During the last years, there has been an increasing discussion on the role of business in human rights violations and an increase in human rights litigation against companies. The result of human rights litigation has been rather disillusioning because no corporation has been found guilty and most cases have been dismissed. We argue that it may nevertheless be a useful instrument for the advancement of the business and human rights agenda. We examine the determinants of successful human rights litigation in (...) terms of judicial, educational, and regulatory effects. This article reviews more than 40 corporate foreign direct liability cases and their effects on corporate human rights policies and conduct. The review shows that most corporations adjusted their human rights policies and adopted additional measures to cope with human rights issues during or shortly after the legal proceedings. Opening legal channels for human rights litigation may be one way for governments to incentivize firms to respect human rights. These findings have implications for the United Nations Guiding Principles on Business and Human Rights as well as on our interpretation of the most recent U.S. Supreme Court decision in Kiobel v. Shell. (shrink)

In this article, we examine how regulators, prosecutors, and courts might support and encourage the efforts of organizations to not only reintegrate after misconduct but also to improve their conduct in a way that reduces their likelihood of re-offense. We explore a novel experiment in creative sentencing in Alberta Canada that aimed to try to change the behaviour of an industry by publicly airing the root causes of a failure of one the industry’s leaders. Drawing on this case and prior (...) work, we articulate a model for a responsive and restorative approach to organizational misconduct that balances the punitive role of regulators and courts with new roles in supporting and overseeing rehabilitation. (shrink)

It has frequently been argued that the post-apartheid Truth and Reconciliation Commission (TRC) was committed to restorative justice (RJ), and that RJ has deep historical roots in African indigenous cultures by virtue of its congruence both with ubuntu and with African indigenous justice systems (AIJS). In this article, I look into the question of what RJ is. I also present the finding that the term ‘restorative justice’ appears only in transcripts of three public TRC hearings, and the hypothesis that the (...) TRC first really began to take notice of the term ‘restorative justice’ after April 1997, when the South African Law Commission published an Issue Paper dealing with RJ. Furthermore, I show that neither the connection between RJ and ubuntu nor the connection between RJ and AIJS is as straightforward and unproblematic as often assumed. (shrink)

During this age of globalisation, the law is characterised by an ever diminishing hierarchical framework, with an increasing role played by non-state actors. Such features are also pertinent for the international enforceability of human rights. With respect to human rights, TNCs seem to be given broadening obligations, which approach the borderline between ethics and law. The impact of soft law in this context is also relevant. This paper aims to assess whether, and to what extent, this trend could be a (...) proper path to enforce the legal accountability of transnational corporations for human rights. It will be argued that the interplay between law and ethics should be assessed differently depending on which kind of correlative duty is at stake. With regard to negative duties, soft law tools concerning TNCs’ conduct may weaken the impact of hard law. By contrast, when positive duties are concerned, insofar as the horizontal effect of rights cannot be assumed, soft law turns out to be much more useful. (shrink)

Human rights declarations are instruments used to introduce universal standards of ethics. The UN’s Protect, Respect, and Remedy Framework (Ruggie, Protect, respect, and remedy: A Framework for business and human rights. UN Doc A/HRC/8/5, 2008; Guiding principles on business and human rights: Implementing the United Nations “Protect, Respect, and Remedy” framework. UN Doc A/HRC/17/31, 2011) intends to provide guidance for corporate behavior in regard to human rights. This article applies concepts from the field of organizational justice to the arena of (...) business and human rights for the purpose of operationalizing the UN Framework. This approach facilitates the recognition of gaps between perceptions of justice held by stakeholders versus businesses and/or the State. Such recognition raises the potential for addressing issues that lead to divergent perceptions of justice, thus potentially improving the human rights performance of businesses. The research also shows the potential for complicity of businesses in human rights abuses and exposes a fundamental weakness in the UN Framework, which attempts to draw a sharp distinction between duties of States versus responsibilities of business. We illustrate this approach through analysis of the case of Goldcorp’s Marlin Mine in Guatemala; an extractive industry project that affects indigenous communities. (shrink)

This essay asks whether restorative justice practices in criminal legal systems are consistent with the aims of a liberal state.

