by Sumi Dhanarajan
Sumi Dhanarajan was a visiting fellow at the Institute of Commonwealth Studies (ICWS) from June–August 2013 and is an alumni of the MA in Human Rights at ICWS. She is currently undertaking a full-time PhD in Law at the National University of Singapore.
Google ‘business and human rights’ today and you will get over 800,000,000 hits. In 1997, the year I started the MA in Understanding and Securing Human Rights at the Institute of Commonwealth Studies, the phrase was far from common currency.
My first introduction to the issue was actually through a job advertisement placed by Oxfam in March 1998. It featured a photograph of a woman from the Dominican Republic. Alongside her portrait ran an account of the abusive working conditions and the precarious terms of employment she faced as a garment worker in one of the many factories supplying multinational apparel companies. Oxfam was seeking to recruit a Business Standards Adviser to take forward its engagements with a number of UK-based clothing companies that it had recently targeted in one of its first campaigns against corporations. The Clothes Code Campaign called upon these companies to take responsibility for sweatshop conditions in their global supply-chains by implementing labour codes of conduct.
Before studying for the MA, my professional experience had been categorically within the civil and political rights domain. The MA programme however, with its multidisciplinary approach and the invaluable exposure it gave students to individuals working across the human rights spectrum and the multidimensional nature of human rights gave me the courage to apply for the job. That, and the look in the woman’s eyes.
I was lucky. The interview panel took a leap of faith and offered me the post. (I was later told that they liked my honesty about not having any experience whatsoever in development or labour standards or companies! Suffice to say, I am not sure how far that would have gotten me in today’s competitive environment!). In the ten years following, I had the unique opportunity to play a small part in growing the business and human rights agenda through Oxfam’s work.
My work in the advocacy team covered labour standards in global supply chains in the apparel and supermarket sectors, right to health issues bound up in the pharmaceutical industry’s responsibilities with regard to access to medicines, human rights abuses in the extractive sector and in agricultural commodity chains.
This summer, some fifteen years after graduating from ICWS, I returned as a visiting fellow to engage with their Human Rights Consortium’s Corporate Power and Human Rights Project. The fellowship primarily supported my doctoral research which investigates the interactions between private, self-regulatory human rights regimes (such as those used by companies and multistakeholder initiatives) and public or state-based human rights regimes. This is with a view to understanding how the dynamic and outcomes of these interactions affect human rights praxis in a domestic context. But more on this later.
Being back at ICWS also prompted a personal reflection on what has become of the business and human rights agenda. It is certainly much larger and more prominent today both in the governance space as well as in the public consciousness. That has not always been the case. In my view, business and human rights as an issue led the charge in calling for corporate accountability back in the mid-nineties, but then gave way to the emerging corporate social responsibility – or CSR – agenda with its ever-expanding portfolio which included philanthropy, environmental sustainability, sustainable development, base-of-pyramid investments and such like. During this period, business and human rights was perceived as occupying a niche part of the broader CSR agenda – where the radicals hung out and did battle with the more egregious perpetrators of rights abuses. This was the time when the UN Norms on Business and Human Rights – the first attempt at the international level to address the problem – were damned for being misaligned with what companies (and states) were prepared to do to address the rights-violatory aspects of business operations.
Then began the mandate of the UN Special Representative. In the six years that followed, the business and human rights agenda shifted from niche to mainstream. Whether this shift can be wholly attributed to the mandate and the development of the UN Guiding Principles on Business and Human Rights is, I think, worth a deeper look. It may be that the Guiding Principles tracked the inevitable evolution of the agenda brought about by exposure, experience, and increased capacity on the part of all the key actors. A point of critical mass was reached.
Nevertheless, the Guiding Principles aptly capture (or maybe anticipate?) comfort levels and provide a useful framework to guide practices in this field. Their value is in reinforcing who is responsible for what – states have duties to protect; companies, the responsibility to respect – and in laying out what those responsibilities entail. The due diligence aspects as captured in the ‘corporate responsibility to respect’ pillar of the ‘Protect, Respect, Remedy’ framework of the Guiding Principles have gained much traction.
Yet, with the mainstreaming of any agenda come concerns with the effects of institutionalisation. My own work intuitively reacts to these. And so to my study into how self-regulatory or non-state based regulatory regimes affect the way different groups of actors understand and behave towards human rights: One hypothesis contemplates these kinds of regulatory regimes – which could include company codes of conduct and company-operated grievance mechanisms, or multistakeholder initiatives that address corporate compliance with human rights standards – dampening the emancipatory qualities of human rights. This effect could be in the form of choking off resistance or struggle, or indeed changing perceptions of what are just remedies for human rights violations. (Is monetary compensation a just remedy for the loss of land rights, or the right to clean water or housing or health?) An alternative hypothesis sees a positive role for these private forms of regulation. For example, they may encourage or foster a ‘jurisprudence of ethics’ within the private space that then influences the human rights narrative in the public regulatory space.
Many of the questions that are raised in my study ultimately converge upon a broader inquiry into what these private forms of regulation for human rights mean for the future of human rights. One challenge that I see is the lack of adequate attention being paid to these implications. I hope that projects such as the Corporate Power and Human Rights project will encourage much needed research into this problem.
Sumi previously served as a Human Rights Officer to the Malaysian Bar Council, Senior Legal Adviser to the Hong Kong Democratic Party’s Secretariat for Legislative Councillors and as a Senior Policy Adviser and Private Sector Team Leader at the international development agency, Oxfam GB. Upon moving to Singapore, she led the Public Roles of the Private Sector Programme at the Centre on Asia and Globalisation at the Lee Kuan Yew School of Public Policy from 2009-2011. Her advisory roles include being an editorial board member of the Journal of Human Rights Practice, a trustee to the Business and Human Rights Resource Centre and council member to the World Economic Forum’s Human Rights Global Agenda Council for 2012–2014.
Sumi holds an LLB from Durham University, an MA in Understanding and Securing Human Rights from the University of London, and an LLM in Asian Legal Studies from the National University of Singapore.
 Simon Chesterman, The Turn to Ethics: Disinvestment from Multinational Corporations for Human Rights Violations – The Case of Norway’s Sovereign Wealth Fund (2008) New York University Public Law and Legal Theory Working Papers, Paper 84, at p.605. Accessed at <http://lsr.nellco.org/nyu_plltwp/84>