05/11/2016 12:59 pm ET Updated May 12, 2017

The Alchemy of Business and Human Rights (Part IV): The Rules of the Game

This blog series has been examining the booming success of the newly-framed Business & Human Rights (BHR) field with an admiring but critical eye, picking up a thread of concern recently voiced by some BHR leaders and looking at how early BHR promises are developing now that the field is moving from an era of "commitments" to an era of action and anticipated results. This move will require, in particular, more progress on what has come be known as the "forgotten" Third Pillar of BHR: meaningful remedies for violations of rights, when they occur. The last blog took a look at the almost built-in lack of leadership behind the Third Pillar in the founding UN Guiding Principles on Business and Human Rights (UNGPs). This blog looks at what has emerged as a critical part of the BHR process regarding alleged rights violations: the back-and-forth allegation and response procedure or platform hosted by the Business & Human Rights Resource Centre (BHRRC).

The BHRRC has emerged as the essential BHR civil society institution. Published in nine languages, it maintains an incredibly comprehensive website, visited by 200,000 unique visitors per month, that hosts profiles of hundreds of BHR-related disputes, which you can pull up by company, region/country, or issue. It also produces what has become a key resource in the field: a Weekly Update, sent directly to over 16,000 journalists, advocates, academics, officials, consultants, investment advisers, and business professionals each week, that links to BHR-related news articles and press releases, but focuses on allegations of human rights abuses or other non-compliance by businesses. Allegations "published" in the Weekly Update follow a key editorial procedure that I described earlier: before going "live" with any alleged human rights violation, the BHRRC offers the company involved the chance to respond with its own version of the facts, in its own words, and publishes the response simultaneously with the news of the allegation. Businesses have long cast themselves in the victim role in the media dynamics of human rights stories, complaining that they are either sandbagged entirely or their views are misrepresented by sympathy-driven reporters. The BHRRC procedure seems designed to address such fairness concerns and create more of a "neutral" or "level playing-field" of dialogue where, in the adversarial tradition, the truth, or the closest we can get to it in a media context, will win out.

Corporate engagement with the BHRRC platform was far from guaranteed at the beginning; procedures were, understandably, crafted with an eye to attracting companies and creating a "safe space" for them. Today, the value that companies put on the BHRRC space is clear. Indeed it is not just "a" space but really "the" space -- a chance to speak directly to the very audience of BHR professionals who are essentially charged with imposing "public" accountability on companies under the BHR regime. More than 86% of companies invited to submit a response now do so. While the BHRRC can and should pat itself on the back on the corporate engagement end, it may be time now, consistent with the theme of this blog series, for it to take a closer look at how its platform is influencing the progress of disputes and the realization of human rights on the ground and consider whether any recalibrations are in order. The platform has led to many success stories, but there are also moments of pause. The BHRRC's hands-off editorial policy -- responses are not held to any standard and every response is published -- means that companies are able to bring diverse response strategies into the BHRRC space, some of which arguably are at odds with the vindication of human rights, or even with more neutral principles of BHR. Additionally, there is legitimate concern that the BHRRC's "level playing field" may, in some cases, replicate or even exacerbate power asymmetries between companies and the kinds of individuals and communities who typically lay claims against them.

How it works

One good example (out of many) of how BHRRC procedure works well comes from when NXP Semiconductors, a Dutch company, fired all 24 of the elected union reps working at a factory in the Philippines, where it produced components for Apple's iPhone among other devices, over a dispute about a strike protesting required work on holidays. Fortunately for the local union, it was allied with IndustriALL, a newly-merged "global union" that "represents 50 million workers in 140 countries in the mining, energy and manufacturing sectors." In mid-July 2014, IndustriALL put out a release calling the firings illegal and, shrewdly, linking the story to the then-ongoing buzz about Apple's iPhone 6. The BHRRC reached out to NXP, and in its August 13, 2014 Weekly Update linked to both the IndustriALL release and NXP's response. The response was (at least relative to others we will see) substantive: it acknowledged certain key facts (e.g., that the workers had indeed been terminated for their union-related activity), made assertions as to additional relevant facts (e.g., that, according to NXP, workers could legally be "required" to work on holidays under Philippines law; that the strike the union had promoted was itself "illegal"), and offered a different perspective (e.g., that the decision to fire the union leaders was "painful" but necessary "to ensure NXP's uninterrupted operations . . . so as not to compromise the company's [product delivery] commitments"). Shortly thereafter, IndustriALL responded with a rejoinder, contesting specifically some of NXP's assertions and adding additional facts. BHRRC again invited NXP to respond and linked to both the rejoinder and the second response in its September 3, 2014 Weekly Update.

