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Addressing the compliance gap? UN initiatives to benchmark the human rights performance of states and corporations

  • JAMES HARRISON and SHARIFAH SEKALALA
Abstract

This article examines under what conditions benchmarking and associated measurement initiatives produced by UN human rights actors could, and should, play a role in promoting compliance with international human rights norms. It is organised around a comparative analysis of UN benchmarking initiatives for states and corporations. With regard to states, the article argues that ideological misgivings and technical limitations have so far triumphed over aspirations that indicators and benchmarks might play a significant role in increasing compliance with international human rights norms. With regard to corporations, we find that measuring human rights performance has been framed by the recent UN Guiding Principles on Business and Human Rights using a much more expansive and less quantitative set of benchmarks. These latter benchmarks do not appear to be creating conditions under which the human rights performance of corporations is effectively interrogated, and as a result there is a danger of superficial legitimation. Comparative analysis of these two initiatives reveals some of the tensions inherent in utilising benchmarking in transnational efforts to achieve human rights compliance. It also allows us to contribute to broader debates about the quantification of performance and its potential and limitations as a tool of global governance.

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1 Finnemore, Martha and Sikkink, Kathryn, International Norm Dynamics and Political Change, International Dynamics and Political Change (Cambridge: MIT Press, 1998).

2 Risse, Thomas, Ropp, Stephen C., and Sikkink, Kathryn, The Persistent Power of Human Rights (Cambridge: Cambridge University Press, 2013). This can be compared with the approach taken in Risse, , Ropp, , and Sikkink, , The Power of Human Rights: International Norms and Domestic Change (Cambridge: Cambridge University Press, 1999).

3 Risse, et al., The Persistent Power of Human Rights, p. 10.

4 See, for example, Haffner-Burton, Emilie, Making Human Rights a Reality (Princeton: Princeton University Press, 2013), ch. 5; and Risse et al., The Persistent Power of Human Rights, chs 2 and 3 for a review of other key articles.

5 See, for example, Haffner-Burton, Emilie, ‘Sticks and stones: Naming and shaming the human rights enforcement problem’, International Organisation, 62:4 (2008), pp. 689716.

6 See, for example, Simmons, Beth A., Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge: Cambridge University Press, 2009); Fariss, Christopher, ‘Respect for human rights has improved over time: Modelling the changing standard of accountability’, American Political Science Review, 108:2 (2014).

7 Risse, et al., The Persistent Power of Human Rights, p. 278.

8 Dai, Xinyaun, ‘Orchestrating monitoring: the optimal adaptation of international organisations’, in Abott et al. (eds), International Organisations as Orchestrators (Cambridge, Cambridge University Press, 2015), p. 142.

9 See, for example, Dai, Xinyaun, ‘The “compliance gap” and the efficacy of international human rights institutions’, in Risse et al., The Persistent Power of Human Rights, p. 98; Haffner-Burton, Making Human Rights a Reality, ch. 5.

10 Barnett, Michael and Finnemore, Martha, Rules for the World: International Organizations in Global Politics (New York: Cornell University Press 2004), pp. 56.

11 Haffner-Burton, , Making Human Rights a Reality, p. 78.

12 Karp, David Jason, ‘The location of international human rights practices: What is human rights practice?’, Review of International Studies, 39:4 (2013), pp. 969992.

13 Risse, et al., The Persistent Power of Human Rights, p. 238.

14 Haffner-Burton, , Making Human Rights a Reality, p. 84.

15 Ibid.

16 Risse, et al., The Persistent Power of Human Rights, pp. 277278

17 Broome, André and Quirk, Joel, ‘Governing the world at a distance: the practice of global benchmarking’, Review of International Studies, 41:5 (2015), pp. 819841.

18 Rosga, Ann Janette and Satterthwaite, Margaret L., ‘The trust in indicators: Measuring human rights’, Berkeley Journal of International Law, 27:2 (2009), pp. 253315.

19 Leckie, Scott, ‘Another step towards indivisibility: Identifying the key features of violations of economic social and cultural rights’, Human Rights Quarterly, 20:1 (1998), pp. 81124.

20 UN Special Rapporteur Danilo Tὒrk, ‘Realisation of Economic Social, and Cultural Rights’, Progress Report UN Doc. E/CN.4/Sub.2/1990/19 (1990).

