Sunday, December 11, 2016

Reflections on Human Rights Day: The University, Its Human Rights Obligations, and the U.N. "Stand Up for Someone's Rights! Campaign

(Mrs. Eleanor Roosevelt, (United States) holding a Declaration of Human Rights Pix © U.N. Photo Library)

On December 10, 1948, the United Nations adopted the Universal Declaration of Human Rights. To mark that anniversary, in 1950 the United Nations General Assembly passed Resolution 423 (V) (4 December 1950), inviting all States and interested organizations to observe 10 December of each year as Human Rights Day. To observe this celebration, President Obama proclaimed "December 10, 2016, as Human Rights Day and the week beginning December 10, 2016, as Human Rights Week. I call upon the people of the United States to mark these observances with appropriate ceremonies and activities." (Presidential Proclamation 9 Dec. 2016).

As has been the recent practice, for this year the United Nations adopted a specific theme and initiated a campaign: "Stand Up For Someone's Rights!" The Campaign is structured around the power of individual agency in protecting the human rights of others against individuals and institutions. The Campaign explains:
The time for this is now. “We the peoples” can take a stand for rights. And together, we can take a stand for more humanity. It starts with each of us. Step forward and defend the rights of a refugee or migrant, a person with disabilities, an LGBT person, a woman, a child, indigenous peoples, a minority group, or anyone else at risk of discrimination or violence. (Campaign website HERE). 
My observations about the 2016 Human Rights Day observation in the context of this campaign can be accessed HERE.

While it is fairly common to think about human rights in terms of the normative rights embedded in and forming part of the autonomous human person, and perhaps also of the resulting obligations of institutional actors--states, enterprises, religious institutions, and others to protect them,  one rarely thinks of the university in this regard.  Yet universities, like other institutions, have duties and responsibilities to protect and respect human rights to the same extent as other institutions--and perhaps more so in cases where the university is itself an instrumentality of the state. To fail to embed human rights within university administration violates not just law but likely the ethical and corporate responsibility that many universities have loudly proclaimed for their own.

This post considers some of the consequences for universities of undertaking an appropriate level of responsibility for human rights in its operation.  I have little illusion that universities will actually pay attention to their responsibility; like other corporate entities, they tend to respond either to the lash of law or to the preferences of the stakeholders on which they are most dependent (students as consumers of its services; employers as consumers of its product (students); and alumni  as providers of resources to maintain reputation status).   It is perhaps to them, then, that this point is directed.
1. Universities have both a duty to protect human rights and a responsibility to respect human rights in their everyday operations and in all of their interactions within their organization and when they deal with others. The duty to protect derives from an overall obligation to conform behavior to law, including the standards of constitutional and international law that have been incorporated into national law. The responsibility to respect derives from the obligation of the university, and its agents, to act ethically, built around the "do no harm" principle fundamental to most ethics codes of most American universities. In another context I noted:
enterprises ought to be sensitive to the detrimental effects of the instrumental use of their authority over their employees when they seek to that power to manage and control the human beings they employee.  This responsibility to be sensitive to the detrimental effects of employer self interested actions ought to be especially strong where the mechanisms of control and management touch deeply on matters of human dignity and autonomy.  That responsibility to respect the human rights of their employees may not be strictly required by law but is central to the social license of enterprises to claim a right to legitimate operation within the societies in which they operate. This notion reflects emerging consensus at the international level around the responsibilities of enterprises for the human rights effects of their activities. (e.g., United Nations Guiding Principles on Business and Human Rights) These are no less binding on universities where they act as economic actors.  Where enterprises rely principally on their raw power and expand their control of elements of production, especially human beings, for reasons other than to respect their human dignity and autonomy (for example for reasons of cost reduction or productivity gains, both quite respectable in their own right of course), the enterprise ought to bear a special duty to be  sensitive to human dignity concerns in fashioning such programs. 

2.  These duties and responsibilities of universities translate into concrete actions and policies within the University.

 a. Licensing. Among the most important areas where the university's duty and responsibilities in a human rights context are important are in the areas of licensing, procurement and investment.  In recent remarks at the University of Michigan, Michale Posner explained:

Looking more broadly, what are the responsibilities of modern universities to the societies we serve? As we seek to change the future – through the minds of those we teach, the research we conduct, and the scholarship we publish – we also have responsibilities to respect human rights in the ways we operate.