The exchange contained enough substance in both allegation and response that no editorializing or independent reporting seemed urgent; it served both to bring attention to and to educate observers about the situation. It also seems to have pushed the disputants to more carefully consider each other's views. In late September, IndustriALL announced the "Conclusion of the NXP Cabuyao struggle" in the form of an agreement in which half of the sacked union leaders would be re-hired, wages would be raised, and other terms. NXP would also later claim credit for the settlement, even while it revised its understanding of Philippines law to make clear that "work on public holidays itself is always voluntary."

It is hard to say to what extent the NXP exchange is characteristic of disputes "hosted" or facilitated by the BHRRC, but it is clear that many play out quite differently. Among the notable features of the NXP dispute that are often lacking in other disputes include (1) that NXP was willing to engage with relative substance; (2) NXP was faced with a relatively sophisticated opponent in the exchange; and (3) the issue set -- firing union reps for advocating for an alleged illegal strike -- was widely comprehensible, even though it contained some disputed wrinkles as to Philippines law.

And in other news...

On the issue of willingness to engage, let's take the recent example of the responses to the fourth edition of the Dirty Profits report, produced by Facing Finance and a host of NGO partners, which aims to reveal the interlinkages between multinational corporations and financial institutions and violations of human rights. The report was released in mid-February 2016; by April, the BHRRC had compiled responses from 15 of the 20 companies profiled in the report and featured links to the report and responses in its April 6, 2016 Weekly Update. While some of the responses did engage specifically with allegations, others did not. Motorola, which was criticized in the report for its work designing and providing surveillance systems for Israeli settlements and installed on Palestinian land, provided the following (in its entirety):

Thank you for flagging this Facing Finance report and allowing us to respond.

Motorola Solutions provides communications systems to customers in more than 100 countries around the world. Our customers include governments, enterprises and non-governmental organizations. As a well-respected and responsible corporate citizen, our global activities are conducted in accordance with U.S., local, country and other applicable laws, as well as our own code of business conduct. Our company has a long record of working with customers in countries throughout the Middle East and supports all efforts in the region to find a peaceful resolution to their differences.

Motorola Solutions has a comprehensive set of policies and procedures that addresses human rights, which is designed to ensure that our operations worldwide are conducted using the highest standards of integrity and ethical business conduct applied uniformly and consistently.

Whatever one thinks about Motorola's work in Israel, it's hard to see what purpose is served by having the BHRRC host such a blithely non-responsive "response." It may be the cost of a consistent policy of publishing responses without editorializing. More positively, Motorola's "response" might be seen as giving us new information by showing us how studiously Motorola is avoiding the issue; this might even be read as enhancing the credibility of the underlying report. Yet, the whole point of these reports is to drag up practices that companies would prefer remain hidden and put them in the spotlight; a classic "name and shame" approach. Allowing a company to immediately (attempt to) reframe the issue and distract readers to benign but irrelevant areas of its operations seems to undercut the point of highlighting it in the first place. To the extent that a company claims that other, non-responsive aspects of its operations are relevant to any given accusation, they are essentially making an "off-set" argument of the type criticized by Prof. John Ruggie in the letter examined in Part II of this blog.

