DRAFT
[DRAFT]
F ROM THE W OMB TO W ORKING THE N IGHT S HIFT :
G ENDER R OLES , H UMAN R IGHTS AND C ORPORATE S OCIAL R ESPONSIBILITY IN I NDIA
Erika R. George
*
I NTRODUCTION
I.
G
LOBALIZATION AND
G
ENDER
: V
ULNERABILITY IN THE
G
OVERNANCE
V
OID
A. Globalization and Gender
B.
The Global Governance Void and Vulnerability
II. C
ASE
S
TUDIES IN
C
ONTEXT
: C
ULTURE
, C
OMMERCE AND THE
C
ONDITION OF
V
ULNERABILITY
A.
India’s Disappearing Daughters: Gender Genocide
1. Causes and Consequences of Vulnerability
2. Corporate Responsibility and State Response
B. India’s Workforce of Nightshift Women: Rewards and Risks
1. Economic Rewards
2. Safety and Security Risks
3. Corporate Responsibility and State Response
C. India’s Womb Rental Inc.: Women’s Labor of Labor
III.
H
UMAN
R
IGHTS AND
C
ORPORATE
R
ESPONSIBILITY
: C
HANGING THE
C
ONDITION OF
V
ULNERABILITY
R
EDUCING
R
IGHTS
V
IOLATIONS
A.
Human Rights and Global Enterprise
B.
Corporate Social Responsibility and Rights in Context
C.
Rights, Responsibility and Increasing Human Capabilities
IV.
T
HE
I
NTERPLAY BETWEEN
R
ESPECT
, R
ISK AND
R
EDEMPTION
A.
Codification through Communication: Corporations, Consumers and Competition
B.
Compliance through Esteem Seeking
C.
The Cycle of Respect, Reputation Risks: CSR as Redemption
I NTRODUCTION
In 1990, Development Economist and Nobel Laureate Amartya Sen warned the world that 100 million women had simply gone ‘missing’ from the world. Citing the skewed sex ratios of India and China, Sen determined that women in these countries, were they fortunate enough to enter the world alive, suffered significantly reduced survival rates in certain regions for a variety of reasons—chief among them gender
* Professor of Law, University of Utah, S.J. Quinney College of Law. B.A., University of Chicago;
M.A., University of Chicago; J.D. Harvard Law School. The author acknowledges Jennifer Ku for her excellent research assistance. An earlier version of this draft was presented at the 2010 Feminism and Legal
Theory Project on Vulnerability and the Corporation at Emory University School of Law, Atlanta GA.
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DRAFT discrimination.
1
These missing women were understood to be the vulnerable victims of patriarchal traditional cultures that preferred and privileged males.
Today, modern technology has met tradition in the global market place. Asia has emerged as a region of increasing influence in the global economy. To the extent that women in Asia went missing in Sen’s account because they were vulnerable, due in part to limited economic opportunities in their communities it would stand to reason that the reach of modern technology and the global marketplace would benefit women by elevating their status. The entry of multinational corporate capital into the emerging market economies of Asia could be expected to empower the very women who were rendered vulnerable because they were not perceived by their societies to be valuable.
By increasing women’s ability to contribute to their families and communities economically the vulnerability women experienced for being worth less should decrease.
Nevertheless, reducing women’s vulnerability by introducing the benefits of business and increasing the ability of women to offer their labor in the global marketplace remains complicated by culture and the social roles to which many women continue to find themselves relegated. India provides an instructive example of the complexities created when the global market meets gender discrimination.
The consequences of the entry of certain industries into India have been harmful making the circumstances of some of the most vulnerable and voiceless in society worse.
For example, increased access to state of the art portable ultrasound technology has been associated with an even sharper sex ratio imbalance and a rise in sex selective abortions disfavoring females. The entry of other industries into India has been helpful. For example, women are increasingly able to assume power and exercise ever increasing options as they gain economic autonomy because of access to the employment opportunities made available due to India’s growing Business Process Outsourcing
(BPO) industry.
This paper explores the complex engagement of transnational enterprise in a country where cultural bias still renders a significant segment of the population (women) vulnerable to rights violations. The paper considers how the entry of global enterprise and access to the global market changes the social conditions of the most vulnerable members of society, making them more or less vulnerable. It also considers how enterprise and entrepreneurs may be vulnerable to reputational injury and legal liability in ways that could prompt positive changes in business practices that in turn could come to transform the position of society’s most vulnerable in way that enhances capabilities.
1 See, Amartya Sen, More Than 100 Million Women Are Missing, N.Y. Rev. Books, Dec. 20, 1990, at 61-
66, available at http://www.nybooks.com/articles/3408 (attributing skewed sex ratios in Asia to cultural bias, gender discrimination and inequality).
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The lives of women in India from womb to workplace, offer evidence of the ways in which their vulnerability is exploited. This paper discusses the ways in which global enterprise and global entrepreneurs are capitalizing upon and changing gender roles. It also describes how multinational corporations from home countries that are developed become vulnerable to different demands when operating in the developing countries that serve as hosts to their expansion into emerging markets. The dynamics of these engagements give rise to a number of questions: Is the entry of global industry into the emerging market of India exploitative or empowering to women? How is vulnerability working to promote changes in the status of women and in the structure of business operations? Can these changes be directed towards of greater respect for human dignity recognizing the worth and humanity of women? What is the responsibility of business when entering an area where existing inequalities are so severe as to potentially pose a threat to the opportunity to exist?
Part I provides a background discussion of globalization and gender. It also describes a global governance gap that makes the multinational corporations fueling globalization difficult to regulate. Part II presents three examples of how the entry of global enterprise and the emergence of an independent global entrepreneurial class are influencing existing gender inequalities in India. First, the problem of female infanticide or “Gendercide,” the alleged complicity of General Electric in sex selective abortions and a lawsuit brought against the company is offered to illustrate the potential of products to exacerbate preexisting prejudices. Next, the problem of gender violence and the alleged failure of
Hewlett Packard to protect a female member of its night workforce from sexual violence and murder is offered to illustrate how vulnerability has led to calls for increased corporate responsibility. Finally, returning to a discussion of what women do with their wombs, physician entrepreneurs engaged in contract surrogacy arrangements for the foreign market is offered to illustrate the complexity of the exploitation vs. empowerment paradigm when considering gender, globalization, rights and responsibilities. Part III argues that if corporations elect to enter societies where there are pre-existing inequalities that stand to be exacerbated by their business practices, then additional enhanced ethical obligations must be assumed to avoid exacerbating rights abuses. Part IV synthesizes insights from the communications process theory of international law formation and the esteem-seeking and shame-avoiding explanations of norm internalization to construct a theory of how the human rights and corporate social responsibility movements may generate incentives for commercial actors to bring their conduct into compliance with respect for human rights. In conclusion, the paper predicts, perhaps paradoxically, that from the vulnerability of commercial actors to community claims from citizens and consumers on behalf of those most vulnerable, a greater opportunity for protecting human rights and the environment may emerge in a number of countries. The selected illustrations from India indicate how countries and concerned consumers may advance or accelerate the evolution of Corporate Social Responsibility (CSR) by generating greater expectations for global business.
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I.
G LOBALIZATION AND G ENDER : V ULNERABILITY IN THE G OVERNANCE V OID
The World Bank uses the term globalization to describe “the growing integration of economies and societies around the world.” The World Trade Organization (“WTO”) defines globalization as “a historical stage of accelerated expansion of market capitalism…a fundamental transformation in societies…a recombining of the economic and social forces on a new territorial dimension.” Women’s very bodies are part of this new terrain. Globalization “relies heavily on the work of women, both in waged and unwaged, in formal sectors and in the home, in manufacturing and in public and private services.” 2
A. Globalization and Gender
Women worldwide are experiencing the transformative effects of globalization on their local economic, social, cultural, and political environments. Yet, what globalization means for gender equality remains unclear. There is a great deal of division over globalization’s relative merits and its effects for the world’s women. In large part, divided opinion is due to the lack of uniformity in globalization’s transformative effects across difference. Globalization is experienced differently across countries and among different groups within countries based on race, class and gender. Some aspects of globalization are problematic, while other aspects are positive, perhaps sometimes simultaneously depending on where a woman is situated in the global economy.
3
The current period of globalization has been distinguished from other points in the history of trade and transnational exchange in three ways. First, there are fewer barriers to trade and finance. Second, the volume of trade and transnational exchange has increased, as has the portion of manufactured goods exchanged relative to primary commodities.
Third, and most significantly for understanding what globalization means for gender justice, the organization of the manufacturing has moved away from vertical integration towards a more horizontal and diffuse means of production.
4
The production of goods and services, now more than ever, takes place across transnational supply chains. The current period of globalization is also distinctive for the work opportunities it has
2 V. Moghadam, ‘Gender and Globalization: Female Labor and Women’s Mobilization’ Journal of
World-Systems Research, v. 2, Summer 1999, p. 371.
3 See generally, Erika George, Gender and Globalisation: Engendering Social and Environmental Justice through Globalising Women’s Human Rights, in Globalization and the Quest for Social and
Environmental Justice: The Relevance of International Law in an Evolving World Order (forthcoming
Routledge-Cavendish Taylor & Francis Group, Shawkat Alam, Natalie Klein & Juliette Overland eds.
2010).
4 A. King Dejardin, Gender Dimensions of Globalization p.1
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DRAFT generated for women. Where women are situated in the global economy is deeply gendered.
5
Feminist economist, Diane Elson examines the consequences of the distinction between the monetary “productive” economy and the non-monetary “reproductive economy” 6
and argues that gender difference makes a difference in the value assigned to an individual’s labor. Women are confined to the private sphere to perform the unpaid labor of reproduction. Men are cast in the public sphere to labor for pay in the production of goods and services. From these gendered social roles emerged a “structural and ideological division between production and reproduction.” 7 The performed division between roles of production or reproduction corresponds to gender difference. The gendered division of labor privileges men with paid work in the productive monetary economy and often leaves women to work, unpaid, in the non-monetary reproductive economy. Although the monetary and non-monetary economies are interdependent, gender-differentiated effects are disproportionately borne by women.
Consistent perhaps with the stereotypes of separate spheres that are valued differently by market mechanisms; the private sphere where women’s work has usually been performed is perceived to be of little worth.
8
Worth less, women are paid less for their labor even after they leave the nonmonetary economy for the monetary economy.
9
Global industry has found it easy and expedient to capitalize on the already existing discriminatory gender roles that render women less valuable and their work of less value.
