Business and Human Rights  |  Prachiti Venkatraman

Pharmaceutical Giants, Lethal Injection and the Future of Human Rights in Business.

Pharmaceutical companies have taken a stance against their drugs being used in lethal injection executions, particularly in the U.S.. In honouring the right to life as such, these large corporations have effectively championed human rights. Which begs the question, are there wider lessons to be learnt for better synergy between human rights and business?

The lethal injection is the most common method through which a death sentence is carried out in the United States. Pharmaceutical companies play a crucial role in this capital punishment system as the manufacturers and suppliers of drugs used in the administration of lethal injections. Recently however, big pharmaceutical conglomerates like Pfizer and Hikma in 2016 have stopped supplying the necessary drugs. With supplies dwindling, states have curtailed executions and alternatively, turned to other chemicals which have caused considerable issues. Botched executions where prisoners died in writhing agony have cast a shadow on the image of the lethal injection as a humane and painless mode of inflicting death. Big pharma has delivered a substantial blow to the death penalty system, standing in favour of life and human rights. But as corporate actors have frequently denied that any human rights obligations bind them, we are left asking- what prompted drug suppliers to adopt this position?

Through its Stop the Lethal Injection Project (SLIP) human rights advocacy organisation Reprieve has chronicled the reasons for drug companies’ lack of support for death penalty operations. The damage to their reputation was a factor. A public that purchases life-saving drugs from these manufacturers is unlikely to trust them should they be involved in the taking of life. The European Union put legal measures in place that outlawed the export of drugs for lethal injections and even companies based in developing nations like India have refused to supply for fear of the reputational damage. Additionally, the prospect of facing costly litigation following botched injections has been a significant deterrent. It is not just the alternative chemicals used that are problematic. The drugs traditionally used are not designed for the lethal injection and have been known to lead to disastrous results. Hospira (owned by Pfizer since 2015) was subject to such a claim in litigation and it ceased to manufacture the lethal injection drug in 2011. Investors are less likely to want to be involved with companies associated with the lethal injection. The financial risks of being associated with the death penalty are very great. And it is this marriage of public relations and business problems that motivated big pharma to take positive action.

This synergy between human rights and business in the pharmaceutical industry provides a much needed breakthrough for the implementation of the United Nations’ (UN) 2011 Guiding Principles on Business & Human Rights. The Guiding Principles are undoubtedly the authoritative focal point for corporate accountability matters- under the three pillars of “protect, respect and remedy” they outline the roles of various human rights stakeholders and outline how businesses are to respect human rights. The Guiding Principles stipulate that corporate entities are to avoid causing rights infringements and address any adverse impact of their business; implementing appropriate policies and processes to that end. Under the Guiding Principles, there is a due diligence obligation on corporations, to actively mitigate human rights abuses that occur in connection to their business. However, the Guiding Principles are voluntary in nature in that it is very much left to businesses as to when and why they fulfill their human rights obligations. Moreover, the conception of human rights is still overwhelmingly state centric. While highly persuasive arguments have been made in favour of corporations’ obligations- owing to their global reach, economic capabilities and effect of people’s lives- this is not set in stone. In the years since the Guiding Principles were introduced, there has been little systemic change in the various business industries.

But, the successes of the pharmaceutical industry have illustrated that companies are most likely to honour their obligations and follow the processes stipulated in the Guiding Principles when certain factors are in play. The winning combination seems to be a high degree of public and investor fall-out along with the strong possibility for litigation. Additionally, the policies of companies within a single group are likely to reflect one another. The partnership between Hospira and Pfizer attests to this. Crucially then, should one company adopt a human rights-oriented policy it would no doubt place its partners within the conglomerate in a difficult situation if they were not to take a similar approach.

In short, it would not be wrong to say that in opposing the lethal injection pharmaceutical companies have not just impaired the death penalty system but also provided the basis for effectively implementing human rights in business on a wider scale.

 

Prachiti Venkatraman, BPP University

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