Written by Bonny Ling.
This is a slightly revised version of an essay published by Katagalan
Last year, on Human Rights Day marking the adoption of the 1948 Universal Declaration of Human Rights on 10 December by the UN General Assembly, Taiwan’s executive branch of the government (Executive Yuan 行政院) released the Taiwan National Action Plan on Business and Human Rights (NAP) (臺灣企業與人權國家行動計畫). The Action Plan was celebrated, with Premier Su Tseng-chang (蘇貞昌) enthusiastically describing it as “aid[ing] Taiwan’s efforts to become integrated in international trade and supply chains.”
Taiwan’s NAP indeed was sleek, beautifully presented, and stood at some 60 pages. In chronological order, it is the fourth national plan on business and human rights to be released in the Asia-Pacific, after South Korea in August 2018, Thailand in December 2019 and Japan in October 2020.
I have wanted to write this essay for some time now. Despite having analysed Taiwan’s NAP for other audiences, I have yet to do so for a Taiwan-focused publication. The reason is the sizable gap that exists in Taiwan’s NAP when compared with the literature on this very topic of business and human rights.
These gaps were brought to the fore during Taiwan’s recent COVID outbreak and needed space and engagement to explain if the aim is not only to understand but also to improve and change. This was impossible to do in a one-off piece and needs sustained attention.
But every journey begins with a single step. Thanks to the commitment of Ketagalan Media to foster more discussions of Taiwan in the international context and to Editor-in-Chief Chieh-Ting Yeh who sees values in such a deep discourse, this starting essay will be the first of many regular submissions. The aim of this column, as part of the business and innovation focus of Ketalagan, is to explore the vast international landscape of responsible business conduct, of which Taiwan plays an important part as Asia’s seventh-largest economy.
Business Actors and Human Rights
This year marks the 10-year anniversary of the UN Guiding Principles on Business and Human Rights (UNGP), “a globally agreed standard and baseline for what governments and businesses need to do to embed respect for human rights in a business context.”
At its heart, the UNGP is a three-pillared document that sets out how both states and businesses actors should implement the framework for corporate responsibility to respect human rights. UNGP is frequently referred to as the “protect, respect and remedy” framework or “the Ruggie Principles,” eponymously named after the Harvard professor John Ruggie who served as the Special Representative for Business and Human Rights of the then UN Secretary-General Kofi Annan and who spearheaded the broad international efforts to set out the obligations of states and companies concerning human rights. The “protect, respect and remedy framework” sums up the content of each pillar in this international instrument:
- Pillar 1: The state duty to protect human rights;
- Pillar 2: The corporate responsibility to respect human rights; and
- Pillar 3: Access to remedy for victims of business-related abuse.
The real new grounds trodden, however, are in Pillars 2 and 3. The state duty to protect human rights under Pillar 1 is standard textbook materials on state as the duty-bearer of human rights, with individuals as the rights-holders.
This means that the state has the legal obligation to not only refrain from taking actions that would result in violations of human rights, but that it must also protect individuals from human rights abuse committed by third parties. A prime example of Pillar 1 in the Taiwanese context is the situation of migrant fishers on board vessels with links to Taiwan, for which the government has long come under heavy criticisms by international NGOs.
Mind the Gap
In December 2020, Taiwan’s Executive Yuan stated that one of the aims of the NAP is to provide better protections for human rights in the workplace. It applauded the efforts of Taiwanese companies that contributed face masks, both in Taiwan and abroad, to stem the spread of COVID-19. The NAP described how these donations exemplified “how Taiwanese companies fulfill their social responsibilities, and it represents the best possible state of human rights in the workplace.”
These proclamations, however well-intended from the spirit of corporate philanthropy, are fundamentally not the same as identifying, preventing, mitigating and accounting for how corporate actors address their negative human rights impacts, both actual and potential harms.
The inflexibility of most Taiwanese employers to allow their employees to work from home during Taiwan’s near-full COVID lockdown this year laid bare the illusion of equating COVID-related donations as meaningful respect for human rights, especially when such corporate action has potential negative impact on individuals’ rights to life and health during a pandemic.
A sizable gap exists between ad hoc voluntary corporate action, such as those frequently associated with corporate charity, and moving towards a commitment for Taiwanese companies to discharge their human rights responsibilities in all their business activities and relationships. The two are not the same, nor does doing one offset the other.
As it stands, by focusing almost exclusively on state duty under Pillar 1, the plan does not assess the extent that Taiwanese businesses have engaged with and implemented human rights due diligence (Pillar 2). It also does not speak on how businesses can provide effective remedy for their negative human rights impacts (Pillar 3).
All the planned actions under Pillars 2 and 3 are directed at the government but do not set out expectations for businesses. The government commits, under Pillar 2, to promote dialogue and communication between businesses and stakeholders; encourage businesses to adopt and implement human rights policies; and advocate for the disclosure of non-financial information. Under Pillar 3, the government will continue to promote judicial reform and establish better remedy systems; strengthen extraterritorial jurisdiction; and push for the passage of whistleblower protection mechanisms.
One Step Forward
Every journey begins with a single step. Every column begins with a single essay. The NAP is clearly a welcome first step for Taiwan as it promotes awareness of business and human rights. It is a notable signal that the government wants to join this global discourse.
The direction of travel, however, remains to be determined. As it stands now, the NAP skates on the surface of getting Taiwanese businesses to respect human rights as an inherent part of its activities and operations. Much work remains ahead under Pillars 2 and 3, new grounds to be explored and discussed, things to contest and adopt, as part of the normal democratic discourse in Taiwan.
Nonetheless, the launch of the NAP on Human Rights Day, a day of such strong symbolic value for the Tsai administration that has proclaimed the centrality of human rights in Taiwan’s national ethos, signposts Taiwan’s recognition that human rights have an inherent place in business and trade negotiations.
Meanwhile, revisions to the plan are expected by the end of 2024. There is a lot to do between now and then to shape the NAP into a version that can meaningfully integrate normative expectations for corporate responsibility to respect for human rights in Taiwanese business culture. Let’s begin.
* Prof. John Ruggie passed away on 16 September 2021, a day before this essay was first printed on Ketagalan. Since news of his passing, there have been numerous tributes to Prof. Ruggie’s lifelong work in international affairs, which culminated in the endorsement of the UNGPs by the Human Rights Council in 2011, a step forward in concerted global efforts to build a more just and equitable economy.
Bonny Ling 凌怡華 is an Advisory Board Member of the international civil society organisation Human Rights at Sea that raises global awareness of abuses at sea, and advocates for better human rights protection in the maritime sector. She is an independent expert on international human rights, development and migration and Senior Research Fellow and Associate Lecturer at the Cambridge Centre for Applied Research in Human Trafficking in the UK