What does this mean in practice? I know from long experience that when you say the words “human rights,” many people think the subject is worthy, but probably too difficult and expensive to implement in practice. I submit that American colleges and universities can lead the way in achieving practical, and even affordable, human rights results in three key areas: licensing, procurement, and investment. (Universities Not Making Enough Progress to Protect Human Rights In Supply Chain, Spending or Investments October 10, 2014, Ann Arbor, Michigan).
Licensing activities puts universities in a similar position to other designers and merchants who license their logos and names  to manufacturers of products (mostly not not always garments) for sale to consumers.  In this respect universities are in not better position than large multinational enterprises who depend on global supply chains to produce their products. And like them, universities ought to consider the responsibility to develop and adhere to supplier codes of conduct (theoretical discussion here).  Examples  of human rights sensitive codes can be drawn from Georgetown University; the University of Michigan explicitly ties its licensing codes to the ethical obligations of the university (here).  Other universities appear to be less focused on the effort (e.g., here). Others out source these responsibilities (see, e.g., here, and here).

b.  Procurement. Beyond licensing, issues of procurement draw the university into secondary liability for the conduct of the people and enterprises with which  it contacts to provide services for its students.  Primary among these might be the provision of food services.  Increasingly housing has proven to be a vehicle through which universities outsource service provision to third parties (e.g.,Sovereign Wealth Fund Investment in Student Housing Now a Growing Trend --Ought There to be a CSR/Human Rights Dimension as Well?). Even outsourcing textbook suppliers may touch on a human rights related responsibility.  These are not licensing but touch more generally on university procurement. Procurement issues are particularly important when a university engages outsiders in its building and maintenance projects. For example, emerging global consensus now holds that even not for profit organizations, like sports leagues, bear a responsibility to respect and protect human rights associated with stadium construction projects (John G. Ruggie,“For the Game. For the World.” FIFA and Human Rights (2016)). Procurement brings the human rights responsibilities very close to home.  Here the university is not asked to worry about conditions down a potentially complex supply chain for its products.  Rather, the university here is compelled to embrace responsibility not only for its own human rights conduct in its internal operations but also for those of enterprises with which it contracts.  There is precious little attention paid to this aspect of the human rights obligations of universities. Environmental sustainability is hardly enough for compliance in this area.  Compliance requires a broad approach that is sensitive to the working conditions, as well as the social and environmental effects of procured services. Consider in this light the strategic sourcing program at the University of Michigan.

c. Investment. Universities are increasingly important investors. The size of their endowments now make provide them with a great power to influence the behaviors of entities in which they invest.  Universities are likely slow to become aware of the great movement of the last decade that has seen a growing consensus on the human rights obligations of investors, including sovereign investors, to respect human rights in their investment decisions and to ensure that they use their power as shareholders to influence the human rights related behaviors of the entities in which they have an interest.  Ethical investing as as much a responsibility of universities as it is for banks and investment funds (e.g., here). And yet universities have been slow to embrace this responsibility.  That reluctance is lamentable, especially for those institutions that have sought to profit from their adoption of ethics and related codes of responsible conduct. Consider here the potential disconnect at Penn State between its policies on responsible conduct (e.g. here) and its investment policies for its endowment (e.g. here).

d. Employees. Universities, like other corporate employers tend to view their employees in a possessive way.  The employees are "theirs" and the employment arrangement appears to vest the university with some substantial power over the lives of employees in return for wages. The human rights implications remain quite important. And abuse is a constant danger as universities, like other employers, try to learn to balance the need to exploit their resources against the constraints inherent in maintaining the human dignity of its employees in the workplace.  Recent examples of human rights related incursions include the tendency to seek to monitor the private lives of employees (e.g. here), to manage their lifestyle decisions in the form of benefits and related eugenics programs, and to appropriate all of the value added of increases in productivity without compensation. Most universities remain oblivious to the connection between their employment policies--and their increasingly intrusive efforts to order and control the lives of their employees--and the human rights dimensions of these exploitative behaviors. This is an area, certainly in which universities could do better.  

e. Communities. The human rights responsibilities of universities extends beyond being good neighbors.  It also relates to the obligation of the institution to ensure that its activities  do not indirectly burden human rights.  But universities tend to prefer to avoid these considerations as an obligation--even as they embrace as an aspirational goal the ideals of context based sensitivity.  Yet a university that displaces local populations to enhance its own operations, or a university that deliberately discourages  and depresses local wage labor markets for its lowest wage earners may be engaging in actions that might be both unethical in accordance with its own ethics principles and certainly would not enhance its operations in a human rights positive way.
 3.  Human Rights practices is neither arcane nor does it stand apart form the usual methods through which a university assesses the feasibility of its activities and decisions. Human rights sensibilities can be incorporated into the very fabric of the decision making process of university operations--its essence is grounded in risk management and ethics.  Indeed, the processes of human rights due diligence built into the U.N. Guiding Principles for Business and Human Rights, and the glosses provided by a  number of other organizations, makes it easy to see the simplicity and value of a human rights sensitive approach to university operation (e.g., here). Indeed, human rights due diligence has been described as:
An ongoing risk management process that a reasonable and prudent company needs to follow in order to identify, prevent, mitigate and account for how it addresses its adverse human rights impacts. It includes four key steps: assessing actual and potential human rights impacts; integrating and acting on the findings; tracking responses; and communicating about how impacts are addressed. (here).
It is in the transposition of human rights due diligence into the operation of the university that it might best participate in the new global initiatives to "Stand Up for Someone's Rights! 

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