The first day of the 2015 UN Forum on Business and Human Rights offered a dual track palette of offerings that were meant to engage the broad spectrum of participants in attendance. The 2015 program deepened efforts to strengthen action on the U.N. Guiding Principles (UNGPs), and its conceptual framework grounded in the "protect, respect and remedy" framework. At the same time, an under current might suggest divergences between the official and majority position, reflected in the efforts of the Working Group, and those of others who might see a distinction between the ongoing project of deepening and broadening the UN "protect, Respect, and Remedy" Framework, and the the UN Guiding Principles themselves. That distinction, increasingly heard in some quarters, is quite telling and marks a potentially significant evolution that remains true to some version of the form of the efforts through 2011 but provides distance between that Framework and the Guiding Principles themselves. That distinction might be a cause of worry, especially in the context of the subtextual issues of a comprehensive treaty on business and human rights
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This post considers impressions on the evolution of the traditional opening of the formal portion of the Forum through its Opening High Level plenaries in light of the 6 themes of the 2015 Forum: (1) assessment metrics (tracking performance), (2) coherence: embedding the UNGP in existing and emerging trade/investment frameworks, (3) coherence: embedding the UNGP in national action plans and the problem of the state owned enterprise, (4) Corporate compliance (human rights due diligence and supply chain "issues"), (5) systemic breakdowns (threats to human rights defenders), and (6) access to remedy. Curiously absent, though perhaps not surprising given the cultures of international organizations--issues of interpretive coherence. We appear to be in a period of letting a thousand flowers bloom. That is good, perhaps, in such a young field conspicuous by even the pretense of consensus. Yet its absence even as a thematic matter ought to trouble--whether one is committed to the UNGP or merely to the "Protect, Respect and Remedy" Framework (and its progeny some sort of comprehensive treaty on business and human rights).
What follows are comments and reactions to the first day morning sessions.
The U.N. did a bit of data mining on the eve of the Forum. The Forum Secretariat sent the following message to all participants:
Dear Forum Participant,1. I have spoken to issues of assessment (see here). The object of measurement here is representation. The reason for that object was legitimacy. Representation and legitimacy, of course, are both closely tied and problematic in the international sphere, especially in the context of unofficial gatherings with regulatory influence (see, e.g, here). Critical here, beyond the obvious, was the participation of business, the absence of which might have imperiled the legitimacy of the Forum as a space for norm creation and consensus building. Balance was also important, and this was stressed in the data harvested and communicated.
The UN Forum on Business and Human Rights begins today. We are very pleased to welcome you to Palais des Nations for three days of panel talks and informal dialogue aimed at advancing the global business and human rights agenda.
All participants are warmly welcome to join the networking welcome coffee next to Room XX (3rd floor, Building E) from 09:00-10:00. The thematic programme starts at 10:00. Please refer to www.ohchr.org/2015forumbhr for both a quick view and full overview of the programme.
Participation in the Forum keeps increasing with some 2,300 persons registered. 130 countries are represented, with 52 % women and 48 % men.
All stakeholder groups are represented. Participants comprise 12 % Governments, 36 % NGOs, 22 % from the private sector, 15 % academics, 3 % national human rights institutions, 1 %, trade unions, 2 % multi-stakeholder initiatives as well, 1 % professional associations, as well as others. Some 200 representatives of business enterprises are taking part in the Forum.
Of the speakers in sessions led by the UN Working Group and OHCHR, there are 61 women and 66 men overall, and in the plenary sessions 10 women and 11 men. Not counting double appearances and UN Working Group members and the Forum Chairperson. Numbers are temporary and subject to last-minute changes and final confirmation. Exact figures will be reflected be the Forum’s summary report. Of these speakers, there are respectively from:
- UN and international organisations: 15
- International sustainability initiatives: 4
- Global and national business organisations: 10
- Sport associations: 3
- Regional organisations: 5
- NGOs, community members and journalists from Africa, Asia, Europe, Latin America and North America: “Global North and South”: 29 – of whom 13 are from global NGOs
- Organisations specialising in business and human rights: 10
- States: 13
- Companies: 12 – from Africa, Asia, Eastern Europe, Western Europe and North America
- Investment community: 3
- Law firms: 4
- Bar/Lawyers associations: 2
- Trade unions with global coverage: 3
- National human rights institutions: 5 – from Europe and Asia
- Academics: 4 – from Africa, Europe and North America
All stakeholder groups are also represented in sessions organised by external organisations.
Once again, we warmly welcome you to the Forum and look forward to three days of lively and constructive exchanges.
