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Business Responsibilities for Human Rights: A Commentary on Arnold

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Abstract

Human rights have come to play a prominent role in debates about the responsibilities of business. In the business ethics literature, there are two approaches to the question of whether businesses have human rights obligations. The ‘moral’ approach conceives of human rights as antecedently existing basic moral rights. The ‘institutional’ approach starts with contemporary human rights practice in which human rights refer to rights enumerated in the Universal Declaration of Human Rights and subsequent international documents, and in which states are the primary duty bearers of human rights. This commentary argues that the implications of adopting one or the other approach are much greater than most scholars recognize, and that we have reason to reject the moral approach and to adopt the institutional approach instead. The commentary highlights key questions that need to be addressed if human rights are to play a central role in framing the responsibilities of business.

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E-mail: nhsieh@hbs.edu. For helpful questions, comments and suggestions, I thank Gerard Vong, Florian Wettstein, and members of the Economics Ethics Network at whose conference a draft of this article was presented. I owe a special debt of gratitude to Victor Wu for research assistance and many fruitful discussions. Harvard Business School provided support for this research, for which I am grateful. All errors remain my own.

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1 For a helpful overview of the engagement of business ethics scholarship around human rights, see Brenkert George, ‘Business Ethics and Human Rights’ (2016) 1:2 Business and Human Rights Journal 277 . For an analysis of the disconnect between the literature on corporate social responsibility (CSR) and the ‘business and human rights debate’, see Wettstein Florian, ‘CSR and the Debate on Business and Human Rights: Bridging the Great Divide’ (2012) 22:4 Business Ethics Quarterly 739 .

2 Arnold Denis, ‘Corporations and Human Rights Obligations’ (2016) 1:2 Business and Human Rights Journal 255 . The original article of mine that Arnold criticizes is Hsieh Nien-hê, ‘Should Business Have Human Rights Obligations?’ (2015) 14:2 Journal of Human Rights 218 . In that article, I use the term ‘multinational enterprises’ or ‘MNEs’ and extend the argument to for-profit business enterprises more generally. Following Christopher Bartlett and Sumantra Ghoshal, Arnold uses the term ‘transnational corporation’ to encompass ‘multinational companies’ (companies with a ‘decentralized governance structure with self-sufficient companies cooperating in host nations’), ‘global companies’ (companies with ‘centralized governance of a parent company operating from a home nation’), and ‘international companies’ (companies characterized by a combination of centralized and decentralized core competencies’). See Bartlett Christopher and Ghoshal Sumantra, Managing across Borders: The Transnational Solution, 2nd edition (Boston: Harvard Business School Press, 2002).To avoid confusion, I will use the term ‘transnational corporation’ or ‘TNC’ when referencing my own argument. This does not affect the nature of my initial argument as the account was meant to extend to all for-profit business enterprises.

3 Arnold , note 3, 275 .

4 Ibid; emphasis in original.

5 For Arnold, ‘there are compelling reasons to believe that TNCs have agentically grounded moral obligations to respect basic human rights and that there are also sound social contract-based reasons for concluding that businesses have human rights obligations’. Arnold , note 3, 275 .

6 For an earlier account of Arnold in which he defends the agentic conception of human rights, see Arnold Denis G., ‘Transnational Corporations and the Duty to Respect Basic Human Rights’ (2010) 20:3 Business Ethics Quarterly 371399 ; Arnold Denis G., ‘Global Justice and International Business’ (2013) 32:1 Business Ethics Quarterly 125143 ; Arnold Denis G. and Valentin Andrew, ‘CSR at the Base of the Pyramid: Exploitation, Empowerment, and Poverty Alleviation’ (2013) 66:10 Journal of Business Research 19041914 .

7 Arnold , note 3, 264 .

8 These include The International Covenant on Civil and Political Rights; The International Covenant on Economic, Social, and Cultural Rights; and The Genocide Convention.

