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Business and human rights: Now for the hard part

Last week, as expected, John Ruggie’s six year business and human rights marathon came to an official end.

His Guiding Principles on Business and Human Rights were offically endorsed, as expected, by the UN Human Rights Council.

The Human Rights Council announced that:

“..the Guiding Principles recommend how governments should provide greater clarity of expectations and consistency of rule for business in relation to human rights.

The ‘Corporate Responsibility to Respect’ principles provide a blueprint for companies on how to know and show that they are respecting human rights.

The ‘Access to Remedy’ principles focus on ensuring that where people are harmed by business activities, there is both adequate accountability and effective redress, judicial and non-judicial.”

The endorsement seems to mean, according to Amnesty International, that the UN Human Council will set up a “Working Group assisted by an annual consultative Forum as the Special Procedure that will follow-up the mandate of the SRSG.” (SRSG means John Ruggie)

Large companies such as Coca-Cola, General Electric and various membership organisations such as BSR and IBLF have come out in support of Ruggie’s guiding principles, as one would expect.

International human rights, along with climate change impacts, is one of those issues that traditionally encapsulates the gap between some of the campaigning NGOs and business groups on ethical/corporate responsibility issues.

Human Rights Watch and other civil society groups, such as Amnesty International, want:

“…a mechanism to scrutinize how companies and governments apply these principles”.

Presumably this mechanism would involve something like national governments beefing up areas such as NCP’s (OECD Guideline contact points) investigative power, and give prosectutors a legal mandate to investigate and enforce national legislation around business and human rights that’s based on unified global arrangements.

I’ve written to Human Rights Watch to see if that’s a correct assertion, or whether there is something more ‘supra national’ that’s been suggested in terms of investigation and enforcement of ratified agreements, for example at the UN level.

That’s a criticism often levelled at HRW and Amnesty: That their proposals call for an unrealistic level of “global government” that would take way too long, if ever, to negotiate and bring into force.

Here’s the response I just received from Arvind Ganesan, lead on business and human rights at Human Rights Watch, and a respected figure in the field:

“As with other processes at the Human Rights Council, the HRC could have given the Working Group a broader mandate to review specific cases. It didn’t. Instead, it gave it a mandate to disseminate the Guiding Principles and Framework and discuss deepening implementation.

What they should have done is also provided for some type of review mechanism. For example, government members of the Human Rights Council are subject to Universal Periodic Reviews as part of their membership.

The HRC could have given the working group the modest ability to examine the role of governments or companies when their activities implicate the Principles or Framework—not as expansive as Universal Periodic Review, but some way to review actual cases.

This seems logical given that the HRC endorsed the Principles and the Principles recommend some accountability.

Similarly, the other special rapporteurs have the ability to talk about actual cases or government activities within the context of their specific mandates, the same could have been formalized here.

The second issue is what you describe: governments need to ensure the companies are obliged to respect human rights through a combination of regulation, policy, and law.”

Arvind adds that: “If governments strongly endorsed the principles then they should take the next logical step and start revising their policies, laws and regulations to ensure that they and their companies fulfill those objectives.

If China supported the guiding principles, it should stop demanding that companies to help censor users on the internet, for example.

Will the companies that supported the principles now press their home governments to enact laws and polices that would require them to respect human rights?

The real test of their endorsements are whether they are really willing to put those principles into practice and really be monitored and held accountable for their implementation.”

As far as I can tell, given the complicated language/situation, Amnesty International takes a similar position to HRW on these latest business and human rights objectives.

Amnesty says that “without providing the missing elements, the effectiveness of the resolution and ultimately the Working Group will be weak.”

HRW’s Ganesan is asking Ruggie and/or the new working group that’s been set up, to push hard for progress now, asking:

“…whether the former SRSG or the newly constituted working group will now work openly and aggressively to press governments and companies to implement the commitments by changing laws, policies and regulations to ensure companies respect human rights or speak up when they do not.”

What does all this mean? From my grasp of it all it may mean that the business and human rights movement has taken a big step forward.

Finally we have international agreement around a framework, a paradigm if you like, for this most difficult and often subjective of areas.

That’s surely a big step.

Last week’s events at the UN Human Rights Council may also mean that the stage is now set for campaign groups to turn up the heat, often with the tacit support of big business and some of its lobby groups, on governments over human rights.

