by David Kinley (ed). Burlington, VT: Ashgate Press, 2009. 560pp. Hardback. $275.00/£140.00. ISBN: 9780754627425.
Reviewed by Brian M. Harward, Department of Political Science, Southern Illinois University Edwardsville. Email: bharwar [at] siue.edu.
This text is one in a series of volumes that comprise the International Library of Essays on Rights edited by Tom Campbell. This particular collection of essays explores the contours of the relationship between multinational corporations (MNCs) and human rights. Attention is given to the corporate social responsibility (CSR) movement generally, its power, limits, and consequences for states, the international community, MNCs, lawyers, the environment, and vulnerable populations of the developing world. Most of the essays build upon the disjuncture between the transnational structure and reach of corporations, and the law – which is largely national in scope. Several articles address the resultant global prisoners’ dilemma and the “race to the bottom” that emerges as developing nations compete for MNC investment in the context of inefficacious international mechanisms of ensuring corporate social responsibility. But voluntary standards of corporate conduct, international treaties and conventions and the like do have important consequences for domestic and international positive law as the CSR movement develops. A dominant theme of the literature included in this text deals with this difficulty (and sometimes the promise) of relying upon voluntary codes of conduct to ensure MNC compliance with human rights standards. Behind that difficulty lies the “marked increase in the influence of international financial markets and transnational institutions, including corporations, in determining national policies and priorities” (Shelton, p.184). For many authors in this volume, reliance upon voluntary corporate conduct codes, and even local or national legal institutions, to ensure corporate compliance with human rights obligations simply reinforces the existing political and economic power the corporations have over domestic and international institutions.
In general, the collection succeeds in tracing the consequences of viewing the MNC as a duty-bearer distinct from the state (which traditionally has been the locus of the obligation to attend to human rights claims). If corporations – as legal persons – have rights, then it is reasonable to conclude that they have attendant duties. The nature of those duties, and the ability of “soft” and “hard” law to enforce those obligations shape much of the discussion. However, aside from often-repeated anecdotes of corporate violations of human rights, very little attention is given to empirical inquiry of how specific agreements, legal relationships, standards or conventions emerge, are sustained, change, or are disregarded.
Part I of the text is dedicated to “framing the relationship” between corporate action and human rights. In the lead essay, Peter Muchlinski identifies the [*689] state as the primary locus of responsibility for protecting against abuses of human rights. He argues that MNCs will be unlikely to benefit from violating human rights because (for reasons relating to corporate reputation and workforce recruitment) corporations require state support for human rights. But MNCs have had a history of involvement in human rights violations – either directly or indirectly. Therefore, Muchlinski argues, ‘hard’ and ‘soft’ law options ought to be developed to insure corporate social responsibility. Soft law would include developing codes of corporate conduct that may restrain (ex ante) corporate behavior by including assessments of investment decisions. The hard law approach would include the development of national and international mechanisms by which the positive duties of corporations to conform to universal human rights requirements would be adopted. In sum, Muchlinski sees the corporation as a potentially benign force within the global marketplace, so long as the context in which the enterprise operates is designed to encourage the firm to support fundamental human rights. The mechanisms exist to secure human rights, it is simply the political will to enact them that must emerge.
Beth Stephens is less sanguine, however, about the ability of “soft’ law, or voluntary codes and standards of corporate conduct, to restrain corporate irresponsibility. She notes that such codes typically “incorporate human rights norms that are, in fact, obligatory duties, not voluntary undertakings” (p.56). Thus, she suggests, it is the force of law that compels obligations, not the voluntary codes that are too frequently expressions of the political power of corporations. International law is capable of regulating the behavior of MNCs in a way that domestic, national law cannot. The multi-jurisdictional structure of MNCs creates difficulties and collective action problems for domestic judicial systems as they attempt to regulate the MNCs. International law, however, is better suited to regulate (or resolve the collective action problems of participating domestic judicial systems) as corporations seek to make gains by incorporating subsidiaries in different “home states” – effectively limiting the liability of the parent corporation. Stephens proposes that the international community adopt a “pragmatic international approach” to regulating multinationals, “that recognizes the reality of economic interdependence rather than relying on legal independence” in order to impose “regulations that force accountability for human rights abuses” (p.66). As international law has already established adequate mechanisms for doing so, appropriate enforcement mechanisms at the domestic level will need to be coordinated to ensure compliance.
Christopher McCrudden explores the use of corporate conduct codes that comprise the “soft” law discussed in the previous essay. He focuses on the development, implementation, and efficacy of the Sullivan and McBride Principles adopted by private interests in the U.S. to regulate labor standards in South Africa during the apartheid era (Sullivan Principles) and Northern Ireland (McBride Principles). The essay is a helpful extension of the Stephens argument in that by focusing on two specific cases of corporate codes of conduct that were orchestrated by [*690] interest groups in the U.S., McCrudden is able to offer an alternative view of the regulatory power of such codes. He finds that rather than being the “Achilles heel” (Stephens, p.24) of enforcement, the Principles have become “soft law” through adoption by various U.S. jurisdictions. The Principles have been “drawn on as guidelines by state and local governments in the USA for investment, procurement . . . and in that very limited sense they may be considered to have been incorporated into law” (p.99). They have, then, “acted as a stimulus in the development of law” (p.98). Another extension of the Stephens thesis is found in the Principles’ relationship to international human rights treaties. While there is a good deal of overlap – consistent with Stephens’ argument – the Sullivan Principles in particular extend well beyond the obligations ascribed to signatories of relevant international human rights treaties. Rather, the Principles reflect a particularly American view of CSR, informed by the American civil rights movement and buttressed by powerful support from civil society, which suggests that the institutionalization of such codes requires favorable political conditions in order to “penetrate.” But the consequences of private interests developing and implementing corporate codes give rise to important questions. As McCudden notes, the success of privately developed corporate codes may signal increasing grassroots engagement in overcoming the difficulty of enforcing international norms. Alternatively, concern about the unaccountability of such interests and the exportation of particular principles from one country to others not a party to the development of the codes (and unable to control their effects) could make many uncomfortable with reliance on “informal law” as a mechanism to ensure CSR.
