Book Review: Manoj Kumar Sinha,Business and Human Rights

In a world where the technology is changing at unimaginable speed, where the borders do no more exist, the governments cannot be sole agents of human rights and behaviour. Corporations are both the creators and the destroyers of problems as they influence the problem first and then find solutions to the created problems. Both of them are nothing but human rights struggle. Accountability of business to human right is a relevant issue and all the authors under various topics have extensively covered all the relevant issues and points under the banner ‘Business & Human Rights’ edited by Manoj Kumar Sinha. This book gives the perspective and flavour from various angles—from corporate responsibility to legal frame work and issues involved in these areas to balance out between corporate responsibility and the business as a whole. Given the increasing influence of both the developing and the developed economies, one has to think on emerging economies where the pitfalls can be avoided in the future as they will have the learning’s ready-made from the developed economies. It is also necessary to have a mechanism fight unfair or repressive practices prevailing across the globe. Human rights always believed in healthy tensions to overcome issues. GNI is one such example where Global Networking Initiative talks about safeguarding the freedom of expression and especially in the internet and social media sectors.

The book under the chapter Corporations and human rights covers international legal obligations towards human rights from various stakeholders especially from corporations. The author, Jernej Letnar Cernic has describes the responsibilities of transnational corporations both in terms of emerging importance of these corporations in view of their role in developing economies, and their influence on human rights and their behaviour as well in determining their pivotal role as not only the change agent based on their activity but also safeguarding human rights obligations which includes maintaining dignity of the labour, non-discrimination, equality, etc. The author has also in detail explained the effects of Globalization and the results and changes in both domestic and international environment. While, the author has even narrated the philosophical view point on the subject stating that ‘way as a moral claim that all human posses, or as a translation of these moral claims into positive law in national legal orders and at the international level’. It would have been more insightful if the author has given couple of examples of cultural influence on this topic especially Asian and Western World, as it has also got a major bearing when we look at the human rights obligations, protection and sustaining the same before making a transformational change. Over all the detail given by the author is very useful from the international perspective.

The Indian perspective of Business and Human Rights by Manoj Kumar Sinha, explains the very genesis of human rights by beautifully connecting the same to universal nature which cannot be differentiated across geography but for the human race as a whole. Irrespective of the fact where the struggle happens whether it is in Africa, Asia or the west basic principles of addressing the issue, finding solution and protecting dignity and the rights remains the same and it is the universal responsibility of every business cutting across distances and geographies. The author also explains in an effective way by stating that the struggle for recognition and logical explanation is not always easy. Therefore, it is necessary for the state to provide a proper mechanism, channels to address and resolve this issue which is primarily the legal enforcement mechanism for an individual to resort to find a solution.

The author also explains in a simple way about the doctrine of human rights and its primary need for a common framework within which civil, economic and political system operate and the state has no option to opt out as it is the responsibility of the state to provide national sovereignty to every citizen of the county. It also provides a right to citizen to question the legitimacy of such denials if any under the fundamental rights. The author has also enumerates the suppression of liberty and lack of equality and even starvation, etc. under religious beliefs is an interesting piece to read. The bottom line is to follow national and international human rights instruments which an outcome of suppressions, denials across culture, continents, religions, which will address all the basic issues of human rights across the Globe. However, in my view it is not only the erstwhile USSR’s collapse has resulted in poverty and momentum in human right activists but globally the growing denials and the increasing gaps between haves and have not, to some extent privatization resulting in wealth in the hands of few, degrading environment are also responsible for this momentum. It would have been more interesting if the author has covered more in these areas. But overall this chapter is very insightful and interesting to read.

Ronald J. Colombo under the head Rights and Responsibilities of the American Business Corporation, elaborates the modern challenges for corporations in terms of Corporate Social Responsibility—which is not limited to Balance Sheet alone but in participating in the whole political process, while underlining the fact that it is not free from controversies. While, the readers know that the political system and healthy process may lead to some agreeable terms in the US, being a developed economy, the same may not be applied universally. The author also deliberates in an effective manner regarding cognizable rights of the corporation and their role in building a robust system in the society as a whole. The author also enumerates the interdependency of corporations and political system for a focused CSR which will benefit both the corporations and political system. Finally the author concludes with ‘real entity’ theory of the corporation, with a philosophical justification is very interesting to read. I hope the Federal government in the US will refer this chapter for their betterment. It is pretty interesting to read a recent statement by President Barack Obama ‘Government and businesses have mutual responsibilities; and … if we fulfil these obligations together, it benefits us all.’ which also highlights the kind of work which is going on as explained by the author in the USA. The readers will also know the fact that the US Department of State’s strong commitment to CSR by providing support and guidance to corporations for their conduct. The Bureau of Economic and Business Affairs (EB) gives tremendous support and guidance to corporations in discharging their duty towards CSR framework. To encourage and foster CSR and ethical practices in the corporations, the US Secretary of State has annual award to recognize exemplary CSR activities is worth noting here.