Women’s work in the developing world is a relative a bargain for multinational corporations that must rely on low cost labor to remain competitive in the marketplace increasingly characterized by horizontal means of production and global supply chains
The cross-border production of goods and provision of services that characterizes the current period of globalization is intensely competitive. Because competition in the global marketplace is so intense and the methods of production are so mobile, manufacturing has come to depend on the exploitation of low cost and casual temporary labor.
10
Women, given the persistence of discriminatory social and cultural roles with respect to the value of women’s work, are an attractive and available source of such labor.
5 Id.
6 D. Elson, Micro, Meso, Macro: Gender and Economic Analysis in the Context of Policy Reform in. I
Bakker, ed. The Strategic Silence: Gender and Economic Policy. London: Zed (1994).
7 J. Acker, ‘Gender, Capitalism, and Globalization,’ Critical Sociology, Vol. 30, No. 1, 17-41 (2004).
8 Cite, Kessler
9 Cite, Feminist Economists Literature
10 Cite, ILO Better Work Project Literature
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DRAFT
The gender discrimination that made women attractive to employers in the first instance is often replicated in women’s employment environments. Women confront the gender discrimination at work in the form of reproductive status discrimination, sexual harassment, job segregation and unequal wages and training.
11
Regulatory protections for women who enter the workforce outside their homes they are often inadequate or not enforced.
12
Low wage women workers in the global supply chain have been a boon to emerging economies. No developing country posting strong export performance has does so without heavy reliance on women’s work in labor-intensive manufacturing.
13 Moreover, there is evidence that discriminatory gender roles do play a role in the benefits gained by emerging market economies.
14
Economists have identified a correlation between gender wage gaps and the growth of export production in Asia.
15
The labor market adaptability in Asia was due in large measure to the menial labor of women working for low pay in poor conditions.
16
Women’s low cost labor attracted investment that in turn gave governments in Asia foreign exchange opportunities at rates sufficient to invest in capital goods to increase production and accelerate growth.
17
To the extent the global economy can be characterized by its increasing economic integration, interconnection and independence among countries and communities; it is increasingly imperative that the indivisible, interdependent and interrelated nature of women’s social, economic, cultural, civil and political rights be given greater emphasis by governments and the responsibility of non-state commercial actors to align their conduct with respect for women’s human rights explored further. As the examples from
India discussed infra will highlight, examining the consequences of the conduct of corporations for human rights is especially urgent.
B.
The Global Governance Void and Vulnerability
Globalization presents a challenge to the conceptual foundations of international human rights law, as premised on state action and responsibility. The process of economic globalization, fueled by private enterprise, is eroding the hegemonic place of the state as the subject and source of international law.
18
As a result of globalization, the
11 Cite, eg HRW research Latin America
12 Cite, Her Project Documentation
13 See, George, Supra (citing Hsiung)
14 Id.
15 Id.
16 Id.
17 Id.
18 See generally, DAVID KINLEY, CIVILIZING GLOBALIZATION: HUMAN RIGHTS AND THE
GLOBAL ECONOMY (2009).
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DRAFT place where power resides in the international system is growing more diffuse, and authority for traditionally public functions is being ceded to private enterprise. Global governance has not kept pace with economic and social changes.
Presently, multinational corporations operate largely unencumbered by the binding public international human rights obligations that states assume either through treaty or custom. The independent obligation, if any, of multinational enterprise to conform to international human rights standards is far from clear at this stage.
19
However, corporations are increasingly implicated along with governments in violating human rights.
[EXPAND EXPLANATION OF PROBLEM-HOW CORPORATIONS VIOLATE
HUMAN RIGHTS EXPLOIT OR IGNORE VULNERABILITIES]
Often, there are regulatory gaps between the standards of the corporation’s home country and its host country; therefore, corporate action often occurs in a regulatory void where there is little law to guide business practices abroad. The vulnerable occupy this governance void. Vulnerability is often associated with the state of being wounded or hurt exposed, open to attack or damage, weak or easy to hurt. To be susceptible to attack or harm, easy to attack or criticized is to be vulnerable.
Vulnerability is not always directly related to power. A person, legal or human, may be vulnerable in different ways for different reasons depending on perceptions of the power they may possess. Because women are perceived to lack power they are vulnerable to discrimination and discriminatory gender based violence. Corporations are vulnerable because they are perceived to possess power. Women are vulnerable to rights violations while corporations increasingly are vulnerable to rights claims. Human rights activists from the developing countries that play host foreign corporations as well as advocates in the developed countries many of the targeted corporations call home are now demanding that commercial actors provide remedy for rights violations and to prevent rights violations where possible.
II. C ASE S TUDIES IN C ONTEXT : C ULTURE , C OMMERCE AND THE C ONDITION OF
V
ULNERABILITY
[INSERT SECTION INTRO/TRANSITION/ROADMAP]
A.
India’s Disappearing Daughters: Gender Genocide
19 Peter Muchlinski, Corporate Social Responsibility and International Law: The Case of Human Rights and Multinational Enterprises, in THE NEW CORPORATE ACCOUNTABILITY: CORPORATE
SOCIAL RESPONSIBILITY AND THE LAW 440 (Doreen McBarnet, Aurora Vioculescu & Tom
Campbell eds., 2007).
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DRAFT
-
Raising a daughter is like watering your neighbor’s garden
-May you be the mother of a hundred sons
Gender discrimination existed in India long before the arrival of General Electric.
India was and remains a world leader in female infanticide and feticide.
20 However, women’s rights and anti-abortion activists now argue that since General Electric’s introduction of portable ultrasound machines, preexisting gender discrimination has taken a particularly devastating turn, posing a threat to the very existence of the disfavored gender—female.
Improved pre-natal sex determination technologies introduced by industry have made female feticide easier and more efficient across much of India as more families opt for sex selective abortions. General Electric introduced a portable ultrasound machine that can travel easily between even the most rural of Indian villages. Undoubtedly, many lives have been saved where the corporation’s technology has been used to detect genetic abnormalities and to assist to improve prenatal and maternal health care. Yet, the same product can also be used to determine the sex of a fetus. Likely, many lives are being lost because of the technology’s misuse. Activists attribute increased access to ultrasound technology coupled with pre-existing preference for boys to the country’s falling sex ratio.
Since Amartya Sen’s now canonical essay explaining the disappearance of women in the Asia region, More Than 100 Million Women Are Missing ,
21
the situation does not seem to have improved. According to a 2007 UNICEF report India is estimated to be missing 7,000 females a day or 2.5 million a year.
22 The phenomenon of women missing in India is not a new one. An 1871 Census of India conducted by the British during colonial rule revealed an imbalance sex ratio of 940 women to 1000 men with some villages without any girls.
23
20 Vineet Chander, “It’s (Still) a Boy…”: Making the Pre-Natal Diagnostic Techniques Act an Effective
Weapon in India’s Struggle to Stamp Out Female Feticide, 36 Geo. Wash. Int’l L. Rev. 453 (2004).
21 Amartya Sen, More than 100 Million Women are Missing, New York Review of Books, Vol. 37, No. 20,
Dec. 20, 1990.
22 UNICEF (2007); see also Duin, India’s Imbalance, supra. See also, . Julia Duin, GE Machines Used to
Break Law: Misuse of Many Ultrasound Devices Goes Unchecked, Mar. 1, 2007. (Citing a 1987 study by the Federation of Obstetricians and Gynecologists Societies of India showing that of 8,000 abortions 7,999 occurred after tests revealed a female fetus. University of Bombay study showed that of 1,000 cases in
Bombay no male fetuses were aborted with 97% female and 3% undetermined sex)[update & substantiate]; see also India: The Missing Girls, Frontline, PBS.org, Apr. 2004 at ; India’s Female Freefall, CNN.com ,
June 19, 2001 at.
23 Lemoine & Tanagho, Gender Discrimination Fuels at 208.
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1. Causes and Consequences of Vulnerability
Research suggests that women in India abort female fetuses due to significant social and economic pressure to produce sons: “When the choice is between abuse and honor; ridicule and prestige; vulnerability and security; women will choose honor, prestige, and security—and Punjabi women will have sons.”
24
Women have less economic opportunity even educated women may depend on male family members for financial support. The work participation rate for women was 21% in 2004 compared to 54% for men. In 2001 the literacy rate for women was 54% and 76% for men.
25
Women who are undereducated or illiterate are unlikely to become income earners in the productive economy.
The problem of sex selective abortion exists and persists in India for a range of reasons but at bottom the problem is primarily one of gender discrimination. A number of factors fuel the prevailing son preference in India. All the reasons are rooted in the valuation of a daughter’s worth. Large segments of society are patriarchal in orientation.
Property usually passes on through male members of a family. Women are often unable to inherit. Families with daughters must pay a dowry to her prospective husband’s family to secure the marriage. Frequently families incur debt to meet dowry expenses. Dowry expenses have only become more expensive as a consumer culture comes to more parts of the country. On balance, boys are a bargain.
After marriage, daughters are expected become members of the households of their husband’s family leaving her family of origin entirely. In contrast, a son provides his parents economic security into old age and he also ensures continuation of the family name and caste. A son offers wealth to the family not only through his earned income but also through his marriage because when a son marries he brings the wealth of his wife’s dowry into his family.
26 While a son is seen as an asset a daughter is a liability. The son preference is therefore pragmatic. Accordingly, being female can often be fatal for a fetus in India. An often-cited popular advertisement for ultrasound services urges potential parents: “spend now, save later.” 27
Before advent of ways to predict an unborn child’s gender female infants were carried to then term and killed after birth. Female infants were disposed of through
24 Mallika Kaur Sarkaria, Lessons from Punjab’s “Missing Girls:” Toward a Global Feminist Perspective on “Choice” in Abortion, 97 Cal. L. Rev. 905, 908-09 (2009); see also Ashish Bose & Mira Shiva,
Darkness at Noon: Female Foeticide in India (2003).
25 F&T, at 220 notes 126-129.
26 Dowry was eliminated in India by the Dowry Prohibition Act of 1961 but the practice continues in many parts of the country. Failure to pay dowry can be deadly. See Judith G. Greenberg, Criminalizing Dowry
Deaths: The Indian Experience 11 Am. U. J. Gender Soc. Pol’y & L. 801 (2003). It has been suggested that the amount of dowry demands have increased as consumerism has come to India. Sarkaria.
27 Christine Toomey, Gender Genocide-Investigation, The Sunday Times (London, England), Aug. 26,
2007.