The challenge -- No silver bullet -- Protect, respect and remedy -- Strategic paths -- Next steps.

ABSTRACT:We provide a brief history of the business and human rights discourse and scholarship, and an overview of the articles included in the special issue.

ABSTRACT:Increasingly, global businesses are confronted with the question of complicity in human rights violations committed by abusive host governments. This contribution specifically looks at silent complicity and the way it challenges conventional interpretations of corporate responsibility. Silent complicity implies that corporations have moral obligations that reach beyond the negative realm of doing no harm. Essentially, it implies that corporations have a moral responsibility to help protect human rights by putting pressure on perpetrating host governments involved in human rights abuses. This (...) is a controversial claim, which this contribution proposes to analyze with a view to understanding and determining the underlying conditions that need to be met in order for moral agents to be said to have such responsibilities in the category of the duty to protect human rights. (shrink)

ABSTRACT:We call for business ethics scholars to focus more attention on how individuals and organizations respond in the aftermath of unethical behavior. Insight into this issue is drawn from restorative justice, which moves beyond traditional approaches that emphasize retribution or rehabilitation to include restoring victims and other affected parties, reintegrating offenders, and facilitating moral repair in the workplace. We review relevant theoretical and empirical work in restorative justice and develop a conceptual model that highlights how this perspective can enhance theory (...) and empirical research in business ethics. We specifically identify topic areas that we believe have particular promise for business ethics scholars to pursue. We close our paper by discussing implications of the restorative justice approach for practicing managers. (shrink)

In this article we set the context for this special issue focusing on individual and organizational reintegration in the aftermath of transgressions that violate ethical and legal boundaries. Following a brief introduction to the topic we provide an overview of each of the four articles selected for this special issue. We then present a number of potentially fruitful empirical, theoretical, and normative directions management and ethics scholars might pursue in order to further advance this evolving literature.

ABSTRACT:In a series of reports the United Nations Special Representative on the issue of Human Rights and Transnational Corporations has emphasized a tripartite framework regarding business and human rights that includes the state “duty to protect,” the TNC “responsibility to respect,” and “appropriate remedies” for human rights violations. This article examines the recent history of UN initiatives regarding business and human rights and places the tripartite framework in historical context. Three approaches to human rights are distinguished: moral, political, and legal. (...) It is argued that the tripartite framework’s grounding of the responsibility of TNCs to respect human rights is properly understood as moral and not merely as a political or legal duty. A moral account of the duty of TNCs to respect basic human rights is defended and contrasted with a merely strategic approach. The main conclusion of the article is that only a moral account of the basic human rights duties of TNCs provides a sufficiently deep justification of “the corporate responsibility to respect human rights” feature of the tripartite framework. (shrink)

Multi-stakeholder initiatives are increasingly used as a default mechanism to address human rights challenges in a variety of industries. MSI is a designation that covers a broad range of initiatives from best-practice sharing learning platforms to certification bodies and those targeted at addressing governance gaps. Critics contest the legitimacy of the private governance model offered by MSIs. The objective of this paper is to theoretically develop a typology of MSIs, and to empirically analyze the legitimacy of one specific type of (...) MSI, namely industry-specific MSIs. We argue that industry-specific MSIs that set out to govern corporate behavior have great potential to develop legitimacy. We analyze two industry-specific MSIs—the Fair Labor Association and the Global Network Initiative—to get a better understanding of how these MSIs formed, how they define and enforce standards, and how they seek to ensure accountability. Based on these empirical illustrations, we discuss the value of this specific MSI model and draw implications for the democratic legitimacy of private governance mechanisms. (shrink)

