The Need for a Closer Look at How Power Dynamics Impede Access To Remedy in BHR
To say that there are power dynamics at play in the BHR landscape is to state the obvious. Civil society regularly raises concerns over corporate and regulatory capture. It’s no secret that the corporate influence at the UN level, including in the development of the UNGPs, helped create the scenarios within which rights holders seek remedy, which are structurally biased in favor of corporate interests. This corporate influence helped create the “chaotic, hard to navigate patchwork” of remedy options. Imbalances in financial, legal, and technical resources, and access to information are often cited as central barriers to accessing remedy for business-related harms. Retaliation for claiming rights remains a dangerous reality, and the risk to human and environmental rights defenders in general continues to increase.
There seems to be general agreement that addressing power imbalances between parties is necessary to improve access to remedy. But despite the size and urgency of the problem, the conversations on how to address them do not go far or deep enough. Recommendations generally refer to improving access to information for rights holders about the project and their rights, as well as access to technical, financial, legal and other support. While these are critical issues that need proactive measures to address, addressing them alone is not enough to solve the problem. Power dynamics also create and control the agenda within which remedial mechanisms are embedded, and it is important to confront the various and often subtle ways that power is exercised in this context.
Additional analytical frameworks offer a more detailed lens through which to understand and talk about power imbalances in the BHR context. The different approaches highlighted below map out the various ways in which corporations exercise power in the BHR space, focus on identifying less visible forms of power used in company-community engagement, and consider the epistemic dimensions of power and its material impact. These lenses do not necessarily offer anything profoundly new- what they articulate has been lived experiences for many rights holders and their allies, and areas of resistance through various rights-mobilizing efforts. Nor are they without their own shortcomings. They do not necessarily flat out condemn the exercises of power, and they, like much BHR and CSR theory, center on the corporate actor more than the rights holder. However, they do provide us with additional conceptual framings and language to help parse out and make explicit the different exercises of corporate power, especially the more subtle ones. Applying these frameworks can inform more rights-based policy and regulatory developments by giving more precise and thorough recommendations. And it can help identify, and stop, harmful exercises of power in specific situations.
Looking at power through these lenses can also help to center and amplify sites of resistance and rights-claiming. HRDs and civil society have been called “justice enablers,” seemingly tasked with addressing power imbalances. This burden should not fall disproportionately on them, however. The frameworks outlined below can assist in their efforts by providing additional language to articulate their experiences, call out harmful behavior that often goes unrecognized, and draw support for the power they exercise in their rights-mobilizing actions.
Sites of Corporate Power Over Human Rights
In David Birchall’s recent article on corporate power, he offers a framework that “defines four sites of corporate power over human rights: first, power over individuals; second, power over materialities; third, power over institutions; and fourth, power over knowledge.” While acknowledging the obvious overlap between the different sites in many situations, this delineation helps to map out exercises of power that may go unrecognized or get conflated, and thus may not be adequately addressed.
The inclusion of the discursive power of companies (power over knowledge) is particularly useful for articulating the under-addressed issue of corporate influence on the BHR narrative itself. Discursive power has an effect of normalizing potentially harmful ideas and framing them as uncontestable realities. In order to keep the “human rights” in BHR, that kind of discursive power needs to be challenged.
“Parentalism”
In recent scholarship in Political CSR literature, Helen Etchanchu and Marie‑Laure Djelic propose a “re-conceptualization of power dynamics and their legitimation in contemporary business–society relations using the prism and metaphor of parentalism.” This framework aims to shed light on exercises of power and justifications for them in contexts that purport to be collaborative and neutral.
Given the push for meaningful consultation and rights holder centrality in the remedy context, this critical lens helps to remind us that consultations, dialogues, even “participatory” processes and processes with “neutral” or “impartial” third parties cannot be taken at face value. An application of this framework in the examination of a multi-stakeholder remedial process sheds light not only on the subtle exercises of power and manipulation used, but also on community resistance.
Epistemic Dimensions of Power Dynamics
A perhaps less obvious lens through which to consider exercises of power and their harmful results is that of epistemic injustice and oppression. These harms deal with exercises of power in the context of knowledge production, from prejudicial credibility determinations that justify the exclusion of certain voices, to structural erasure of entire ways of knowing.
Engagement cannot be meaningful when those setting up and participating in the sites of engagement refuse to understand and take seriously the perspectives of those who will be harmed by corporate activities and therefore fail to incorporate those perspectives into the knowledge production and decision-making around that business activity. Dialogue-based remedial mechanisms cannot come to fair agreements on how to move forward, including what remedies may be provided, when rights holders are not perceived as credible epistemic agents.
While certainly not comprehensive, these and other frameworks can help push the conversations on addressing power imbalances a little bit deeper. For too long we have been emphasizing the need to address power asymmetries but not fully interrogating the various exercises of power that create, perpetuate, and also resist, these asymmetries. Our work at Just Ground aims to contribute to these conversations through critical research and to support community-led mobilizations challenging those power imbalances.
