Tuesday, November 17, 2015

2015 United Nations Forum on Business and Human Rights--Day 2 Sessions: Institutional Foundations, Enterprise Engagement and the Problem of Representing Downstream Supply Chain Stakeholders

The second day of the 2015 UN Forum on Business and Human Rights continued its offerings of multiple tracks 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.The day was marked by the formal plenary, consisting of a series of addresses by high level personages and then a series of more intimate conversations among a number of key actors designed to bring out their engagement with the UNGP. 

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Assembly Hall (17 Nov, 9:00-13:00)
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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).

Thoughts on the first day sessions may be found here: morning sessions and afternoon sessions.

What follows are comments and reactions to the second day sessions.  

In contrast to the more freewheeling structures of the first day, one that blended officially sponsored and stakeholder sponsored events, the second day marked the more formal events of the Forum.  As is customary now in events of these sorts, the morning sessions included opening remarks by high officials, designed to reference the Forum theme, and to set the tone for the discussions that followed.  As has also become customary now, the opening remarks were followed by a highly structured but more open ended and informal session moderated by the highly talented Caroline Rees (Shift) and Dan MacDoughall (Miran).

One of the most interesting elements of that discussion centered on business.  There is a tension within the emerging socio-culture of the Forum as both object of analysis and as participant in the analytic discourse. Underlying this was a worry that business might cease to be an active participant in UNGP discourse, even as the number of business participants grows. On the one hand there is a train of discourse that suggests on the one hand that "model" businesses have nothing to fear about attending the Forum and participating.  On the other hand, businesses whose record is attacked might lack moral authority to attend, much less engage in discourse. But this suggests a disciplining of discourse--that business is welcome only if they share the views of other stakeholders--would substantially reduce the richness of discourse.  It also signals the danger of emerging orthodoxies in this young and quite dynamic field.  Orthodoxies, and the suppression of distinct voices, would be regrettable. Disagreement and discourse, within a civil space, marks the Forum as an important venue for the development of international consensus--and for highlighting those areas in which consensus remains elusive.   It is as important to frame those areas of disagreement--robustly--as it is important to underline areas of consensus if the implementation of the UNGP are to be deepened among all stakeholders.

To that end all stakeholders--states, business and civil society--ought to be able to participate effectively.  That effective participation includes the ability to disagree--even with a majority--and to do so publicly.  But it also means that vigorous debate--and disagreement ought not to be an excuse to avoid meeting.  Neither civil society nor enterprises are entitled to a space in which their views are not vigorously contested.  But the scope of contestation is itself quite malleable. At the easy end are vigorous contestation of views and approaches.  That sort of contestation--about the UNGP in its theoretical aspects and as applied--stands at the heart of the Forum project.  More difficult issues arise in the context of  the UNGP applied.  There is a subtle but thin line between analysis of individuals, civil society, states and enterprises in particular contexts--the essence of the UNGP applied and in context--and the strategic use of accusatory rhetoric to undermine the legitimacy of participation in discourse.  It is chilling for a business and civil society participant to be told that they have no moral standing to participate because of the asserted failings of their organization in some context or other. And where the assertions of bad conduct are serious, the ability of effectively participate is substantially impaired--the space is transforms from a norm consensus to a quasi remedial or judicial space. But these instances are rare in the Forum, at least during the course of public discussion.  More chilling is the fear of the possibility of the use of accusatory rhetoric to undermine legitimacy of participation.  That fear and its consequences is internal to an actor--and only the actor can overcame it. Its strategic use as an excuse not to participate is also quite regrettable and counterproductive, especially when used by business or civil society quite used to the hurley-burley of public debate.

The other interesting element touched on the business view of the market failures in implementation.  It is this language of the market that may be more alien to human rights defenders but central to the language and culture of business.  That divide requires bridging if an effective UNGP framework is to be deepened. Markets in the context of human rights behaviors go toward the need for data and robust measures to drive home the business case for the UNGP, especially in the "supply chain of capital." What these systems respond to most is demand--but it is also affected by risk.  And it is to that element of risk that the UNGP project, in its measurement and assessment functions, must focus in new and dynamic ways. To do that data and transparency are necessary.  But both present significant problems of implementation.

The panel on "SMEs, Informality and Human Rights," brought a welcome focus on downstream supply chain stakeholders.  There was both good news and bad news here.The good news was that it is possible to manage downstream SMEs in supply chains by the instruments at the disposal of upstream supply chain entities.  The language of that management is clothed in incentives, and reputational risk upstream. Incentives then touch on money--someone has to finance compliance downstream; this was one of the lessons from the Rana Plaza factory building collapse (see, e.g., here). And it also touches on cultural training--a buy in to global values within local contexts. That suggests a vibrancy to the corporate responsibility to respect beyond theory.  But it also comes at a price--the coherent formalism of rules, and of rules that ultimately rest with the authority of the state.  From my perspective this is good news--not all states are equal to the task of the formalism of rule systems.  But societal norms without disciplinary structures can also pervert systems.  Are consumers and investors enough of a disciplinary element? And even if they are, must that disciplinary power be structured through more formal mechanisms.  It is here that perhaps the mechanisms of the OECD might prove useful.  Or upstream companies might be encouraged to develop their own assessment mechanisms, subject to substantial transparency so that investors and consumers may exercise assessment through their own purchase and investment decisions (e.g., here). To this end civil society plays a critical monitoring and analysis role (see, e.g., here).

What does emerge form all of this is that a refocusing of the discussion from SMEs as objects of regulation, to SMEs as governance actors, with their own volition, is long overdue (see, e.g., here). But that is the problem where there is a disjunction, perhaps necessary given the structural logic of the production systems of global norms, between the sources of normative development and its objects. Globalization necessarily gives rise to global cultures and global actors who take on themselves a representational role.  But there is a consequence--the objects of representation become objects of activity and no longer subjects in their own right within the mechanisms in which norms are produced, systems for their projection into the "real world" are framed, and conformity systems developed.  When this touches on the objectification of sovereign communities within the structures of  state law making, democratic principles--also important within a business and human rights discourse--are implicated (see, e.g., here).  Where that objectification occurs in second pillar contexts, within transnational supply chains, a similar reductionism and marginalization occurs.

Does that reframe the human rights project as an elitist enterprise? Should one worry about centering the process of norm development in legal or regulatory space  in the 2nd pillar on upstream multinationals, Western states (home states of upstream actors)? The answer, if one is to take trends in public law globalization, is . . . . yes. Such a process of hierarchical objectification, if the professionalization of human rights with a cram-down--for the good of those for whose benefit these actions are taken--mirrors global governance structures (e.g., here).  But it may be worth considering the cost:  enterprises, NGOs and individuals down the supply chain are effectively cut out of meaningful engagement Human rights delivery reproduces hierarchies of subordination and assimilative colonialism.  In the short term this may be necessary.  But might it be the duty of states and responsibility of enterprises to empower the objects of this enterprise with some significant say over its form and operation. My sense, though, is that is would require swimming against a current that is swift and sure and traveling in a very different direction.  Perhaps that requires the enterprise of business and human rights to consider more deeply the obligations they bear in their representative capacities. But that is a question for the future.

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