Interview with Christine Bader

JULIA KENNEDY: Welcome to the Carnegie Council's Global Ethics Forum. I am Julia Kennedy.

I recently sat down with Christine Bader. She is advisor to John Ruggie, long-time Harvard professor and currently serving as the UN Secretary General's Special Representative for Business and Human Rights.

Bader has a depth of experience in the arena of ethics and international business. Prior to coming to the UN, she spent nine years at BP. There she improved the company's human rights policies and projects around the globe.

Since human rights in business can be easily confused with the more common term "corporate social responsibility," I began my conversation with Bader by asking her to distinguish between the two.

CHRISTINE BADER: In some respects they are the same. They are both about a company's role in society. The problem with corporate social responsibility is that there is no common framework, there are no common principles, there is no commonly agreed definition. So it has come to encompass everything from philanthropy, to reducing carbon emissions, to doing factory audits, to sponsoring a local football team, to whatever—and some of those are very good activities; I don't mean to knock the activities—but there is no common framework.

Whereas human rights, first of all, there is a common framework. It just celebrated its 60th anniversary, and it was agreed by most of the world's countries, and it's the Universal Declaration of Human Rights. So that is our starting point. There is a framework.

Now, the challenge with applying it to business is that the Universal Declaration of Human Rights was written by states for states. It was created after World War II to try to prevent those sorts of atrocities from ever happening again. It is a state-based framework.

If you read it as a company manager, you can sort of imagine people reacting: "This doesn't apply to me. This doesn't make any sense. How would I comply? So its application to business is not crystal clear.

But human rights does have a framework that we should all be working off of.

In addition, it is increasingly the lens through which people view how business impacts them. So CSR is sort of whatever companies want it to be, they define it in terms of whatever they think it should be; whereas human rights, people start with the point of "here are my rights and, company, you have come in and infringed upon these rights." So that's the lens through which people view company activity.

JULIA KENNEDY: Before coming to the UN, you were working at BP. What did you do there and how did that lead you to where you are now at the UN?

CHRISTINE BADER: I joined BP as a summer intern between my two years of business school in 1999. I was working for the strategy and policy advisor for the company. I had such a good time there and was so interested in how people were thinking about the very difficult issues that energy companies face that I joined full time after graduation and was sent straight out to Indonesia.

The idea when I got there was I was supposed to be using my newfound MBA skills to do commercial analysis. BP had recently taken over Arco, the American energy company, and many of the assets in Indonesia belonged to Arco. So BP was reviewing a lot of Arco's assets in the country, trying to figure out what they should sell, what they should do with all this stuff.

But there was one project in particular, a liquefied natural gas plant that they were building in West Papua, which is Indonesia's easternmost province. It's the west half of the island that Papua New Guinea is part of.

They said, "Listen, you did some of this NGO and government work before business school. There seem to be some particularly tricky social issues around this particular asset, so perhaps you could spend some time helping out the team that's working on those issues."

So I started doing that. That quickly became my full-time job as well as, frankly, my calling and my niche. So I spent two and a half years working on that project in particular.

It's an incredibly complicated project. It's in one of the world's largest intact mangrove forests with all sorts of indigenous flora and fauna species that don't exist anywhere else in the world. People were going to have to be moved to make way for the plant. The plant would be guarded by the Indonesian military, which is not known for their good community relations. And then, the obvious sorts of impacts on people's livelihoods and culture that a multibillion-dollar investment was going to bring to that community would take place.

We commissioned a human rights impact assessment, which to our knowledge is the first of its kind for a major project like this and the only one to be put in the public domain to try to help engage with stakeholders to try to come to a shared understanding of what some of the major issues were going to be, whose responsibility was what in terms of managing those issues.

I spent two and a half years there, in Jakarta, and then moved to Shanghai to do similar work on a petrochemicals joint venture that BP has with Sinopec, one of China's state-owned energy companies. I spent a year working on that.

Then I moved back to BP headquarters in London and did a year in the corporate planning team, to try to again make sure that those MBA Excel skills didn't completely wither away.

I then started working for the strategy and policy advisor again. He asked me to focus on human rights. By his own admission, he didn't quite know what that meant, but there seemed to be a lot going on with respect to business and human rights.

