite and Drahos, Global Business Regulation (Cambridge: Cambridge University Press, 2000).
68. The UNIDO narrative bristles, understandably, with programmatic confidence. Of course, considerable real life work needs to be done to carry the CSR languages to microsites of business and industry and the narrative provides an account of some success stories that we may not ignore.
69. See, for example, the analysis of various approaches of 'wealth maximisation' in Mercuro and Medema, Economics and the Law: From Posner to Postmodernism (Princeton: Princeton University Press, 1997).
70. See Garcia, 'Building a Just Trade Order for the New Millennium', (2001) 33 George Washington International Review 1015 at 1022.
71. See, for this notion, Garcia, ibid.
72. See Pogge, supra n. 25,
73. and Baxi, 'The "Just-War" for Profit and Power: The Bhopal Catastrophe and the Principle of Double Effect', in Bomann-Larsen and Wiggen (eds),supra n. 50, 175.
74. See Rawls, supra n. 28 at 35-9 and 59-88. Corporate and business entities do not feature in his enunciation of eight principles of the lawof peoples applicable to five types of societies, nor as any constitutive feature of the latter.
75. On this aspect see Baxi, ibid. Of course, Rawls remains concerned with public corruption as an aspect of 'background culture, with the great wealth being in control of economic power'. He acutely asks: 'Is it any wonder that congressional legislation is, in effect, written by lobbyists, and the Congress becomes a bargaining chamber where laws are bought and sold?' (24 at n. 19).
76. Ways of reading Rawls, superbly exemplified by Pogge, supra n. 25, yield diametrically opposed conclusions. Even so, the place of human rights responsibilities of big and small business enterprises, including transnationals, remains ambivalent in this corpus.
77. The former refers to relative autonomous self-regulation of trade and business; the latter signifies a real life, and variegated, recourse to a rather parsimonious assemblage of moral/ethical guidelines; 'the fewer the better' remains the somewhat normative approach, guided perhaps by the difficult Hegelian theme of quality converting itself eventually into quantity.
78. Dunfee, supra n. 29 at 146.
79. Ibid. at 145.
80. Ibid. at 146.
81. See Dunfee and Fort, supra n. 29.
82. Reference here is made to a recent contribution of political philosopher Morris Young, 'Responsibility for Global Labour Justice', (2004) 12 The Journal of Political Philosophy 365, where she, in the main and in the context of justification for anti-sweatshop activist human rights movements, rightly advocates movement from the liability-based 'blame model of responsibility' to a 'shared political responsibility model', in which the following moral passages remain pre-eminent. First, in this model of political responsibility (as distinguished from the conventional civil/criminal legal liability regimes) we accept 'a responsibility for what we have not done' simply because many 'cases of harms, wrongs or injustice have no isolable perpetrator, but rather result from the participation of millions of people in institutions and practices that result in harms' (at 377). Second, the conception of political responsibility is one in which 'finding that some people bear responsibility for injustice does not necessarily absolve others' (at 377). Third, such a conception renders problematic, in ways that the legal liability approach may not, some of 'the normal and accepted background conditions of action' (at 378). Fourth, the entire point of the shared political responsibility model is 'to bring about results' rather than to apportion blame and shame, precisely because these latter mechanisms trigger moral avoidance of shared responsibility. Fifth, at the end of the day, the shared political responsibility model 'involves coordination with others to achieve ... change' (at 387) because it is 'more forward-looking than backward-looking' (at 388.) Sixth, overall, Young maintains that the concept of shared political responsibility remains 'generalizable and applies to any structural injustice' (at 388) precisely because contemporary economic globalisation signifies an immense order of ethical interconnectedness. It remains important to stress, in the present context, that advocacy of this approach does not altogether supplant the legal liability (both civil and criminal) approach. Young, the author suspects, would therefore welcome the proposed UN Norms; and indeed read, in the light of her analysis, that the Norms may even be said to implicitly advance the model of shared political responsibility. Even so, the question remains: Does accentuated emphasis on reform/ innovation of the legal liability model carry any adverse potential for the shared political responsibility model? Put another way, how best may we approach an understanding of the complementarities of both approaches? Space constraints forbid further analysis of this aspect. It is also true that the shared political responsibility approach offers a more rounded ethical language than do the fractured languages of 'corporate citizenship' or CSR. Yet it is not fully clear, given Young's distinctive emphases concerning collective moral agency of all globalised human beings and entities to work together to produce just results in the future, how all this may render the CEOs of multinational corporations, the leaders of G8, as well as the generals and foot soldiers of international and regional financial institutions, close cousins, or even ethical near-clones, of human rights activists.