The 2018 UN Forum on Business and Human Rights: Improved, but due diligence discussions still a cause for concern

The 2018 UN Forum on Business and Human Rights: Improved, but due diligence discussions still a cause for concern

Since I wrote a rather scathing article about the UN Forum on Business and Human Rights in 2016, there has been a significant change in tone in the last two fora. And that is to be applauded.

This year, there were more panels where the problems and deficiencies of the UN Guiding Principles on Human Rights (UNGPs) were discussed. As highlighted in the final plenary by Dante Pesce, Chair of the UN Working Group on Business and Human Rights, governments need to do much, much more to support the UNGPs if they are going to have a significant impact on the human rights situation of workers and communities affected by business activity. 

Another improvement in this year’s forum was that there were more sessions where business representatives, trade unions and civil society activists discussed concrete human rights problems, and strategies for overcoming them. For instance, I learnt a great deal from a session on approaches to tackling the problems of vulnerable workers in supply chains (from campaigns on the exploitation of eastern European truck drivers to addressing the abuses of migrant labour in the Italian tomato industry).

There were also more sessions where the human rights performance of business was actively scrutinised. On several panels, business representatives sat alongside civil society representatives and academics and responded to criticism. 

But sadly, I still had a sense of widespread doubts about whether any of this will lead to real change in practice. Some of this reflects the difficult times we live in. Delegates who I encountered seemed downbeat about governments taking meaningful action in the face of so many other political crises. Others were skeptical that businesses would embrace the UN’s human rights agenda in a way that would lead to real change.

I share these concerns. At the same time, I think it is still important to look at where change could happen. Much of the focus of this year’s forum was on the commitment contained in the UNGPs for companies to carry out human rights due diligence. HRDD is central to business’ responsibility to respect human rights. It is therefore the cornerstone of the UNGPs. And I have written before in this blog about the fundamental problems with current practice.  

The UN Working Group have themselves identified the fact that there are many challenges in terms of getting companies to undertake meaningful HRDD. But I left the forum wondering whether proponents of HRDD are focusing on the right issues to make the situation better. There still seems to be an obsession with benchmarks (the problems of which i have discussed previously) and the importance of making the ‘business case’ for HRDD.

I stand by my previous argument that without transparent reporting on HRDD, there will be no progress. But at this year’s forum i was also stuck by another problem. It highlighted to me the increasing numbers of consultants who are employed by companies to undertake their HRDD, and the opaque and often difficult relationships they have with their paymasters.

At a session where i spoke, organised by Kendyl Salcito from Nomogaia, questions were raised about the relationships between consultants and businesses. When HRDD is undertaken by an outside consultancy this gives credibility and a perception of independence to the process. But can consultants perform robust and meaningful HRDD when companies hold most of the power in the relationship? How often are unreasonable demands made about the work that should be carried out and the resources required to do it? Can consultants demonstrate their own independence if they can’t publish their work? And when they come up with uncomfortable findings which the company isn’t expecting, what can they do to ensure those findings are acted upon?   

I wonder if it is time for more progressive consultants to come together and commit to a set of standards required for HRDD to be considered legitimate. This must include their right to publish the results of their work. Such standards would lend legitimacy to a group who are currently bearing much of the responsibility for ensuring the UNGPs are a worthwhile endeavour.              

To Benchmark or not to Benchmark? That is the question… which the Corporate Human Rights Benchmark project needs to answer.

Yesterday saw the launch of the inaugural results of the Corporate Human Rights Benchmark (CHRB) – an initiative that comparatively ranks the human rights performance of leading multinational corporations. On initial reading, it seems like a well-researched project which has some very interesting findings for anyone involved in business and human rights. But there are also limitations and assumptions to this benchmarking process that remain unchallenged, unexplored, un-problematized. The question I was left asking was this: under what conditions is benchmarking itself a progressive act which will drive better performance of those being benchmarked?

Steve Waygood, Chair of CHRB, in his forward to the key findings, says that key stakeholders (governments, ngos, the media etc.) can take action and use CHRB’s results to drive improved corporate human rights performance. I want to ask some more searching questions about that claim. But first, for the uninitiated, a few words about what CHRB is, and why its findings are important.