21 Rosga, Ann Janette and Satterthwaite, Margaret L., ‘Measuring human rights: UN indicators in critical perspective’, in K. Davis, A. Fisher, B. Kingsbury, and S. Engle Merry (eds), Governance by Indicators: Global Power through Quantification and Rankings (Oxford: Oxford University Press, 2013), p.299. See also Committee on Economic, Social and Cultural Rights, ‘General Comment No.1; Reporting by States Parties’, UN Doc. E/1989/22, annex III (1989), p. 87 requesting states to develop their own benchmarks at para. 6.

22 For a more detailed exposition of the roles of the Treaty Monitoring Bodies, their strengths and weaknesses and proposals for reform, see O’Flaherty, Michael, ‘Reform of the UN human rights treaty body system: Locating the Dublin statement’, Human Rights Law Review, 10:2 (2010), pp. 319335.

23 Committee on Economic, Social and Cultural Rights, ‘General Comment No. 14’, para. 52.

24 See United Nations Office of the High Commissioner for Human Rights (OHCHR), ‘Report of the Chairpersons of the Human Rights Treaty Bodies on their Seventeenth Meeting’, UN Doc. A/60/278 (2005); see also OHCHR, ‘Report on Indicators for Monitoring Compliance with International Human Rights Instruments’, UN Doc. HRI/MC/2006/7 (2006).

25 OHCHR, ‘Report on Indicators for Promoting and Monitoring the Implementation of Human Rights’, UN Doc. HRI/MC/2008/3 (2008).

26 OHCHR, ‘Human Rights Indicators: A Guide to Measurement and Implementation’, UN Doc. HR/PUB/12/5 (2012), p. 4.

27 These indicators are all taken from OHCHR, ‘Human Rights Indicators’, p. 34.

28 Ibid., p. 44.

29 Ibid., p. 29

30 Ibid., p. 26.

31 Ibid., p. 26.

32 Rosga, and Satterthwaite, , ‘Measuring Human Rights’, p. 299.

33 Alston, Philip, ‘Richard Lillich Memorial Lecture: Promoting the accountability of members of the new UN human rights council’, Journal of Transnational Law and Policy, 15 (2005), pp. 4996.

34 OHCHR, ‘Human Rights Indicators’, pp. 85–6 and 103.

35 UN Secretariat, ‘Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body’, UN Doc. HRI/MC/2006/2 (22 March 2006). See also Risse, Ropp, and Sikkink, The Persistent Power of Human Rights, for recognition of the need for capacity-building in order to achieve human rights compliance.

36 OHCHR, ‘Human Rights Indicators’. This issue also raises the question of whether this would be an acceptable use of resources for an already-stretched human rights community. See Engle, S. M., ‘Measuring the world: Indicators, human rights, and global governance’, Current Anthropology, 52:3 (2011), pp. 8395. On the question of resources, see Carr Centre Project Report, ‘Measuring Human Rights: Tracking Progress, Assessing Impact’ (2005), available at: {http://www. hks.harvard.edu/cchrp/pdf/Measurement_2005Report.pdf} accessed 28 June 2014, p. 26.

37 OHCHR, ‘Human Rights Indicators’, p. 30. Making a similar point, see Goldstein, R. J., ‘The limitations of using quantitative data in studying human rights abuses’, in Thomas B. Jabine and Richard P. Claude (eds), Human Rights and Statistics: Getting the Record Straight (Philadelphia: University of Pennsylvania Press, 1992), p.40.

38 OHCHR, ‘Human Rights Indicators’, p. 30.

39 Ibid., p. 104.

40 See OHCHR Treaty Bodies Database, available at: {http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en}.

41 OHCHR ‘Human Rights Indicators’, p. 90f.

44 Angola’s state report (2008) was the only report submitted post-2006 which did not have a section on the right to social security, right to work and right to education. However in its most recent report in 2014 it reported on all four rights. There were also three state reports – Burundi (2013), Rwanda (2007) and Morocco (2013) – that were inaccessible.

45 Egypt’s 2010 report does include reference to the number of beneficiaries who received social security. CESCR, E.C.12.EGY.2-4 (22 December 2001).

46 In relation to the right to education, the most frequently utilised indicators were illiteracy among people over 15 years; gender balance of the illiteracy rate; gross enrolment ratio for primary school education; gender balance of school enrolment and performance rates in general education. In relation to the right to health, the most frequently utilised indicators were the infant and child mortality rate; maternal mortality rate; percentage of deliveries attended by qualified staff; percentage of pregnant women who attend one antenatal appointment; and rate of prevalence of HIV and AIDS.

