Ranking for Good?: A Comparative Assessment of the Performance of French Corporations in Human Rights Rankings

• Author: Erika George, David Restrepo Amariles
• Pages: 21-90

Ranking for Good?: A Comparative Assessment

of the Performance of French Corporations

in Human Rights Rankings

E

RIKA

G

EORGE

*

AND

D

AVID

R

ESTREPO

A

MARILES

**

Introduction

The global business community plays an important role in both economic

development and human development. When Nobel Laureate Amartya Sen

proposed a “capabilities approach” to inform the analysis of economic

development, he counseled that assessments of a country’s economic

performance should also consider human development.

1

Sen’s capabilities

approach considers human development—“what people are actually able to

do and to be”

2

—as central to creating a meaningful measure of economic

* 2019 Erika George. B.A., University of Chicago; M.A. University of Chicago; J.D.,

Harvard Law School is the Samuel D. Thurman Professor of Law at the University of Utah S.J.

Quinney College of Law. She is a Fellow of the American Bar Foundation and Interim

Director of the Tanner Center for Human Rights at the University of Utah. She extends her

appreciation to Benedict Kingsbury and Sally Engle Merry for coordinating the Indicators and

the Ecology of Governance Conference series at NYU School of Law that inspired this

collaboration. She thanks Mariah McAfee for research assistance and participants attending the

Empirical Approaches to Human Rights Law and the Rise of Indicators panel co-hosted by the

Section on Socio-Economics and Law and the International Human Rights Section of the

American Association of Law Schools Section for their helpful comments. This research was

made possible, in part, through generous support from the Albert and Elaine Borchard Fund for

Faculty Excellence.

**



2019 David Restrepo Amariles. LL.B. UPB Colombia; M.A. International Institute of

Sociology of Law; LL.M. Universiteit Leuven (KUB); Ph.D. Universit´e Libre de Bruxelles;

Post-doc University of Oxford is Assistant Professor of Law at HEC Paris. He is a Research

Fellow of the Perelman Centre at the Universit´e Libre de Bruxelles. He also extends his

appreciation to Benedict Kingsbury and Kevin Devis for organizing the Conference Series on

Indicators at NYU School of Law where this collaboration began, as well as to Rodolphe

Durand for coordinating the seminar of the SnO Centre at HEC Paris, where some of the ideas

discussed in this paper were subject to interdisciplinary scrutiny. He thanks Shahd Hammouri

and Yasmine Bahi for their research assistance and the anonymous reviewers of the OECD

conference on “Measuring the Impact of Business on Well-being” for their comments. This

research was made possible, in part, thanks to the geneours support from the HEC Paris

Foundation.

1. See Amartya Sen, Development as Capability Expansion, in Readings in Human

Development: Concepts, Measures and Policies for a Development Paradigm 3 (A. K. Shiva

Kumar & Sakiko Fukuda-Parr eds., 2004).

2. Martha C. Nussbaum, Capabilities as Fundamental Entitlements: Sen and Social Justice, in

A

MARTYA

S

EN

’

S

W

ORK AND

I

DEAS

: A G

ENDER

P

ERSPECTIVE

35 (Bina Agarwal, Jane

Humphries & Ingrid Robeyns eds., 2005).

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22 THE INTERNATIONAL LAWYER [VOL. 53, NO. 1

development. For Sen, the capabilities concept seeks to assess the extent to

which an individual is able to achieve their aims.

3

Certain social

determinants (such as educational opportunities or health care access) may

limit the ability of an individual to achieve their aims while others may make

achievement more likely. Human development depends on the ability to

enjoy fundamental human rights and to exist in a safe and healthy

environment. Human rights and human development are relevant to any

inquiry into human well-being.

In recent years, greater attention has been given to developing metrics

that measure more than a country’s gross domestic product (GDP).

4

Similarly, greater consideration has been given to more than just the

financial performance of commercial enterprises; corporations are now

expected to conduct business in ways that are responsible and sustainable,

giving attention to a triple bottom line where the planet and people are

prioritized along with profits.

5

Respect for human rights is increasingly

relevant to business. Allegations of human rights abuses are no longer

limited to nation-states as the only entities capable of violating human

rights. As multinational corporations came to be implicated in alleged rights

abuses, new indicators emerged ranking social performance and the impact

of business enterprises on human rights. The Corporate Human Rights

Benchmark (CHRB), an investor driven multi-stakeholder initiative to rank

human rights performance, has assessed leading global corporations for

human rights performance across different industry sectors.

6

Oxfam, a well-

respected international, humanitarian nongovernmental organization

(NGO), has developed a sector specific ranking of the human rights impacts

of leading agriculture and multinational food and beverage brands;

additionally, the Access to Medicines Index has rated the social performance

of pharmaceutical companies.