The CHRB project takes 98 leading companies in the agricultural, apparel and extractive industries and measures their comparative performance in implementing the UN Guiding Principles on Business and Human Rights (the UN’s flagship human rights and business initiative).

Reading the key findings, it reinforces my concern (which I have written about before) that the UN Guiding Principles may not be leading to a great deal of meaningful action by the vast majority of companies. As the report itself states:

“The 2017 results are significantly skewed toward the lower bands [of corporate human rights performance]. This reflects the relatively early stage that many companies are still at when implementing the UN Guiding Principles and other internationally recognised human rights and industry standards. Nearly six years on from the UN Guiding Principles’ endorsement, this is an important if uncomfortable finding.”

The results become more uncomfortable when we find out how the leading companies scored their points: “Companies tend to perform more strongly on policy commitments, high-level governance arrangements, and the early stages of human rights due diligence… Performance drops off however, even amongst leading companies, when it comes to acting on those risks, tracking responses, communicating effectiveness, remediating harms, and undertaking specific practices linked to preventing key industry risks.”

My interpretation of this is that even the leading companies are scoring most of their points for telling the world about how committed they are to human rights, and putting in place structures and procedural frameworks which could lead to their taking human rights issues seriously. But they are not scoring many points at all for detailed and specific human rights work to identify and tackle their own human rights problems, nor are they providing stakeholders with information that allows those stakeholders to verify that real and meaningful human rights work is going on. These findings very much chime with my own research in this field.

So back to the question ‘To benchmark or not to benchmark?’. A couple of years ago I was involved in a fascinating academic project which looked at international benchmarking practice across a range of different fields: from disaster management to global financial initiatives, from tackling climate change to achieving the millennium development goals. The project identified a recent explosion in the number of global benchmarking initiatives and argued the attractiveness of such initiatives comes, in part, from the power of benchmarking to “enable non-experts to make simplistic comparisons of relative performance regarding complex phenomena at a transnational level.”

The project’s directors (Andre Broome and Joel Quirk), in their introduction to a journal special issue on benchmarking, encouraged us to examine each benchmarking initiative very carefully because global benchmarks can be represented “as ‘evidence’ that can be used to establish a foundation for initiating particular kinds of political conversations as well as potentially influencing the design of policy interventions and reforms.”

What they are saying is that benchmarks set the terms of the debate, and they dictate what needs to be done to tackle the problems. CHRB’s use of benchmarking as a mechanism to drive action by key stakeholders is problematic in two very important ways.

First CHRB presents the issue as closing the gap between the laggards and the leaders. But the more fundamental question to ask is, six years on from their inception, what meaningful changes are the UNGPs driving? And is closing the gap between the laggards and the leaders in terms of UNGP performance (what CHRB encourages), the way to encourage more companies to do meaningful human rights work?

Second, and related to this, is what the CHRB measures. CHRB is caught in the same old paradigm whereby observers measure what companies say they are doing about human rights, rather than what they are actually doing in practice.

I will leave the last word to a good friend of mine who is much more knowledgeable than me about how corporations operate and had the following observation about the inherent limitations of this benchmarking exercise:

“To benchmark on what companies say rather than what they do allows companies to game benchmarks. Here, there is no real consideration of  “on the ground” action. There are policy commitments, which are fine and required by the UNGPs. But we know they do not, in themselves, mean anything.

The only almost action is the ‘putting in place structures and procedural frameworks.’ But structures and procedures do not necessarily have any meaning or value at all and can exist solely to send the signal to outsiders that something is being done when it is not.

Rankings fail as a matter of theory and practice when companies have the ability to game the rankings by saying what the rankers want to hear. Structures and procedures are only made real by verified outcomes, so benchmarking based on procedures as they are described and reported by the company is doubly meaningless.

Essentially, it is too early to benchmark because companies are not doing enough yet. This is a sad commentary on the UNGPs.”



Business and Human Rights: What should the UN be doing?

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.

Human Rights and Business: Is the United Nations Helping?

I wrote about my early impressions of the Annual United Nations Forum on Business and Human Rights and I meant to keep writing further thoughts at the end of each day. But I failed to live up to my early promise! A week later I have had more time to think about my experiences of the Forum and have now published a piece in Lacuna Magazine entitled “Human Rights and Business: Is the United Nations Helping?”  In it, I reflect on the human rights challenges posed by global business activity, which appear even greater after recent Brexit and US election results. I talk about the inspiration I found at the Forum in the work of dedicated individuals fighting bravely and creatively for change. But I also discuss my concerns about the role being played by the United Nations on business and human rights.