ExxonMobil, which was accused of involvement in a wide range of human rights violations, ranging from resistance to climate science, to sub-standard practices in Nigeria and Papua New Guinea, to its alleged involvement in military torture and killings in Indonesia, responded in almost identical form as Motorola except that its response contained the following "responsive" paragraph:

The Facing Finance publication contains multiple inaccuracies. Accurate information regarding ExxonMobil's policies and activities can be found on our website Readers may be particularly interested in our Corporate Citizenship Report and our Energy Outlook.

As with Motorola, it may be that such cavalier non-responsiveness only bolsters the allegations in the report and leaves ExxonMobil looking worse off; despite its vast public relations resources, the company apparently couldn't be bothered to specify what it found so "inaccurate." The Weekly Update readership is perhaps unlikely to be fooled by such a smokescreen. "Ultimately what we're trying to do is put the information out there for others to scrutinize," one BHRRC rep told me. Yet the scrutiny process can't really get underway because the report's authors don't even know what the supposed "inaccuracies" are. And while most readers will likely dismiss Exxon's claim, for others it might take the edge off the allegations, and possibly more so because the reader found the response through BHRRC, as opposed to Exxon's website or a paid news service like PR Newswire.

A level playing field?

A perhaps more pressing concerns centers on the extent of sophistication, resources, and capacity of the individual, community, or organization who is being set up against the responding the company in the BHRRC exchange. An Oxfam or Greenpeace is one thing; these organizations are built on advocacy, they know how to do it and have the resources to do it. But a lot of individuals or communities claiming human rights violations live in a far different world. They may have much less experience with advocacy, or the advocacy they know does not fit well into the highly literate, almost lawyerly type of exchange that the BHRRC hosts. They may be overwhelmed by collateral struggles related to the harassment that so often follows upon speaking out, or just related to poverty and marginalization. They may not have ready access to information and may not even know that their dispute was picked up by the BHRRC; may not understand that the company has responded; may not appreciate the significance of the fact that the company's response has been disseminated to 16,000 BHR professionals.

Let's take as an example the dispute between U.S. oil giant Occidental Petroleum and a community of Colombian farming families with claims to land along the Vereda la Osa, near Occidental's massive Caño Limón oil field in the Colombian Amazon. Like pretty much every BHR dispute, it is complicated and multi-layered, but a key fact appears to be that the families pressed a legal claim to the land that prevailed in the local district court in 2011, except that the court ordered compensation and resettlement rather than direct return of the land. After years of inaction, a number of the families got frustrated and moved themselves (back) onto the disputed land. A year later, a local community rights group announced an upcoming solidarity protest that alleged that the families had been suffering from a campaign of threats, harassment, and attempts at eviction by both the national police and Occidental itself. At some point this found its way to the BHRRC, which asked Occidental to respond, and subsequently ran the Occidental response in its October 1, 2014 Weekly Update, with a note that "original article containing the allegations is only available in Spanish."

Occidental's response was aggressive, to say the least. It glossed over the original cause of the dispute (which appears to be a classic land grab: the state declared the families' land to be property of the state "for reasons of public interest," promptly sold it to Occidental, and never provided any compensation or agreeable resettlement option). It called the families "illegal squatters," making no reference to the fact that they were occupying the land pursuant to at least a colorable claim of right. It characterized them as feckless and irresponsible for "exposing themselves to safety risks" and even causing "adverse environmental impacts by clearing and burning trees and vegetation" in order to make their settlements. Ignoring the text of the announcement, in which the families begged for adequate resettlement, Occidental claimed that "the leaders of the group have expressed that they have no interest in reaching an agreement." And of course it provided no response to the allegation that Occidental itself had a role in the harassment and attempted evictions.

The dispute has since continued: there was another attempted eviction in early 2015, which were profiled in two videos by a local human rights organization; this was followed by additional protests (about the land and about contamination issues), which led to an agreement signed in July 2015, in which a key component was that Occidental "agree not to file any criminal or civil action against leaders and communities that [were] part of the social protest." A few months later, more accusations of non-compliance and bad faith emerged. None of this was picked up by the BHRRC, such that its English-language profile of the dispute still contains only the Occidental response; that is all that an English-only reader can learn about the case (except a BHRRC caption which carefully notes that the "events refer to complaints by peasant groups that seek to get back lands supposedly taken by the company"). The Spanish-language version includes a link and summary of the protest announcement.