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DRAFT suffocation or starvation.
28
The task of disposal was relegated to women, usually a female relative or midwife.
29
It was also common for female infants to perish due to parental neglect. Given less food and health care than boys, girls simply died from disease or malnutrition.
After expanded access to ultrasound technology enabling potential parents to tell whether a child was male or female, it appears that statistically significant fewer females are being born. Paradoxically, son preference does not decrease in more affluent areas or among more educated communities.
30
Sex ratios are reportedly the most imbalanced in urban areas. Urban areas outpacing rural regions in sex ratio imbalance has been attributed to increased access to and use of medical services and sex selection technology.
31
India’s most recent census of Punjab in 2001 revealed that rural areas recorded 887 females per 1000 males while urban area recorded just 848 females per
1000 males.
32
The ability to obtain more information about the general health condition and gender of a fetus may not translate into greater reproductive choice or control for women in
India. There is empirical evidence to suggest that for many women the choice of whether or not to carry a female fetus to term is coerced or constrained by the threat of abandonment or by abuse from their spouse.
33 In one notorious case, a woman was left in a coma after being attacked by her husband’s family for her failure to produce a son and for giving birth to two girls. After her family failed to deliver additional dowry to cover expenses the woman’s in-laws attempted to murder her.
34
Given such pressure and the potential consequence of not giving birth to a boy, the prevalence of sex selective abortions should not be surprising.
Some scholars predict that as sex specific abortions continue to increase the skew in the sex ratio could have destabilizing effects on Indian society.
35
It is feared that large cohorts of men who are unable to marry because of the shortage of women will become
28 Kristi Lemoine & John Tanagho, Gender Discrimination Fuels Sex Selective Abortion: The Impact of the
Indian Supreme Court on the Implementation and Enforcement of the PNDT Act, 15 U. Miami Int’l &
Comp. L. Rev. 203 (2007).
29 Chander at 456.
30 Scott Baldauf, India’s “Girl Deficit” Deepest Among Educated, Christian Sci. Monitor, Jan. 13, 2006.
31 (F&T at 216)
32 Sarkaria, supra (citing Singh)
33 Chander at 465;
34 Julia Duin, Brides Bound by Traditions: Indian Women, Families Carry Costly Commitment of Dowry,
The Washington Times, Feb. 27, 2007.
35 See e.g., Valerie M. Hudson & Andrea M Den Boer, Bare Branches and Danger in Asia, Wash. Post,
July 4, 2004; Valerie M. Hudson & Andrea M. Den Boer, A Surplus of Men, A deficit of Peace: Security and Sex Ratios in Asia’s Largest States, 26 Int’l Security 5 (2002) The term in China for bachelors is bare branches referring to a family tree that will never bear fruit.
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DRAFT disruptive without being rooted in a family.
36
Evidence that individual women are suffering due to the skewed sex ratio. There are reports of bride trafficking into regions where women are more rare.
37
In addition to more trafficking of women, there are reports of increased instances of child brides and fraternal polyandry, where one woman marries a man and his brothers.
38
Paradoxically, as women become scarcer their worth does not appear to have increased.
39
2. Corporate Responsibility and State Response
A significant amount of activism on the issue of female feticide in India has focused on families and physicians. The normative standards for ethical transnational corporate conduct across diverse contexts are still emerging in the CSR and human rights movements. As a result, corporate social responsibility for the most vulnerable in many of these contexts has yet to be examined.
Sex selection in India is estimated to be a $100 million industry with multinational corporations profiting from the practice.
40 Annual ultrasound machine sales in India were
$77 million in 2006, up 10% from 2005.
41
Competitors in the Indian ultrasound market include Siemens AG, Philips Electronics NV.
42
A Chinese company, Mindray
International Medical, Ltd. has recently introduced a lower cost product for the more price sensitive customer.
43
GE Healthcare is estimated to have cornered close to 50% of the ultrasound machine market in India.
44 Penetration of GE products into India has been deep reaching into
36 India’s Missing Girls, The Guardian (London, England) Feb. 28, 2007.
37 Julia Duin, Lots of Stings, No Pain: Just a Wink for Doctors Who Flout Law, The Washington Times,
Feb. 28, 2007 (Reporting on trafficked girls from Nepal and Bangladesh into western India where women can be purchased for $260-$330)
38 For a detailed discussion of the consequences of sex selection in India see, Monica Sharma, Note:
Twenty First Century Pink or Blue: How Sex Selection Technology Facilitates Gendercide and What We
Can Do About It, 46 Fam. Ct. Rev. 198 (2008).
39 Sharma, (“The problem is that the woman herself does not hold her value; it is actually the males around her that hold her value—her father, her husband and then her in-laws.”)
40 Julia Duin, India’s Imbalance of Sexes: Killing of Female Fetuses Increases Disturbing Gap, Feb. 26,
2007.
41 Wonacott
42 Wonacott
43 Wonacott
44 In 2007 at the time of the charges leveled against GE, the corporation’s latest portable machine the Logiq
100 was approximately the size of a laptop and sold for $16,900 new or $11,000 refurbished. Julia Duin,
GE Machines Used to Break Law: Misuse of Many Ultrasound Devices Goes Unchecked, Mar. 1, 2007.
Reportedly, GE machines are most prevalent in northwest India, which also has the lowest proportion of females to males. Id. This year GE introduced the Vscan, a hand held ultrasound device the size of a cell phone. Portable Ultrasound Scanner Can Thrill Doctors, But Irks Activists, Hindustan Times (New Delhi,
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DRAFT rural areas.
45
As a result, rural villagers may live without running water, electricity or other infrastructure but enjoy easy access to ultrasound technology. GE became the largest seller of ultrasound machines in India through its joint venture with an Indian outsourcing corporation Wipro Ltd.
46
Industry came under increased scrutiny in India when public prosecutors charged
General Electric’s healthcare unit with complicity in contributing to the abortion of female fetuses by pushing sales of portable ultrasound equipment.
47
The criminal complaint against GE alleges that the corporation knowingly sold ultrasound machines to unregistered clinics that were conducting illegal sex selection tests.
48
GE emerged as an early market leader in the 1990s when it began manufacturing its devices in India and making use of Wipro’s vast domestic distribution network to deliver its products.
49
GE employed sales agents to travel to more remote rural locations selling low cost mobile machines. GE partnered with banks to help physicians finance the purchase of ultrasound equipment.
50
After reaching remote doctors, GE relied on word of mouth and offered discounts to preferred purchasers. It was GE’s powerful market dominance that made it vulnerable to scrutiny.
The number of missing female infants was sufficient to prompt the Indian government to enact the Pre-Natal Diagnostic Techniques Regulation and Prevention of
Misuse Act (PNDT).
51
In amendments to the Act, corporations have also been called on to do something to ameliorate this situation. The PNDT Act regulates use of pre-natal diagnostics by requiring the registration of pre-natal diagnostic centers and clinics. It prohibits sex selection by attempting to prevent misuse of medical diagnostic technology.
The Act criminalizes communicating the sex of a fetus to any person. It provides that only registered clinics can lawfully offer genetic counseling and conduct prenatal diagnostic tests.
India) Feb. 15, 2010; Pocketsize Scanner to Help in Emergencies, New Indian Express (Chennai, India)
Feb. 23, 2010.
45 Peter Wonacott, India’s Skewed Sex Ratio Puts GE Sales in Spotlight, Wall Street Journal, Apr. 19,
2007.
46 Wonacott
47 Parul Gupta, GE Addresses Indian Concerns Over Mass Girl Abortions, Agence France-Presse, Sept. 29,
2007.
48 Wonacott.
49 Wonacott
50 Wonacott
51 Ironically, according to some accounts it was the allegedly wrongful abortion of a male fetus mistaken for a female that lead to legislation. [India under pressure from international community check CEDAW,
CRC country reports]
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Penalties for violating the Act range from fines to terms of imprisonment for any person who violates the act. Repeat offenders face increased fines and incarceration time.
Individuals seeking the aid of a clinic to conduct sex selection can also be prosecuted.
The Act has been criticized for penalizing women, and for failing to ban private sector commercial use of pre-natal diagnostic technology.
52
While the Act also regulates corporate conduct, potential penalties remain vague. For example, a corporation that runs afoul of the Act: “shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.”
53
Before the recent allegations leveled against GE, Indian feminists and civil society activists challenged the lack of enforcement of the PNDT in the Indian Supreme Court in
2002. They claimed that state governments failed to enforce the Act and flouted it by liberally granting licenses to ultrasound clinics to operate. Their suit sought to compel states in the country with skewed sex ratios to enforce the Act. Health Secretaries from
Punjab, Haryana, Delhi, Bihar, Uttar radish, Maharashtra, Gujarat, Andhra Pradesh,
Kerala, Rajasthan and West Bengal were ordered to report on the procedures in place to protect against female infanticide. As a result of the action, the Supreme Court ordered five multinational corporations, Philips, Symonds, Toshiba, Larsen, Tubro and Wipro GE to surrender the names and addresses of the clinics and individuals in India who purchased machines over a five year period just prior to the suit.
54
In the early aftermath of the lawsuit against GE, a senior executive indentified the problem as one of product misuse as distinct from a problem with the product. Under this logic, responsibility could not be placed with the manufacturer of the product. In reaction to the suit, one senior GE executive was quoted making the comparison: “if someone drives a car through a crowded market and kills people, do you blame the car maker?” 55
After initial denials that the company could do anything to curb misuse of its products,
GE indicated willingness to voluntarily report individuals buying more than one machine and to promote awareness programs.
56
GE has since announced measures it intends to take to ensure that its customers comply with the Act. These measures include educating the sales force about the law, securing pledges from potential customers that the machines will not be used for sex selection followed up with periodic audits.
57 Sales reportedly have since declined in GE’s
52 Chander at 467 (Suggesting that the Act could ban use of pre-natal diagnostic testing in the private sector permitting it only in government hospitals)
53 Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection Act) 1994 No. 9 of
1994, India Code, Section 26 (1) available at http://indiacode.inc.id
54 Ashish Bose, Curbing Female Foeticde, 37 Economic and Political Weekly 696, (2002)
55 Wonacott
56 Gupta, supra
57 Wonacott
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58
GE management nevertheless maintains that it is the responsibility of India’s government, not a global multinational corporation to change the prevailing preference for giving birth to boys. Meanwhile: “Sex ratios remain skewed, women remain exploited, and perceptions of male and female worth in Indian society remain unchanged.”