Internally, a lot of BP's big projects that were taking place in difficult places were ramping up at the same time. The projects I was on in Indonesia and in China were starting major construction finally. BP has a big pipeline that runs through Azerbaijan, Turkey, and Georgia that was about to see first oil pop out. We were starting major construction in Angola. All of those projects were rightly attracting the attention of human rights groups.

JULIA KENNEDY: From what you learned from the people you were talking to, how much would BP alter their plans for a certain project?

CHRISTINE BADER: Do you mean change plans because of issues that were uncovered?

JULIA KENNEDY: Yes.

CHRISTINE BADER: In the project I was on in Indonesia, for example, there was a lot of skepticism when we went into that community that the company actually wanted to listen to people and was actually going to do something different. Indonesia, and West Papua in particular, has had some very bad experiences with extractive companies.

So it took a lot of patience and persistence and a few examples to demonstrate that we were serious. For example, we found out through consultation and showing people what the plans were going to look like and walking around the area with them that there was a jetty that we were building to lead into the water that was going to go over some sacred ground. It had some sacred stones that were very important to the community. So we redesigned the jetty so that it took a different route. That came at some expense to the company, but again it demonstrated that we were serious.

JULIA KENNEDY: And what was the response? Did you feel a response from the community at all when you made those changes?

CHRISTINE BADER: Yes. Knock on wood, for that project in Indonesia things are going very well. I think, for example, in Colombia, where BP experienced some terrible problems in the late 1990s, where basically BP was accused of funding a rogue paramilitary group in the vicinity of our plant—we've come a tremendous way there in terms of really building relationships with the communities there and doing human rights training with the military.

So I think it has been proven over time that trying to build a big wall around an installation like that just doesn't work. The most secure and effective way to protect your facilities is to actually engage with the community so that they are invested in the safety and the security and stability of your operations.

JULIA KENNEDY: Before I took you down that little side path, you were talking about how back at headquarters you were learning more about human rights and planning for the company's future and, I assume, dealing more with the UN in that capacity, right?

CHRISTINE BADER: Right.

So that internal project led to the production of the company's Human Rights Guidance Note, which is a public document. You can find it on BP.com/humanrights.

That work actually didn't start out as "Produce a piece of paper." It started out as "Just find out what's going on and see if we need to do anything differently." But actually, what I found in the course of those conversations with people internally was that people internally actually wanted a piece of paper.

BP staff in Indonesia would get a letter that said: "BP, you are complicit in the human rights abuses of the Indonesian military. What are you going to do about it?" So the staff in Indonesia would go, "Oh, human rights, complicity; what do we say about that, what's our position?" So they would go back and forth and produce a response.

At the same time, Human Rights Watch would write a letter to BP in Azerbaijan that said: "BP, you are complicit in the human rights abuses of the Azeri military. How do you respond?" The same thing would happen, and we would produce two different letters.

JULIA KENNEDY: Two different policies almost.

CHRISTINE BADER: Exactly. And it's not even so much about the piece of paper, but again it just demonstrates that we're not sharing and we're not learning from our experiences. So people thought it was, first of all, just very helpful to create this network of people internally who could have these conversations, and then also to create a sort of common framework to think about human rights.

Externally, I was getting up to speed on this debate over business and human rights. The debate began years ago with sweatshops, and then with BP in Colombia and Shell in Nigeria, and human rights abuses that seemed to be happening over the course of people doing business.

In response, there was a draft proposal at the UN. There was a proposed set of standards that had a very long name, but they have become referred to as the "draft norms." It was a proposal that was basically supposed to be a new international treaty for business and human rights.

The draft norms were the right idea, in that they spelled out a number of issues that business should pay attention to—so they should pay attention to labor rights, to the environment, to consumer protection.

But they had a couple of fundamental flaws. They tried to put on companies all the same responsibilities that governments have for human rights, which is to say, in UN language, "to respect, protect, promote, and fulfill," everything that governments have to do, because you're so big and powerful.

This draft was put out for consultation in 2003. There were a few NGOs that said, "This is great, this should be international law," whereas the business lobbying associations were going, "I don't think so."

JULIA KENNEDY: "This is not our role."

CHRISTINE BADER: Exactly.

The governments saw this debate and largely stayed out of it.

After two years of this debate, the Human Rights Commission said: "Okay, this proposal is clearly not going to work. But obviously there is a problem here. So we are going to recommend to the Secretary General that he appoint somebody to bring clarity to this debate."