Sara L. Seck touches upon the Corporate Law Tools and the Guiding Principles for Business and Human Rights by elaborating the UN charter wherein transnational corporations and business houses are expected to protect, respect and remedy human rights. The state has got equal duty to discharge on this point. The author further explains that greater access requirement for a remedy to the victims from social responsibility angle that too in global reference point as guiding principles of the council is very fair expression of thought by the author, but the implementation at Global level is a real challenge, especially in developing and under developing countries. The other point the author covered regarding the Corporate Law Project (CLP) undertaken during the special representative mandate to review the implications. However, the practical issues in implementing across the Globe, across cultures and political system is extremely difficult. Effective and comprehensive dissemination of guiding principle may be possible but implementation of the same across globe is a real challenge. The author’s contribution in this chapter is very useful for unification of such process for human rights universally. There is an issue of Corporate Governance itself across countries and there are gaps emerging within the Corporations. It is therefore, clear that only concerted efforts on a perpetual basis towards this direction, may bring in desired result of implementation of uniform human rights protection and remedy. Angelica Bonfanti’s contribution regarding Business related abuse and remedy for victims covers both guiding principles of UNHRC 2011 and the first to third pillars of a tripartite operative framework of human rights in detail. While agreeing to the fact that every system will try to ensure justice when such violations happen but there is no guarantee that it can fully avoid. In spite of best of efforts across countries in the Globe, these violations do happen and we have a long way to go for uniform codes, uniform justice. The author has also explained that there are constraints in implementation, we can only ensure access and effective remedial measures but corporations and state must ensure delivering justice to these issues. Anita M. Halvorssen and Karin Buhmann cover extraterritorial regulation of companies and the UN Guiding Principles on Human rights and business. While the basic premise is the same as that of other authors who have covered on the principles, powers and duties of state or government of a specific country in which such corporations operate and when they violate such principles is effectively enumerated. The author also covers MNCs role in protecting the human rights in building a robust system for the state in terms of corporate governance as combined responsibility along with the state. The next chapter on Extra-territorial regulations of companies again based on the UN guiding principles by Anita M. Havorssen and Karin Buhmann, gives a contextual role of business houses and their duties towards human rights and how to handle such abuses when committed by their own countries overseas referring to UNHRC 2010 and very rightly gives the perspective in spite of control mechanisms, guidelines and vigilance it continues to take place is the ground reality and need to be understood to strengthen these mechanisms. The author also gives an account of gaps arising across the globe and difficulties in controlling the same in multinationals operating in different geographies, due to lack of support and the guidelines in a country or the state is a very important point to note. The author very nicely narrates that the complex situation created by authorities, political system and economy is difficult to address in totality. However, efforts to be made to address these issues as much as possible, as it is difficult to apply 100 per cent especially when it is Extra-territorial. Jena Martin Amerson, in the next chapter covering Transnational Corporations as Bystanders under International Law, brings out examples of environmental practices in Nigeria where in a Gasoline company, Shell Oil case where all the outside media during the trial of violation of the case, wherein the legal complications and the state rule allowed restriction for media. However, trial proceeded with the company. The example given by the author on the trial by the then British Prime Minister John Major, stating it unjust sentence followed by judicial murder and the Nigerian government have been held accountable by African Comssion on Human and People’s rights is a very interesting piece of information if a reader wants to understand the complications and challenges in making it universally implementable. It reemphasizes the fact that it can never be implemented with 100 per cent perfection internationally. Similar view with an emphasis on the US and the European territories is expressed in the next chapter by Benoit Frydman and Ludovic Hennebel. The authors have covered in detail regarding human rights abuses committed abroad by the transnational corporations and inadequacy of common international mechanism creates a gap in the system which only results in human rights violations and abuse. Though there may be handful of legal fraternity will try to address the issue. But the fact of the matter is that it is more of legal recourse and preventive mechanism which do not work when it is extra-territorial. It is also being noted here that there is a great degree of difference between countries across the Globe in treating suits whether it is Civil or Criminal in nature. The author very rightly points out that some of the suits which are civil in nature in the US are of criminal in nature in the Europe and vice versa. If you compare across countries of the globe it will be really confusing as the classifications are different. Therefore, the quantum of punishment or seriousness in which it is dealt with may not be the same. Therefore, it may give a feeling that in a country it may be just a small civil issue, whereas it will be of heinous crime in some attracting major punishments. It is vivid and clear that it is impossible to bring in uniformity in this process across the Globe.