59
B. India’s Workforce of Nightshift Women: Rewards and Risks
While more girls may be missing in India, more women than ever are working due to foreign investment and access to the global market. The international distribution of labor has given rise to opportunity for women across the Global South to participate in the monetary economy. Their presence in the workforce may herald greater gender equality as they earn incomes and can assert more independence. For example, India’s call center industry offers women the opportunity to work for higher wage rates and to transgress traditional gender roles by working outside the home.
60
Much of this work, however, occurs at night to coincide with the time zones of the customer base served.
Gender violence predates Hewlett Packard’s presence in India. Sexual harassment and sexual violence remain significant problems for women. Increased mobility that comes from working may expose women to increased risk of violence as they commute to and from work at hours that accommodate their customers across time zones. These risks have led to calls for corporations to assume responsibility for the safety of their women workers. Corporations who place women workers at risk or fail to protect women worry they may risk liability and lose talented employees.
1.
Economic Rewards
India’s booming BPO industry employs hundreds of thousands, women number among the many Indians working in call centers.
61
Anecdotally, women are the preferred employees for call center work by employers. In this instance women are well served by sex stereotyping because women are perceived to be more caring and communicative and so suited to servicing consumers. Indeed there is sex segregation in call center work based on sex stereotyping. In her study of Indian call centers, Reena Patel found that more women (perceived as servile and passive) were employed in positions fielding customer service calls while more men (perceived as aggressive and assertive) were
58 Wonacott
59 Chander 472-73
60 [Truly still unclear to me really whether women are less “vulnerable” due to these new economic opportunities]
61 BPOs not limited to call centers it also encompasses payroll processing, transcription services, tax preparation, financial analysis.
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DRAFT employed in debt collections. As a result, men earned more money because debt collection work often awards a commission on each collection.
62
Nevertheless, there is transformative social and cultural potential in women’s economic participation. As more women occupy positions located firmly in the monetary economy, traditional gender roles are being dislocated. Oppressive social gender roles scripted to exclude and structured to oppress women are being rewritten by the very act of women’s work occupying new spheres in the monetary economy, a space previously reserved for men.
63
India’s call center industry has been cited and celebrated as a source of “liberation” for those women who work in the industry because it pays comparatively higher wages and is skilled employment. As a result, women who work in the industry are on balance drawn from the middle class.
2. Safety and Security Risks
Women working night shifts are trespassing on a temporal boundary between night and day. Through their work, these women are transforming how gendered norms of mobility are defined and in so doing are bringing new meaning to what it is to be a woman in the world where women can be and when women can be working.
It is precisely for this reason, the possibility of transformation, that there has also been resistance to the transformational reformulation of the social roles occupied by women. Risk of gender violence too often serves to control and constrain women’s work choices. Laws recently enacted in India have called on corporations employing women in night shift work to ensure their safety.
Global night shift labor in India’s call center service industry remains an endeavor fraught with risk at same time it is also potentially revolutionary. The risks associated with working the night shift are principally social stigma and sexual assault. Women who work the night shift are vulnerable to accusations of prostitution and are vulnerable to criticism that they are being indecent for being out of place. As Reena Patel, in her comprehensive study of Indian women who work at night explains: “a woman out at night is seen as both at risk (in need of protection) and risky (in need of discipline and control). These dual anxieties are reflected in family, community and media responses to the growing phenomenon of women working the night shift in call centers.” 64
62 Reena Patel, Working the Night Shift: Women in India’s Call Center Industry, 32 (2010)
63 George, supra
64 Patel, supra at XXX
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DRAFT
While more women are participating in the paid economy because of increased corporate investment in the country they do so at a price. Pratibha Srikantha Murthy, a
Hewlett Packard employee paid with her life. She was raped and murdered while commuting to her position at a call center in Bangalore.
3. Corporate Responsibility and State Response
Murthy’s case received international attention. In the aftermath of her murder the government filed charges against Som Mittal, the former managing director of Hewlett
Packard Global Soft Ltd. for his failure to comply with provisions of the Karnataka
Shops and Establishments Act. Among other things, the Act regulates nightshift employment of women and requiring corporations to provide for the safety and security of female employees.
65
Although Mittal was recently acquitted, an opinion has been sought to review the decision.
66
Other corporations in the industry moved quickly to increase the provision of security to women workers in transit to and from night shift work.
[INSERT EXAMPLES OF INDUSTRY REFORM EFFORTS BY COMPETITORS
TO IMPROVE SAFETY FOR FEMALE EMPLOYEES]
C. India’s Womb Rental Inc.: Women’s Labor of Labor
Those women who are not educated enough for employment in India’s BPO industry may be able to find work making babies for export. While India’s skewed sex ratio would suggest that it is apparently not worth the burden of going through labor to bear a daughter being paid for labor to bear children on behalf of more wealthy individuals, however, is increasingly an option.
In their book Rethinking Commodification: Cases and Readings in Law and Culture ,
Martha Ertman and Joan Williams explore the extent to which legal limits on commodification should exist.
67
They explain the basic tension as one in which proponents of surrendering more things to the market value the liberty interest of freedom to contract; while opponents wish to sustain some things as sacred and outside the reach
65 See The Karnataka Shops and Commerical Establishments Act 1961, 1962 Kar. Act. 8. Chapter VI
Employment of Women and Children, Section 25 Prohibition of Employment of Women and Young
Persons During Night.
66 Opinion on Mittal Qcquittal Sought, The Hindu (Chennai, India), Oct. 7, 2010.
67 Rethinking Commodification: Cases and Readings in Law and Culture, 2 (Martha Ertman and Joan
Williams eds. 2005)
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DRAFT of the market mechanism in order to protect equality and dignity.
68
Opponents of commodifcation of certain transactions are concerned about coercion where exchanges may be driven by extreme need, inequality or ignorance.
69
They also worry that the introduction of certain goods into the market economy can be degrading and diminish values.
70
In the United States, early debates over surrogacy in the 1980s and 1990s centered on what contracts to bear children for others would mean for conventional understandings of childhood, motherhood and family. The Matter of Baby M
71
presented just such a challenge to convention. Unlikely political factions from feminists to social conservatives forged alliances to over the course of Baby M’s custody litigation.
72
Baby M was a child produced pursuant to a contract between a highly educated and relatively affluent couple, William and Elizabeth Stern and a less affluent, less educated woman Mary Beth Whitehead.
73
Under the contract, the Sterns agreed to pay Whitehead in exchange for her agreement to be inseminated with Mr. Stern’s sperm, carry a pregnancy to term and surrender her parental rights to the Sterns.
74 As surrogate to the
Sterns, Whitehead fulfilled the contract in that she brought the baby to term and gave birth. However, shortly after giving birth she came to realize that she had bonded with the baby during her pregnancy. Then, in violation of the contract, Whitehead refused to give the Sterns the baby.
75
While a state trial court ruled to enforce the contract and ordered that Baby M be adopted by the Sterns, the New Jersey Supreme Court ruled the contract void and unenforceable as contrary to public policy reasoning that the agreement was effectively for “the sale of a child.” 76
The Court also expressed concern that economically
68 Id.
69 Michael J. Sandel, What Money Can’t Buy: The Moral Limits of Markets, in Rethinking
Commodification at 122.
70 See Margaret Jane Radin, Contested Commodities in Rethinking Commodification at 94 (“conceiving of any child in market rhetoric wrongs personhood”); Margaret Jane Radin, Market Inalienability, 100 Harv.
L. Rev. 1849, 1928-34 (1987) (characterizing surrogacy as the commodification of children and women’s reproductive capacity).
71 In the Matter of Baby M, 537 A.2d 1227 (N.J. 1988)
72 See, Elizabeth Scott, Surrogacy and the Politics of Commodification, 72 Law & Contemp. Problems 109,
129 (2009) (explaining how an “unlikely coalition” of feminists, civil-liberties groups and traditional religious organizations came together on the question of surrogacy in albeit for different reasons)
73 See, Elizabeth Scott, Surrogacy and the Politics of Commodification, 72 Law & Contemp. Problems 109
(2009); see also Michael Kinsey, Baby M and the Moral Logic of Capitalism, Wall St. J., Apr. 16, 1987
(noting a backlash against an “upper middle class” couple using their power and privileged through the legal system to exploit an “underdog” made sympathetic surrogate)
74 In the Matter of Baby M, 537 A.2d 1227, 1236 (1988).
75 Marot Hornblower, Surrogate Mother Breaks Pact, Wash. Post. Aug. 22, 1986.
76 Baby M, 527 A.2d at 1241.
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DRAFT disadvantaged women would be exploited unfairly were surrogacy contracts recognized and regularly enforced.
77
The Court also questioned whether any decision could ever be voluntary and informed under such circumstances of inequality.
78
The interaction between commodification and the distribution of social power with respect to surrogacy is particularly stark in India. While the terms voluntary and consensual could be used to describe the decisions of numerous women in India to rent their wombs to Westerners it hardly seems appropriate given the cultural context. Indian surrogates reportedly are given little information about the risks to their health or the people who will receive the children they bear.
79
The business of “reproductive tourism” in India is estimated to be worth over a half billion dollars annually. The boom in business is due in large part to physician entrepreneurs, lower prices, and lax government regulation. While surrogacy can reportedly cost over $100,000 in the United States, clinics in India charge under
$22,000.
80
The cost typically includes payment to the surrogate mother and two trips to
India one for fertilization and another to collect the resulting child.
The entrepreneurs involved in the industry believe they create a “win-win” relationship—childless get children and surrogates get cash. Significantly, physicians get clients. To guarantee quality and regulate what women do during the gestation period, many clinics will house their surrogates in dormitories for the duration of their pregnancy. While there are no official statistics on how many surrogate contracts foreigners enter into in India anecdotal evidence suggests a sharp increase.
81 The government is actively promoting India as a medical tourism destination.
82
Echoing the debates of decades ago in the United States, Indian proponents celebrate surrogacy as a means to economic empowerment for women and freedom of choice to contract for services.
83
Opponents worry about exploitation, with reason. It is reportedly common for surrogates to sign their service contracts with a fingerprint instead of a
77 Id.
78 Id. Immediately after the Baby M decision, several states adopted legislation prohibiting or severely restricting surrogacy contracts. More recently, a number of states have enacted gestational surrogacy acts which provide that children conceived through in vitro fertilization (IVF) and born to a surrogate mother automatically because the legal child of the intended parents at birth. See, Scott.