There is a lot that is concerning to BHR professionals in this story -- the potential land grab, the apparent use of threats of criminal prosecution to silence protestors, and on and on. Far more than the NXP scenario, the gaps in available information cry out for attention; it's hard not to want a New York Times or Guardian reporter to get down there and spend some time getting to the bottom of things. But this isn't going to happen in every situation, and one argument for the BHRRC approach (perhaps in addition to any more affirmative ones) is that it is better than nothing: the BHRRC gives the dispute, and hundreds more like it, a foothold not just in a prominent media platform, but a platform frequented by precisely the audience of involved BHR professionals who might be in a position to do something about the situation by raising awareness more broadly, providing knowledge resources, or perhaps even providing direct assistance.

And yet this same insight only deepens concerns when we realize that only Occidental was able to really leverage the power of the BHRRC exchange platform. The affected families' perspective appeared only in a collateral sense (in the form of a protest announcement rather than composed advocacy on the relevant issues), and their lack of follow-up, which almost surely came from a lack of resources or perhaps even a lack of awareness that the dispute had landed with the BHRRC in the first place, could easily appear to a less attentive reader as shirking from the exchange out of concession to the rightness of Occidental's contrary perspective. Ultimately, Occidental was able to use BHRRC's reach to put its framing of the dispute in the inboxes of 16,000 of the people it most cares about as it seeks to nurture its human rights reputation; it was able to tell them, almost intimately, hey there is no real issue here, move right along. Indeed, one has to wonder whether BHRRC's own inattention to further developments in the dispute, while no doubt mostly due to the challenges of tracking hundreds of complex ongoing disputes, was not on some level influenced by Occidental's strong (and unrebutted) framing of the dispute as a matter of petty lawlessness rather than a "human rights" dispute.

Again, it's hard to say to what extent the Occidental dispute is characteristic of the bulk of BHRRC-hosted disputes. But we do see similar dynamics play out almost weekly. In the most recent Weekly Update, India's National Hydroelectric Power Corporation (NHPC) took the "nothing to see here" approach to comic extremes with a response that lasted exactly five words: "Everything is resolved. Work resumed." This was in response to a story about communities making multitudinous demands against the company including "[a] share in employment, repair of roads, medical facility, education facility and the safeguard of environment and ecology." Yet the BHRRC took the response at face value, ran it in the Weekly Update in the usual fashion ("we invited NHPC to respond; response provided"), and included it in the list of Company Responses it had received that week.

With neutrality & justice for all

In the past, the BHRRC has grappled with how to understand its neutrality as it plays host to these disputes, trying to position itself as a resource for both the business and human rights sides of BHR, to avoid being put in the position of calling balls and strikes as allegations emerge from complex and unfamiliar situations around the globe, but also not losing sight of the fact that its larger purpose (like that of BHR generally) has to be a human rights purpose for all this to make any sense. The BHRRC's current executive director, Phil Bloomer, has less patience for questions of neutrality: "We are not 'neutral,'" he told me. The BHRRC is a "human rights institution." While the rest of the BHRRC and its regnant institutional practices may have some catching up to do on this point, it is worth noting that the claim to (or charge of) neutrality was never about indifference to human rights. Pretty much no one is "neutral" on human rights in the abstract. At the same time, neutrality regarding any particular allegation or dispute does seem important, serving the virtues of both fairness and, for the BHRRC, the continued cultivation of a trust relationship with business that has proved important over the years. So the answer may be neither an embrace nor a rejection of "neutrality" in the abstract, but more attention to where and how neutrality serves (or fails to serve) its objectives.

