Tag Archives: Ruggie framework

Liability? Responsibility? No, Sustainability.

I’ve been looking for a transcript of the remarks Johan Lubbe made yesterday, on behalf of the National Retail Federation — a trade association representing about 9000 American retailers and the chief and most vocal proponent of an “alternative” to the legally-binding global pact to ensure the safety of clothing factories in Bangladesh. The global pact has won pretty widespread support in Europe, but so far there are only two American signatories. The Americans won’t sign up because, they say, the global pact would expose them to litigation, or what one spokesperson for The Gap called “unlimited litigation,” should something go wrong at one of the factories they use.

Yesterday they brought out Lubbe. Here is how today’s AP report summarizes his remarks:

On Friday, the retail trade group made available for the media an international labor lawyer who rebuked the global pact and said that it is too vague for retailers to sign. At the heart of the criticism: the contract would expose retailers to legal liability for the failure of factories to comply with the set standards even though merchants don’t own the facilities.

In rejecting the global pact, Lubbe and the NRF are trying to limit the scope of legal liability to ownership — in this case, brick and mortar property ownership. I can’t tell if the claim here is that with outsourcing comes immunity, or that liability does not extend in any way down through the global manufacturing supply chain. For the moment, however, I’m less interested in all that than in knowing whether Lubbe or the NRF have made any kind of statement acknowledging their responsibility for conditions in the Bangladesh garment factories.

Responsibility is a word that applies, or should apply here, no matter how the debate about liability gets resolved. It is not a “vague” word of the sort that the NRF would reject. It’s a word that entails specific human rights commitments, which have been carefully enumerated and articulated in connection with the UN’s Guiding Principles for Business and Human Rights. It comes with ownership, but it also extends beyond ownership to business partnerships and relationships — all the way to Bangladesh.

I imagine there is anxiety that acknowledging responsibility might be misconstrued as admitting liability. The word and the idea of responsibility are certainly nowhere to be found in the statement the National Retail Federation issued on Wednesday. Instead, the NRF focused on how applying “a legal standard” would limit the ability of retailers and brands “to respond” to an “ever-changing environment.”

Given the global nature of the apparel and retail industry, applying a legal standard is a very complex proposition. The Safer Factories Initiative understands that flexibility is required to address a broad array of worker safety issues and enables brands and retailers to respond swiftly and effectively to an ever-changing environment.

Let’s forgive the sloppy confusion (“flexibility is required to…enables”?) of the second sentence, and hope that in future the NRF hires a PR firm with grammarians in its employ. Just have a look at the language they’re floating here. These are such well-worn business tropes that we barely notice them: complexity, flexibility, responding swiftly to an ever-changing environment. Here, the big, giant brand, the multinational with suppliers and partners all around the world, is both powerful agent and vulnerable patient: capable of responding, at least if not bound or restricted by law, but subject to forces far beyond its control.

Sidestepping obligations and commitments, the NRF statement opts for “flexibility” and (as the statement continues) “sustainability,” an already-overused and much-abused word that appears in nearly every statement the Federation makes. Talk about vague. The NRF want “sustainable solutions” to make the Bangladesh garment industry “a sustainable manufacturer.” They offer a “sustainable action plan” now and “will continue to pursue a sustainable industry-wide solution,” and so on. The word and its variants appear 9 times in the course of a single statement.

You get the idea. As companies respond to rapidly changing conditions — or flee from one disaster to the next — they need flexibility to fashion a sustainable way forward. Otherwise they might be engulfed by their own blunders, or held responsible or liable for their part in the whole mess before they can run to the next country.

Polluting the Future — A Question of Human Rights

Last week, the organization Earthworks released Polluting The Future, a report focusing on “the staggering amount of our nation’s water supplies that are perpetually polluted by mining” and the “rapidly escalating national dilemma” of perpetual mine management.

Perpetual is the key word here. Forty existing hardrock mines pollute 17-27 billion gallons of water per year, “and will do so in perpetuity,” for hundreds if not thousands of years. Include other mines likely to contribute to the problem, and take into account four new big mining projects currently being proposed, and the number jumps: to 37-47 billion gallons of polluted water every year. Pour that all into 8 oz water bottles and stack them one on top of the other and you can go to the moon and back about 100 times.

When Earthworks adds up the cost of treating this perpetual pollution, the figure is staggering: 62 to 73 billion dollars a year. That’s one very powerful way to talk about the social cost of mining — a cost that the mining companies (many of them foreign-based multinationals) are passing directly to the American public. The EPA “questions the ability of businesses to sustain” treatment and management efforts for the required length of time. That’s putting it mildly. As Earthworks points out, “most corporations have existed for far fewer than 100 years… Mining corporations simply won’t be around to manage water treatment that will continue for thousands of years.” They are passing along the true costs of their operations to all of us, for generations to come.

I was hoping to find some discussion of the proposed mining on Lake Superior. It’s a subject I’ve blogged about before — here and here, for instance — and I’m trying to put together a documentary project on the subject as well. So I was left wondering where the Rio Tinto / Kennecott Eagle Mine and the many other new mining projects around the perimeter of Lake Superior fit in the scheme Earthworks presents here.

It seems largely to be a question of scale. It may be easier for the mind to grasp the horror of open-pit projects with a “high risk for perpetual pollution” due to acid mine drainage, but acid mine drainage is also one risk of the sulfide mining projects about to be staged in and around the watershed of one of the world’s largest freshwater lakes — Lake Superior. Again, the report singles out the Pebble Mine in Alaska, another Rio Tinto project, to talk about the threat that mine poses to “the nation’s largest wild salmon fishery”; but the new mining in Michigan’s Upper Peninsula threatens the natural habitat of the coaster brook trout, the Salmon Trout River in northern Marquette County. So there are a couple of ways to make connections between the mining around Lake Superior and Polluting the Future.

Then there are the policy recommendations in this report — which range from enforcement of the Clean Water Act to other legislative and regulatory changes to hold companies accountable. Those all deserve careful consideration. What’s missing for me is something that came out of another report issued last week, this one by the United Nations Office of the High Commissioner for Human Rights. At the end of a ten day mission to assess the state of business and human rights in the United States, the UN delegation “noted the allegations of significant human rights impacts of surface mining, particularly the rights to health and water, and the deep divisions between stakeholders on the most effective ways of assessing and addressing the impacts.” (Significantly, for those who have followed the controversy over the Eagle Mine project, the UN team also looked at “the rights of Native Americans, particularly as regards the lack of free, prior and informed consent for projects affecting them and sites of cultural and religious significance to them.”)

So I would like to talk about the Earthworks report in this human rights context. The discussion might start with the very first sentence of the report, which characterizes water as “a scarce and precious asset.” The word “asset” makes me a little uneasy (but I would have to defer on this to people like Jeremy J. Schmidt, who together with Dan Shrubsole just put out a paper on the ethics and the politics entailed in the words we use about water). Think, for a moment, about how this discussion of perpetual pollution for immediate profit might be reframed as a human rights discussion. Or at least how the two perspectives — the environmental perspective and the human rights perspective — are complementary, and more powerful when taken together. The problem isn’t just that freshwater is a precious asset in increasingly high demand and short supply; it’s that when we permit big mining projects to pollute our water for generations to come, we are also failing to protect the human rights of our children and our children’s children, and so on, in perpetuity.