I’ve been pleased to witness a palpable uptick in media coverage on business and human rights issues in the last few months. The current furore over the Panama Papers demonstrates the widespread outrage most citizens feel when confronted by corporate wrongdoing. This is the case even when the actions in question may not be illegal; tax avoidance on behalf of large multinational corporations seems to ignite a general sense of indignity, even though it falls within the bounds of the law. Similarly, many people feel outraged to learn about corporate complicity in environmental damage and human rights abuses even when local laws do not clearly prohibit the activity in question.
One of the common criticisms of the UN Guiding Principles on Business and Human Rights is that they are not binding “hard law”, but merely an expression of current norms which corporations cannot be compelled to obey. While this may technically be the case, this characterisation in no way detracts from their power as a normative framework and a tool for progress. Popular feelings of outrage about corporate bad behaviour are not conditioned on legality, but on a general sense of right and wrong in modern society, which the UNGPs reflect. Progress, therefore, need not wait for the law to catch up.
I can think of many examples from my work where the legality of a corporate activity was irrelevant to the sense of outrage, and where lack of relevant laws was not a barrier to constructing successful campaigns.
Several years ago, I was working with a group of Burmese refugees living in Thailand. Despite their difficult circumstances, they were passionate campaigners and inspiring to work with. I was teaching them human rights law and assisting them in drafting submissions to the United Nations Human Rights Council on various large infrastructure projects and their negative impacts on their home communities.
One of these projects was the Myitsone Dam at the headwaters of the Irrawaddy River, the cultural heart and soul of Myanmar. The construction of the dam required resettlement of nearly 12,000 villagers, and refugee activists voiced their concerns that it would destroy important cultural heritage, including important Buddhist temples. It was controversial from its inception, as many viewed it as an exploitation of the birthplace of Burmese culture and its people at the hands of private Chinese interests.
At that time, Myanmar had implemented very few of its international treaty obligations into national laws, and there was no legal obligation to consult with the community prior to breaking ground on the project. In fact, there were no clear legal barriers to the dam going ahead despite the widespread protests.
Nonetheless, the public outrage was impactful, and in 2011 President Thein Sein announced that the project was being suspended. The fall of the military junta and the attendant political change in Myanmar meant that public opinion was finally beginning to be taken into account after decades of authoritarian rule. This was a hugely rewarding result for the tireless campaigners and activists like my students, who continued to raise their voices despite wavering hope that they would be heard and respected.
Today, it remains to be seen what will happen with the Myitsone dam. The Chinese company developing the dam is pushing for reinstatement of the project, and there do not appear to be any legal bars to doing so, but the people of Myanmar remain firmly against the project and public opinion continues to carry great weight in the decision-making process.
For now, this story gives me hope that our legitimate outrage, irrespective of legal status, wields significant power.