7

Similarly, CSRHub has setup a composite

indicator that includes several human rights dimensions across a range of

industry sectors, including labor rights, anti-discrimination rights, and

children’s rights.

8

3. Sen, supra note 1, at 3 – 4.

4. See J

OSEPH

E. S

TIGLITZ ET AL

., R

EPORT BY THE

C

OMMISSION ON THE

M

EASUREMENT

OF

E

CONOMIC

P

ERFORMANCE AND

S

OCIAL

P

ROGRESS

7 (2009).

5. See Aaron Chatterji & David Levine, Breaking Down the Wall of Codes: Evaluating Non-

Financial Performance Measurement, 48 C

ALIF

. M

GMT

. R

EV

. 29 (Winter 2006).

6. See Corporate Human Rights Benchmark, C

ORP

. B

ENCHMARK

, https://www.corporatebench

mark.org/ (last visited Sept. 22, 2019).

7. See Ten of the World’s Biggest Food and Beverage Companies Battle to Improve Their Social

Sustainability Through the Behind the Brands Campaign, O

XFAM

A

MERICA

(April 19, 2016), https:/

/www.oxfamamerica.org/press/ten-of-the-worlds-biggest-food-and-beverage-companies-bat

tle-to-improve-their-social-sustainability-through-the-behind-the-brands-campaign. See gener-

ally Access to Medicine Index, A

CCESS TO

M

EDICINE

F

OUNDATION

, https://accesstomedicine

foundation.org/access-to-medicine-index (last visited Sept. 22, 2019).

8. See ESG Data to Drive Corporate, Financial, & Consumer Decisions, SCRH

UB

S

USTAINABILITY

M

GMT

. T

OOLS

, https://www.csrhub.com (last visited Sept. 22, 2019).

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2020] RANKING THE GOOD & THE BETTER 23

The Organisation for Economic Co-operation and Development

(OECD) works to create a common base of understanding of how to

measure the impact of businesses on well-being.

9

The OECD’s efforts are

timely and topical because courts are being asked to consider the extent to

which business should be held accountable for alleged human rights abuses.

10

The OECD’s efforts in measuring business impacts on people’s well-being

present an opportunity to ensure that human rights impacts are adequately

assessed and are understood to be a basic measure of the performance of

business. The OECD Guidelines for Multinational Corporations have

incorporated by reference the United Nations’ (U.N.) Guiding Principles on

Business and Human Rights (UNGPs).

11

The UNGPs recommend that

states craft national action plans to address adverse impacts of businesses on

human rights.

12

The UNGPs also recognize that business enterprises have a

responsibility to respect human rights.

13

To that end, the UNGPs maintain

that businesses must be able to “know and show” how policies and practices

impact human rights.

14

Some multinational corporations have conducted human rights impact

assessments pursuant to the UNGPs. Any common base of understanding

on measuring the impact of business on well-being must appreciate the

relevance of human rights to improving well-being. Particular provisions of

the OECD Framework for Measuring Well-Being capture issues also

identified by the authors of new leading business and human rights

indicators.

15

To properly promote well-being, an understanding of business

impacts on human rights, both positive and negative, is imperative.

Rankings can play an important role.

Taking French government policy and the performance of French

multinational corporations as a case in point, this article explores the ways in

which emerging indicators and instruments on business and human rights

are relevant to the impact of business on well-being. This article examines

which reporting frameworks and ranking systems best capture human rights

and sustainability risks that could compromise well-being. Specifically, the

article analyzes the frameworks and indicators used to measure human rights

performance and the impact of rights rankings on business management. It

also reviews responses by corporations to rights rankings as indicia of how

9. Who We Are, OECD, https://www.oecd.org/about (last visited Sept. 23, 2019).

10. OECD, OECD G

UIDELINES FOR

M

ULTINATIONAL

E

NTERPRISES

17 (2011) [hereinafter

OECD G

UIDELINES

].

11. Id. at 15.

12. John Ruggie (Special Representative of the Secretary-General), Guiding Principles on

Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy”

Framework, at 7, U.N. Doc. A/HRC/17/31 (Mar. 21, 2011) [hereinafter U.N. Guiding Principles]

(summarizing the work of the Special Representative of the Secretary General from 2005 to

2011 for consideration by the Human Rights Council).

13. Id. at 11.

14. Id.

15. Measuring Well-Being and Progress: Well-Being Research, OECD, https://www.oecd.org/

statistics/measuring-well-being-and-progress.htm (last visited Sept. 25, 2019).

THE INTERNATIONAL LAWYER

A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW

PUBLISHED IN COOPERATION WITH

SMU DEDMAN SCHOOL OF LAW