The U.S. Statecraft of Corporate Human Rights Obligations

Maryland Journal of International Law Volume 39 Issue 1 Article 6 The U.S. Statecraft of Corporate Human Rights Obligations Andrew Brady Spalding Follow this and additional works at: https://digitalcommons.law.umaryland.edu/mjil Recommended Citation Andrew B. Spalding, The U.S. Statecraft of Corporate Human Rights Obligations, 39 Md. J. Int'l L. (2024). Available at: https://digitalcommons.law.umaryland.edu/mjil/vol39/iss1/6 This Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Journal of International Law by an authorized editor of DigitalCommons@UM Carey Law. For more information, please contact . SPALDING, A - MACROS RUN_KGL.DOCX (DO NOT DELETE) 9/25/24 7:15 AM The U.S. Statecraft of Corporate Human Rights Obligations ANDREW BRADY SPALDING I. INTRODUCTION Statecraft may be defined as “the use of instruments at the disposal of central political authorities to serve foreign policy purposes.”1 That definition, though, may admit of a narrower and a broader understanding. The narrower and perhaps more cynical notion imagines statecraft as the management of a power struggle for the sake of selfpreservation. Even the Oxford Dictionary of Politics and International Relations conceives statecraft as fundamentally about “managing relations between states to the advantage of one’s own country.”2 With roots extending at least as far back as Machiavelli’s The Prince with its infamous preoccupation with preserving power in the face of internal and external enemies,3 this may be the most common contemporary sense of the term.4 But a broader understanding of statecraft has arisen in modern scholarship, and perhaps in experience. Charles Anderson notes in his 1977 book Statecraft, that the word is an old north European term for “the science of government” and in connection with the modern state essentially consists of “impos[ing] direction and form on the course of human affairs.”5 According to Jochen Prantl and Evelyn Goh, the term may be better understood as “the skill of securing the 1. Michael Mastanduno, Economic statecraft, in Smith, Hadfield, and Dunne, eds., FOREIGN POLICY (Oxford University Press 2012) at 204. 2. See Colin Tabot, The Science of Government: Setting out the Seven Elements of Statecraft, GLOBAL GOV’T. FORUM (Sept. 1, 2023), https://www.globalgovernmentforum.com/the-science-of-government-setting-out-the-seven-elements-of-statecraft/. 3. NICOLO MACHIAVELLI, THE PRINCE (Ernest Rhys, ed., W. K. Marriot trans., E.P. Dutton 4th prtg. 1916) (1532). 4. Tabot, supra note 2. 5. CHARLES W. ANDERSON, STATECRAFT p.vii. (1977). 57 SPALDING, A - MACROS RUN_KGL.DOCX (DO NOT DELETE) 58 MARYLAND JOURNAL OF INTERNATIONAL LAW 9/25/24 7:15 AM [Vol. 39 survival and prosperity of a sovereign state.”6 By this way of thinking, “the successful or unsuccessful conduct of statecraft may settle the fate of our way of life.”7 In this vein, Alasdair Roberts in his 2019 book “Strategies for Governing” conceives statecraft to encompass all aspects of the “creation, maintenance, and adaptation of the state and political order, both internal and external.”8 Similarly, Colin Talbot observes, “The term ‘statecraft’ can therefore be used as an all-embracing one for the study of states and governments and how to successfully build, run and adapt them, internally and externally.”9 Whether statecraft is framed as the preservation of self-interest in a threatening world, or the promotion of a particular conception of a well-ordered society, international economic statecraft entails the use of legal and commercial tools, rather than military engagement, to achieve foreign policy objectives. States direct businesses in their overseas conduct towards public goals, and businesses become instruments of statecraft. Through law, states create incentives that direct the behavior of transnationally-engaged enterprises toward state interests.10 Companies in turn adopt compliance programs to ensure their business conduct accords with these state-imposed objectives. Presently, multinational companies thus must deal with two principal compliance concerns that are not industry-specific: corruption, particularly bribery; and sanctions and export controls.11 But as this article will explain, those U.S. companies doing business with EU companies will soon need to add a third: human rights. The European Union is poised to require all member states to adopt legislation requiring companies to implement a set of corporate measures first laid out in the United Nations Guiding Principles on Business and Human Rights (UNGPs).12 The UNGPs call on companies to adopt programs that are akin to the compliance programs they already have in place for 6. Jochen Prantl & Evelyn Goh, Rethinking Strategy and Statecraft for the Twenty-First Century of Complexity: a Case for Strategic Diplomacy, 98 INTERNATIONAL AFFAIRS 443, 433 (2022). 7. Morton A. Kaplan, An Introduction to the Strategy of Statecraft, 4 WORLD POLITICS 548, 548 (1952). 8. ALASDAIR ROBERTS, STRATEGIES FOR GOVERNING (2019). 9. Tabot, supra note 2. 10. See David A. Baldwin, What is Economic Statecraft?, BUSH SCH. OF GOV’T AND PUB. SERVICE (https://bush.tamu.edu/economic-statecraft/what-is-economic-statecraft/. 11. Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1, et seq; International Emergency Economic Powers Act of 1977, 50 U.S.C. §§ 1701 et seq. 12. Special Representative of the U.N. Secretary-General, Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework A/HRC/17/31, p. iv, (June 16, 2011) https://www.ohchr.org/sites/default/files/documents/publications/guidingprinciplesbusinesshr_en.pdf. SPALDING, A - MACROS RUN_KGL.DOCX (DO NOT DELETE) 9/25/24 7:15 AM 2024] THE U.S. STATECRAFT OF CORPORATE HUMAN RIGHTS OBLIGATIONS 59 corruption and sanctions, though different in important ways. Whether supply chain human rights risks threaten the very existence of a sovereign state is perhaps debatable. But to the extent that statecraft is about promoting a conception of a well-ordered society, whether and how a state imposes human rights obligations on transnational companies belongs in the conversation. Of these three forms of imposing compliance costs on companies to achieve foreign policy objectives, in the U.S. one of these things is not like the others. The U.S. has plainly and deliberately assumed a global leadership role, for better or for worse, in driving international anti-corruption and sanctions enforcement; the U.S. has adopted exacting statutes and regulations and built highly-resourced enforcement mechanisms.13 However, on the principle that companies should have mandatory human rights obligations, and to that end the UNGPs should be codified, the U.S. is something of a laggard. As Section II below will explain, the U.S. arguably dabbles with an assortment of stat (...truncated)