The universal human rights guidelines for companies, University of Minnesota states that the efforts are on from early 1990s to address and bring in Uniform Code for companies, similar view was expressed by the former UN secretary General, Kofi Annan that a Global compact of shared values and principles that can be used to general human rights obligations, labour rights, standard of labour and environmental protection way back in 1999. Further, a website was also established in the year 2000, wherein it was agreed that universally applicable values, standards, systems, etc. and business houses across the globe were requested to comply with it. The tools were also provided to support the initiative. Extensive guidelines were provided even in defining transnational corporations, their duties in protecting human rights and what is expected of them when there is an abuse of human rights. Professor Ronald Coase has given concrete inputs in developing an alternative paradigm to Friedman’s understanding of how businesses should first conduct and act, arguing that companies are best understood by observing carefully their actual conduct rather than creating artificial models of how they ought to act. It is for sure, for more than a decade now business houses understood the interplay among companies, governments and human rights and there are marked improvements across the globe in this topic. However, we have a long way to go in implementing a universally adaptable, implementable stature to this issue.

T. Li-wen Lin covers the genesis of capacity building for legislative under the chapter Private International Substitutes for Domestic Legal Institution and Process certification programs in Global Supply chains. The authors brings out the practical situation where the policy making has an integral component and developing countries it has become a mainstream policy of international developmental agencies. The author also gives an account that the World Bank maximum spends in billions of dollars is a clear indicator that makes a robust law program to improve functions of legal institutions. The story may not be different in developing countries as the functioning of legal establishments and legal systems needs greater improvement there. The author clearly states that increase in cross border trade and globalization necessitated a faster system across the globe to support and expedite transactions of supply chain is an interesting take. The point to be noted here is that only state support across the globe may not be sufficient, in fact, private international substitutes will actually improve situation across the globe. The next chapter of the book covers the extraterritorial human rights and RICO after Morrison V. National Austraila Bank Ltd by Eric Engle, the author talks about a narrow minded approach by third world countries in allowing human rights abuse due to better profitability is a cause of concern. That is the precise reason, the developed economies should be a role model and demonstrate that the protecting human rights which are internationally accepted should be implemented across irrespective of the cost or cash involved. Whether it is the case of Bhopal Gas tragedy where thousands of people got affected due to poisonous gas discharge from Union Carbide in 1980s of Russian Gas leakage tragedy, whatever to be done to rehabilitate people, to take care of accidental damages to the body or environmental hazards which affect even generations to come, should be dealt very strongly and addressed in total universally. The authors say it is not important to analyze the reasons whether it is a corruption issue of the country or absence of strict law, or illiterate cheap labour unaware of their human rights—the state and the government must ensure justice to these abuses and victims is an important take. Finally, the author also advocates rightly, that these issues can be addressed by the third world countries by themselves. But my view point on this is, countries such as the USA, Australia, UK and France have a greater role in influencing these third world countries from their own experiences. The next chapter by Robin Ramcharan, specifically covers the gaps in the current international policy and legal framework related to business, intellectual property. The author expresses that the IP issues need to be addressed on priority as it is a known fact the abuses are also on increase and it is difficult to manage with the growing global trends. Even the current International law is not uniform across the countries and very difficult to implement, it is therefore requiring attention to address in enterprises and business. The author gives a special perspective of south Asian wherein the IP issues giving details of ‘Ruggie Principles’ on business and human rights and IP issues connected gives insights to the issues and constraints in monitoring and driving a good system to address the issue. The author also very nicely elaborates the dimensions of IP issues related to human rights and suggested set of principles for developing a better system. Over the entire chapter is very useful not only to general readers of the subjects, but also for the IT professionals and law makers as well to understand the nuisances in IP area. The next chapter by Guiguo Wang, Xiaoli He and Oi Xue covers the human rights and International Investment Law, this chapter gives a clear understanding of interplay and interdependency across economies, members