Regarding Rights

Academic and activist perspectives on human rights

Transnational Corporations and Positive Human Rights Duties

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By Ned Dobos

School of Humanities and Social Sciences, UNSW @ ADFA

 Image: Virginia Warren, Toby Worscheck, Paul Wolf; OccupyDesign

When doing business in host countries, Transnational Corporations (TNCs) must not directly engage in, contribute to, or be complicit in human rights violations. By now this much is relatively uncontroversial—it follows from the consistent application of the basic moral injunction to “do no harm”. Ordinarily, doing no harm simply means remaining passive; it requires only that we refrain from acting in certain ways. But this is not always the case, and it does not hold true for TNCs according to the Special Representative of the UN Secretary-General on Business and Human Rights, John Ruggie (2008). Unless a TNC actively undertakes certain programs geared towards securing human rights, says Ruggie, its routine and seemingly innocuous business activities can wind up aiding and abetting rights violations. Thus for TNCs, the negative duty to do no harm demands that positive steps be taken.

But this is not to say that corporations have positive duties to advance and protect human rights. Indeed Ruggie explicitly denies it. Corporations may be under a strict obligation not to harm anyone, but they need not help anyone either.

Against this, a number of commentators have recently argued that corporations do have at least some positive human rights duties. Ivar Kolstad thinks these duties are generated by the interactions between corporations and states. Florian Wettstein insists that TNCs have themselves become “quasi-governmental institutions”, and that with political power comes some measure of political responsibility. Nien-he Hsieh argues that, insofar as TNCs benefit from oppressive conditions in host countries, they acquire an obligation to ameliorate those conditions even if they have not contributed to them. What these accounts have in common is that they all characterise the positive duties of TNCs as derived rather than natural. Derived duties are generated by our morally significant relationships, the unique roles that we occupy, our voluntary commitments and transactions, what we have done, what has been done for us, and so on. Natural duties, by contrast, exist prior to and independently of all such considerations. These are duties we owe to others simply in virtue of our common humanity. What I hope to show in this brief note is that TNCs have natural positive duties in respect of human rights, as well as derived ones. 

First a concession: If individuals do not have any natural positive duties to aid others or to advance their interests, then neither do corporations. Libertarians will maintain that the only obligation we owe one another simply in virtue of our common humanity is the duty of non-interference. Or, more accurately, the only natural right that an individual enjoys is the right not to be interfered with; not to have her autonomy compromised, not to be harmed—crudely put, to be left alone. Any rights that one has to the assistance of others must be in some way derived from contracts, associations etc. I will simply assume that libertarianism is mistaken, and that individuals do have some natural positive duties. On this point there is now broad philosophical consensus.

But even so, it remains problematic to say that corporations have any such duties. This becomes apparent once we notice that natural positive duties are, in Kantian parlance, presumptively imperfect. We each may have some natural duty to promote the welfare of others and to alleviate their suffering where we can, but importantly it is at each individual’s discretion to choose how, when, where, in whose direction and to what extent he discharges this duty. Imperfect duties do not prescribe specific acts, but rather general ends. Their form is: “sometimes, to some extent, one ought to X”. The important corollary for our purposes is this: Each shareholder of a corporation may well have a natural positive duty of assistance, but insofar as this duty is indeterminate with respect to the kind, amount, and timing of the aid, and with respect to the identity of the recipient, shareholders arguably have no obligation to fulfil their positive duties through their corporate agent. The imperfect nature of the duty means that shareholders should be free to fulfil it through their various other roles and capacities, in their private lives, by way of their tax contributions, or in any other way they see fit.

This would seem to undermine the case for corporations having natural positive duties. Indeed, on this line of reasoning one could say that if a TNC devotes corporate resources to promoting and securing human rights in host countries—where there is no coinciding business rationale for it—its shareholders have legitimate grounds for complaint. For they are being denied the presumptive discretion that every other bearer of a natural positive duty enjoys: to decide who to help, when, where and how to help them, etc. If we want to show that corporations can have natural positive duties, this is a challenge that must be overcome.   
Above I described natural positive duties as presumptively imperfect. The qualification is important. As a rule we are indeed free to choose how and when we discharge these duties, but it is easy enough to think of cases where this latitude seems to lapsewhere the presumptive discretion is defeated. Recall one of Peter Singer’s famous examples: You see a child drowning in a pond. To rescue the child, all you need to do is to reach into the water and pull him out. There is nobody else around, and the only cost you will sustain is that your brand new shoes will be ruined. Here, it seems you cannot decently defend your failure to rescue the child by insisting that you have discretion to choose the means and manner and timing of your altruistic acts. The duty seems to be a perfect one. It is determinate with respect to the recipient of the aid and the form that it takes. And this is true even though there is no transactional history or special relationship between you and the child that could ground a derived duty. Your duty is positive and perfect and natural.  

