Business Responsibility in Public Health Emergencies

[Debadatta Bose is a Doctoral Researcher at the Amsterdam Centre for International Law & Amsterdam Centre for Transformative Private Law, Amsterdam Law School, University of Amsterdam.]

If one searches the UN Guiding Principles on Business and Human Rights (UNGPs), one will notice that a search returns no results for the word ‘health.’ If one looks at the more detailed OECD Guidelines for Multinational Enterprises, one cannot find much mention of health either. There is a responsibility to refrain from seeking or accepting exemptions to health standards, and public health challenges arising from the life cycle of products manufactured are mentioned. Given the context of the past two years, one question has become imperative: what are business responsibilities in such public health emergencies? Is it subsumed in the general operational context-dependent business responsibility?

Like all other answers in law, the answer is yes and no – or so this blog post argues. If business responsibility would be purely dependent on operational context, questions of business responsibility in conflict situations, for example, would not require special elaboration since the context necessitates greater vigilance on the part of businesses (and states) anyway. Principle 12, a cardinal guiding principle in the UNGPs, sets out the minimum standards of human rights businesses are supposed to respect. In doing so, it lays down that in situations of armed conflict, additional standards like that of international humanitarian law apart from international human rights law, as illustrated in Principle 12, which includes the International Bill of Human Rights and the eight ILO core conventions, apply.

Further, Principle 23 which deals with issues of context, sets out specifically that point: that conflict-affected areas change the operational context of businesses which necessitates that business exercise enhanced vigilance over their activities due to the legal risk of potential liability arising from their activities in such areas. While this is a lot of talk about businesses in conflict affected areas in a post that seemingly seeks to elaborate on business responsibility in health emergencies, the elaboration of business responsibility in conflict-affected areas serves a crucial purpose: to demonstrate that there are certain aggravated circumstances, as I would like to term them, where business responsibility goes beyond the minimum borderline of the articulation of a baseline in the UNGPs. Armed conflict, as an aggravated circumstance, leads the UNGPs to explicitly state that additional standards beyond international human rights law would apply, viz. international humanitarian law, when setting the social expectations of business responsibility.

Can health emergencies be treated as an aggravated circumstance? Not only would logic and common sense say yes, but Ruggie has also explicitly referred to natural disasters and health emergencies as circumstances which require corporate action beyond the minimum necessity (A/HRC/14/27) in his preparatory documents. Unlike armed conflict, health emergencies (and natural disasters), however, do not refer to additional standards in the UNGPs document or preparatory processes. What is certain, however, is that an enhanced responsibility was foreseen in these scenarios.

The discussion that leads to this observation is Ruggie’s elaboration of the scope of corporate responsibility in the preparatory work of the UNGPs. His assertion was that only direct and indirect impacts have a bearing on what corporate responsibility is – the capacity of corporation determined through its ‘size, influence or profit’ would not be valid considerations for this purpose but may be relevant considerations for philanthropic activities. This is because there is a risk of corporations having to perform ever-expanding duties when operating in states unwilling or unable to fulfil their human rights duties.

This responsibility may cover the whole spectrum of rights, as Ruggie has repeatedly said, but the ‘baseline benchmarks’ of judging responsibility were those instruments of international human rights law in Principle 12 aforementioned. Additional standards not only apply in conflict situations but in situations where vulnerable groups of people are affected, e.g., indigenous people and children.

Now, what is most interesting is that Ruggie elaborates one exception to this rule of corporate responsibility not being determined by capacity: that of the situation of natural disasters and public health emergencies. He qualifies this assertion by saying that even when there are ‘compelling reasons’ that doing so may be ‘reasonable and desirable,’ these actions are ‘temporary’ and ‘time-bound.’ Immediately following this articulation, Ruggie repudiates the general rule that corporate responsibility may be determined by corporate capacity. Still, it is amply clear that while millions die in front of our eyes, corporations cannot just shrug it off saying ‘not my problem.’

What is clear is that the baseline is the articulations of responsibility as in the UNGPs: it applies to all situations at all times, whether there is a conflict or a public health emergency or whether there is perfect peace and wellbeing. In aggravated circumstances, the very baseline is shifted to a more stringent one as the context necessitates so – circumstances like public health emergencies need more from corporations to maintain the same level of respect for human rights as would be possible in a perfect context with minimal effort.

Once again, referring to conflict-related responsibility, we can utilise the general notions in the UNDP document on ‘Heightened Human Rights Due Diligence for Business in Conflict-Affected Contexts: A Guide.’ Simply put, the document says, higher the risk, greater the necessity of vigilance. Not only are corporations required to uncover, mitigate or avoid actual and potential impacts from business activities but they should also assess actual or potential impacts on the conflict – making it amply clear that in aggravated circumstances, respecting human rights is not merely about the business activities. The underlying logic applies to public health emergencies as well: the higher the risk, the greater the vigilance. If a textile supplier has to take business decisions during a pandemic, not only will they have to conduct human rights due diligence for actual and potential human rights impacts, but they will also have to assess how business decisions may lead to actual or potential impacts on the public health emergency – consideration for the broader public beyond ordinary business activities is crucial.

Especially in the context of a pandemic that has zero regard for national borders, transnational corporations can be crucial in mobilising a response to tackle the public health emergency. They are specially equipped, in contrast to territorially bound national governments, for a quick response in food supply, vaccine distribution, and energy supply, e.g., to name a few. The WHO Framework for strengthening health emergency preparedness in cities and urban settings reiterates the crucial role of the private sector in tackling pandemics, and even for funding necessary areas. The support of transnational corporations in logistics and contribution of resources to meet local needs is pivotal – from manufacturing masks to transnational supply chain networks enabling rapid mobilisation of medical cargo, to utilisation of hotels and stadiums as quarantine and vaccine centres – the pandemic would be a lot harder without these contributions.

The WHO documents, however, and especially the Multisectoral Preparedness Coordination Framework, emphasise on pandemic preparedness. This means that unlike the temporary time-bound contribution that the UNGPs interpretation foresees as corporate responsibility, the WHO foresees a more structural and permanent role for corporate responsibility in public health emergencies – that of preparedness for such emergencies, not merely responses to such public health emergencies. The WHO deems this especially important for countries that rely on an extensive network of private providers for their health infrastructure – from hospitals and ambulance providers to health insurance companies to equipment manufacturers. That said, the baseline is still that beyond the core human rights instruments, the WHO frameworks, if they were additional standards, would only apply in aggravated circumstances – even though participation of corporations may be desirable, it cannot be said to apply as an additional responsibility in all contexts at all times. Even then, this temporary additional responsibility is not philanthropy: it is a responsibility in addition to the baseline responsibility of the UNGPs.

As the business and human rights community has repeatedly outlined: the failure of corporations to act in a pandemic does not make any of them an innocent bystander when the responsibilities clearly delineate heightened demands in public health emergencies.