79 Amelia Gentleman, India Nurtures the Business of Surrogate Motherhood, New York Times, March 10,
2008 (recounting that an Indian surrogate mother does not know whether she is working for foreigner or whether the future parents are a same sex couple)
80 Amana Fontanella-Khan, India: The Rent-a-Womb Capital of the World, Slate, Aug. 23, 2010 at http://www.slate.com
accessed Sept. 27, 2010.
81 Gentleman, supra
82 Id.
83 Khan, Rent-A-Womb Capital.
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DRAFT signature because so many are illiterate.
84
They are also impoverished. In India, surrogates seem overwhelmingly to be women in the lower socioeconomic strata of society.
Some commentators worry about the health and safety of surrogates in India fearing that more unscrupulous clinic operators will eventually enter the industry as the amount of money to be made increases due to global demand.
85
Lisa Ikemoto has highlighted the unequal allocation of health risks to women as a reason to worry about issues of inequality in the global market for fertility that reproductive tourism represents.
86 She warns that the profit motive underlying transactions with reproductive tourists: “may foster a willingness to violate good medical practice in order to get results for foreign patients. For egg brokers, clinics, and fertility tourists, the more eggs retrieved per cycle the better. Higher dosages of ovarian stimulation drugs increase the chances of multiple egg production in women. But higher doses also increases the risk of ovarian hyper stimulation stress syndrome.” 87
Ultimately, the long-term health of surrogate may not align with the immediate interests of the childless customer. Thus, commercialization can “create[] an inverse relation between the egg donor’s intrinsic worth and her extrinsic value in the fertility industry.” 88
In many of the developing countries that are destinations for reproductive tourism even among young women morbidity and mortality rates from pregnancy and childbirth are higher than for middle class women.
89
III.
H UMAN R IGHTS AND C ORPORATE R ESPONSIBILITY : C HANGING C ONDITIONS FOR THE
V
ULNERABLE
These case studies offered from India illustrate the complex ways in which commerce can influence existing conditions of vulnerability that are reinforced by cultural bias or discrimination. In the absence of a clear articulation of the responsibility of commercial actors, as distinct from country governments to respect human rights questions concerning what a responsible course of conduct would entail remain unanswered and far too frequently unasked. The remainder of this draft attempts to engage how rights obligations may come to be attached to commercial actors in the
84 Id. (Also reporting the response of an Indian physician and fertility specialist to charges of exploitation:
“We shouldn’t treat them as stupid just because they are poor”)
85 Gentleman
86 Lisa C. Ikemoto, Reproductive Tourism: Equality Concerns in the Global Market for Fertility Services,
27 Law & Ines. 277, 303-05(2009)
87 Id. at 305.
88 Id.
89 Ikemoto
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DRAFT global economy and how conduct by corporations can be brought into alignment with respect for human rights.
There are two categories of rights contained in the Universal Declaration of Human
Rights (UDHR)—the long-established civil and political rights and the less established social, economic and cultural rights. Apart from the UDHR, there is an International
Covenant on Civil and Political Rights (ICCPR) as well as an International Covenant on
Social, Economic and Cultural Rights (ICESCR). There are other international human rights instruments as well. Taken together, the UDHR, ICCPR and ICESCR constitute an
International Bill of Rights. Regrettably, especially given the consequences of the economic integration of globalization, in theory and in practice the status of economic, social, and cultural rights remains less firm than civil and political rights.
Although many governments, including the United States government, remain ambivalent about legal protections for socioeconomic rights, the Second World
Conference on Human Rights in Vienna in 1993, the international community reaffirmed the original intention of the framers of the UDHR that all rights were important. The
Vienna Declaration that emerged from the World Conference recognized that civil and political rights and social economic and cultural rights are interdependent, interrelated and indivisible.
To the extent that this period of globalization has been accurately characterized by most definitions as a process involving integration, interconnection and interrelationship; international human rights law can only remain relevant to addressing the human rights violations associated with globalization when the full range of human rights are given respect globally and locally. The civil, political, social, economic and cultural elements of international human rights law must be understood to be mutually reinforcing and international human rights law must be enforced accordingly.
Perhaps nowhere is the importance of the interconnection of rights more real and relevant than in the lives of women in India. The interconnection of these rights and failure to realize them is particularly pronounced when the lives of women and the future of girls are considered. To the extent that this period of globalization will continue to be driven in significant measure by large multinational enterprises; international human rights law can only remain relevant to addressing human rights violations associated with globalization by meeting the challenge in theory and in practice to assign some measure of responsibility for respecting human rights to corporations.
1. Human Rights and Corporations
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Former United Nations Secretary General Kofi Annan, in response to requests from the U.N. Human Rights Council, appointed a Special Representative on the Issue of
Human Rights and Transnational Corporations and Other Business Enterprises.
90
Allegations that multinational corporations play a significant role in human rights violations have risen in recent years. Conventionally, international human rights law has placed a primary emphasis on abuses perpetrated by governments. Contemporary human rights advocacy group are increasingly questioning the role of private non–state actors— principally multinational corporations—in conduct that contravenes generally accepted principles of international human rights law.
Since being named Special Representative in 2005, John Ruggie has presented a series of reports to the U.N. Perhaps most significantly, Ruggie proposed a conceptual and policy framework to structure conversations concerning business and human rights.
He has announced three primary principles: (1) that states possess the duty to protect against human rights abuses by third parties, including industry; (2) that corporations possess the responsibility to respect human rights; and (3) that effective remedy is warranted for those who rights are violated.
91
Several aspects of the announced principles will require further development such as who is responsible for remedy when rights are violated, which rights must be respected, and who or what entity is best situated to ensure that rights are protected and promoted in a particular country or cultural context.
In addition to the Ruggie Framework there is the U.N. Global Compact. In his 1999 address to the World Economic Forum in Davos, Switzerland, former United Nations
Secretary-General Kofi Annan proposed a new United Nations initiative to address the social ills perceived to accompany globalization—The U.N. Global Compact. The
Compact seeks to close the human rights protection gap by bridging the divide between global public interests and global private capital through the creation of a partnership between the U.N. (the public system) and multinational enterprise (the private system).
The Compact encourages responsible corporate citizenship by engaging business in ameliorating the harms associated with globalization to create “a more sustainable and inclusive global economy.” The Compact enlists the private sector to work with the
U.N., in partnership with international labor and civil society organizations, to promote human rights, labor standards and environmental sustainability within global corporate spheres of influence.
90 Press Release, Secretary General, Secretary-General Appoints John Ruggie of United States Special
Representative on Issue of Human Rights, Transnational Corporations, Other Business Enterprises, U.N.
DOC. SG/A/934 (July 28, 2005), available at http://www.un.org/News/Press/ docs/2005/sga934.doc.htm.
91 The Special Representative of the Secretary-General on the Issue of Human Rights and Transnational
Corporations and Other Business Enterprises, John Ruggie, Report of the Special Representative of the
Secretary-General on the Issue of Human Rights and Transnational Corporations: Protect, Respect and
Remedy: A Framework for Business and Human Rights, delivered to the Human Rights Council, Eighth
Session, U.N. Doc. A/HRC/8/5 (Apr. 7, 2008).
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2. Corporate Social Responsibility and Rights in Context
Consistent with Ruggie’s second principle; that corporations possess the responsibility to respect human rights, and concurrent with the rise of rights abuse allegations many corporations have become proactive now proclaiming commitments to respect human rights.
For example, GE has issued the “GE Statement of Principles on Human Rights.”
Readily accessible on GE’s website, the statement references the “Universal Declaration on [sic] Human Rights” and Declarations from the International Labor Organization.
92
The corporation states its commitment as a business enterprise to promote respect for fundamental human rights. The statement represents that “GE endeavors to advance respect for fundamental human rights within the communities in which our businesses operate.
The statement also sets out the corporation’s aspirations. In its management capacity,
GE “aspires to” respect the human rights of its employees. In relationships with business partners GE aspires to incorporate certain principles into contracts, monitor suppliers in emerging markets on environmental health, safety and employment standards. In its business capacity, the corporation aspires to develop and offer products that meet human needs with “due regard for fundamental human rights and a sustainable environment.” In the community, GE aspires to “serve[] as a positive influence” and to “demonstrate[] by
[its] actions [a] belief that human rights violations are unacceptable.” 93
[INSERT-CSR AND HUMAN RIGHTS STATEMENTS FROM OTHER
CORPORATIONS OPERATING IN INDIA; COMPARE/CONTRAST; CONSIDER
WHAT HONORING CSR COMMITMENTS WOULD ENTAIL]
3.
Rights, Responsibility and Expanding Human Capabilities
Ultimately, what needs to change to make women less vulnerable to rights violations is the value that society assigns to women and girls—a norm of gender equality must be generated. Governments and global enterprise are both well suited to the task of changing social perceptions and practices.
92 General Electric Company, GE Statement of Principles on Human Rights (2010)
93 Id.
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In the illustrations offered here, global enterprise and entrepreneurs were in a position to influence at minimum the right to life, liberty and security of person,
94
equal protection against discrimination,
95
the right to work,
96
the right to health
97
and the right to found a family.
98
India offers an interesting contrast to the usual complaints of human rights activists concerning corporations that operate in non-democratic repressive regimes and are free to violate rights with impunity. As a democracy, citizens of India enjoy greater governmental accountability than would be possible in some less open societies in the developing world. In contrast to the usual story of a multinational entering, exploiting area resources and taking advantage of the lack of laws or lax enforcement in Africa or
Latin America, in India, an appeal to law was used against GE and HP to articulate claims on behalf of the vulnerable. Indeed, in the case of HP and Mittal it is interesting that the courts rather than assigning responsibility to local police for failing to make cities safe for women at night, seem to be willing to find that a corporation employing women at night was expected to assume responsibility for women’s safety in travel to and from her place of employment. Essentially, this may be privatizing the protection of women in a way reminiscent of the way in which women are understood to be under some sort of surveillance or protection whether from a father or her husband and perhaps not altogether unproblematic.
Nevertheless, the commercial actors associated with perpetuating or capitalizing upon existing inequalities have increasingly become subject to scrutiny. Increasingly, industry as become vulnerable to criticism and rights claims and have in turn responded with pledges to change conduct, recognize and respect human rights etc. This draft next offers an account of what may become of pledges to conduct business in a more conscious manner.
