- Transnational Corporations and Human Rights
Reaching for human rights within a cultural context is difficult enough. Universality, the removal of cultural context, raises issues of phenomenology and epistemology: what are human rights and how can we tell a human rights issue from other kinds of issues? How can we traverse cultural boundaries without losing the underpinnings of rights?2 Still, if the fundamental questions can be answered or finessed, nation-states can deal with internal human rights issues by law and external human rights issues by treaty. When the threat to human rights is not a human actor but a corporate actor, the issues get more complicated and the solutions more difficult. Frynas and Pegg have produced an important collection of essays that illustrate the complexities at the intersection of human rights values and corporate values on the transnational level.
Pegg puts his finger on the problem in the first chapter when he points out that
[R]ealists will appreciate that our contributors are sensitive throughout the volume to the importance of state power and the limited prospects for advancing a human rights regime to regulate TNCs without the strong support of sovereign states.3
"Limited prospects?" Pegg is gifted in the art of understatement.
With the exceptions of US-focused material4 and the redoubtable George Soros,5 the growing literature on control of transnational corporations (TNCs) mentions human rights, if at all, only in passing.6 The reason for this omission is that control itself is currently the primary issue. How shall nation-states control the corporate institutions that the nation-states have created?7 When control itself is the [End Page 783] issue, the questions of whether clean air and water or decent working conditions are human rights are moot. Pegg's introductory essay does an excellent job of setting this stage.
Frynas and Pegg have chosen to focus on praxis rather than the somewhat barren theoretical prospects for control of TNCs, but there are plenty of theoretical threads for classroom use. The most interesting excursion into pure theory has William H. Meyer drawing out the implications of work first published in this journal,8 concluding that empirical data will not at this time support general statements about goodness or evil for human rights in the rise of TNCs. Meyer asserts that the case studies do not, yet, aggregate in useful ways. We can see TNCs doing good in the human rights arena and we can see TNCs doing harm. General statements about foreign direct investment and the diminishing significance of national borders remain controversial with good reason.
Alex Wawryk contributes a thoughtful chapter on private and public codes of corporate conduct. He recognizes at the outset the difficulty of directly binding TNCs, since nation-states are the traditional subjects of international law.9 This leads him to advocate an uber-code in treaty law, such that it could "be made legally binding on states, requiring all states which endorsed that treaty (containing the code) to implement the provisions of the convention."10 'Tis a consummation devoutly to be wish'd, but one that will require a broad consensus among the nation-states with the most robust economies. Should one nation stay on the outside, and should the code be at all onerous in an economic sense, it would be rational to expect that TNCs might choose to create a human rights race to the bottom or at least choose to minimize their legal exposure.
Every discussion circles back to enforcement, and the tools at hand are civil suits based on municipal laws in the country of incorporation and the highly controversial prospect of self-regulation. The underlying force in both of these instances is democracy, the realization from the boardroom to the courtroom that in most of the economically robust parts of the world, public opinion does matter. Public opinion is the undercurrent in all of the instances of human rights praxis examined here: Nigerian oil, coffee plantations, Asian sweatshops. It is, fittingly enough, human beings caring...