9 Buchanan Allen, The Heart of Human Rights (New York: Oxford University Press, 2013) 14 .

10 This distinction parallels the debate in philosophy and law about the nature of human rights. For a helpful overview, see Cruft Rowan, Liao S. Matthew and Renzo Massimo, ‘The Philosophical Foundations of Human Rights: An Overview’ in Rowan Cruft, S. Matthew Liao and Massimo Renzo (eds.), Philosophical Foundations of Human Rights (Oxford: Oxford University Press, 2015) 1 .

11 Hsieh Nien-hê, ‘Multinational Enterprises and Incomplete Institutions: The Demandingness of Minimum Moral Standards’ in Michael Boylan (ed.), Business Ethics, 2nd edition (Hoboken: John Wiley and Sons, 2013) 409 . Hsieh Nien-hê, ‘Multinational Corporations, Global Justice and Corporate Responsibility: A Question of Purpose’ (2013) 23:111 Politeia 129147 . Hsieh Nien-hê, ‘The Responsibilities and Role of Business in Relation to SocietyBusiness Ethics Quarterly ( forthcoming).

12 Buchanan , note 10.

13 The Universal Declaration of Human Rights; The International Covenant on Civil and Political Rights; The International Covenant on Economic, Social, and Cultural Rights; and The Genocide Convention.

14 Nickel James, ‘Human Rights’, The Stanford Encyclopedia of Philosophy (Spring 2014 edition), Edward N. Zalta (ed.), http://plato.stanford.edu/archives/spr2014/entries/rights-human/ (accessed 3 November 2014).

15 This is the not case for the United Nations ‘Protect, Respect and Remedy’ Framework developed through the work of John Ruggie. In his account of developing the framework, Ruggie makes clear the framework needs to encompass all rights and not only ‘an arbitrary subset’. See Ruggie John, Just Business (New York: W.W. Norton, 2013), 79 .

16 Arnold , note 3, 264 .

17 Hsieh , note 3, 219 .

18 See Popova Alexandra, ‘Business and Human Rights after Ruggie’s Mandate’ in Jean Martin and Karen Bravo (eds.), The Business and Human Rights Landscape: Moving Forward, Looking Back (Cambridge: Cambridge University Press, 2016) 106 . Arnold writes, ‘Hsieh’s position is inconsistent with that of Buchanan, whose conclusions regarding the current international legal human rights system include the idea that, “In principle, there appears to be no barrier to modifying the system of international legal human rights” to hold “non-state actors such as global corporations” legally accountable for human rights duties articulated in the Guiding Principles’. See

Arnold , note 3, 274 .Depending on the nature of the obligations, my account is consistent with making them legally binding. It also should be noted that new negotiations for such a treaty are currently ongoing at the United Nations, and that an open-ended working group has been established for his purpose. I thank Florian Wettstein for calling my attention to this.

19 Raz Joseph, ‘Human Rights without Foundations’. In Samantha Besson and John Tasiouls (eds.), The Philosophy of International Law (Oxford: Oxford University Press, 2010) 321, 327 .

20 Gewirth Alan, Human Rights: Essays on Justifications and Applications (Chicago: University of Chicago Press, 1982) and Griffin James, On Human Rights (Oxford: Oxford University Press, 2008). The approach I adopt in my original account and develop in this commentary is also consistent with Besson Samantha, ‘The Bearers of Human Rights Duties and Responsibilities for Human Rights: A Quiet (R)Evolution’ (2015) 32:1 Social Philosophy and Policy 244 .

21 Buchanan , note 10, 30 .

22 Ibid, 29–30.

23 Ibid, 30.

24 Hsieh , note 3, 225 .

25 Ibid, 226.

26 Arnold , note 3, 272 . He writes, ‘On this interpretation firms should be free to discriminate in hiring based on race, sex, or caste, they should be free to discriminate against women by paying men more than women for equal work, and they should be free to discriminate against the poor by requiring them to work overtime to earn subsistence wages and by neglecting their health and safety at work’.

