Business & Human Rights: Optimism and Concern from the U.S. Perspective

The forty-five years from the release of the first report on the subject to the release of the Zero Draft have been accompanied by vibrant scholarly work and debate, as well as a significant jurisprudence, corporate engagement, and civil society discourse. The work is largely recognized as completed, and this moment has been aptly called “the end of the beginning” in the field of business and human rights. It is in this context that this Essay will discuss both the casualties and laments of the past forty-five years, as well as the grounding for optimism at this moment. Though we should not lose sight of the intrinsically global and transnational nature of all issues evoked by discussions on business and human rights, this Essay will focus my reflections on the role of, and perspectives from, the United States In addition, the multiple approaches to governance that have germinated in this field require that the Essay provide only a cursory overview of the current state of play. During the early years of the United Nations’ exploration into large-scale tortious acts committed in far-off places, transnational businesses operated under fairly generalized legal impunity. This reality was made possible by the combination of the ‘corporate veil’, together with a historically strict application of extraterritoriality, and an absence of international human rights law directly governing businesses. Since the Kiobel decision, and again since Jesner, a number of authors in the United States have also asked where the claims making up corporate ATS(the Alien Tort Statue) litigation might land, if not in U.S. federal courts. They have looked downward, upward, and sideways and found potential venues in each of those locations. Given the difficulty present in each of the litigation paths currently available, I.e., in US state and federal courts an in the courts of other countries, and in international tribunals, scholars and advocates in the field of business & human rights have turned to the task of entrenching new binding legal obligations on corporations, primarily the duty of corporations to engage in human rights due diligence suggested by the Guiding Principles. They argue for the legalization of a requirement to engage in human rights due diligence mandatory for all businesses, including parent companies. The United States produced its first NAP(National Action Plan) in December 2016. The White House National Security Council led and coordinated a multi-stakeholder process that included more than a dozen federal agencies as well as consultations with civil society organizations, businesses, academics, labor unions, indigenous peoples representatives and foreign governments. In addition, the U.S. government maintained an email address for submissions related to the NAP from the public at large, which were collected but never made public. The NAP lists a number of new actions that various agencies within the government will undertake in order to effectuate the goals of the NAP. Despite these positive attributes, the U.S. NAP is not considered best practices and falls short of many other NAPs. Even as the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights was drafted, the International Chamber of Commerce stood in clear opposition to the effort. Indeed, the United States’ and ICC’s opposition was among the reasons the Norms failed to gain the support of a sufficient number of states, and failed to be adopted. Still, to conclude that the field of business and human rights has failed to change would be to overlook the tremendous data and understanding collected through the innovations of the Global Compact and the work leading to the Guiding Principles, not to mention the B-Corp Movement, the Equator Principles, the proliferate voluntary codes governing nearly every large industry, the creation of NAPs in an ever-larger number of States, the domestic legislation and press-garnering litigation in most of the world’s most important home-state jurisdictions, the advancement of the language of human rights inside of the world’s economic order, and, most importantly, the popular awareness that has come to surround the activities of business actors. These phenomena, viewed cumulatively, significantly bear on the evolving legal landscape for business actors. Indeed, transnational corporations and other business actors now find themselves enmeshed in a fabric of social and economic responsibility that has emerged throughout the past half century. This is the stuff of emerging social norms and, over time, the formation of legitimate law.