The OECD and its member governments have raised their game recently, at least in words.

That doesn’t mean, of course, that business is “off the hook” with NGOs.

Amnesty is going hard after Vedanta Resources in India.

Greenpeace’s top boss, Kumi Naidoo, is currently in jail in Greenland after climbing a Cairn Energy oil rig.

And Human Rights Watch is documenting business-related human rights problems, it says, in the US, Papua New Guinea, Kazakhstan and China, amongst others.

But it does mean that we may start to see big business, campaign groups and OECD government members take a consistent, unified, UN-based approach to the topic to emerging and developing countries.

Some might call that an unholy alliance. I am sure it will take some time to see just how this plays out.

But firms such as Facebook, desperate to get into China but facing censorship, may now find themselves under much greater pressure than under the more fractured approach in the past.

Smaller mining/oil and gas firms and large contract manufacturers, among others, will also feel much greater pressure. Campaigners will be using Ruggie’s work to ensure scrutiny.

Despite the shortcomings of the UN Human Rights Council’s proposed actions, the completion of John Ruggie’s work is surely one of the most important milestones in the history of the field of corporate responsibility.

Now for the hard part: Putting the framework into action.

3 Comments

  1. from Arvind Ganesan at Human Rights Watch:

    Hi Tobias,

    Thanks so much for this. Just had a few comments and clarifications:

    Some of the examples you highlighted of how human rights groups are holding companies accountable are really independent of the UN or HRC. For example, the firings and arrests of Barrick personnel in Papua New Guinea earlier this year were driven by our investigations, as the company acknowledges (http://barrick.com/CorporateResponsibility/KeyTopics/PorgeraJV/Response-to-Human-Rights-Watch-Report/default.aspx).

    In general, much of the progress in business and human rights has been driven by scrutiny and pressure by civil society and the press. This is especially true when one considers that governments and companies have been (and are still are) loathe to regulate and have yet to adopt strong business and human rights standards that wouldensure effective accountability.

    The Framework was clearly informed by civil society’s efforts and provides a useful articulation and reference for the roles and responsibilities of governments and companies, but it is nowhere near a panacea. The principles actually took a step back from the Framework that was endorsed by the Human Rights Council in 2008 in some cases, which was disappointing. For example, they don't oblige companies to have independent assessments when they voluntary take on human rights policies. That is even behind the status quo, where multistakeholder initiatives such as the Fair Labor Association or Global Network Initiative see independent assessment as essential to the credibility and effectiveness of these efforts. Even the Voluntary Principles aremoving in this direction. Similarly, the Framework is stronger on stating that governments have effective laws and policies to address business related abuses. The principles take a step back and largely encourage governments to enforce existing laws on human rights and do not clearly speak to government's obligation to new laws or polices that would better ensure companies respect human rights.

    The next logical step would have been for the HRC to firmly recognize those human rights obligations by adding a mechanism to review compliance. They didn't and that is a reason why what the UN did was largely memorializing the status quo. The HRC’s resolution a few days ago fell far short of what is needed and certainly fell short of the modest steps the Human Rights Council could have taken to move beyond the status quo.

    That HRW and others are pushing for more should not be surprising. In our case, it is based on our experience in documenting abuses, developing standards, watching institutions change, andunderstanding of what needs to be done to effectively protect human rights in a business context. Our views on the HRC's decision are not a referendum on the Framework or the Principles per se, but an assessment of where governments, companies, and other institutions are today, in contrast to where they need to be on business and human rights issues. It would be easy to dismiss that approach as too ambitious or impractical, butthat would be unfortunate. The reality is that civil society has been (and will be) at the vanguard of these issues and has consistently been pushing other institutions to change, even when they are resistant to reform. Without that scrutiny and pressure governments, companies, or the UN, for example, would not have moved much, if at all.

    In the case of the HRC, they fell short of what they could have done over the last six years, particularly in regards to accountability, and now they need to go further. The fact that governments in the HRC did not do that and companies did not call for it, even though they could have, may say much more about their actual commitment to real oversight and accountability for human rights right now than what they did approve at the HRC.

