A week ago today, Lacuna Magazine Published my article ‘Human rights and business: Is the UN helping?‘ For those who haven’t read the article, it was my reflections after attending the 2016 UN Forum on Business and Human Rights in Geneva from 16-18 November. I found some amazing examples of brave and creative human rights work at the forum, but left concerned about the role being played by the United Nations.
The article has provoked some really interesting responses. Many thanks to all those who got in touch. The question that I have been asked most is: Given my concerns, what do I think the UN should be doing to help push the human rights and business agenda? Below are some brief thoughts on this. I leave aside the question of whether there should be a UN business and human rights treaty, or other new UN initiatives. For now, I just want to reflect on what the UN could do on the basis of its current flagship human rights and business initiative – the UN Guiding Principles on Business and Human Rights.
There are two crucial things which key UN actors* should be promoting above all else: transparency and scrutiny. And those both seem to be lacking in key aspects of the UNGPs at the moment.
First, on transparency, the biggest obligation placed on business is to conduct human rights due diligence. It is 5 years since the UNGPs came into force and we still don’t have a single company, as far as I know, willing to share its detailed HRDD methodology and results. The closest we have is companies like Nestle who have shared a report which synthesizes the findings of a small element of their HRDD process. There is no way for any independent outsider to judge who is undertaking robust meaningful HRDD processes and who is just going through the motions. And there is lots of evidence I have found to suggest that HRDD means completely different things to different companies.
What I saw at the Forum suggested financial institutions are nowhere near providing the necessary leverage to make transparency happen. And without transparency, as I have argued elsewhere, HRDD could end up being a backward step in the fight for better human rights performance by companies.
The way out of this logjam is for UN actors to start taking action to create real transparency on HRDD. Part of this may be privately coaxing companies to share their practice. But there also needs to be a high-profile public discussion about what the showing part of ‘knowing and showing’ should amount to. The 2017 Annual Forum would be a good place for this to happen. Alongside this, there could also usefully be a comparative analysis of different methodological approaches – e.g. those pioneered by the Danish Institute for Human Rights and Nomogaia. The reality is they look very different.
Second, scrutiny. Let’s use a different example here. Many countries are now creating national action plans (NAPs) on business and human rights as a result of the UNGPs. In my article on the Forum, I described the excruciating process of sitting listening to 18 different countries waxing lyrical about the process of creating their national action plans. But there was no discussion of the strengths and weaknesses of any of them. John Ruggie told us rather cryptically that states need to do more to promote the UNGPs. But I did not hear Professor Ruggie or anyone else at the Forum elaborate in any detail on what needed to happen.
It is not sufficient to have a NAP. You need a NAP which actually does important work in promoting better human rights outcomes on the ground. I was involved in consultations over two national action plans, and it made me skeptical about what either of those would achieve in practice. What should the UN do? Encourage proper scrutiny of NAPs. At the very least, there should be a panel at the 2017 Forum where the content of NAPs are thoroughly examined and some attempt is made to identify elements of NAPs which are having significant impacts.
Writing these thoughts makes me think back to David Kennedy’s article “The Human Rights Movement: Part of the Problem?”. So I’ll end this post with his words which I think serve as an appropriate warning of the current dangers:
“Human rights offers itself as the measure of emancipation. This is its most striking, and misleading promise. Human rights narrates itself as a universal/eternal/human truth and as a pragmatic response to injustice – there was the holocaust and then there was the Genocide Convention, women everywhere were subject to discrimination and then there was CEDAW. This posture makes the human rights movement itself seem redemptive.. It is not surprising that human rights professionals consequently confuse work on the movement for emancipatory work in society. But there are bad consequences when people of good will mistake work on the discipline for work on the problem.”
* Which ‘UN human rights actors’ do I mean? The UN Working Group on Business and Human Rights are most obvious candidates. But I think there should also be a wider sense of collective responsibility within the UN for its work in this field.