Wednesday, June 13, 2012

Outcome of the second session of the Working Group on the issue of human rights and transnational corporations and other business enterprises

I have written about the UN Working Group on the issue of business and Human Rights before.  The Working Group provides an institutional framework for carrying on the work of John Ruggie, who as Special Representative of the UN Secretary General for Business and Human Rights was instrumental in developing and the U.N. Guiding Principles on Business and Human Rights.

Following the second session of the UN Working Group on the issue of human rights and transnational corporations and other business enterprises held in May 2012, the Working Group issued a report: Human Rights Council, Working Group on the issue of human rights and Transnational corporations and other business enterprises Second session, Outcome of the second session of the Working Group on the issue of human rights and transnational corporations and other business enterprises, A/HRC/WG.12/21 (June 7, 2012). The text of that statement follows:

1. The Working Group on the issue of human rights and transnational corporations and other business enterprises held its second session from 8 to 11 May 2012, in Geneva.
2. Prior to its session, the Working Group participated in the expert conference of the European Union on business and human rights, in Copenhagen, on 7 May 2012, and welcomed the proposal made by the European Union that its member States develop national plans to implement the Guiding Principles on Business and Human Rights, as well as its focus on developing guidance for specific sectors and for small- and medium-sized enterprises on the implementation of the Guiding Principles through a process of consultation with experts, Governments, civil society and corporate actors from Europe and globally. The Working Group expressed support for these initiatives and called on the European Union and its member States to ensure that the consultative process also involved stakeholders from other regions, particularly given the transnational nature of business operations and their impact.
3. The Working Group agreed on the next steps in the implementation of its strategy, as outlined in its first report submitted to the Human Rights Council,1 and on the 2012 Forum on Business and Human Rights. The Working Group held meetings with Member States, including all regional groups of the Human Rights Council, which further informed the Working Group of current efforts and initiatives, and contributed to the identification of implementation and dissemination opportunities at the regional level. The Working Group encouraged convergence in such efforts. The Working Group also met with representatives of civil society organizations of business enterprises, and of the International Labour Organization, to discuss progress in implementation of the Guiding Principles and the Forum on Business and Human Rights.
4. The Working Group convened an open consultation on the forthcoming annual Forum on Business and Human Rights. It thanks the more than 100 participants from Member States, civil society and business representatives who participated in the consultation for the many constructive suggestions on both the thematic focus and the methodology of the Forum.
5. Drawing upon input received at the stakeholder consultation on the Forum, the Working Group is developing the proposed format and a preliminary list of themes and topics. One aim of the Forum will be to foster genuine exchange among stakeholders and collective learning, with a focus on identifying opportunities for dissemination and implementation in all regions, as well as the experience of different actors in implementing and applying the Guiding Principles. Discussions at the Forum should further contribute to the identification of solutions to challenges in this regard, including with regard to effective remedies for affected individuals and communities. The Working Group will seek to ensure that there is broad and balanced participation of stakeholders in the Forum, including of States, business, civil society, affected individuals and groups and other key stakeholders in the field of business and human rights. The Working Group will work closely with other key actors in the business and human rights field to maximize synergies and to ensure that the Forum outcomes build on and contribute to the effective implementation of the Guiding Principles and the broader business and human rights agenda at the global, regional and national levels.
6. Further information will be provided on the Forum, including details on how to register for the Forum, by the end of August 2012, on the webpage of the Working Group.2 A preliminary set of documents for the Forum, including a draft agenda, will be posted on  the webpage by the end of September 2012. Stakeholders are encouraged to check the webpage of the Forum periodically for further updates.
7. In accordance with its strategy, the Working Group seeks to promote convergence and integrity in the interpretation and elaboration of guidance on the basis of the Guiding Principles. In order to support such efforts and ensure convergence, the Working Group will develop criteria that should be taken into consideration by all stakeholders in the elaboration of interpretation tools or guidance to support the implementation of the Guiding Principles. In addition to periodically issuing clarifications and guidance on specific aspects of the Guiding Principles that are brought to its attention by various stakeholders, Working Group members are also actively developing projects that they will guide and/or be themselves involved in, including proposals to support development of national plans of action on the implementation of the Guiding Principles, to promote the dissemination and implementation of the Guiding Principles in the context of business activities that have an impact on indigenous peoples, to embed the Guiding Principles within global governance structures, to identify gaps in access to remedy and elaborate guidelines to clarify the requirements under the Guiding Principles, to research further the benefits to different stakeholders in implementing the Guiding Principles, and to foster discussions on model implementation of the Guiding Principles by States and business enterprises on the basis of lessons learned and good practices. The above project proposals require further elaboration prior to being implemented, and are also subject to the availability of sufficient resources.
8. At the end of the second session, Puvan J. Selvanathan was appointed Chairperson-Rapporteur until the end of the fourth session of the Working Group, in February 2013, after which Pavel Sulyandziga will become chairperson until the end of the sixth session, in November 2013.

1 A/HRC/20/29.

 (Pix From HRBA Portal))

The most interesting point of the "Outcomes Statement" is contained ion Paragraph 7. The WG has sought to undertake a number fo projects simultaneously.  It appears to be relying on its stakeholder base for considerable support.  But it is not clear that these projects will be able to be undertaken without sacrificing a necessary measure of interpretive coherence.It is also likely that much of the future work fo the AG may be undertaken by and reflect the priorities of those stakeholders willing to provide funding--among them European states and Western NGOs.  Business may also seek to intervene with funding.  It is to be hoped that the WG will avoid capture in the process.  On the other hand, failure to secure backing will doom many of the projects for want of necessary funding.  A delicate situation indeed. The upcoming Forum on Business and Human Rights may be telling.