27 Arnold writes, ‘If this interpretation is correct, it is a puzzling criticism of corporate human rights obligations (both agentically grounded human rights obligations and obligations grounded in the work of the UN and the ILO). The Guiding Principles, for example, were carefully designed specifically to avoid confusion about the roles of corporations versus states in the promotion and protection of human rights. … There is no expectation that TNCs and other business enterprises take on a state-like role regarding human rights in the United Nations “Protect, Respect and Remedy” Framework’. He also writes, ‘even under such circumstances the expectation is not that TNCs ensure status equality for everyone, or even status equality for those directly impacted by their operations, but instead the expectation is that they meet a more limited scope of obligations’. Arnold , note 3, 273 .

28 Ibid, 274. Emphasis in original.

29 Hsieh , note 3, 227230 . As I write in the original account, ‘none of this is to deny responsibilities on the part of business enterprises and their managers in relation to human rights’, p. 230.

30 Hsieh Nien-hê, ‘Does Global Business Have a Responsibility to Promote Just Institutions?Business Ethics Quarterly 19:1 (2009) 251 .

31 Hsieh , note 31, Hsieh Nien-hêMultinational Enterprises and Corporate Responsibility: A Matter of Justice?’ in Michael Boylan (ed.), Morality and Global Justice: The Reader (Boulder: Westview Press, 2011) 185 ; Hsieh Nien-hê, ‘Multinational Enterprises and Incomplete Institutions: The Demandingness of Minimum Moral Standards’ in Michael Boylan (ed.), Business Ethics, 2nd edition (Hoboken: Wiley 2013) 409 ; Hsieh , note 12.

32 Arnold writes, for example, accounts of human rights grounded in considerations of human agency ‘provide an appropriately deep foundation for corporate human rights obligations, particularly when limited in scope to basic rights such as liberty, physical security, and subsistence’. Arnold , note 3, 264 .

33 The difference between ‘obligation’ and ‘responsibility’, for example, is not intended to capture the difference between a perfect and imperfect duty as it has by others. See, for example, Wettstein , note 1.

34 Hsieh , note 3, 228229 .

35 Arnold , note 3, 262 .

36 Raz , note 20, 328 .

37 Human Rights Council, ‘Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development. Protect, Respect and Remedy: a Framework for Business and Human Rights’, A/HRC/8/5 (7 April 2008). Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’, A/HRC/17/31 (21 March 2011).

38 Ruggie , note 16.

39 Besson , note 21, 254 . Here Besson draws on Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Clarendon Press, 1995), 215 .

40 The discussion in Hsieh , note 3, provides one way to justify rejection by John Ruggie of assigning to TNCs human rights obligations within their ‘sphere of influence’.

41 Besson , note 21, 254 .

42 Ibid.

43 Article 2 of the Universal Declaration of Human Rights states, ‘Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty’. Article 7 states, ‘All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination’.

44 At one level, this is similar to Robert Nozick’s point about the way in which to value the minimization of rights violations. Nozick Robert, Anarchy, State and Utopia (New York: Basic Books, 1974).

45 Hsieh , note 3, 226 .

46 Besson , note 21, 258 .

47 Onora O’Neill, for example, is one who takes seriously this question with respect to questions of human rights and justice. See O’Neill Onora, Justice Across Boundaries: Whose Obligations? (Cambridge: Cambridge University Press, 2016).

48 One account that argues for human rights obligations on the part of TNCs on grounds they are de facto authorities is Wettstein Florian, Multinational Corporations and Global Justice (Redwood City: Stanford University Press, 2009).

49 On attributing moral agency to corporations in relation to corporate responsibility, see Hsieh Nien-hê, ‘Corporate Moral Agency, Positive Duties, and Purpose’ in Eric Orts and N. Craig Smith (eds.), The Moral Responsibility of Firms (Oxford: Oxford University Press, forthcoming).

* E-mail: . For helpful questions, comments and suggestions, I thank Gerard Vong, Florian Wettstein, and members of the Economics Ethics Network at whose conference a draft of this article was presented. I owe a special debt of gratitude to Victor Wu for research assistance and many fruitful discussions. Harvard Business School provided support for this research, for which I am grateful. All errors remain my own.

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Business and Human Rights Journal
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