Why is it that a philanthropist, thinking about where to donate his money, can legitimately choose to bypass malnourished South Americans in favour of malnourished Africans, but a pedestrian must not bypass a drowning child? Suppose the pedestrian would prefer to make a donation equal to the value of his shoes to a charity which saves the lives of children elsewhere. Depending on whether the shoes are from Gucci or from K-Mart, this may well be enough to save several children, or even several dozen. Why is this not his prerogative? The plight of the child seems to impose a perfect duty on the pedestrian, while the plight of the starving South Americans simply gives the philanthropist one more way of fulfilling his duty to “sometimes, to some extent, X”. How are we to account for this difference?  

The answer I think has less to do with proximity in and of itself, and more to do with the moral determinacy of the situation that obtains in the drowning child case and others like it. When it comes to the malnourished South Americans, the help they need could come from any number of sources. The situation does not specify which individual or group must act. Nor does it specify what exactly must be done or the time that it must be done by. The drowning child case is different in all respects. The situation singles out a rescuer; fixes what must be done to solve the problem; and specifies a time at which (or by which) the necessary act must be carried out. Unless this particular pedestrian walks into the water, and unless he does so right now, the possibility of the child surviving is foreclosed. This is what is meant by moral determinacy. A situation with this combination of features confronts the agent in a way that other situations do not, and the latitude that usually attends our natural positive duties of aid gives way in this confrontation (Igneski 2006).

Now in the absence of moral determinacy, failure to aid does not constitute a violation of anybody’s rights. This is because in indeterminate circumstances the only positive duties in play are imperfect ones and, by definition, nobody has a right that an imperfect duty be discharged in their direction. However in morally determinate circumstances, where the positive duty is perfect, things are different. Here, the duty-bound agent owes assistance to some specific individual or group who can, accordingly, rightfully demand it despite the absence of any derived or acquired moral responsibilities. Here failure to assist is not only the dereliction of a natural positive duty, but the infringement of a natural positive right.

Are there any conceivable circumstances under which the shareholders of a transnational corporation might be said to owe a duty that is positive and natural and perfect to the people in a host country? For the answer to be yes it would have to be the case that:

1) The people in the host country are in serious need. Otherwise put, their basic human rights must be under threat. The pedestrian in Singer’s thought experiment must sacrifice his shoes to save the child’s life, but clearly he need not make any such sacrifice simply to fish out a cherished gadget that the child has dropped into the water. The duty to aid comes into effect only where basic needs or interests are at stake; and  

2) The shareholders of the TNC – via the management – are able to render the necessary assistance without sustaining too high a personal cost (the high cost proviso). 

In addition to this, the conditions of moral determinacy must obtain:

3) If the needy people in the host country do not receive a certain kind of assistance by a certain time, it will be too late; and 

4) Apart from the corporation in question, nobody is in a position or has the required resources and capabilities to render the necessary assistance within the required time span.

One might perhaps think of a pharmaceutical company that has developed a new drug which can cure a life-threatening disease in an impoverished country; where the company can make the drug freely or cheaply available and thus save scores of people in that country; where the company can do this without thereby imposing prohibitive costs on its shareholders; and where no other company, government, or NGO is similarly in a position to cure the disease. The government might be unable to help its people—if it happens to be ‘inept’ or ‘failed’ or just desperately poor—or it might be able but unwilling. 

In such cases, that which is true of the pedestrian in the drowning child scenario is true of the corporation: regardless of whether the TNC has any special relationship with the victims, has made any voluntary commitments, has or will extract benefits from its operations in the host country etc., it has a duty to assist. Moreover the natural duty is perfect: the victims can rightfully demand to be assisted by the corporation, just as the drowning child has a claim against the pedestrian that other equally needy people in equally desperate situations lack. Thus, when the management in charge of the company initiates a campaign to protect human rights in the host country, it simply facilitates its shareholders’ discharge of their natural perfect duties, or fulfils those duties on its shareholders’ behalf. The shareholders themselves are not wronged, for their presumptive right to choose how and when they aid others no longer obtains. Their attempt to invoke this discretion is no different from the pedestrian’s doing so.

Admittedly, this argument for natural positive corporate duties has purchase only in a narrowly circumscribed range of cases—those which meet the conditions of moral determinacy. If we want to attribute more demanding and far-reaching positive human rights duties to corporations, these duties must be acquired or derived: from the significant relationships of corporations, their acts and omissions, their political authority, and so on. A number of contributors to this debate, mentioned earlier, have shown us how this might be done. My aim here has not been to tell a story that competes with these others, but to tell one that supplements them. Many will no doubt reject the notion that corporations are political actors, insisting that they are purely and necessarily economic creatures. Others will deny that benefiting from human rights abuses, in and of itself, is sufficient to generate a positive duty to protect and promote human rights. Indeed, for any source of derived positive corporate duties that is identified, there are those who will deny that it can do the normative work entrusted to it. But if my argument here has been persuasive, this will not suffice to absolve corporations of positive human rights duties, insofar as some of these duties are natural: owed by corporations simply in virtue of the fact that they are comprised of human beings, independently of any further considerations. 



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