47 Democratic Republic of Congo Report, E/C.12/COD/CO/4 (16 December 2009).

48 Benin. Concluding observations of the CESCR, CESCR, E.C12/BEN/CO//2 (9 June 2008) p. 2.

49 CSS reports were received for Angola, Benin, Cameroon, DRC, Djibouti, Egypt, Ethiopia, Gabon, Gambia, Kenya, Mauritania, Rwanda, and Togo. Available from the OHCHR database at: {http://www.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=5}. The engagement of civil society is likely to have been much greater, as they will also have given oral evidence during the reporting process.

50 Coalition PIDESC-Togo, ‘Rapport de la coalition DESC-Togo sur différentes préoccupations des populations relatives aux droits reconnus par le PIDESC’ (March 2013), available at: {http:www.ohchr.org/Treaties/CESCR/Shared%20Documents/TGO/INT_CESCR_NGO_TGO_13556_F.pdf}.

51 OHCHR, ‘Human Rights Indicators’, p. 55.

52 Kenya, in its periodic report to CESCR, asserted that the stipulation of the 2001 Children’s Act that no child shall be discriminated against on the basis of sex was evidence of its action in this area. But the report submitted by the Ipas Alliance utilised a variety of OHCHR indicators and other statistical data to challenge this assertion. This included data showing that up to 60 per cent of sexual offences were occurring against people younger than twenty years, and on the basis of a school-based study of 1,000 public secondary-school students in Nairobi, 40 per cent of sexually experienced secondary school girls reported that their first sexual contacts were unwanted. See Re: Supplementary information on the Kenya Government Report, scheduled for review by the Committee during its 41st session (3–21 November 2008), available at: {http://www.ohchr.org/Treaties/CESCR/Shared%20Documents/KEN/INT_CESCR_NGO_KEN_41_9388_E.pdf}.

53 Kenya. Concluding report, E.C.12/KEN/CO/1 paras 14, 15, 22.

54 For instance, the Centre for Economic and Social Rights for instance uses these concluding observations to create fact sheets for countries in order to create wider awareness about areas where socioeconomic rights are being abused.

55 André Broome and Joel Quirk, ‘Governing the world at a distance’.

56 Ibid., fn. 58.

57 See, for example, Gaer, Felice D., ‘Implementing international human rights norms: UN human rights treaty bodies and NGOs’, Journal of Human Rights, 2:3 (2003), pp. 339357. Analogous arguments are made about the role of NGOs in relation to other global governance initiatives. See, for example, van Zyl, Albert, ‘How civil society organizations close the accountability gap between transparency and accountability’, Governance, 27:2 (2014), pp. 347356.

58 Lynch, Philip and Schokman, Ben, ‘Taking human rights from the grassroots to Geneva … and back: Strengthening the relationship between UN treaty bodies and the NGOs’, in M. C. Bassiouni and W. Schabas (eds), New Challenges for the UN Treaty Body System and the Human Rights Council Procedures? (Cambridge: Intersentia, 2011), p.175.

59 See Harrison, James, ‘Human rights and trans-national corporations: Establishing meaningful obligations’, in Julio Faundez and Celine Tan (eds), International Economic Law, Globalisation and Developing Countries (Cheltenham: Edward Elgar, 2010).

60 Human Rights Council. ‘Council Holds Dialogue with Experts on Summary Executions, Independence of Judges and Lawyers, Transnational Corporations’ (30 May 2011), available from: {http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11082&LangID=E} accessed 22 May 2015.

61 United Nations News Centre, ‘UN Human Rights Council Endorses Principles to Ensure Businesses Respect Human Rights’ (2011), available at: {http://www.un.org/apps/news/story.asp?NewsID=38742#.VV3IavNwYdU} accessed 22 May 2015.

62 Ruggie, John G., ‘Progress in Corporate Accountability’, Institute for Business and Human Rights (2013), available at: {http://www.ihrb.org/} accessed 25 April 2015. See also Ruggie, John G., Just Business: Multinational Corporations and Human Rights (New York, London: W. W. Norton & Company, 2013), p.127, in which he again describes the UN Guiding Principles as a ‘set of authoritative benchmarks’.

