By Aleydis Nissen, guest blogger and PhD candidate at Cardiff University
“Savoir critiquer est bon, savoir créer est mieux.”
To know how to criticize is good, to know how to create is better.
(Henri Poincaré)
In May 2016, Hong Kong City University Professor Surya Deva took up his function in the United Nations Human Rights Council as the Asia-Pacific representative of the Working Group on the issue of human rights and transnational corporations and other business enterprises. In this position, he contributes to the mandate of the Working Group in disseminating and implementing the Guiding Principles on Business and Human Rights, a United Nations-endorsed template organized around a three-pillar framework: the State’s duty to protect human rights, the responsibility of corporations to respect human rights, and access to remedy for those whose rights have been violated.
Deva’s appointment was not without controversy, according to the President of the Human Rights Council, Choi Kyonglim. Given Deva’s previous, highly critical stance on the Guiding Principles themselves, questions were raised concerning his ability – or willingness – to comply with the mandate of the Working Group. In 2013, John Ruggie, Harvard University professor and former Special Representative of the U.N. Secretary-General for Business and Human Rights, warned that Deva’s criticism could lead to adverse consequences for the perception and further uptake of the Guiding Principles and ‘undermine’ their normative legitimacy. Ruggie formulated these criticisms in response to the chapters that Deva and his co-editor David Bilchitz wrote in their book Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (2013).
Ruggie’s strong language can be understood in view of the role he himself has played in advancing the cause. The mastermind behind the Guiding Principles is widely recognized as a bridge builder, managing to find consensus between states in a debate that has been ongoing at the UN-level since the 1970s. However, the current global context in which corporations operate across borders is without precedent, and moving at a rapid pace. Therefore, this new reality urges a rethinking of global justice and its duty bearers.
Deva’s critiques can be understood as the impatience of an academic scholar who wishes to move the debate forward. As the late international law professor Antonio Cassese helpfully argued, legal scholars should not ‘help to hamstring the reign of law’. On the contrary, they are required to move beyond and evolve strict legal frameworks, whenever they are confronted with glaring injustice. With this in mind, it should be applauded that Deva has attempted to advance the business and human rights debate. Amongst other points, Deva has rightly urged for more attention to judicial remedies, instead of those taking place outside the courts.
Yet, in his book Deva has also previously called upon the Working Group to address the alleged ‘fundamental problems’ of the Guiding Principles. At least to some extent, this claim seems to be a case of prematurely throwing the baby out with the bathwater. The consensus that was accomplished by Ruggie can and should be used as a building block. It was never Ruggie’s aim to present the final word. Ruggie himself claimed that his work was “the end of the beginning” and that it did not “foreclose any other promising longer term developments.” Now that this first consensus has been reached, it seems to be the right time to have an audacious mind like Deva’s contributing to the Working Group.
In particular, Deva seems to be the right person to start where his predecessor Puvan Selvanathan left off. The previous Asia Pacific representative of the working group explained in his resignation letter that he shares in Deva’s impatience to move the debate forward. He frankly urged the UN to take action while claiming that companies are “machines designed to do only certain things and will always strive to do them as efficiently and cost-effectively as possible”. Five years ago, Selvanathan had referred to the Guiding Principles as a credible and tangible opportunity for companies to contribute to an area “that has been seemingly confined to policy-makers and NGO’s.” The frustrations of his work with the Working Group significantly altered Selvanathan’s mindset. Nor does he appear to be alone – Margaret Jungk, the former representative of Western Europe, also identified similar struggles in her resignation letter.
In his mandate, Deva plans to prioritize the least developed pillar of the framework: access to remedy. He has proposed to develop model substantive and procedural laws that can be used to improve access to justice, with particular emphasis on strengthening extraterritorial remedies to guarantee access to justice. He has also announced his intention to articulate a range of incentives and disincentives for companies, which could trigger positive engagement on the part of business actors. Although he will undoubtedly experience that academic scholarship and global governance process move at different paces, Deva’s experience and critical mindset can make a difference in moving the needle forward.
Aleydis Nissen is a PhD candidate and tutor at Cardiff University. Prior to coming to Cardiff, she worked at Vlerick Business School. She completed a Masters degree in European, international and public law and two postgraduate degrees in International Research Journalism and Marketing Management at the University of Leuven (Belgium).