Let's take a closer look at the kinds of balls and strikes that BHRRC disputes present. Fairness seems most clearly important when a company has a distinctly different understanding of the facts. For example, in a recent Weekly Update, the BHRRC ran a link to a Bangladesh newspaper story headlined "7 protesting workers allegedly injured by bullets fired by guards employed by Kabir Steel," whereas the company flatly asserted in response that no protestors had been shot, nor could they have been shot because Kabir's security personnel used cartridge guns that only fire blanks. While the overall dearth of information is frustrating and calls out for more reporting (notably, the original article did not just rely on rumors but on a named source, Rajib Palit, an "emergency medical officer at the hospital" who "said the injuries were caused by bullets"), it does seem better to have Kabir's response, which is specific even if unverified, than not.

In other situations the facts may be clear but the company wishes to provide its perspective. A fairness interest is still present here, but we have seen its larger dimensions; companies already tend to overpower affected communities in their ability to shape the global messaging about a dispute, such that giving companies another powerful tool -- guaranteed access to the BHRRC website and newsletter, with no substantive requirements or strings attached -- may not always serve fairness in practice.

And then there are situations where the perspective the company wishes to provide stands in tension, to some degree, with human rights principles. Where, for example, companies use their response power to malign their advocacy opponents or even the alleged victims, as we saw subtly in the NXP case and less subtly in the Occidental case. Where companies seek to reframe the dispute around a defense, like corporate separateness, that itself raises human rights problems. Where they seek to allay human rights concerns by pointing out their virtuous actions -- their "off-sets" -- in other areas. Or, most subtly, where they reject the basic "invitation" of BHR to examine the human rights implications of business and instead seek to put some (any) other non-human rights frame around the dispute: a question of local or national authority; questionable conduct or motive by the victim; a question of economic efficiencies; a matter of "bigger" policy questions; what have you. While none of these re-framings should, as a matter of logic, eliminate the human rights questions from picture, they do shift the focus and companies know it.

Such attempts at re-framing hardly threaten to destroy the value of the BHRRC platform, which overall does a fantastic job of putting disputes into a human rights context. Yet the BHRRC largely leaves the often tricky task of re-centering attention back to human rights implications to the original victim or advocate. As we saw in the NXP case with IndustriALL, sometimes the original advocate is more than capable of doing so. But, as we saw in the Occidental case, not always. The question is whether the BHRRC could build some of this attention discipline into its own procedure, and if so, whether this would clash with whatever conception of neutrality the BHRRC is trying to live by. It certainly seems reasonable that in exchange for the service of broadcasting a message into 16,000 key inboxes, the BHRRC would be able to charge something of a toll, such as a minimal level of specificity, a minimal level of decorum, or some other standard equivalent to requiring that a company accept the basic BHR invitation to examine the human rights implications of its conduct.

Refereed neutrality

With respect to specific disputes, the BHRRC might consider the image of a "referee" as somewhat different than "neutral." Refs are neutral as to the parties, but strict enforcers of the rules of the game, which can certainly include measures to maintain equity between different types of players. As to its exchange platform, the BHRRC is not only the referee, but is in a position to dynamically craft the rules of the game to achieve a fairness it really believes in. Among the different approaches the BHRRC could experiment with:

  • Right of rebuttal. Currently, the BHRRC waits for a response from corporations, but maintains that it would cause too much delay to wait for a rebuttal from the original affected individual, community, or organization. This stands in contrast to the usual practice in journalism; when a magazine runs a letter challenging an article, for example, it usually runs a response from the article author along side it, allowing the author to debunk any obviously baseless or self-serving attacks. While the desire to avoid additional delay is well-founded, if the BHRRC notified the original affected party as soon as a company indicated it was preparing a response, the original party could potentially have resources on standby to prepare rebuttal in short order. In a recent example, the BHRRC ran an item on a lengthy report on the human rights impacts of illegally mined gold, everything from the "funding terrorism, facilitating money laundering and corruption, displacing local populations and driving people trafficking, child labour and sexual exploitation." One company mentioned in the report (but far from being its focus) had its lawyers send in a vitriolic response that completely ignored the broader issues, repeatedly attacked the report's author for bias, and dropped veiled (though baseless) threats about defamation. The author of the report had no advance notice the letter would be published alongside her report, and while she is now preparing a response, it is fair to say that the initial impact of BHRRC's dissemination of her report was significantly muddied, perhaps without justifiable basis.
  • Rebuttal assistance. In many cases, however, an affected individual or community will not have the capacity to effectively (or quickly) marshal points and evidence in opposition, even where there is plenty to work with. There seems to be an informal practice where NGOs who work in the sub-field will step in to provide advocacy; this happened, for example, in the Kabir case noted above, where the NGO Platform on Shipbreaking was allowed to provide a rebuttal that was posted on the BHRRC website and linked to in the Company Responses section of the following week's Update, although not run as a separate item. The NGO Platform, based in Brussels, could not make any headway on the question of whether actual bullets were fired, but they did important work to keep the larger human rights issues in the dispute (treatment of workers; why they so quickly assemble to demand compensation) in play. The BHRRC also has a half dozen part-time regional representatives who facilitate the process by both contacting companies for responses and following-up with affected communities. The BHRRC has even on rare occasion contacted experts to help its audience better contextualize a company response. For example, when Cemex took the position that "does not supply building materials to the illegal settlements in the West Bank" based on its understanding of "illegal settlements" as only those settlements "not approved by the Israeli government," BHRRC coordinated with international law scholars to obtain short statements more fully elaborating the tension between domestic Israeli and international law understandings of "legality" in the case. The main problem here is capacity, given that the BHRRC tracks so many disputes. Nonetheless, it could potentially expand these "assistance" models using a pro bono network or other strategies.
  • Question & answer. Perhaps the most feasible reform the BHRRC could implement would be to require companies to meet at least some good faith effort at responding to the specifics of a human rights violation before agreeing to publish a response. The BHRRC could offer to run any statement that contains information responsive to, say, a series of BHR Framework Questions, which might direct the company to (1) identify the key allegations in the original post and its response to each; (2) identify any Human Rights Due Diligence it has conducted on the issue or related to the affected individual or community or any aspect of its Human Rights Policy or similar policy or code of conduct that potentially applies to the situation; (3) identify any Salient Human Rights Issues that it has identified regarding the issue or the individual's or community's allegations, in accordance with its "respect" obligation under the UNGPs; and/or (4) identify any judicial or non-judicial processes available to the affected individuals or communities to achieve an impartial opinion on the disputed facts by an impartial authority and a remedy, if deemed appropriate by that authority. The BHRRC would need to make clear that its editors would review the response for completeness and follow-up with the company if they believed it materially failed to respond to any question or key allegation, and to put some teeth on it, could tell the company that if this follow-up process resulted in delay, the original post would go forward on its own, with the response following at a later date. It is certainly possible that a structured process like this would drive down corporate participation. (Or, it might not.) But if it did, a less demanding set of questions might impact corporate participation less, suggesting a balance point at which the BHRRC could feel confident that its door was open and that those who walked away were probably not interested in engaging in the BHR process in good faith in the first place.

The BHRRC has created an important platform for human rights dialogue and, potentially, accountability. The dialogue will only grow more important, as more and more communities understand their rights and speak out, and as BHR comes to embody the practice of business generally. The BHRRC is in a unique position to shape our understanding of fairness and the ground rules of engagement for such a dialogue; to create a playing field that leaves room for competition in viewpoints and ideas, but keeps the ball on human rights moving in a forward direction. Even if or when the dialogue moves on to other or more diverse platforms, these formative sensibilities will likely follow with it. So while the right balance -- the magic "&" -- may be tricky and hard to find, there's no better time to start figuring it out.

Note: The BHHRC has recently opened a public comment process to receive a wider range of views regarding the issues raised in this blog and the Company Response mechanism more broadly. It is encouraging anyone with interest to provide comment by June 7, 2016.