Bangladesh can pioneer a workers' rights model

IN 1950, when UN General Assembly proclaimed December 10 as Human Rights Day, to bring attention to the principles of Universal Declaration of Human Rights, it contemplated that the rights will be provided by Members States, and did not apply to corporate actors.   The affirmation of human rights by states was critical, as many states were emerging nation-states. The failure to include corporate actors in the human rights mandate was not because globalisation or the global labor supply chain is a recent feature in our global economies. Colonialism and the global slave trade was the most the exploitative, and pernicious form of global trade with East India Company being one corporate actor in South Asia.  Given the focus on new nation-states, there was less focus on corporate actors.  

Since then, we have seen the rise of the transnational corporations and businesses and witnessed human rights violations by corporate actors, such as Union Carbide in Bhopal in 1984, and Shell in Nigeria.  In Bangladesh, the Tazreen Fire and Rana Plaza building collapse revealed the failure of multinational brands to ensure workplace rights leading to the tragic loss of workers' lives.  Since then, many businesses have responded to these high profile tragedies with various forms of corporate social responsibility programs (CSR).  CSR programs have varied from company to company; from public relations efforts to more engaged efforts at ensuring businesses comply with human rights norms through Codes of Conduct and other compliance mechanisms.  The Organisation for Economic Cooperation and Development (OECD) have created guidelines for multinational enterprises advising them to adopt and abide by human rights laws, to ensure that they mitigate adverse human rights impacts linked to their business, even if they do not contribute to those impacts.

After Rana Plaza, the conversation around the role of multinational enterprises in ensuring human rights was re-energised with two distinct solutions to ensure workplace safety in the global supply chain:  Accord and Alliance.  While both programs seek to conduct rigorous inspections of factories, they do differ in a critical aspect related to business and human rights.  Namely, they differ in whether human rights compliance by businesses is best achieved voluntarily or through a legally binding instrument that provides for a remedies provision in the case of disputes.  

The Accord is a legally binding instrument providing for a legal mechanism to resolve disputes among the signatories:  brands, and unions.   Alliance is legally binding among the brands that are signatories, but those brands do not make any legally binding commitments to unions, or the human rights NGOs community in the event of a dispute.

Experienced labor-management arbitrator Professor Arnold Zack of Harvard University, said while in an ideal world, voluntary compliance and self-regulation is ideal, legally binding instruments with a clear remedies provision was preferable. An agreement with a clear remedies provision, such as arbitration, or some other form of an alternative dispute mechanism also provides finality to any dispute.  I would add that finality under most countries' principles of jurisprudence is the key, especially where human rights violations are alleged, because it allows the parties to move past the serious harm and move ahead.  

International business community, which also benefits from finality and stability in deciding disputes, uses commercial arbitration to resolve inter-national disputes, and it is no reason, not to explore tailored arbitration provisions in the area of human rights.  Such provisions are privately negotiated clauses, and the scope of these provisions can be limited to address the specific concerns of the business community that a broad provision would subject them to liability in multiple jurisdictions.   

While legal binding instruments with a remedy provision may be preferable, it is harder to prove whether such provisions yield better compliance. However, such remedy provisions provide a level of trust, to unions, suppliers and buyers that are required in redressing disputes that involve transnational stakeholders.  Such trust is especially needed here where most of the multinational companies are from the Global North (some former colonial countries) and allegations of human rights abuses of its transnational companies occur in global South.  Without binding agreements with a remedy provision, parties in the Global South may feel they do not have equal bargaining power especially where they have found their government unable to adequately protect their rights.

Since 2013, organisations primarily from the Global South have called for a legal binding instrument to hold transnational business legal responsible for human rights violations. Most recently, last year, June 14, United Nations Human Rights Council adopted two resolutions to address this issue: (1) elaborate on a legally binding instrument for Transnational Corporations and Other Business Enterprises; (2) to create a report on the benefits and limitations on legally binding instruments.  These mandates will help provide some key research on a long-standing debate often divided along philosophical grounds on how best to ensure human rights compliance.  

As the world, and Asian countries look onto Bangladesh, and the progress of Accord/Alliance, there is an opportunity for Bangladesh to play a leading role in this field of business and human rights.  Bangladesh and its stakeholders need to see these programs not simply as a factory inspection programs, but the foundation to developing a strong, replicable model on ensuring human rights in an era of globalization.

The writer is a research fellow at American Institute for Bangladesh Studies (AIBS).