63 United Nations Working Group on Business and Human Rights, ‘Report of the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises’, UN Doc. A/67/285 (2012), para. 6.

64 Yeatman, Anna, ‘Interpreting contemporary contractualism’, in Jonathan Boston (ed.), The State Under Contract (Wellington: Bridget Williams Books, 1978).

65 On this, see, for example, Casper, Steven and Hancké, Bob, ‘Global quality norms within national production regimes: ISO 9000 standards in the French and German car industries’, Organization Studies, 20:6 (1999), pp. 961985.

66 See André Broome and Joel Quirk, ‘Governing the world at a distance’, where the same differentiation between conduct and result is made.

67 Ruggie, ‘Protect, respect and remedy’, para. 56.

68 On the similarity between this process and that of other human rights measurement processes see Harrison, James, ‘Human rights measurement: Reflections on current practice and future potential of human rights impact assessment’, Journal of Human Rights Practice, 3:2 (2011), pp. 162187.

69 Ruggie, John G., ‘Business and Human Rights: Further Steps Toward the Operationalization of the “Protect, Respect and Remedy” Framework’, UN Doc. A/HRC/14/27 (2010), para. 80.

70 No claim is made about the representitaveness of this sample. What is critical is that the selection is a relatively large sample of leading multinational corporations for whom human rights are likely to be a potentially significant issue, and therefore they are likely to have taken some action on this issue. As will become evident below, the main claims of the article relate to the subset of companies who have actually adopted/endorsed the UNGPS.

71 Google was utilised for all searches. The first search was for ‘Company Name + human rights’. This was supplemented by searches that involved the search terms ‘Guiding Principles’, ‘Human Rights Due Diligence’, ‘Corporate Social Responsibility’, and ‘Sustainability’.

73 For a wide range of examples of adoption, reference, and/or implementation of the UNGPs by a range of different actors see the Business and Human Rights Resource Centre, ‘UN Guiding Principles; Implementation – Tools and Examples’, available at: {http://business-humanrights.org/en/un-guiding-principles/implementation-tools-examples} accessed 25 August 2014.

74 Schoemaker, Daan, ‘Raising the Bar on Human Rights: What the Ruggie Principles Mean for Responsible Investors’ (2011), available at: {http://www.sustainalytics.com/sites/ default/files/ruggie_ principles_and_human_rights.pdf} accessed 27 June 2014; Susan A. Aaronson and Ian Higham, ‘“Re-righting business”: John Ruggie, ‘The Struggle to Develop International Human Rights Standards for Transnational Firms’, available at: {http://www.gwu.edu/~iiep/assets/docs/papers/Aaronson_IIEPWP2013-5.pdf} accessed 27 June 2014; Mares, Radu (ed.), The UN Guiding Principles on Business and Human Rights: Foundations and Implementation (Leiden, Boston: Martinus Nijhoff Publishers, 2012), pp. 150.

75 The terms commitment and compliance are utilised here in the sense utilised by Risse et al., The Persistent Power of Human Rights, p. 10. See the introduction to this article for a discussion of this.

76 For instance, the Maplecroft website simply includes a (non-functional) link to the Ruggie Framework and the corresponding Guiding Principles without any indication of how they are utilised: see Maplecroft, ‘Human Rights Due Diligence’, available at: {https://maplecroft. com/services/human_rights_due_diligence/} accessed 22 May 2015.

77 The database was last updated for the purposes of this article in December 2014. The Nestlé report is entitled, ‘Talking the Human Rights Walk: Nestlé’s Experience Assessing Human Rights Impacts in its Business Activities’, available at: {http://www.nestle.com/asset-library/documents/ library/documents/corporate_social_responsibility/nestle-hria-white-paper.pdf} accessed 22 May 2015.

78 See, for example, EcoPetrol, ‘Management of Risks and Impacts’, available at: {http://www.ecopetrol.com.co/english/contenido.aspx?catID=679&conID=77958} accessed 25 August 2014.

79 See, for example, Barrack Gold Corporation, ‘Human Rights Compliance Program’, available at: {http://www.barrick.com/files/governance/Barrick-Human-Rights-Compliance-Program.pdf} accessed 22 May 2015.

80 Identifying the same problems in relation to supply chain audits, see LeBaron, Genevieve and Lister, Jane, ‘Benchmarking global supply chains: the power of the “ethical audit” regime’, Review of International Studies, 41:5 (2015), pp. 905924.

