Human rights abuses resulting from business activity are prevalent in many parts of Southeast Asia. Many key industries harbour systemic human rights challenges, while many businesses that perpetrate human rights abuses do so with little consequence, leaving the victims of such abuses without a legal remedy. Moreover, the increasingly transnational nature of many business operations has made these challenges even more complicated. In 2011, the UN Human Rights Council endorsed a set of Guiding Principles on Business and Human Rights (UNGPs), a polycentric governance model of regulation, in order to promote the interaction between the state (public), civil society, and internal corporate governance systems as a method of tackling the complex problems at the interface between transnational business and human rights.Footnote ¹

Business and Human Rights in Southeast Asia: Risk and the Regulatory Turn is a volume of essays that aims to locate this new regulatory dynamic within the contextual realities of the region. The book is divided between an Introduction and 13 chapters organized into four groups. The Introduction asserts that the purpose of the essays is to chart the “topography of the regulatory space” (p. 3) in Southeast Asia, with regulatory theory and the concept of risk management providing the necessary orientation for those wishing to implement the UNGPs in an increasingly decentred regulatory environment. The remaining chapters describe the varied ways in which regulatory instruments are or could be engaged to address corporate-related human rights abuses. ASEAN’s commitment towards integration also surfaces as a critical concern in several of the chapters. The ASEAN Charter of 2007 provides the legal and institutional basis for an ASEAN Community and comprises three pillars: Political and Security; Economic; and Socio-Cultural. Of these, the last explicitly recognizes the imperative of ensuring the ASEAN Community delivers sustainable development for its peoples, part of which requires corporations to be socially responsible. How this move towards a rules-based, integrated community in ASEAN interfaces with the emergent new modes of governance described above supplies a point of discussion.

The first two essays in Part I give an overview of the regulatory landscape from the regional and national perspective. Chapter 1 sets the scene with an argument that whilst philanthropically-orientated conceptions of corporate social responsibility (CSR), weak State commitment towards human rights, and corruption all pose challenges to building a CSR-based business and human rights agenda in Southeast Asia, issues such as climate change, large-scale labour migration, investment in Myanmar, and corruption may provide the necessary catalysts for establishing such a regime. Chapter 2 then comprehensively analyses the policy and regulatory contexts in Indonesia, Lao PDR, Myanmar, Singapore, and the Philippines, explaining the challenges inherent in securing the State’s duty to protect against business-related human rights abuses as well as identifying the drivers for, the areas where regulation has had an actual impact, and the institutions that have shaped the discourse in each country. From there, Chapters 3 and 4 focus on the importance of addressing the risks faced by women and children as rights-holders in this field. Chapter 4 provides a particular account of the ICT industry’s response to children’s rights and the utility of multi-stakeholder engagement across the value-chain to tackle complex problems.

Part II considers the regulatory mechanisms for securing corporate compliance with human rights standards with respect to specific industrial sectors. Chapter 5 uses a case study of the role of Thai banks in the Lao PDR Xayaburi dam project to make a normative argument for linking standard-setting for responsible investment to the process of ASEAN financial integration, asserting that an interventionist approach to regulation is needed to overcome the perception that banks that are compliant with human rights regulations operate at a competitive disadvantage. Chapter 6 lays out the human rights and environmental risks intrinsic to palm oil, one of the region’s primary industries. Chapter 7 highlights the problems related to the disconnects between rhetoric and reality in social and environmental legislative provisions governing the extractive industries in Cambodia, Lao PDR, Myanmar, and Vietnam before shifting focus to examine the potential of extraterritorial human rights litigation where tort and contract are employed to hold corporations accountable and provide victims with a remedy.

Part III contains three essays that describe what influences corporations to undertake due diligence with regard to their human rights impacts. Chapter 8 suggests that with the resumption of foreign investment into Myanmar, western investment with its concomitant social and environmental standards will place pressure on Asian investors and States to adjust their behaviours on human rights accountability. In doing so, it comprehensively guides the reader through the operating environment, identifying key risk areas for business as well as change factors. Chapter 9 then gives a generic description of a human rights audit tool that has been developed and test-run in Indonesia, implicitly highlighting the difficulties with risk-management approaches in this field. Chapter 10’s author asserts the need to place pressure on the financial services industry in Southeast Asia to respond to a growing agenda around the financial sector’s role in promoting human rights. Surveying the public communications on human rights of seven major financial sector players in the region, it concludes that the sector’s current engagement is inadequate.

Finally, Part IV examines various aspects of ensuring access to effective remedies for business-related human rights abuses. Chapter 11 tracks a turn in judicial activism towards environmental protection with the promulgation of the Rules of Procedure for Environmental Cases (Rules) by the Supreme Court of the Philippines. It concludes that this development has encouraged litigation against corporations, which has helped to build the jurisprudential muscle and ultimately rights protection, and that the ‘shadow of the law’ has even compelled companies to pay closer attention to their human rights impacts even where cases are lost. Chapter 12 presents an anonymous case study of a non-judicial grievance mechanism to address community relations operated by a mining company in a Southeast Asian country where the rule of law and the human rights culture are both weak. Methodologically rigorous and analytically sound, it offers sobering insights into the gap between what is on paper and actual practice and raises important questions about how equipped or, indeed, suitable audit-tools actually are in handling these realities. One of the authors’ findings is that in ‘justice-free’ contexts, such mechanisms defer to the existing socio-political order and fail to account for international human rights standards. Finally, Chapter 13 establishes why the right to development provides a strong foundation for interpreting the right to access to an effective remedy. The author points to the fact that many remedies for business-related human rights abuses deal with the effectiveness question vis-à-vis process rather than substance. Towards this end, she argues that the right to development offers a superior framework for assessing the objectives and methods of regulating economic activity in the name of human rights.