***
99
94 UDHR Art. 3; see also ICCPR
95 UDHR Art. 2, Art. 7; see also ICCPR, CEDAW.
96 UDHR Art. 23
97 UDHR Art. 25; see also ICESCR
98 UDHR Art. 16
99 [INSERT EXPANDED DISCUSSION OF DIGNITY AND CAPABILTIES? In later writings, Amyartya Sen introduced the discourse of capability theory. Capabilities theory maintains that economic, political, legal and other social policies should be assessed in accordance with whether or not they are expansive of the human ability to enjoy freedom. This approach is attractive because it is rights protective and acutely attentive to context. Martha Fineman has suggested that a move to a focus on vulnerability emphasizing the nature of human rather than rights may better facilitate an enriched understanding of responsibility for institutions to become more responsive to inequality.]
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IV.
T HE I NTERPLAY B ETWEEN R ESPECT , R EPROACH AND R EDEMPTION
What to make of CSR efforts in India and Elsewhere?
Neither the skeptics from the human rights community nor the alarmists from the business community are quite correct in their assessment of the CSR phenomenon.
Human rights activists are mistaken to dismiss CSR as nothing more than a public relations stunt, and economists are wrong to decry efforts by business to be responsive to the demands of human rights advocates. What has been underappreciated in the literature is the possibility of some measure of accountability evolving in the absence of binding laws to govern conduct within some industries. A more appropriate way of understanding and interpreting the CSR phenomenon as generative of norms sufficiently strong to influence conduct requires an appreciation for what I will call the “Respect, Reproach,
Redemption Interplay.”
I submit that the trend trajectory from business’ initial resistance to its apparent embrace of human rights principles in the face of external pressures is evidence of a process that could inevitably lead to institutionalization of a corporate obligation to respect human rights as well as accountability for those corporations that do not comply with international human rights principles. Adjustments in industry’s responses to allegations of complicity in human rights violations could serve to substantiate an evolving norm requiring corporate conduct to comply with international human rights standards.
In their promulgation of codes of conduct and commitments to join initiatives such as the U.N. Global Compact, corporations can be understood to be generating a “soft” but strong source of international law that could potentially become binding upon them through the process of interplay between corporations and consumers as industry endeavors to gain respect and avoid reproach in the pursuit of profits in a competitive globalized market place.
My Respect/Reproach thesis synthesizes insights from the communications theory of international law formation and the esteem and shaming accounts of norm internalization to offer a fuller account of why norms pertaining to corporations and human rights are being articulated now and how industry’s adherence to such norms may be ensured in the absence of law.
A. Codification through Communication: Corporations, Consumers and Competition
Motivated by a desire to distinguish effective international law from “legalistic babble,” international legal theorist Professor Michael Reisman has advanced a “process of communication” theory of international law in an effort to explore what counts as law.
Principally, communications theory can provide an account of the plural sources of
24

DRAFT authority from which legal norms governing conduct may be derived. Although originally conceived as applying to the international law making processes of nation states, it is argued the theory can also be extended to explain the CSR movement and the non–state activities around the creation of codes of conduct as a process of law making that allows some deliberative space for public influence on policies or practices.
A central ambition of the study of international law and of international relations is to explain the behavior of international actors and how international law is made.
100
Professor Michael Reisman acknowledges the shortcomings of classical international law’s rigid adherence to an Article 38 view of international legal sources 101
and offers an alternative theory of who makes international law and how and when it is made.
Because “the international system produces documents in the legislative genre with promiscuous abandon,” Reisman observed that a way must be devised to distinguish
“effective law” from the “legalistic babble of international politics.” 102
His proffered solution was to conceptualize international law as involving “the mediation of subjectivities” as they evolve from a communication, to reach an audience, to become received by and incorporated by the intended audience resulting in a set of expectations that are supposed to influence behavior and contingently to alert community enforcement responses when deviations are deemed to threaten public order.
Under this view, any communication between politically relevant groups which shape wide expectations about appropriate further conduct must be considered as functional lawmaking. Reisman suggests effective international law can be identified by examining the interrelationship among three things: (1) policy content; (2) authority signaling; and (3) control intention. When all three are effectively mediated to the relevant audience—the result is “law.”
Policy content means the substantive norm, the policy designed to bring about the production of some value through certain conduct or behavior. Taking CSR efforts such as membership in the U.N. Global Compact or other industry initiatives generally, and
100 See e.g., Myres S. McDougal and W. Michael Reisman, The Prescribing Function in the World
Constitutive Process: How International Law is Mad e in I NTERNATIONAL L AW E SSAYS : A S UPPLEMENT TO
I NTERNATIONAL L AW IN C ONTEMPORARY P ERSPECTIVE (1981) (“No problem has proved more refractory to lawyers and scholars than understanding and explaining how international law is made”).
101 Id.
at 362 (observing that the “almost ritual presentation among commentators” of Article 38 as expressing international law is “something of a mélange of various inherited confusions.”) Specifically,
Article 38 of the Statute of the International Court of Justice, a treaty ratified by all members of the United
Nations to create the court, contains a traditional statement of the sources of international law as including:
(a) international conventions, whether general or particular, establishing rules expressly recognized by contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; and (d)…judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law
102 W. Michael Reisman, International Lawmaking: A Process of Communication , 75 A M .
S OC
’
Y I NT
’
L L.
P ROC . 101-13 (1981) (explaining that in international law we see the creation of intentionally unenforceable law was an efficient and economic way of mediating between distinct classes and groups which had irreconcilably incompatible demands).
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DRAFT corporate conduct pledges such as GE’s Statement of Principles on Human Rights specifically as illustrative, the value under production is business responsibility to respect human rights and refrain from being complicit in violations of human rights principles.
Authority signaling requires that the values promoted through policy content that have emerged from a mediation of interests must have their origins in a legitimate base of authority. The origin of a given norm is authoritative if it is seen as such by the relevant community. Reisman grants that because there are multiple and heterogeneous sources of authority in pluralistic systems, authority may reside in different places for different people—for some the authority may rest with the monarch or the mullah, the head of state in a constitutional democracy, or be vested elsewhere. Whatever the source of authority it must be legitimate for the relevant audience.
There are at least two relevant audiences for the emerging value of filling the global human rights protection gap with respect to the conduct of corporations—consumers and competitors. The CSR values promoted by corporations presently in the form of voluntary codes of conduct and global compact programs have emerged from a process of interest mediation. Often codes are crafted in response to pressure from nongovernmental consumer and human rights advocacy groups. It is also incidentally one of the reasons that human rights groups condemn programs as purely public relations exercises or media manipulation because so often these reforms come only after crisis or public embarrassment and not before. But in effect, non-governmental pressure groups by giving voice to public interest concerns are garnering some response from industry in the form of CSR initiatives. How substantive a response CSR will become remains uncertain but turn on competition for consumer opinion and attention.
The source of authority is more complicated to describe chiefly because there are different segments of the consumer audience for which different things may be authoritative. In the end, it may be possible that the consumer audience will become the authoritative force for business were decisions whether or not to buy a given good driven in some part by a desire to purchase from those corporations that respect human rights.
The final element in Reisman’s functional lawmaking framework is there must be communication from those with power in a particular setting of their intention to make the substantive norm effective.
103
For Reisman, a control intention is broader than the concept of sanctions in contemporary and classic international law. Determining control intention requires as comprehensive as possible a survey of the power process and the interests of those most effective in that process such as which groups constitute the power elite in a particular context. To distinguish law from other “subjunctive moods” or passing fads, “those who have effective power in a particular setting must be willing and able to deploy the force at their disposal to make something minimally effective.” 104
Those with relevant authority must communicate a credible intent to control conduct so that it conforms to the prevailing substantive norms favored. [Messages with respect to gender equality mixed, maybe not helpful]
103 W. Michael Reisman, A Hard Look at Soft Law , 82 A M .
S OC
’
Y OF I NT
’
L L. Proc. 371, 373 (1988).
104 W. Michael Reisman, A Hard Look at Soft Law , 82 A M .
S OC
’
Y OF I NT
’
L L. Proc. 371, 374 (1988).
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DRAFT
Again, returning to CSR as an example. If we understand consumers with sufficient choices and disposable income to be those in authority, where consumers exercise choices consistent with valuing human rights protections by purchasing from corporations with responsible business practices and by punishing corporations that are complicit in human rights violations consumers exercise influence over strengthening the substantive legal norm in the process of emerging through the collective communications occurring among the relevant actors.
Coordinated and calibrated properly, when these elements: policy content, authority signaling and control intention are present in a given process, the process makes law.
Reisman’s view that “law making, or the prescribing of policy as authoritative for a community is a process of communication” 105
in no way excludes the possibility that private actors could make something as powerful as, if not more than law in a similar manner, and should be instructive when applied to the contemporary CSR debates.
Indeed, much that is going on may be “law” and undetected as such under the traditional
Article 38 Framework.
106
Despite constant qualification as “non-binding,” the pledges made by many corporations may properly come to be understood to be, like law—valuable for shaping conceptions of appropriate conduct in that they contain a policy statement, are derived from authority, and control intention among private actors (industry and public interest alike) is emerging. In addition to debating whether international human rights law applies to corporations, academic and policy makers should consider whether corporations are making something like law when making pledges. Constructive consequences may flow from the CSR process. Indeed, the Global Compact and similar initiatives may emerge as a new form of social contract between private and public actors.
B. Compliance through Esteem Seeking: Corporations Competing for Consumers
Much of the glue of a society comes not from law enforcement, as the classicists would have it, but rather from the informal enforcement of social mores by acquaintances, bystanders, trading partners and others. These unofficial enforcers use punishments such as negative gossip and ostracism to discipline malefactors and bounties such as esteem and enhanced trading opportunities to reward the worthy
107
Having explained how CSR may be understood as potentially codifying in the popular culture among consumers a norm that businesses must conduct their operations in
105 W. Michael Reisman, International Lawmaking: A Process of Communication , 75 A M .
S OC
’
Y I NT
’
L L.
P ROC . 101-13 (1981).
106 See e.g., Myres S. McDougal and W. Michael Reisman, The Prescribing Function in the World
Constitutive Process: How International Law is Made in I NTERNATIONAL L AW E SSAYS : A S UPPLEMENT TO
I NTERNATIONAL L AW IN C ONTEMPORARY P ERSPECTIVE (1981) (lamenting “commentators [who] fail to recognize that the formulas of Article 38 are misleading not only because they direct the inquirer to an ambiguous and capriciously limited array of sources from which international law is alleged to derive . . . ”)
107 Robert C. Ellickson, Law and Economics Discovers Social Norms , 27 J.
L EGAL S TUD . 537 (1998).