Data Mining and Assessment: But one wonders whether it will be useful, as the Forum becomes more deeply institutionalized, whether in the Secretariat's summary report, more thought ought to be given to assessment and the scope of data harvested, that is to the what, why and how one measures. These, in turn, might require more thought to the objectives of data gathering--both internal to the UN and external to its stakeholders. Beyond "representation" and formal issues, perhaps, data might be usefully harvested on the form of knowledge delivery and interaction in the sessions, that is to effectiveness issues. A critical element ripe for assessment is that of leadership. If the Forum is to remain an effective vehicle--a space for norm development and global socialization, then its effectiveness in that leadership role is valuable. To that end, the quality and effectiveness of socialization is also a valuable subject of measurement--and assessment. Both, of course, are also gateways to important discussions--about the role of the Forum, and its authority to socialize and generate norms.
2. The first set of programs was divided in a a variety of ways. Working Group sponsored panels offered guidance on promoting the UNGPs and UNGP socialization among interested actors (recent developments and opportunities) and a program introducing the UNGPs by Lene Wendland, who is one of the most knowledgeable people currently working in the area. External stakeholders organized panels for lawyers (heavily attended), for academics (lightly attended) and civil society. Each focused on the leadership roles of these actors in promoting some form of the business and human rights agenda. I attended the academics panel.
Panel Building: One wonders, though, whether the traditional format--the standard academic knowledge diffusion formal grounded in a hierarchy that places a group of speakers above their audience who is the object of knowledge transmission and who might be given a couple of minutes to present questions (or posture) within a vertically organized power-knowledge framework. The current panel organization is grounded in the traditional premises of prestige and hierarchy parameters--everyone wants to be acknowledged as an important element of collective action--that acknowledgement is recognized through panel participation. Indeed, at its extreme, "thought leaders" might only be induced to attend if they are given prominence--primi inter pares roles--in these collective gatherings. There is irony here--those who preach human rights in business, and decry the power hierarchy at the base of the sort of exploitative behaviors they are quick to condemn, ought to be more sensitive to their own misbehaviors and unwillingness to practice what they preach in the organization of labor for the production and implementation of business and human rights norms.
Beyond the recognition of human folly, there may be some efforts the Secretariat might consider in promoting deeper engagement from participants, many of whom sacrificed much (relative to their resources) in terms of time and money. The Secretariat might, for example, consider, at least for some sessions, and as an experiment--a less hierarchically organized session. One might, for example, organize a session in which a group of knowledgeable people are brought together to discuss questions around a particular theme. One can also consider "open discussion sessions" where the Secretariat might assign facilitators to groups of no more than 20 or so who are registered for participation. These groups would meet for 90 or so minutes to discuss a central question unique to each session. That would permit greater variety and a larger spectrum of engagement, form deeper engagement in specific issues, to more general introduction to issues touching on the UNGP.
3. The Working Group sponsored an interesting panel on "Measuring States' Implementation of the Guiding Principles. This is in line with the emphasis on metrics (see, e.g., here ("Human rights indicators are essential in the implementation of human rights standards and commitments, to support policy formulation, impact assessment and transparency.")). It was quite interesting, if only to highlight the problems and the need for deeper thinking about measuring and assessing--something I considered recently in the context of business and human rights (see here). Indeed, the move toward a more rigorous analytics is essential to the maturity of the UNGP. That move is as essential a component to the evolution of the state duty to protect--something that has been hampered to some extent by a focus on qualitative measures--and the corporate responsibility to respect, which has been focused on measures of formal compliance. Some reactions to the wealth of issues raised during the course of the panel:
First, more data is not always better. More data is not always likely to lead to better analysis--or to analysis at all. Enough data can hide as well as reveal--it can bury information as well as reveal the real shape of action despite qualitative protestations to the contrary. Data gathering is not made successful by harvesting more data. Coherence is critical. But more important than that is the need to frame the ideology around which data harvesting is to be framed.
Second, data collection is not measurement. To collect data is not to measure. But to measure in the absence of robust data is propaganda. But it is worse than propaganda--it is misdirection and deception. It is socialization without a basis, it is an ideology veiled by the seeming firmness if numbers. One ought to obsess about data, but one must frame that obsessing within a framework rigorously tied to the objects of assessment. More importantly, data must be useful inthe sense that it might be collates, aggregated and utilized for robust analysis. In the absence of that one winds up where the business and human rights project continues to find itself--stuck in the self referencing world of storytelling then generalized and used instrumentally to further some object or other. Storytelling is critically important--but it is not data, and it does not produce a picture of the objects of assessment that might support legitimate judgment about their activities. Trisha Olsen (Corporations and Human Rights Databases) also reminded us that there is no such thing as "raw" data--that is data reduced to a point that it is not constrained by the ideology that identified it--rather than other data--for gathering (the story about sample selection--polling people with telephones in the 1930s to get a sense of voter opinions in presidential elections, when the poor had no phones). Thus data harvesting choices can be used to manipulate as systematically as "model programs" that mask a lack of deep embedding.