I have one further thought to add today in light of Donald Trump’s decision to pull out of the Trans-Pacific Partnership. He said that instead the US would “negotiate fair bilateral trade deals that bring jobs and industry back onto American shores”. This kind of rhetoric which equates ‘fairness’ with national interest is what fills the vacuum if we cannot articulate a version of globalization that benefits all. Human rights could be an important part of that story. It is sad that currently it sits on the margins. I will write more in the coming weeks about how that could change…

The UN Forum on Business and Human Rights: On the right journey?

“I suspect you were surprised by the results of the US election and Brexit.” These were the opening words I heard from the opening keynote speaker, Professor John Ruggie, at the opening plenary of the UN Annual Forum on Business and Human Rights.

The UN Forum is the world’s largest annual gathering on business and human rights. Around 2,500 participants from government, business, civil society, UN bodies, trade unions, academia and various other organisations are in attendance. More than 60 panel discussion will take place over the next 3 days.


Picture at the Palais Des Nations outside the main conference room of the UN Business and Human Rights Forum

Professor Ruggie’ introduction is testament to the fact that this Year’s Forum is taking place in the shadow of recent political events in the US and the UK. He then harked back to UN Secretary General Kofi Annan’s 1999 speech. I looked it up. Its worth reading because it seems rather prescient about current events:  

“National markets are held together by shared values. In the face of economic transition and insecurity, people know that if the worst comes to the worst, they can rely on the expectation that certain minimum standards will prevail. But in the global market, people do not yet have that confidence. Until they do have it, the global economy will be fragile and vulnerable — vulnerable to backlash from all the “isms” of our post-cold-war world: protectionism; populism; nationalism; ethnic chauvinism; fanaticism; and terrorism.What all those “isms” have in common is that they exploit the insecurity and misery of people who feel threatened or victimized by the global market. The more wretched and insecure people there are, the more those “isms” will continue to gain ground. What we have to do is find a way of embedding the global market in a network of shared values.”

Perhaps therefore the question the forum aims to answer is: What role can and should human rights be playing as a set of shared ‘values’ which can make the global market a place people can trust?

Throughout the first day of the forum, numerous speakers made clear that there are very serious problems to be tackled. For instance, Jeremy Oppenheim, Programme Director of the Global Business and Sustainable Development Commission highlighted all of our individual complicity in labour abuses:“All of us in this room are wearing clothes, or carrying a phone where there is informal labour which does not respect fundamental rights.”

So to what extent are international human rights standards playing a serious role in tackling these issues, and a myriad of others? The UN Guiding Principles on Business and Human Rights (UNGPs), designed by Professor Ruggie, are very much the centre-piece of the UN’s efforts in this field. But Professor Ruggie and his fellow speakers on the opening panel made it clear that a lot more needs to be done if the UNGPs are to make people have confidence in global supply chains.

For Ruggie, the biggest issue seemed to be that governments need to do more to promote the UNGPs. For fellow panelist Mark Wilson, CEO of Aviva, more competition between companies over their human rights performance is key: “Once you make it a competitive sport, companies want to top the rankings”. But the forum is so packed with different panels that everything moves on swiftly. There is no opportunity to interrogate specifics: what should we be calling on governments to do? How will competition work so that it really drives up standards of human rights protection on the ground?

And so I attended a series of panel discussions on decent work in global supply chains, banking and human rights reporting, community human rights impact assessments of multinational companies, and the role of investors in leveraging human rights performance by companies. I listened to impressive examples of community activism, extensive efforts by multi-stakeholder groups to improve corporate human rights performance and depressing examples of the suffering of many poor and marginalized workers and communities around the world.

I am struck by how many people talk using the metaphor of a journey on which they are taking their first steps; towards greater transparency in human right reporting, towards better human rights ‘due diligence’ processes, towards more effective complaints mechanisms for victims. Before I leave the forum on Wednesday I want to work out whether the UNGPs are a vehicle which will help with these journeys and get us to a destination where people feel less threatened or victimized by the global market.