So Kofi Annan appointed John Ruggie, who is a professor at the Kennedy School and an expert in international governance.

He started from first principles. So he said: "Okay, I understand what you all think should be corporate responsibilities with respect to human rights. Let's find out what's actually out there. What have the UN treaty bodies, whose job it is to provide authoritative interpretations of human rights treaties and conventions, actually said about corporations? What have the UN treaty bodies and regional human rights entities and national courts said about corporate responsibilities?"

JULIA KENNEDY: So, "What's the precedent?"

CHRISTINE BADER: Exactly, what's the precedent? How are companies themselves recognizing their human rights responsibilities? What are they actually doing? There was a normative exercise of what people think should be out there, but then also, let's actually look at the evidence. So what is the problem, what are the human rights abuses that are linked to corporations?

So he embarked on this exercise, held a number of multi-stakeholder consultations, and then the following year, after I had finished producing the BP Human Rights Guidance Note, I arranged a secondment to him. So BP will second or loan executives out to different organizations. So we'll lend people out to the World Bank or to a British embassy somewhere. I arranged a secondment to support him.

I started working with him in 2006, and then his mandate got extended in 2008. But I left BP at the end of 2008 to work with him full-time. So that's what I'm doing now.

JULIA KENNEDY: Let's talk a little bit about the content of what you're finding with John Ruggie in your work. You spoke about looking at what kinds of human rights abuses we are seeing among corporations. I think what everyone sort of thinks of immediately is, as you mentioned, labor issues and sweatshop issues and things like that. What are you finding when you're looking at human rights abuses?

CHRISTINE BADER: There is very little in terms of a single global repository for human rights abuses that are linked to corporations. The closest we have is an excellent nonprofit portal called the Business and Human Rights Resource Centre. They will post any sorts of stories or reports or allegations related to business and human rights.

What they also do, which is quite interesting, is if they get a story about a particular company, they will call the company and say, "Hi, we're the Business and Human Rights Resource Centre. We get 1.5 million hits per month. Our weekly email updates go to X thousands of opinion makers. We just got this story about you. Would you like to respond?"

Their model is that they will post things right away and then, if the company wants to post a response, they post that in full. They do zero analysis or judgment on their own.

John went back and looked at basically all of the complaints that they had received that were somehow substantiated. What he found is that really business can impact the entire spectrum of rights. So people do think about labor rights, which is a pretty obvious one.

The newest sort of industry or frontier is what we've seen with Google and Yahoo! and Microsoft in China—and many other countries besides China, but the cases in China have garnered the most attention—and that's to do with free expression and privacy. So Google launching servers in China, but in doing so agreeing to censor search results; Microsoft being asked to take blogs down; Yahoo! being asked to turn over user information to the government. Again, this happens in many, many countries. But this is relatively new. This is not something that we would have foreseen ten years ago.

But freedom of speech issues can also come up again in relation to big infrastructure or extractive projects, because, for example, if a community wants to protest in front of a plant and security forces come out and try to suppress their freedom of speech, whether it's through violence or otherwise through intimidation.

Business can impact the full spectrum of rights. That became clear from the research.

JULIA KENNEDY: You also brought up another topic I wanted to ask you about, which is how you divvy up responsibility for human rights between states and private corporations. A lot of people would say, "Well, it's the state's job to enforce these things upon corporations." What are the issues in that and what should we do about that?

CHRISTINE BADER: That is definitely part of a premise of where John's mandate came from, because, again, another problem with that draft proposal that had circulated in the UN was that it relied on this sort of slippery distinction between states having "primary" responsibilities for human rights and corporations having sort of "secondary" responsibilities, which kind of implies that governments should be doing everything and companies get whatever is left over. That can lead to strategic gaming, whereby governments would say, "Oh, okay, so actually the less I do the more companies need to step in." And, in reverse, the companies could say the same thing. So you can't really have them be dependent on each other.

So what John came out with in his 2008 report was a conceptual framework for people to think about business and human rights. It tried to delineate those responsibilities as obviously being related but being separate from each other. So the framework is "Protect, Respect, Remedy." It's built on these three pillars.

The first pillar, protect, is all about the state duty to protect, the state duty to protect people against human rights abuses related to corporate activity. Now, the state duty to protect people from human rights abuses is well understood, well accepted. It's a fundamental part of the whole human rights system.