David Weissbrodt provides a helpful overview of the United Nation’s recent attempt at developing an institutional standard to guide CSR – the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. His essay notes the nature and limits of the Norms as a guiding basis for corporate activity.
Monshipouri, Welch, and Kennedy explore the difficulties that inhere in relying on voluntary codes of corporate responsibility, the necessity – but inadequacy – of recent international agreements, and the difficulty of establishing an independent governing body to ensure compliance with international labor, environmental, and human rights standards. They argue that civil legal action, boycotts, and negative media exposure may be important constraints on corporate behavior, but will fail without global mechanisms to implement the standards.
Dickerson argues that the conduct of MNCs in recent years has extended beyond simple profit maximization in the interest of shareholders, to include the adoption of conduct codes which recognize the important rights claims of vulnerable populations. The enlightened self-interest of the MNCs, then, initiates a “feedback loop” that reinforces the human rights norms in host countries as well as among consumers in the developed countries (p.174). The evolution of the norms is buttressed by a growing willingness to enforce by law [*691] this new understanding of corporate responsibility.
Part II of the text provides what the editor, David Kinley, describes as “different conceptual
perspectives of the interaction between corporations and human rights” (p.xv). Shelton raises the difficulty states face in attempting to enforce the obligations to respect human rights that attend MNC activities in the global marketplace. She calls for the international community to assist in strengthening weak states, establishing legal authority within those states that can oversee the activity of non-state actors, and most importantly – developing international mechanisms that can coordinate across states in order to ensure CSR.
Ratner’s essay is particularly helpful in framing the multiple issues that are considered in most of the essays in this volume. In that sense, it is curious that this was not the lead essay of the compilation. In addition to providing an excellent review of the role of voluntary codes, NGOs, treaties and international conventions in encouraging CSR, Ratner develops a theoretically compelling justification for employing international law to enforce human rights obligations directly on corporations. The framework he provides is offered as a foundation upon which a body of international law can be built to obligate corporate attention to human rights. His theory “posits that the duties of a company are a direct function of its capacity to harm human dignity” (p.312) which leads to dual negative duties to neither directly nor indirectly violate (presumably insofar as such violations are foreseeable) the human rights of those to whom the corporation has certain ties (p.313).
In something of a departure from traditional approaches to state or international mechanisms of “command and control” over corporate responsibilities, Parker proposes a reconceptualization of meta-regulation. In her view, meta-regulation provides legal accountability for CSR by externally regulating the internal corporate conscience. By addressing how corporations manage their internal operations, meta-regulations make it possible for the law to ensure compliance with the extra-legal values and social policy goals of regulators.
Moving into Part III of the volume, the emphasis shifts to the “practice, problems and potential” of linking corporate behavior and human rights. Surya Deva is interested in deriving ways in which developing countries can overcome their collective action problems in negotiating foreign investment opportunities with MNCs. Deva proposes a “diversified integration” approach that recognizes individual countries’ needs, the potential value of foreign investment that is directed to those needs, and the inclusion of civil society in securing support for the direction of that investment within the developing countries.
Kinley and Chambers chart the history and contemporary debate surrounding the U.N. Human Rights Norms for Corporations, which have come under considerable criticism from MNCs for their approximation of international law. Kinley and Chambers reveal the limitations of the critiques as they explore the nature of the Norms [*692] themselves, as a “draft of a set of standards that . . . guide and suggest rather than compel” (p.443). Nonetheless, the authors note the multiple avenues for the Norms to “harden” into international law backed by the enforcement mechanisms of national legislatures and courts in order to create enforceable legal obligations.
Conley and Williams cast a skeptical eye on the emergence of a “new governance paradigm” in which the regulatory state exercises authority in more diffuse ways than direct legislation. Reliance upon civil society and corporate self-regulatory practices, they argue, may mask pernicious rent-seeking behavior by corporations and permit MNCs to avoid more direct regulatory law by appearing to be responsive and engaged with stakeholders.
Koh’s essay provides a pointed critique of recent efforts to repeal, limit, or reform the Alien Tort Claims Act. He argues that overblown concerns about the statute frustrate real reform efforts to establish international treaties that provide “safe harbors for responsible corporations” (p.494) and make clear activities that would constitute human rights abuses.
Finally, Ward explores the distinct set of qualities that characterize lawyering in the CSR context versus traditional lawyerly activity. The CSR context requires lawyers to practice in a manner that confirms and extends emerging values of social, economic, and environmental justice rather than adherence to a model of conduct that is essentially passive – “applying values already expressed in law” (p.537).
Overall, Professor Kinley provides a very useful service to the field by compiling some of the best recent work on the human rights obligations of corporations. As one might expect with a compilation of previously published articles, there is a good deal of overlap in the treatment of the topic as well as a sense of disjuncture as one moves through the volume. Nonetheless, several select essays could be quite helpful in framing the issue for a more general audience. Upper division undergraduate or graduate courses on globalization, multinational corporations and human rights law or international law may find this compilation particularly useful as a reader. As it may not capture the totality of the issues that attend the scope of corporate social responsibility, use of this series in conjunction with additional materials may be useful for courses interested in, for example, empirical examinations of poverty and inequality, philosophical considerations of rights and duties, or legal ethics.
© Copyright 2009 by the author, Brian M. Harward.