The business and human rights debate captures the mounting criticism regarding the negative human rights impacts of corporate conduct (Cragg, Reference Cragg2012). Wettstein describes the business and human rights debate as “one of the most dynamic, relevant, and perhaps even most influential debates concerning corporate responsibility” (Reference Wettstein2015: 162). One of the key questions in business and human rights is how corporations can be held accountable for their complicity in human rights violations.
In their edited volume Corporate Responsibility for Human Rights Impacts: New Expectations and Paradigms, Lara Blecher, Nancy Kaymar Stafford, and Gretchen C. Bellamy invited distinguished experts, both legal scholars and practitioners (i.e., partners in law firms) to share their perspectives on corporate accountability for human rights violations. The book is divided into three sections. The first section examines the legal context such as the application of international law to corporations. The second section provides an overview of domestic policy, legislation, and litigation, including human rights litigation in US courts and environmental litigation. The final section provides an outlook into the future discussing the potential of benefit corporations as well as the relationship between financial institutions and human rights.
In chapter one, legal scholar Justine Nolan discusses corporate responsibility (“All Care, No Responsibility?”) for human rights violations and reviews hard law and soft law options within existing international governance. She shows that corporate accountability for human rights abuses is not (yet) anchored in international law and that the biggest challenge lies in developing “enforceable responsibilities, mechanisms of accountability, and remedies for business” (14). The following chapters build on Nolan’s analysis and provide further perspectives on the opportunities and challenges of international law and soft law initiatives such as the UN Guiding Principles on Business and Human Rights. In chapter two, Ralph Steinhardt (“Multinational Corporations and Their Responsibilities Under International Law”) provides arguments for why corporations are responsible for human rights violations under international law, argues that corporations are not immune from international regulation and states that there is no international law-free zone for firms. In chapter three, Robert McCorquodale critically examines the UN Guiding Principles on Business and Human Rights and concludes that the UN Guiding Principles “do not fully apply current international human rights law, and [that] they do not fully comply with international human rights law” (77). Penelope Simons continues the criticism towards the UN Guiding Principles on Business and Human Rights in chapter four (“International Law’s Invisible Hand and the Future of Corporate Accountability for Violations of Human Rights”) when she describes them as being merely a moral or normative framework that lacks legal force. Her main thesis is that the reason of corporate impunity for human rights violations lies actually in international law, which has been used from its beginnings to protect foreign direct investment. Thus, Simons warns that “without engaging international law as an integral part of the strategy to address corporate human rights impacts and accountability, as well as state governance capacity, there remains the fear that despite some changes in state policy, business policy, due diligence, and reporting, we will more or less continue business as usual” (120). In the final chapter of the first section (“Trade and Investment Arrangements and Labor Rights”) Jeffrey Vogt moves away from international human rights law and analyzes the potential of trade and investment agreements to improve labor rights. He, however, concludes that such agreements do not necessarily have favorable effects on labor rights because such agreements lack precision or enforcement and complaint mechanisms.