Third, the focus on base lines (the insight of Harriet Berg, of Norway's U.N. Mission) can be deceptive and self serving when generated and controlled by the state which are measuring. Entities--states, enterprises, civil society actors--are notoriously bad at measuring themselves. They might well tend to design baselines to better frame the reality of their activities. Worse, the extent to which these baselines are "flexible" they construct a moving target that makes longitudinal analysis impossible and become self serving tools that make rigorous analysis impossible. What are needed are not is much baselines as standards--either idealized standards (aspirational) or aggregated (the aggregated performance of states or enterprises or civil society). And yet, those standards are themselves ideologically charged.
Fourth, that one is, at this stage, still arguing about whether measurement ought to be systemized (perhaps better stabdardized), is astonishing. And yet, that is precisely the state of measurement today--at the level of enterprise, civil society and the state. But the problem is not merely one that touches on the collection of data, It is also one about the standardization of data collection that can be used to compare. While one ought to be interested in how a state is "measuring up" (longitudinal analysis) one ought to analyze how well states are doing as compared to others. But that itself is problematic--and might further ideological goals of homogenization, of internationalization of domestic orders, of obliterating the difficulties of compliance as among different states, etc. And indeed, data measurement, and assessment exercises, might serve as a means of implementing change directed form the top of power hierarchies and crammed down to the rest, in the way that OECD standards, and corporate standards as practiced by the largest MNCs tend to serve as the foundation for internationalization of legal standards and the construction of consensus social norms.
Fifth, the objective of measurement is not communication. The old notion of measures and assessment as communication reduces its value to propaganda and tools of socialization. Yes, those are important objectives, in general. But measures, assessment, is meant to change behavior rather than to use as marketing devices. And in that context states can contribute to perversion of measurement for the generation of propaganda as effectively as enterprises--or as civil society. Measurement is not optics. And yet to hear it from actors, optics are among the more important of the objectives of measurement and assessment.
Sixth, it is easy to talk big when that conversation is not tied to the transaction costs of such activities, and when such conversations are divorced from the issues of privatization, policing and dissemination of the information generated by these efforts. The discussion about measurement is really a discussion about the possibilities and obligations of developed states (OECD states mostly) and the largest MNCs to develop a set of techniques and standardized approaches to measurement (and perhaps as well to analysis). It has little to say to developing states, and almost nothing to say to small and medium sized MNCs, much less downstream supply chain participants. And civil society itself feels itself exempt from the obligations of measurement and assessment.
Seventh, research design offers clarity but without a rigorous analysis of the underlying ideological premises, all that research design can do is to make the attainment of ideological objectives through data generation more likely. And, indeed, the question of assessment objectives remain elusive--for states, companies and civil society actors. More importantly, research design for state compliance becomes more difficult because the approaches of states are themselves incoherent. State duty is not uniform. And the UNGP does not move states toward a common framework (something that is an objective of the Second pillar corporate responsibility) against which research design is plausible. If it becomes plausible it would be only because project design is being used instrumentally as a a means of regulatory or governance reform--using the techniques of measurement and assessment ot move states toward a normative goal (standardization of the scope of basic compliance with international law etc.). But one wonders, however popular this technique is becoming (precisely because it is disguised rule making), whether such disguised techniques serve stakeholder communities or rather the agendas of those who hold themselves out as better suited to direct communal norms.
Eighth, n the end the measure of state implementation of the UNGP will do little better than mirror the incoherence at the base of the state duty itself. It reflects an ideology that leaves states free to protect the anarchy of their relationship to international standards--and effectively to suit their duty to enterprises--transforming the responsibility to respect human rights into a privatized duty to enforce an internationalized version of what ought to be a state duty to protect human rights. That ought to be extremely distasteful--and hypocritical--especially among those who so self righteously shill the centrality of the state in the project of business and human rights. A first duty of states ought to be be open themselves to measurement and to assessment of their duty to protect human rights. The discourse around that obligation, from objectives of assessment, to data harvesting, to comparability and connection, and to open that analysis to all stakeholders, will likely do more to discipline and develop the state duty than much of anything else.