81 O’Flaherty, Michael, ‘Reform of the UN human rights treaty body system: Locating the Dublin Statement’, Human Rights Law Review, 10:2 (2010), pp. 319335 (p. 321).

82 Microsoft, ‘Global Human Rights Statement’, available at: {http://www.microsoft.com/en-gb/download/confirmation.aspx?id=41958} accessed 25 August 2014.

83 Making the same point about superficial legitimation in relation to audits of corporate supply chains, see LeBaron and Lister, ‘Benchmarking global supply chains’.

84 On the importance of this, see, for example, van Zyl, Albert, ‘How civil society organizations close the gap between transparency and accountability’, Governance, 27:2 (2014), pp. 347356.

85 Explaining this deficiency in the UNGPs, and setting out a number of important benefits of transparency, see Harrison, James, ‘Establishing a meaningful human rights due diligence process for corporations’, in Faundez and Tan (eds), International Law, Economic Globalisation and Developing Countries (Cheltenham: Edward Elgar, 2010).

86 On analogous problems of transparency within supply chain audits, see LeBaron and Lister, ‘Benchmarking global supply chains’.

87 Voegtlin, Christian and Pless, Nicola M., ‘Global governance: CSR and the role of the UN Global Compact’, Journal of Business Ethics, 122:2 (2014), pp. 179191, making the case for the Global Compact as a learning platform, and the importance of transparency in that context.

88 See RobecoSAM, , ‘CSA Guide – RobecoSAM’s Corporate Sustainability Assessment Methodology’ (2014), available at: {http://www.sustainability-indices.com/images/corporate -sustainability-assessment-methodology-guidebook.pdf} accessed 28 June 2014, para. 3.2.

89 See US Department of State, ‘Responsible Investment Reporting Requirements – Final’ (2013), available at: {http://www.humanrights.gov/wp-content/uploads/2013/05/Responsible-Investment-Reporting-Requirements-Final.pdf} accessed 22 May 2015, p. 3.

90 See Embassy of the United States, Rangoon, Burma, ‘2013 Responsible Investment Reports’, available at: {http://burma.usembassy.gov/reporting-requirements.html} accessed 28 June 2014, and The Coca-Cola Company, ‘Myanmar Investment Due Diligence 2014 Annual Update Report’ (2014) available at: {http://photos.state.gov/libraries/burma/895/pdf/TCCCDoSResponsibleInvestmentMMReport63014.pdf} accessed 28 June 2014, pp. 6–8.

91 See, for example, Barrack Gold Corporation, Human Rights Compliance Programme, available at: {http://www.barrick.com/files/governance/Barrick-Human-Rights-Compliance-Program.pdf} accessed 22 May 2015.

92 See Human Rights Due Diligence, ‘Summary of the results of the survey conducted by the German Global Compact Network and Econsense’, p. 5, available at: {http://www.globalcompact.de/sites/default/files/themen/publikation/human_rights_due_diligence_summary_of_the_results_of_the_survey.pdf} accessed 22 May 2015.

93 These are all available at: {www.nomogaia.org}. See also Salcito et al., ‘Assessing corporate impacts in unstable contexts: a human rights perspective’, Environmental Impact Assessment Review, 47 (2014), pp. 36–46 for a review of Paladin Energy’s Kayelekera Uranium Project in Malawi.

94 NomoGaia, , ‘Human Rights Impact Assessment: A Toolkit for Practitioners Conducting Corporate HRIAs’, available at: {http://nomogaia.org/tools/} accessed 22 May 2015.4.

95 Interview with the author of the Nomogaia methodology, and Lead Investigator on all four human rights impact assessment studies.

96 See, for example, Risse et al., The Persistent Power of Human Rights, which contains two chapters on business and human rights alongside four chapters on states and human rights.

97 See, for example, Homolar, Alexandra, ‘Human security benchmarks: governing human wellbeing at a distance’, Review of International Studies, 41:5 (2015); Broome and Quirk, ‘Governing the world at a distance’; and in a more nuanced sense, Sending, Ole Jacob and Harald Sande Lie, Jon, ‘The limits of global authority: how the World Bank benchmarks economies in Ethiopia and Malawi’, Review of International Studies, 41:5 (2015): all in this Special Issue.

98 See Broome and Quirk, ‘Governing the world at a distance’.

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