As corporations are going global, they are increasingly confronted with human rights challenges. As such, new ways to deal with human rights challenges in corporate operations must be developed as traditional governance mechanisms are not always able to tackle them. This article presents five different views on innovative solutions for the relationships between business and human rights that all build on empowerment, dialogue and constructive engagement. The different approaches highlight an emerging trend toward a more active role for corporations in (...) the protection of human rights. The first examines the need for enhanced dialogue between corporations and their stakeholders. The next three each examine a different facet of empowerment, a critical factor for the respect and protection of human rights: empowerment of the poor, of communities, and of consumers. The final one presents a case study of constructive corporate engagement in Myanmar (Burma). Altogether, these research projects provide insight into the complex relationships between corporate operations and human rights, by highlighting the importance of stakeholder dialogue and empowerment. All the five projects were presented during the Second Swiss Master Class in Corporate Social Responsibility, held in Lausanne, Switzerland on December 12, 2008. The audience for this conference, which examined business and human rights, was composed of researchers, governmental representatives, and business and non-governmental organization practitioners. (shrink)

ABSTRACT:Central to the United Nations Framework setting out the human rights responsibilities of corporations proposed by John Ruggie is the principle that corporations have a responsibility to respect human rights in their operations whether or not doing so is required by law and whether or not human rights laws are actively enforced. Ruggie proposes that corporations should respect this principle in their strategic management and day-to-day operations for reasons of corporate (enlightened) self-interest. This paper identifies this as a serious weakness (...) and argues that identifying the responsibility to respect human rights as an explicitly ethical obligation to be respected for that reason would provide a much stronger justificatory foundation for respecting the principle seen from a corporate perspective, given that corporations are accountable to their shareholders for their deployment of the firm’s financial resources. (shrink)

This paper presents a holistic, contextualised case study of reintegration and trust repair at a UK utilities firm in the wake of its fraud and data manipulation scandal. Drawing upon conceptual frameworks of reintegration and organizational trust repair, we analyze the decisions and actions taken by the company in its efforts to restore trust with its stakeholders. The analysis reveals seven themes on the merits of proposed approaches for reintegration after an integrity violation , and novel insights on the role (...) of organizational identity, “changing of the guard” and cultural reforms alongside procedural modifications. The case further supports the dynamic nature of stakeholder salience across the reintegration process. The study both supports propositions from existing frameworks and suggests novel theoretical extensions for future research. (shrink)

The ‘Guiding Principles on Business and Human Rights’ (Principles) that provide guidance for the implementation of the United Nations’ ‘Protect, Respect and Remedy’ framework (Framework) will probably succeed in making human rights matters more customary in corporate management procedures. They are likely to contribute to higher levels of accountability and awareness within corporations in respect of the negative impact of business activities on human rights. However, we identify tensions between the idea that the respect of human rights is a perfect (...) moral duty for corporations and the Principle’s ‘human rights due diligence’ requirement. We argue that the effectiveness of the ‘human rights due diligence’ is in many respects dependent upon the moral commitment of corporations. The Principles leave room for an instrumental or strategic implementation of due diligence, which in some cases could result in a depreciation of the fundamental norms they seek to promote. We reveal some limits of pragmatic approaches to coping with business-related human rights abuses. As these limits become more apparent, not only does the case for further progress in international and extraterritorial human rights law become more compelling, but so too does the argument for a more forceful discussion on the moral foundations of human rights duties for corporations. (shrink)

While it is commonly accepted that corporations have negative duties to respect human rights, the question of whether rights also imply positive duties for corporations is contentious. The recent reports of the United Nations special representative on business and human rights contend that corporations do not have positive duties, but the arguments this is based on are flawed from an ethical point of view. In particular, the reports fail to consider the implications of interactions between corporations and states. For rights (...) to be secured, corporations may face duties to use their power to pressure governments into performing their assigned duties, and duties not to undermine the role of the government. The interaction of corporations and governments also has implications for choosing effective instruments to advance human rights. International initiatives that do not take this interaction into account will be ineffective or, at worst, counterproductive. (shrink)

ABSTRACT:In this article we set the context for this special issue focusing on individual and organizational reintegration in the aftermath of transgressions that violate ethical and legal boundaries. Following a brief introduction to the topic we provide an overview of each of the four articles selected for this special issue. We then present a number of potentially fruitful empirical, theoretical, and normative directions management and ethics scholars might pursue in order to further advance this evolving literature.

