I have to admit I’m confused and disappointed by the “U.S. Government Approach on Business and Human Rights,” which was published recently. The Government’s scattershot “approach” appears to consist of a random collection of public-private partnerships, generally informative and aspirational guides, and legislative initiatives, most of which are years — if not decades — old. Most glaring of all, despite enthusiastic references to the UN Guiding Principles on Business and Human Rights, the document completely ignores the need for victims to have access to justice and glosses over the administration’s troubling record on remedies.
To be clear, it’s not that the U.S. Government hasn’t done anything on business and human rights — undeniably, it has. Congress has passed laws requiring transparency in the payments extractive companies make to governments and the due diligence companies undertake when sourcing metals from conflict-affected areas of Eastern Congo, and strengthening anti-human trafficking protections in government procurement. Under President Obama, the U.S. has developed human rights reporting requirements for companies investing in Burma, pledged to implement the Extractive Industries Transparency Initiative, and put money and manpower into the Voluntary Principles on Security and Human Rights.
It’s just that it galls me to see the government patting itself on the back for this smorgasbord of mostly voluntary initiatives at a time when it has actively worked to undermine access to justice for victims of human rights abuses connected to both U.S. and foreign companies. Why doesn’t this document mention the U.S. brief in Kiobel v. Royal Dutch Petroleum, in which it argued (successfully, as it turned out) to narrow the ability of U.S. federal courts to hear the claims of victims of human rights abuses abroad? How can the U.S. trumpet the National Contact Point for the OECD Guidelines for Multinational Enterprises as a place for business and civil society to “pursue a mutually agreeable solution” for corporate breaches of international human rights standards, when a 2011 State Department review process declined to grant the National Contact Point the tools to bring companies to the table?
Sadly, this “approach” will not meaningfully deter human rights abuses or raise the bar of corporate conduct. As the U.S.-endorsed UN Guiding Principles recognize, the basic incentives that underlie patterns of corporate abuse will not change unless the possibility exists that victims will hold perpetrators to account. And without access to a remedy, the people ERI works with whose lives have been devastated by environmental damage or security-related abuses will continue to suffer.
The U.S. is simultaneously promoting transparency and voluntary mechanisms while denying those who would use these tools a means to turn them into an effective remedy for the harms they have suffered. Far from a bold vision, the U.S. Government’s “approach” constitutes a lukewarm commitment to ensuring protection for victims when corporations violate human rights.
