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At the Connection of Business and Human Rights

Jena Martin poses in a studio wearing a suit.

Qs by Diana Mazzella
Photographed by Brian Persinger

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Jena Martin has worked at the Securities and Exchange Commission. She’s presented at the United Nations. And she is a professor in the WVU College of Law where she teaches, writes and edits books about the intersection of corporations and human rights.

How does looking at human rights change how you see law? 

When I was entering the field about 10 years ago, you just looked at corporations from this one lens where corporations do business to make profits. When I was working at the SEC, I would focus on: Were they lying in their corporate disclosures about their financial interests in the transaction, as opposed to, were they lying about their environmental or human rights impacts?

I never looked at corporations’ larger role in society. But then it’s almost like “The Matrix.” Once you peek behind the veil, you realize it’s everywhere. Corporations impact society in literally every aspect of society, everything from labor issues, to larger societal effects in terms of how they’re handling racial injustices, how they get involved in good or bad ways with voting rights, how they get involved with regard to literally any large social justice issue.

What does this field look like?

There is really not one aspect of society that a business doesn’t touch. I used to challenge my students at the beginning of every year. I teach the law of business organizations, and I tell them, “You tell me one aspect of the law that doesn’t get touched by a business.” It was hilarious actually because they would try, and I was like “nope.” They would say things like: family law. I was like there are businesses where two people are married and also have a business together, if things go wrong, that’s going to be a thing.

One student who clearly had never been on my webpage, said “I got it: Human rights.” I was like, oh, child. Let me tell you about all of the different ways that business impacts them. Unless you’re in an isolated community, you interact with businesses and even those isolated communities, more and more, have had to interact with corporations as corporations expand and try and touch their resources and things like that. So you can’t get away from this issue.

How can human rights be better protected in the U.S.?

With transnational corporations, a violation often takes place in a country where the laws are not necessarily favorable to communities, or the ability of communities to access remedies are quite difficult. Laws are national. None of the current binding international laws are tied to transnational corporations, and so there have been lots of different theories that people have put forth about ways to get around that.

For an article that I’m working on now, there is a current law on the books that says that a publicly traded U.S. corporation can’t bribe anyone through the Foreign Corrupt Practices Act.

So if you’re trying to open a plant in Nigeria or Canada, you can’t bribe the local officials to get what you want, and there’s actually been some movement by non-governmental organizations to have a new law where the framework used to prevent corporate bribery would be extended to human rights violations.

This law, if it were passed, would be another gateway to holding corporations accountable for gross human rights violations that occur overseas. This law would target any corporation where their shares or stocks are listed in the U.S. So for instance, if you’re a Belgian company, but you have your shares listed here on the New York Stock Exchange, the SEC could go after you because your shares are registered here.

What made you interested in studying business and human rights?

I left the SEC because I knew I wanted to get more involved in social justice and human rights issues. I went back to law school because I’m a glutton for punishment. I wanted to get my master’s in law, an LLM. And originally, I was going to do international criminal law or something that’s really, deep down, human-rights related. I had a really good professor while I was at UT getting my master’s who basically said something along the lines of ‘Your experience is incredibly valuable. Don’t forget that. Or don’t forget to use it.’ She inspired me to do some research on how corporations were impacting society at large, which I didn’t really know. And then I got hooked.

What is an example of how corporations should approach human rights issues?

A U.K. corporation called Vedanta wanted to set up a mine in India. I’m sure they consulted with their lawyers and on the surface, they did everything right. They checked the national laws and with the national legislatures, and they said, if you want to set up this mine here, that’s fine. They checked with the state level. They said, that’s fine right now.

But the actual location where they wanted to set up the site was right next to an indigenous community. The mine involved tearing down the mountain. The location that they had picked to do this sort of surface mining – the mountain that they had picked – overshadowed an indigenous community. And it turns out, to this indigenous community, that mountain was their god. It was an intrinsic part of their religion.

Not only that, the mountain provided specific resources and shelter for their food. When they found out what was happening, they organized, they engaged in all these protests. And then the Indian government actually changed the law to prevent Vedanta from mining. So in the meantime, Vedanta had spent untold amounts of money to begin the development of this project. And they had to walk away.

When I teach this to my law students, I say, look, on the surface the lawyers did everything right. They checked the law, but under international human rights law, there’s a larger concept called free, prior and informed consent that basically says if you’re doing something that affects a society, you need to check with the society – all aspects of the society and get their consent.

And it can’t be under duress and they have to know all the facts and you have to do it before you actually start this activity. So if they had actually looked to international human rights norms, they would have thought to maybe do that in a way that, again, just checking the ‘there’s no problem with the laws here’ box might not get at.

I saw that you spoke at the UN Forum on Business and Human Rights. Can you talk about what the international community is trying to achieve?

The Forum is the largest annual gathering of people who are interested in this work. And it brings together some of the biggest corporations like Google and Apple as well as NGOs and government officials and people like me who are academics.

I have been fortunate enough to present findings from research that I’ve done at the Forum. For instance, one year I was really fortunate to be able to present the results of a survey I’d done of West Virginia corporations and what they thought about business and human rights initiatives. This was in the early days of the Forum when the concept of business and human rights still wasn’t well known outside our small little circle.

More recently I've presented the results of the research that undergirded an anthology I edited [“When Business Harms Human Rights: Affected Communities that Are Dying to Be Heard”]. I moderated a panel where we actually got to talk to some of the people that were involved in the struggle to hold corporations accountable for harmful human rights impacts. The idea of bringing in communities who had been impacted by corporate activities and hearing from them directly wasn’t really done at the Forum until then.

In terms of sort of the larger agenda, there’s a group – it’s called the UN Working Group for Business and Human Rights – and they are very much at the heart of the work done at the UN level for business and human rights. And I would say that their mandate is huge. It covers everything from examining the gender dimensions of business and human rights to looking at how corporations are helping or hurting human rights defenders – people who are actually trying to make a positive change in their society for human rights – and whether or not there should be a treaty that would impose direct liability on corporations at the international level for their activities.

Those are just a few of the aspects. I’ve been very lucky to be involved in some of the conversations, but, for every conversation I’m involved in, there are hundreds more.

What direction would you like to see the study of business and human rights go in?

A couple of places. The UN has been very involved in talking about a gendered lens. So, bringing in more gendered voices into the world of business and human rights. They have not done as good a job at talking about racism and how racism impacts our field and also how business and human rights can help advance an antiracist agenda. So actually, me and a couple of friends just wrote an article about this idea of business and human rights being racist or antiracist, and as far as we know it is the first of its kind to address this. In fact, except for a brief discussion during the last Forum, I don’t think that the UN has addressed this – they just haven’t engaged with that issue. They haven't yet talked about racism within this idea of corporate engagement with human rights. I would very much like to see them do so. I mean, if nothing else, the incidences in 2020 and the Black Lives Matter movement is an indication of how much it’s needed.

I also think that we need to have a much more concerted conversation about corporations’ role in technology and data privacy. So that is something that I've been looking into.

I was really lucky. I got a fellowship with the Center for Consumer Law and Education, which is a joint initiative with Marshall University and WVU Law. It was a multi-year fellowship and I got to look at issues within the field of data privacy. I would like us to start engaging more in that. The UN has done some work on that, but it’s been very siloed.