    Thanks so much,
    Arvind

  2. Hi Tobias,

    Thanks so much for this. Just had a few comments and clarifications:

    Some of the examples you highlighted of how human rights groups are holding companies accountable are really independent of the UN or HRC. For example, the firings and arrests of Barrick personnel in Papua New Guinea earlier this year were driven by our investigations, as the company acknowledges (http://barrick.com/CorporateResponsibility/KeyTopics/PorgeraJV/Response-to-Human-Rights-Watch-Report/default.aspx).

    In general, much of the progress in business and human rights has been driven by scrutiny and pressure by civil society and the press. This is especially true when one considers that governments and companies have been (and are still are) loathe to regulate and have yet to adopt strong business and human rights standards that wouldensure effective accountability.

    The Framework was clearly informed by civil society’s efforts and provides a useful articulation and reference for the roles and responsibilities of governments and companies, but it is nowhere near a panacea. The principles actually took a step back from the Framework that was endorsed by the Human Rights Council in 2008 in some cases, which was disappointing. For example, they don't oblige companies to have independent assessments when they voluntary take on human rights policies. That is even behind the status quo, where multistakeholder initiatives such as the Fair Labor Association or Global Network Initiative see independent assessment as essential to the credibility and effectiveness of these efforts. Even the Voluntary Principles aremoving in this direction. Similarly, the Framework is stronger on stating that governments have effective laws and policies to address business related abuses. The principles take a step back and largely encourage governments to enforce existing laws on human rights and do not clearly speak to government's obligation to new laws or polices that would better ensure companies respect human rights.

    The next logical step would have been for the HRC to firmly recognize those human rights obligations by adding a mechanism to review compliance. They didn't and that is a reason why what the UN did was largely memorializing the status quo. The HRC’s resolution a few days ago fell far short of what is needed and certainly fell short of the modest steps the Human Rights Council could have taken to move beyond the status quo.

    That HRW and others are pushing for more should not be surprising. In our case, it is based on our experience in documenting abuses, developing standards, watching institutions change, andunderstanding of what needs to be done to effectively protect human rights in a business context. Our views on the HRC's decision are not a referendum on the Framework or the Principles per se, but an assessment of where governments, companies, and other institutions are today, in contrast to where they need to be on business and human rights issues. It would be easy to dismiss that approach as too ambitious or impractical, butthat would be unfortunate. The reality is that civil society has been (and will be) at the vanguard of these issues and has consistently been pushing other institutions to change, even when they are resistant to reform. Without that scrutiny and pressure governments, companies, or the UN, for example, would not have moved much, if at all.

    In the case of the HRC, they fell short of what they could have done over the last six years, particularly in regards to accountability, and now they need to go further. The fact that governments in the HRC did not do that and companies did not call for it, even though they could have, may say much more about their actual commitment to real oversight and accountability for human rights right now than what they did approve at the HRC.

    Thanks so much,
    Arvind

  3. Perhaps a way to look at the HRC's actions last week may be to see it as the recognition of the concept of business and human rights standards which is the culmination of the process started in 1998 and 1999 when the Fair Labor Association and Voluntary Principles began. That ushered in an era of efforts to articulate and codify the human rights responsibilities of companies. EITI, GNI and others were also reflections of this movement.

    The standards debate probably started to fully transition into issues of accountability about four or five years ago. But as the UN embraced this concept, much of this world had already moved on to defining accountability: independent monitoring (FLA or GNI), quasi-regulatory measures (IFC standards, lawsuits, or shareholder activism), and regulation (Dodd Frank).

    For existing initiatives, the issues centered around how to instill accountability. And for efforts like the Kimberley Process or EITI that have accountability mechanisms, the big questions are how to ensure compliance and make existing mechanisms more effective or responsive in today's world. Kimberley in particular is under pressure because of Zimbabwe and governments are very resistant to explicit human rights protections and more effective accountability mechanisms. The big issue, however, is when governments will start to regulate. The debate today is not about whether business has a responsibility for human rights but how can they and governments be accountable for those obligations.

    In other words, the concept of human rights of business standards is accepted, but now we are in the era of accountability. The HRC could have also endorsed the accountability agenda through a review mechanism and stronger guidelines, but it demurred. That was a missed opportunity.

    Hopefully the gap between efforts on accountability and the HRC's recognition of them won't be as large as the 12-13 year gap between the first standards and the present HRC recognition of the concept of human rights standards for business.

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