But what John found in all of the research is that states have not rigorously or consistently applied that duty to corporations, either because it is a host state that is receiving foreign investment and doesn't want to be an ungracious host and put too many constraints on its guests; or because it is a "home state" that doesn't want to regulate its own companies going overseas because, "Well, not our responsibility" or "We don't want to put our companies at a competitive disadvantage."

JULIA KENNEDY: What about failed states that a company might come into, where the government is not functioning very well?

CHRISTINE BADER: Exactly. So that leads into the second pillar, which is about the corporate responsibility to respect human rights. So that is saying that even if a government is unable or unwilling to fulfill its duty, companies still have a responsibility to respect human rights. There are no law-free zones.

So again, in that sort of example, in a post-conflict state or a failed state, you can't rely on this kind of primary or secondary responsibility, because then what—companies have to take over everything, which again would be inappropriate.

But the corporate responsibility to respect human rights is to say that regardless of what the state is doing, companies have a responsibility to respect human rights, which in essence means not to infringe on the rights of others.

Now one can move beyond the kind of existential angst of "Oh, a company has nothing to do with human rights," and now actually think about: Okay, well what do companies have to do to demonstrate to people that they are fulfilling this responsibility?

John has suggested that it comes down to companies doing human rights due diligence. So companies do due diligence on all sorts of things. So how do you assess, prevent, mitigate potential adverse human rights impacts?

The third pillar is remedy, the need for greater access to remedy for victims of corporate-related abuse. So even if states are fulfilling their duty to protect and corporations are fulfilling their responsibility to respect, stuff happens, things go wrong, people get hurt.

If you are a villager in a South American country and you feel like you've been hurt by a multinational's activities there, what can you do? You can try to sue—but again, who is going to take your case? Again, the home state unlikely, the host state unlikely. Can you afford a lawyer? Can you get to the courtroom? How are you going to do that? That is unsatisfactory. You can try to start a boycott; but again, that is sort of complicated. And if you have actually really been hurt, it might help you feel better, but is it actually going to compensate you for any harm?

So that part of the framework is looking at the patchwork of grievance mechanisms, including access to formal court systems, but also nonjudicial grievance mechanisms from a drop box at a factory to national human rights institutions, looking at that sort of patchwork and saying, "Okay, where are the gaps, how can they be strengthened, and what sort of principles should underlie nonjudicial mechanisms and how can access to remedy be strengthened?"

So that's the framework that he presented last year. Again, the Council welcomed it and gave him another three years to "operationalize" the framework and develop some more specific guidance.

JULIA KENNEDY: In light of the economic crisis, have you felt private interest in this topic shrink back a little bit?

CHRISTINE BADER: The short answer is no. The longer answer is that we are seeing a large drop in discretionary activities. So when I talked about corporate responsibility before, a lot of philanthropic things or nice-to-have things, a lot of those are falling away. That is a shame, because, again, a lot of those were very good programs.

But what we are talking about here in this mandate is companies' responsibility not to infringe on human rights. We're talking about ensuring that they don't inadvertently or advertently cause harm. This is not discretionary. I think it has been demonstrated that great operational as well as reputational damage can accrue to a company who allows human rights violations to occur in the course of their business. So I think that at a company level there is still a great deal of interest in this topic.

At a macro level, John spent some time in his most recent report to the Human Rights Council, his 2009 Report, that discussed the relevance of the economic crisis to the business and human rights debate, because what he has contended all along is that it is governance gaps that create an environment that permits human rights violations to occur related to corporate activity.

So again, it's this issue of the fact that business has now grown and is global, whereas government, by definition, is confined to a national jurisdiction. So again, when you have companies—and again, mostly a lot of these abuses are about companies' operations in different countries, and nobody is held accountable because there is no robust global governance system.

So if you look at the framework that he put forward, again it was governments not fulfilling their duty to protect people, companies in the absence of regulation doing whatever they thought they needed to do, and when people are hurt there is no adequate access to recourse. I think all of that could easily be said about the current crisis.

So I think working towards solutions in the business and human rights field actually those interests are aligned, that all those things work towards the same sustainable economic and market mechanisms that we need to get ourselves out of this crisis and move to a more sustainable system.

JULIA KENNEDY: Well, Christine Bader, thank you so much for sitting down with me in the Carnegie Council's studio. I appreciate it.

CHRISTINE BADER: Thank you.