The chapters in the second section focus on national regulation and litigation. In chapter six Beth Stephens provides a comprehensive overview of the history of human rights litigation in US courts against individuals and corporations. This is valuable background knowledge for anyone who is wondering whether, why, and how corporations can be sued for their alleged complicity in human rights abuses. In chapter seven Paul Hoffman focuses on the most recent US Supreme Court’s decision in Kiobel vs Shell. The US Supreme Court dismissed the case and argued that the Alien Tort Claims Act under which this case (and many more) has been filed does not apply to human rights abuses committed outside the United States. Hoffman argues that this decision raises more questions than it answers and argues that cases of corporate complicity will continue, either in another forum (domestic courts) or against individual managers instead of the corporation as a whole. A recent study underscores the necessity of human rights litigation and argues for an educational effect of human rights litigation: human rights litigation and the threat of being sued provide incentives for firms to introduce human rights policies (Schrempf-Stirling and Wettstein, in press). In chapter eight (“Environmental Litigation Against Corporations: Where Now?”) Neil Popovic focuses on environmental litigation against corporations and provides some similar arguments as Hoffman in regards to the consequences of the recent Kiobel decision and provides alternative legal strategies for injured plaintiffs such as SEC environmental reporting obligations, supply chain reporting requirements, and the International Finance Corporation’s Office of the Compliance Advisor complaint process. In chapter nine, Erika George (“Influencing the Impact of Business on Human Rights”) examines corporate social reporting as an alternative mechanism to protect human rights. Her thesis is that corporate accountability can be promoted through corporate transparency and reporting. Rachel Chambers and Katherine Tyler complement the previous chapters by focusing on the UK legal context for business and human rights in chapter ten. They highlight the potential and challenges of suing companies for human rights violations in the UK and review English Criminal Law, Company Reporting Law and summarize several prominent cases involving companies such as Shell and BP. The final chapter of the second section provides an overview of current trends in transnational litigation in the UK. Shubhaa Srinivasan highlights the complexities of human rights litigation for all parties involved, including foreign litigants, their lawyers, the UK court and judges.
The chapters in the last section of the book look forward and provide some suggestions of where we are heading. In chapter twelve, Peter Muchlinski and Virginie Rouas (“Foreign Direct-Liability Litigation”) review foreign direct liability litigation in different countries and under different systems of common and civil law. The review includes examples from developed, as well as developing, countries. They conclude that foreign direct liability cases for corporate human rights abuses and their successes depend on the existence of entrepreneurial lawyers and activists who are motivated to explore the development of such litigation and the extent of the awareness among policymakers of the need to provide redress in human rights cases. In chapter thirteen (“Labour Rights in the World Economy”), Sheldon Leader discusses labor rights in the world economy and provides an analysis on the conflicts among different types of law regulating labor rights such as laws regulating commercial companies, investment, and trade. In chapter fourteen, Mary Dowell-Jones focuses on financial institutions and their relationship to human rights and observes that the “view of human rights as tangential to financial operations raises a significant challenge for the implementation of the Guiding Principles in the financial sector because the existing reach of human rights is shallow and easily circumvented” (444). She recommends a comprehensive and systematic analysis of how financial products and services affect human rights. In chapter fifteen, Andrew Kassoy and Nathan Gilbert elaborate on the benefit corporation as a business model for the future to serve society and avoid human rights abuses. In the final chapter, lawyer Sarah Altschuller clarifies the differences between corporate social responsibility and corporate philanthropy from an attorney’s perspective and elaborates on the role of an attorney when advising corporate clients on corporate social responsibility activities and investments as well as philanthropy projects.
Business and Human Rights is a fast evolving field which has its roots in legal studies, but has been expanding to different disciplines and can be described as “a multidisciplinary (and sometimes interdisciplinary) academic field drawing from, inter alia, business ethics, law and the social sciences, and a social, economic and political justice movement” (Santoro, Reference Santoro2015: 155). Corporate Responsibility for Human Rights Impacts provides the necessary legal background and context for anyone (legal scholars and business ethicists) working in the field of business and human rights. While published by the American Bar Association, the book does not exclusively focus on the US legal system. Several chapters explicitly discuss the legal human rights context and human rights litigation in a wide range of countries worldwide. Yet, given that it is published by the American Bar Association and written by legal scholars and practitioners, it does not include any normative, ethical, or moral discussion on the responsibility of corporations for human rights violations. This is not, however, the main purpose of the book. The book focuses on the question of legal accountability of corporations for human rights violations. As such it is relevant for any type of scholar doing research in business and human rights. The collection provides unique and diverse perspectives on corporate accountability for human rights violations. It covers expected topics such as the US Alien Tort Claims Act and human rights litigation opportunities in different countries. It also covers a wide range of other relevant topics such as focused discussions on the role of financial institutions and benefit corporations—topics that have rarely been included in the business and human rights debate thus far. Thus, the strength of this edited book lies in its breadth and depth of discussion on legal issues, national policies and the breadth of applied topics.