ABSTRACT:In this article, we examine how regulators, prosecutors, and courts might support and encourage the efforts of organizations to not only reintegrate after misconduct but also to improve their conduct in a way that reduces their likelihood of re-offense (rehabilitation). We explore a novel experiment in creative sentencing in Alberta Canada that aimed to try to change the behaviour of an industry by publicly airing the root causes of a failure of one the industry’s leaders. Drawing on this case and (...) prior work, we articulate a model for a responsive and restorative approach to organizational misconduct that balances the punitive role of regulators and courts with new roles in supporting and overseeing rehabilitation. (shrink)

Multi-stakeholder initiatives are increasingly used as a default mechanism to address human rights challenges in a variety of industries. MSI is a designation that covers a broad range of initiatives from best-practice sharing learning platforms to certification bodies and those targeted at addressing governance gaps. Critics contest the legitimacy of the private governance model offered by MSIs. The objective of this paper is to theoretically develop a typology of MSIs, and to empirically analyze the legitimacy of one specific type of (...) MSI, namely industry-specific MSIs. We argue that industry-specific MSIs that set out to govern corporate behavior have great potential to develop legitimacy. We analyze two industry-specific MSIs—the Fair Labor Association and the Global Network Initiative—to get a better understanding of how these MSIs formed, how they define and enforce standards, and how they seek to ensure accountability. Based on these empirical illustrations, we discuss the value of this specific MSI model and draw implications for the democratic legitimacy of private governance mechanisms. (shrink)

As corporations are going global, they are increasingly confronted with human rights challenges. As such, new ways to deal with human rights challenges in corporate operations must be developed as traditional governance mechanisms are not always able to tackle them. This article presents five different views on innovative solutions for the relationships between business and human rights that all build on empowerment, dialogue and constructive engagement. The different approaches highlight an emerging trend toward a more active role for corporations in (...) the protection of human rights. The first examines the need for enhanced dialogue between corporations and their stakeholders. The next three each examine a different facet of empowerment, a critical factor for the respect and protection of human rights: empowerment of the poor, of communities, and of consumers. The final one presents a case study of constructive corporate engagement in Myanmar (Burma). Altogether, these research projects provide insight into the complex relationships between corporate operations and human rights, by highlighting the importance of stakeholder dialogue and empowerment. All the five projects were presented during the Second Swiss Master Class in Corporate Social Responsibility, held in Lausanne, Switzerland on December 12, 2008. The audience for this conference, which examined business and human rights, was composed of researchers, governmental representatives, and business and non-governmental organization practitioners. (shrink)

A driving force behind the evolution of the stakeholder concept is the potential of negative outcomes for an organization as the result of conflict between that organization and its stakeholders. Where conflict does arise between an organization and stakeholder how might it be resolved in a manner compatible with stakeholder theory? Applying feminist ethical theory as a theoretical basis for stakeholder theory, mediation provides an appropriate process for resolving such disputes in comparison to traditional adversarial strategies. This paper discusses the (...) attributes of mediation, and its potential benefits as a method to resolve disputes between businesses and their stakeholders. (shrink)

While it is commonly accepted that corporations have negative duties to respect human rights, the question of whether rights also imply positive duties for corporations is contentious. The recent reports of the United Nations special representative on business and human rights contend that corporations do not have positive duties, but the arguments this is based on are flawed from an ethical point of view. In particular, the reports fail to consider the implications of interactions between corporations and states. For rights (...) to be secured, corporations may face duties to use their power to pressure governments into performing their assigned duties, and duties not to undermine the role of the government. The interaction of corporations and governments also has implications for choosing effective instruments to advance human rights. International initiatives that do not take this interaction into account will be ineffective or, at worst, counterproductive. (shrink)