Business and Human Rights Part XIV--Implementation: Consultation

This Blog Essay site devotes every February to a series of integrated but short essays on a single theme.  The Ruminations Series in 2009 produced a month long series of aphoristic (ἀφορισμός) essays, meant to provoke thought rather than explain it. The hope was that, built up on each other, the series would provide a matrix of thoughts that together might lead the reader in new directions. 

For 2010, this site introduces a new series--Business and Human Rights.  The series takes as its starting point the issues and questions raised by John Ruggie, the United Nations Special Representative of the Secretary-General (SRSG) on business and human rights, in a global online forum 

The U.N. "Protect, Respect, Remedy" framework is made up of three pillars: the State duty to protect against human rights abuses by third parties, including business; the corporate responsibility to respect human rights, which means to avoid infringing on the rights of others; and greater access by victims to effective remedy, judicial and non-judicial.  The forum is currently focused on the corporate responsibility to respect human rights, the second pillar of the framework. The forum is divided into sections, each of which contains multiple topics with space for discussion and comment.

New Online Forum for U.N. Business and Human Rights Mandate, United Nations Press Release, New York and Geneva, Dec. 1, 2009. Each of the Essays will consider one of the topics raised in the online consultation.  My hope is to help generate discussion and to encourage further discussion of the issues within the framework fo the consultation  framework. 

Part XIV: Human Rights Due Diligence--Implementation: Consultation. IN PROGRESS

The issue of stake holding is central to a consideration of business and human rights.  The SRSG has explained: "One of the essential principles of human rights is that affected individuals and communities must be consulted in a meaningful way.  Consultation is sometimes required for companies to obtain their legal license to operate, and many have found it essential to ensuring their social license to operate."  United Nations Special Representative of the Secretary-General on Business & Human Rights, Implementation: Consultation.  Stakeholding, in the form of consultation, is described as especially important where indigenous peoples are concerned.  Id.  In both cases, however, the scope and prerogatives are not absolute.  "But as with transparency, there are situations where consultation may be limited."  Id.  It is in that context, that the SRSG raised a number of questions.

• Can consultation be a universal requirement for companies to meet their responsibility to respect human rights?  What about where the government curtails freedom of speech or freedom of association, or insists that consultations take place in the presence of the police or other state agents?  Do you know of examples of where effective consultation has taken place in such conditions?
• How should a company identify the individuals and communities it needs to consult to meet its responsibility to respect human rights?  When individuals claim to represent communities, how can their claims be verified?
• What makes consultation meaningful, i.e. what ensures that the individuals and communities being consulted understand key issues and provide informed and relevant input?
• How does consultation fit into the different elements of human rights due diligence or different stages of a business lifecycle, for example in pre-decision stages where proposals are tentative or confidential?

Id.