This and other U.N. documents (mostly reports) relating to the Working Group's work and the U.N. Guiding Principles may be accessed HERE

The first report of the Working Group to the Human Rights Council, Margaret Jungk (Chairperson/Rapporteur), Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises, A/HRC/20/29, 10 April 2012, referenced in the Outcomes statement above,  will be presented to the 20th session of the Council is currently scheduled to be presented on Thursday 21 June at 10am. In its current form, it is also worth considering. 

As has been its perspective, the WG continues to see the issue of the human rights obligations of business in two dimensional terms. In that form, it has started the process of narrowing the focus of the project of the Special Representative and the broad governance parameters embedded in the Guiding Principles. In its AG First Report (A/HRC/20/29), the WG, for example, speaks to issues of "governance gaps" (Para. 13) that refocuses governance efforts through States, whose role is indispensable (ibid., para 16) aided by a clearly subordinate and obedient business community (Ibid).
Governance gaps lie at the core of the human rights and business challenge. This remains the case for all States and regions and for companies of all sizes, sectors and operational contexts. The Working Group is aware of a broad range of such gaps, concerns and challenges, including in such areas as governance, corruption, conflict zones and persons living in vulnerable situations, including children, indigenous peoples, migrant workers, minorities and persons with disabilities. A gender perspective adds further dimensions to these concerns. (Ibid. Para 20).
 For this purpose the Guiding Principles provide a template.  The Report speaks to the incorporation of the Guiding Principles by  the ISO 26000 standards, the OECD Guidelines for Multinational Corporations, the UN Global Compact,  the International Finance Corporation Sustainability Framework, and Community on World Food Security.   It also noted incorporation efforts by the European Union, national governments and national human rights institutions (WG First Report (A/HRC/20/29) para. 29-32) and the private sector (Ibid. paras 33-39). 
And the strategy:  First, reduce the Guiding Principles to little more than a way point on the rosd to more permanent governance structures.  To that end, the WG would to use the Guiding Principles as a "reference point in a rapidly developing field."  (Ibid., para 49).  "The Working Group will seek to promote convergence, consistency, coordination and clarity of such efforts wherever possible and appropriate. " (Ibid.).  To that end the WG would promote convergence, avoid duplication, maintain integrity, balance development, encourage simplicity and clarity, and focus on the most severe forms of human rights impacts.  (Ibid., paras. 50-55).  This is a critical point.  The WG does, though, acknowledge the need to embed the Guiding Principles as custom as an important step in getting to the ultimate object--the construction of a globally consistent legal framework enforced by states. 
As its third major platform of work, the Working Group will seek to promote incorporation of the Framework and Guiding Principles into global governance frameworks. To this end, the Working Group will proactively seek to engage with institutions overseeing existing and emerging governance frameworks that are able to play a significant role in requiring, or otherwise encouraging, business enterprises and States to implement the Guiding Principles. The Working Group will encourage the embedding of the Guiding Principles into such frameworks, including regional and international agreements and institutions, industry associations, and responsibility, sustainability and investor ranking indices, among others.(Ibid., para. 72).
Second, the Guiding Principles are to serve as a basis for assessment.  Assessment, of course, is central to the project of accountability (Ibid., para 56).  But because the Guiding Principles are viewed as hortatory, assessment, accountability and the like require state action, "the further uptake and application of the Guiding Principles by international and regional bodies that have existing accountability mechanisms."  (Ibid., Para 58).  This is a perspective substantially hobbled by the state ideology which serves to constrict both the vision of the WG and its operationalization universe.  Lost in the drive toward absorption of the Guiding Principles in law (national, regional or international--with the distinct enforcement mechanics natural to each) is the possibilities inherent in the Corporate responsibility to provide a distinct governance universe, one not grounded in the traditional mechanics derived form the state system--law, courts, etc., but one inherent in the logic of global economic organization--markets, consumer, investor and stakeholder interventions. Backer, Larry Catá, From Moral Obligation to International Law: Disclosure Systems, Markets and the Regulation of Multinational Corporations. Georgetown Journal of International Law, Vol. 39, 2008.
The third looks at the larger context in which the Guiding Principles operate.
To build a conducive environment for the uptake of the Guiding Principles, the Working Group appreciates that (a) stakeholders must be empowered to demand that States and business enterprises meet their respective duties and responsibilities; (b) actors committed to supporting implementation and dissemination efforts must be equipped with the appropriate tools, skills and resources; and (c) the “business case” for respecting human rights must be built for both States and business enterprises. (WG First Report (A/HRC/20/29), para. 59)
Popular mobilization (hard to reconcile with the non-interference directive of the Guiding Principles when directed to corporations), instrumental use of the levers of cultural change and social opinion, and recasting the value of the Guiding Principles in financial and risk management terms form the core of the arsenal. (Ibid., paras. 59-62).   
(Pix (c) Larry Catá Backer 2012)

And so the fundamental perspective of the WG--the Guiding Principles is reduced to "a powerful enabler for better decision-making by States and enterprises alike. The approach of the Guiding Principles to respecting rights, taking due stock of risks to and impact on rights-holders, and ensuring that effective channels for recourse and remedy for victims are made available, offer a road map for doing business better by lowering risk, creating opportunity, avoiding conflict, improving external relations, safeguarding productivity and enhancing value." (Ibid para 94). The WG would sacrifice the polycentricity inherent in the Guiding Principles for a conventional program of law building centered on states.  That project, quite worthy without question, however, strips the Guiding Principles of some of its most innovative features.  And that is a shame.

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