of international community and their importance in the recent years due Globalization effect. The author explains clearly that the investment options overseas, cross border—some countries it called ‘FDI’ and some other places just investment, will also be dependent upon how robust is the system in the countries in safeguarding the human rights. We have seen in the recent years, some western countries boycotted investment and trade in certain third world countries as the human rights were abused. The exceptional social networking and flow of information globally also now decides the capital flows, transfer of technology and trade in goods and services is a valuable information to remember to many of the developing economies, where development can be denied, investment can be denied if human rights issues are not addressed. The ongoing Common Wealth forum in November 2013 at Colombo also witnessed something similar where countries like Canada also refused to participate for human rights violations by Sri Lanka against Tamil population. It is therefore important for every country to address these issues not only from the Investment point of view, but also from co-existence situation due to Globalization. The following chapter authored by Bertrand and G. Ramcharan brings out the necessity to create a business fund for both human rights education and spreading the awareness on this critical issue worldwide. This is a wonderful idea which will not only promote and protect the human rights but also address the gaps arising in this area. The authors’ view to create a team of lawyers and professionals at both the local and international level is a good proposition to review. A central place or a data base and sharing of judgments across the frontiers is another idea to decide based on the precedents is again a useful advocacy to look at it. The author further extends that it should be available in the local language, so that the national courts can uphold international human rights norms. The authors, finally concludes that only through awareness and education of human rights all the issues can be addressed is absolutely the right approach to the problem. The chapter 18 specifically covers Agribusiness Land-leases in Africa and transnational business interests and human rights. Anastaia Telesesky describes the prognosis for global food security which is not predictable and rightly pointed out by the author is uncertain. However, we have seen in the recent past, larger democracies in the world enacting food security bill (India) is an indicator that many more underdeveloped countries will also follow the suit, State Exchequer costs though; it will be a political move across geography to win ballots. As far as African scenario is concerned, the author depicts a picture about the pressure mounting on the government to expand agricultural lands to cater to the food requirement not only in Africa, but also in other parts of the world, that is why there is also an investment flow from the USA, China and India is also showing a steady increase in Africa. Fertile land is always an issue across the globe and if we look the concretization in other parts of the world including the US, China, Europe and needless to say Middle East is a greater issue. Therefore, we need to have a regional balance somewhere, which is the prime reason; investments are flowing in Africa for long term leases on Agricultural lands. When we discuss about Africa it is not only the fertile land, but also availability of water and cheap labour resources for expanding agriculture, plantations, etc. But the point to be remembered is that required protection for human rights in relation to agribusiness not only in Africa, but also globally is a must. The final chapter of the book out of the darkness into Light enumerates on the Right to Work, the author, Francesco Seatzu with a query on general comment of the UN on right to work comment only in 2005 is interesting point. As pointed out by the author, it is a fundamental and catalyst right which will pave way for social change, economic growth, stability, individual dignity therefore, undoubtedly hub for various other rights which includes overall human rights. The Para wise, analysis gives an insight on missing links as well to be noted by the UN itself. ‘As even a simple reading suggests, this is indeed a provision which encompasses a broad concept of work that is more than what the market normally considers work or employment to be’ Very rightly the author clarifies that it encompasses everything that is economic, social and cultural development. It is therefore, crystal clear that to realize all these, one needs to focus on the very basic right to work. However, the emphasis needs to be given on training programs and vocational guidance is a logical view by the author, without which this cannot be achieved.

Overall, the book Business and Human Rights edited by Manoj Kumarn Sinha is a compendium of human rights and Business under 15 chapters by various authors across the globe with convergence of views and inputs given by authors which will be very useful reference for all teachers in this field and practicing professionals in this area. It would have been a delight if the editor has also covered areas of voluntary principles on security of human rights and Global Network Initiatives (GNI) given their increasing influence in both developed and emerging economies and the duties of MNCs and Transnational Corporations.