As promised, the book offers a descriptive sense of the breadth and scope in approaches to regulation with regard to business activities and human rights compliance in Southeast Asia. Many of the essays grapple with how to channel a growing rhetoric on business and human rights emanating from ASEAN member States, its institutions, as well as corporations into concrete deliverables, identifying obstacles as well as the opportunities offered by meta-level norms and supra-national regulatory devices, such as the UNGPs. The emergence of business and human rights as an area of praxis in Southeast Asia however is fertile ground for exploring the contours of a new regulatory terrain and the associated dynamics, the processes, and outcomes. In this landscape, traditional understandings of the role of law and regulation no longer hold firm and thus it becomes important to probe how new meanings are being developed, and put into practice, and what implications these have for rights-protection. The Introductory chapter gives nod to this analytical potential and indeed in some of the essays, the rich narratives offered are turned into weightier explanations of this regulatory turn. The scholarly contribution of this book however could have been enhanced had the contributors been guided by more distinct frameworks of analysis which deliberately engaged pertinent aspects of regulatory scholarship.

One possibility could have been an empirical investigation of how polycentric governance manifests in the context of business and human rights regulation in the region, and what the implications are for understandings and the practice of human rights. Some authors specifically make the case for employing non-state based regulatory regimes, such as to ensure human rights compliance of the finance sector (Chapters 5 and 10) or to protect against child abuse in the ICT sector (Chapter 4), while others promote strengthening judicial mechanisms as regulatory tools (Chapters 7 and 11). As these regimes – state and non-state based, national and transnational – govern similar substantive issues within the same locality, their highly varied interactionsFootnote ² will not only alter their individual characteristics and operations but also have effects upon the broader regulatory ecosystem within which they are situated. In this sense, what human rights mean, how they are engaged with and protected are in some way shaped by what happens in these regulatory interactions that take place within the emerging business-human rights regime complex. Take, for example, palm oil as discussed in Chapter 6. Any rights-related claim is potentially covered by the constitutional rights regime, administrative law, local customary laws, and the Roundtable on Sustainable Palm Oil (RSPO). Yet we know little about the dynamics and critically, the outcomes of the regime interactions that take place, making it challenging to truly assess the benefits or liabilities of these regimes either singularly or as a complex with regard to human rights protection.Footnote ³

A study of regulatory regime interactions brings forth questions about complementarity, conflict, symbiosis, or hybridity between the different regulatory regimes.Footnote ⁴ In Southeast Asia, how State regulation is shaped or shaping, is legitimated or legitimating, is facilitated by or is facilitating other regulatory regimes, such as the transnational business governance mechanisms mentioned in some chapters, is important to analyse if we are to get a sense of how the State’s duty to protect human rights will evolve.Footnote ⁵

A number of the essays indicate interesting interfaces between human rights and regulation that could have perhaps been explored further, thus contributing to a nascent scholarly field.Footnote ⁶ The application of a regulatory regime to human rights and, by contrast, the amalgamation of human rights-claims into regulatory instruments leads to all sorts of outputs and outcomes, many unanticipated, some undesirable, some potentially progressive. For example, do regulatory tools which are aimed at efficiency in rule-making and compliance somehow infuse rights with a “functionalist orientation”Footnote ⁷ that then leads to “non-rights based goals”Footnote ⁸ ? One aspect inherent in the application of regulatory forms to human rights protection in business operations – and which forms the basis of the due diligence approach in the UNGPs – is a risk management approach. Whereas use of the risk management lexicon has been lauded as an effective way to engage businesses in addressing their responsibilities, uncertainties remain as to whether, and if so how, it is possible to reconcile actions taken to manage risks to the company with the realities of risks to rights-holders. Kemp and Owen’s case-study on operational-level grievance mechanisms and Morel’s essay on grounding access to remedy for business-related rights abuses in the right to development importantly flesh out these concerns. Alternatively, non-state regulatory mechanisms may, in fact, enhance rights-claims by incorporating international human rights standards into compliance mechanisms in ways that judicial mechanisms simply do not. Investigating these sorts of queries against the narratives offered in the essays could have produced important comparative insights into how the intersects between rights and regulation manifest depending on the type of regulatory tool employed or the actors involved.

In conclusion, readers seeking a descriptive overview of the state of play with regards business and human rights in Southeast Asia will find in this eclectic collection of essays, a decent narrative of the critical issues and concerns, cultural understandings of the corporate responsibility to respect human rights, and current approaches to establishing and enabling functioning regulatory regimes to address human rights compliance. Most of the chapters present valuable contextual insights that adequately establish a foundation upon which scholars and practitioners alike can hone an understanding of the operating environment. For those interested in a scholarly analysis of the regulatory turn in the business and human rights field however, the book proffers points of departure for further theoretical and empirical studies of a complex and fascinating phenomenon evolving in Southeast Asia.