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DRAFT a manner that considers respect for human rights, I will now explain the potential for such a norm to become binding. While Reisman’s communication theory offers much explanatory value his control intention aspect of enforcement does not when applied to
CSR fully account for why corporations might commit to social responsibility pledges in the first instance and why consumers may or may not act to enforce such pledges in a way that corporations could expect them to become binding on how business should be conducted.
Here, literature from contemporary law and economics theorists on law and social norms offers some additional insights that explain how voluntary commitments become less voluntary over time and among competitors. Despite the constant self-description of social pledges as “non-binding;” the recent allegiance pledged by industry to the principles such as those contained in the Millennium Development Goals, the UN Global
Compact and other industry-specific responsibility initiatives could eventually come to require compliance through processes not directly dependent upon a binding regulatory regime.
In an effort to enrich the economic approach to legal analysis, more law and economics theorists are now advocating the incorporation of social norms into economic analysis of law. Generally, by norms these theorists mean: “informal social regularities that individuals feel obligated to follow because of an internalized sense of duty, because of a fear of external non-legal sanctions, or both.” 108 Professor Richard McAdams has offered a “relative esteem” theory of the origin and expansion of norms. Relative esteem theory presumes that people value the positive estimation of others. Under the right conditions, this value preference for esteem produces a social norm to which people will alter their conduct in order to conform. The individual search for esteem can be extended to explain how the voluntary codes of conduct promulgated by corporations could eventually become effectively binding or inspire changes in business practices. Because esteem is either accorded or withheld from the corporate actor based on the public’s perception of its conduct there is again some space for public participation in shaping the norms that will in some sense regulate corporate conduct in the absence of the willingness or ability of states to regulate. [The significance of the role of citizen consumers in India, beyond in shaping corporate preferences for responsiblity]
1. Social Norms
The concept of social norms is not new. Used initially by sociologists, political scientists, and later socio–legal scholars, more recently economists and rational choice theorists have started to explore how norms might offer answers to questions that classical law and economics theorizing or approaches to international law cannot as easily entertain.
109
For example, why is it that people donate to charity?
110
Why to
108 Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 340
(1997).
109 Ellickson/McAdams
110 Posner
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DRAFT countries sign rights accords?
111
Why do corporations pledge to respect human rights? A central point of focus of contemporary law and economics scholarship is the economic investigation of the interaction between informal rules and legal regulations.
112
There are a variety of different definitions presently in use in the literature, but broadly, “norms encompass rules, other than legal duties that are regularly followed due either to an external or ‘punitive’ sanction administered by a third party or a related internalized sense of obligation.” 113 For example, Marcel Kahan offers the following illustration. Kahan explains a small town grocery store may not sell low quality produce because the owner takes pride in the quality of the food she sells (internalized rule) or because her customers would buy fewer goods from her store (external sanction).
Moreover, because the owner may fear that customers who purchased low quality produce would take their business to a competing store and tell everyone they know to take their business elsewhere (punitive enforcement) she would chose not to sell low quality produce.
114
An emphasis on the economic origins of norms contributes to an understanding of how order may emerge absent law.
115
It complements communication process theory of international law by offering an account of how “[n]orms are enforced by some means other than legal sanction” 116
yet can operate as effective means of social control.
The norms discussion matters to international law’s analysis of CSR precisely because in some instances norms control behavior absent the promulgation of laws.
Particularly in the international arena where enforcement of law, particularly international human rights law by governments and intergovernmental agencies is relatively infrequent, an economic approach to social norms that provides some explanatory insight into when a norm is likely to be complied with advances understanding of how voluntarily assumed CSR norms to respect human rights could attain greater influence among industry than even formal regulation and existing human rights treaties.
A newer law and economics literature has started to treat norms as vital to the study of law with a focus on how incentives influence behavior.
117
Professor Richard
McAdams has theorized that “the initial force behind norm creation is the desire
111 Hathaway
112 (McAdams) see also industry self regulation articles on Japan products liability, diamonds, cotton.
113 Marcel Kahan, The Limited Significance of Norms for Corporate Governance , 149 U.
P ENN .
L.
R EV .
1869 (2001) [include other definitions]
114 Id.
115 See generally, R OBERT C.
E LLICKSON , O RDER WITHOUT L AW 52-64 (1991). For example, in his book
Order without Law, Robert Ellickson developed a taxonomy of norms and outlined “an overall system of social control” that operated among cattle ranchers to overcome collective action problems
116 (McAdams).
117 Richard H. McAdams, The Origin Development and Regulation of Norms , 96 M ICH .
L.
R EV . 338 (1997)
(noting that norms can work together with law to influence behavior and that sometimes law and norms influence the content of one another).
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DRAFT individuals have for respect or prestige, that is for the relative esteem of others.” 118
Under his relative esteem theory “[e]ven the weak desire for esteem may produce powerful norms, sometimes to avoid deviance, sometimes to compete to be heroic.” McAdams outlines the conditions under which the desire for esteem creates a norm as follows.
McAdams postulates that people desire “the good opinion or respect of others” and assumes based on this observation that an individual’s utility will depend at least in part on the opinion that she perceives others to hold of her.
119 Applying this hypothesis to corporations, it is clear that corporations seek and derive significant utility from the esteem of others, consumers in particular. Corporations advertise to attract consumer attention. Profits for branded products turn in large part on the perceptions consumers have of product quality and safety and the reputation of the corporation selling product.
While respect for human rights may appear ephemeral, the value of branding is real, for example, U.S. law recognizes the tort of commercial defamation and corporations go to great lengths to protect their brands.
120
McAdams argues that there is a ‘relative’ component to esteem seeking in that
“individuals care about how they are evaluated in comparison to others because the preference for esteem is inherently relative.” 121 McAdams posits, if X wants Y to hold a positive opinion of him as ethical then X will have to compete with others (like Z) for
Y’s attention and esteem because Y has discerning tastes such that she will only grant positive esteem to a very few individuals. Because no individual is ethical in the absolute, being considered as an ethical or socially responsible person will mean being relatively ethical as compared with Z or some other average of assessment.
As McAdams puts it “one frequently gains prestige or admiration only by being somehow better than most. One often avoids dishonor or embarrassment only by being at least as good as some and possibly as good as the average.” 122
Accordingly, “under the right conditions the desire for esteem produces a norm.” 123
[Norm could be supportive or not supportive of gender equality; problem esteem accorded men]
For McAdams, a norm emerges “if many people agree that a behavior deserves disapproval, if there is an inherent risk the behavior will be detected, and if this agreement and risk are well-know then the pattern of disapproval itself creates costs to the behavior. When sufficiently large, these costs can produce a norm against the behavior.” For example, McAdams observes that a norm may arise for or against a given behavior, such as recycling, in a population of individuals if: 1) there is a consensus about the positive or negative esteem worthiness of engaging in the conduct. Put another way, either most individuals in the relevant population grant or withhold esteem from those who recycle; 2) there is some risk that others will detect whether or not one actually
118 Id.
119 McAdams 357.
120 Cite (Jared)
121 (McAdams 357 )
122 (CSR an opportunity to up the average) ]
123 (explain what those are and how my example does or doesn’t meet those conditions)
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DRAFT recycles; and 3) the existence of this consensus as well as risk detection is well-known within the relevant population of would be recyclers.
Continuing with his example of recycling: “It is not that the state punishes failure to recycle but rather that the obligation to recycle is enforced by a nongovernmental sanction” such as either guilt or fear that one would be held in less esteem. The “first few
[individuals] to bear the cost of the [idealistic behavior] may [gain] the status of hero.”
These are “first movers” the few who act in accord with the aspired ideal consensus.
McAdams offers the illustration of three individuals A, B and C who have equal esteem and none recycle. They discover a shared consensus that recycling is esteem worthy, yet costs. Assume a structure of incentives where it is possible to earn $10 worth of esteem from being the only recycler; $5 worth of esteem from being one of two recyclers; and neither losing nor gaining esteem if all three maintain the status quo and do not recycle. It is however possible to lose $5 worth of esteem by being one of two non-recyclers and to lose $10 worth of esteem from being left behind as the only non-recycler. Arguably, this structure of incentives will cause all three parties to recycle. Electing to recycle becomes the best move for each individual actor irrespective of the choices made by the others because each is better off recycling for a possible esteem gain of $5 and to avoid the $10 loss of being the only non-recycler and least esteemed. Driven by relative esteem all can be lead to feel obligated to engage in a progressive behavior.
124
Agreement as to whether or not a behavior is deserving of esteem or opprobrium comes about through a progression of “selfish esteem allocation” by which people converge around a consensus about desirable and undesirable behavior.
125
The process is selfish in that individuals grant esteem in ways to reinforce behaviors that bring them benefits and to condemn conduct that is harmful to them.
126 Consensus in the collective occurs where some individuals persuade enough others that a given behavior is either helpful or harmful to members of the group.
127
Individuals may persuade others by
124 [“When people disapprove of those who approve of norm violations they produce secondary norms obligating enforcement of primary norms by disapproving primarily norm violators.” “Third parties sometimes bear costs to enforce norms. An obligation not to do X may produce a “subsidiary enforcement norm”” (McAdams offers the example where most people disapprove of corporal punishment for children they are likely to disapprove of people who believe or engage in it) (Compare Shell in Nigeria-esteem loss by both corporation and the government, NGOs argued Nigeria authoritarian government in 1990s shell failed to condemn government, charged with complicity lost esteem in NGO community first then larger international community, apology and CSR initiative )]
125 Philip Pettit, Virtus Normativa: Rational Choice Perspectives , 100 E THICS 725 (1990) (cited in
McAdams); consider where law ends and culture “the social” begins see Durkheim.
126 {“individuals (consumers) have some evaluative opinions about others; they are not utterly indifferent to all traits and behaviors. All that is necessary is that people are opinionated some of these opinions are directed at the behavior of others and sometimes most members of a population share an opinion.”]
Consider illustrations neighbor’s loud music, late parties, picking up after dogs. Curb your dog.
Snowboarders.
127 McAdams (“noting that when a group already shares a moral or aesthetic outlook may [persuade] others that a specific behavior is required or prohibited by the common ethic” see e.g. environmentalists, human rights activists, religious right)
31

DRAFT providing new information or arguments that changes existing beliefs about a behavior or because others fearing the loss of esteem feel pressure to conform to what is perceived to be the dominant view. When an individual suffers from another’s behavior that she may be able to change she has reason to invest in detecting who is engaged in the undesirable conduct.
128
Once the conduct is detected esteem can be withheld from those engaging in the disfavored conduct. Finally, for McAdams publicity requires that the existence of a consensus for or against a certain behavior must be know and the likelihood of the risk of detection must be “well-know” within the relevant population of individuals whose behavior we want to change. Where all these conditions exist, the individual that violates a consensus will incur a cost.
129
C. The Cycle of Respect and Reproach
Inanimate though corporations may be they are far from immune from reputational penalties
130
Multiple types of incentives influence managerial behavior—some incentives are largely outside the scope of corporate law
131
To the extent that corporations are now driven to a professed respect for human rights either in response to or in an effort to avert criticism from the public, the evolution of the response of the business community overtime is illustrative of the processes of communication to clarify standards and of esteem seeking to ensure adherence to standards occurring. Business could become more socially responsible consistent with human rights requirements through these processes.
Arguably even those corporations less interested in attaining a highly respected status will wish to avoid public reproach, perhaps exceeding the desire to gain respect.
David Skeel’s efforts to import “shaming sanction” advanced by some criminal legal scholars into the corporate arena is particularly instructive. Criminal law scholar Dan
Kahan, who has advanced greater use of “shaming sanctions” has argued that there is an expressive dimension to penal law as well as the social meaning of criminal punishment.
Shaming sanctions, such as publishing the names of DUIs in the newspapers in addition to fines or imprisonment, seek to expand the reach of traditional punishments. In so doing
128 (find out who is the source of the loud music)
129 “The esteem cost is the probability that a violation of the consensus will be detected multiplied by the value of the esteem that would then be lost. A norm arises when, for most individuals in the population this esteem costs exceeds the cost of following the consensus.”-
130 Kahan
131 Marcel Kahan, The Limited Significance of Norms for Corporate Governance , 149 U.
P ENN .
L.
R EV .
1869 (2001) (observing that “a conclusive determination of how much the desire for social esteem contributes to managerial quality” has not been studied empirically) [HOW WOULD ONE DESIGN
SUCH A STUDY?]
32

DRAFT such shaming punishments it is argued signal social disapproval by using reputation to further serve the goals of criminal law.
132
David Skeel demonstrates that “corporations and corporate directors are enmeshed in communities in which reputation does matter” he maintains, accordingly that “not only are shaming sanctions a potentially effective penalty for corporations and their directors to pay, they already play a prominent and in many respects underappreciated role.” 133
He considers the shaming activities of private enforcers rather than the public justice system alone as having an influential impact on corporate conduct. Where shareholder activists and the financial media have investment focus lists titled the “roster of shame” it garners responses from boardrooms. CSR participants are engaged in associating themselves with a roster of fame, in short they are esteem seekers.
“Shaming draws on the shared social meaning and on norms about permissible and impermissible behavior.” 134
In the main, shaming sanctions are thought to work best in close communities where members frequently interact and share common values making reputation important in this context that members of the community will avoid conduct that may make them the object of ostracism. Under these circumstances shaming may be seen as a serious punishment. While communities are not as close as they may once have been in the past, community remains significant even in today’s global market. The nature of the relevant community, however, has changed
135 perhaps given the potential uses of communications technology for creating communities there may be greater opportunity for community consensus building and information sharing to create consensus, detect deviant conduct deserving of condemnation and enable shaming to inflict reputational harm on corporations.
136
For Skeel, shaming involves “a public statement made or order by an enforcer, directed at the offender and addressed to the relevant community as a whole.” 137
Indeed,“[t]he boards of prominent corporations (such as the signatories to the Global
Compact) are places where reputations matter which makes them particularly fertile ground for shaming when the directors have violated a norm.” 138
132 discuss relationship between shaming and norms (consider this with McAdams’ observation that it doesn’t take everyone or even most or many to shift or settle a norm)
133 David A. Skeel, Jr. Shaming in Corporate Law , 149 U.
P A .
L.
R EV . 1811 (2001) (see also Brent Fisse &
John Braithwaite, The Impact of Publicity on Corporate Offenders (DATE).
134 (Skeel at 1811)
135 David A. Skeel, Jr. Shaming in Corporate Law , 149 U.
P A .
L.
R EV . 1811 (2001).
136 Dan M. Kahan, Privatizing Criminal Law: Strategies for Private Norm Enforcement in the Inner City ,
46 UCLA L.
R EV . 1859 (1999). Kahan observes: “communities everywhere comprise a multitude of formal and semiformal institutions and that designate the attributes that entitle individuals to esteem.”
137 Consider enforcer, audience/enforcement community/offender—way to connect to communication process?—enforcer may be a court or shareholder activist or other interested party (I’d been conceptualizing the other competitors as the enforcers or civil society human rights activists working to sway opinion]
138 Skeel (Reporting that one shareholder activists stated that in her experience: “the shame of association with a focus list firm is sufficiently embarrassing that it makes directors more willing to accede to governance change” perhaps too behavioral change in furtherance of human rights and economic
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DRAFT
Integrating an understanding of communication in the service of either esteem seeking or avoiding shame into the CSR discussion explains how corporate conduct may actually come to conform to the promises contained in the ever growing volume of voluntary social codes and commitments as well as international human rights standards.
If the consensus is that certain business practices are commendable such as efforts to protect the environment and others are deplorable such as using child labor in sweatshop conditions and if this consensus is well know among the relevant population, then a business will deduce that others will think less well of it if its failure to protect the environment and children is detected. Under McAdam’s view, for example, if most actors in an industry prefer bearing the cost of protecting children and the environment to the esteem costs of failing to do so, most members of the industry group will take steps to protect children and the environment.
When the right conditions exist, the desire for esteem necessarily creates costs or benefits from engaging in certain favored or disfavored conduct. If the consensus is that conduct X deserves esteem, a norm will arise if the esteem benefits exceed, for most people, the costs of engaging in conduct X.
139
Even though esteem forces may be “weak,” there several reasons why the resulting norms may be “strong” 140 even absent strong advocacy. For instance, McAdams explains that where a large minority of the population strongly disapproves of certain behaviors and the majority is indifferent; without an offsetting of people who approve the behavior there would be a net cost to violating even the minority view.
141
Therefore, esteem competition that can leverage a weak concern for esteem into powerful norms.
Few countries and consumers actively openly approve of behavior that violates international human rights. Sex selective abortion may be an exception to the extent that women continue to be missing from India due to gender discrimination and inequality.
Nevertheless, were a sufficiently strong minority of consumers to exercise choices through either boycotts to condemn companies they deem worthy of reproach or through
“buycotts” to support companies they deem worthy of respect, corporate conduct and commitments to human rights would have competitive consequences. [So, what would it take for the public to buy from a competitor of GE’s or HP’s.]
Deviance becomes increasingly costly in a relative esteem environment: “[b]ecause individuals value esteem relatively, the more a behavior negatively distinguishes them from others the more costly it is. The result is that one individual’s decision to refrain development) [***For example, “recent evidence suggest that firms tend to make greater efforts to prevent environmental harm if they are required to disclose their environmental practices
139 [Conversely, if the consensus condemns X, a norm will arise if, for most people, the costs of engaging in the in the conduct exceeds the benefits of engaging in X.(?)]
140 (think through in conjunction with ‘unraveling effect’) (held in high regard)
141 McAdams (“With a more complex model, even a majority of those who hold an opinion would not be necessary. Individuals value the differently the esteem of different people and approve and disapprove with differing levels of intensity. Thus the net cost of a behavior depends not only on the number of people who approve or disapprove it, but how much the actor values the esteem of these people and how intensely they react to the conduct.”)
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DRAFT from engaging in X has the externality of raising the price that others must then pay for engaging in that behavior.” 142
In many instances, corporations operate in a competitive marketplace for esteem.
NGO advocacy strategies appreciate this fact, their qualified objections to CSR as merely gloss notwithstanding. Pressure groups know how to taint reputations and do not underestimate the power of doing so strategically to stop violations. Often shaming violators in combination with exposing violations is the modus operandi of human rights pressure groups.
143
[INSERT-RESPECT REPROACH REDEEMPTION APPROACH APPLIED TO
INDIA EXAMPLE]
D. Evolving “Soft Law” and Self-Regulation into Real Rules
The increasing participation of multinational corporations in social responsibility initiatives such as the U.N. sponsored Global Compact is illustrative of how the models of communication and esteem seeking processes may be working together to constrain the conduct of corporations and to generate an international norm that it is indeed the business of business to be responsive to demands from the public for accountability and greater human rights protections.
Relying on the example of industry efforts to redeem their reputations after a public relations crisis; the respect/reproach/redemption response cycle offers a fuller account of the CSR phenomenon which appreciates that the public has some ability to influence the norms generated by the Compact and explains how these norms may become binding on corporations. Norms are being generated by corporations signing up in response to public pressure is process of communication mediating desires for esteem and to avoid shame.
E. Challenges, Concerns, Caveats
[INSERT-PROBLEMS WITH MY RESPECT/REPROACH/ REDEEMPTION
APPROACH/DIFFICULTY WITH INDIA EXAMPLE IN PARTICULAR]
C
ONCLUSION
On paper, many countries have ratified international human rights treaties including treaties that specifically protect women from discrimination including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). In practice, however, because of various vulnerabilities many women are often unable to rely on the
142 McAdams
143 See generally R OBERT F.
D RINAN , S.J., T HE M OBILIZATION OF S HAME : A W ORLDVIEW OF H UMAN
R IGHTS (2001)
35

DRAFT freedom to enjoy and exercise their rights. In many contexts, rights recognition under law does not mean rights realization. Consistent with the call of the U.N. Special
Representative for Human Rights and Transnational Corporations countries, corporations, and concerned members of civil society must act to ensure women’s rights are protected, respected and made real in the evolving world order we are experiencing.
It is the duty of states, despite differences in political, economic and social and cultural systems to promote and protect all human rights and fundamental freedoms. It is the responsibility of non-state transnational actors, such as the global enterprises and entrepreneurs operating in India and elsewhere, to respect human rights and recognize the impacts of their products and business practices on rights. It is up to an informed civil society to require accountability and demand remedy for the human rights abuses associated with the processes that characterize the current period of globalization.
Potentially, integrating the efforts of government, industry, and civil society to respect women’s rights as human rights could mean all the difference in the lives of women and girls in India.
36