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Assembly Hall (17 Nov, 9:00-13:00)
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My thoughts on prior sessions of the Forum may be found here:
What follows are comments and reactions to the third day sessions.
¶ 4 THE STATE-BUSINESS NEXUSThe Commentary provides in part:
States should take additional steps to protect against human rights abuses by business enterprises that are owned or controlled by the State, or that receive substantial support and services from State agencies such as export credit agencies and official investment insurance or guarantee agencies, including, where appropriate, by requiring human rights due diligence.
The place of SOEs produces a number of interesting behaviors by states that ought to be considered in more detail.States individually are the primary duty-bearers under international human rights law, and collectively they are the trustees of the international human rights regime. Where a business enterprise is controlled by the State or where its acts can be attributed otherwise to the State, an abuse of human rights by the business enterprise may entail a violation of the State’s own international law obligations. Moreover, the closer a business enterprise is to the State, or the more it relies on statutory authority or taxpayer support, the stronger the State’s policy rationale becomes for ensuring that the enterprise respects human rights.
Where States own or control business enterprises, they have greatest means within their powers to ensure that relevant policies, legislation and regulations regarding respect for human rights are implemented. Senior management typically reports to State agencies, and associated government departments have greater scope for scrutiny and oversight, including ensuring that effective human rights due diligence is implemented. (These enterprises are also subject to the corporate responsibility to respect human rights, addressed in chapter II.)
As most states have discovered, the ability of a government to enforce normative standards, and certainly to change approaches to behavior, is less likely where the standards apply to actors other than the government seeking their enforcement. Where the government community that seeks to have important standards of behavior or rules of conduct and operation embraced by others does not apply these standards to its own operation or conduct, there is likely to be a sense that the standards are not worth applying. That application must be deemed as important an internal governance matter as it is a matter for those enterprises with whom the United Nations deals. (Statement of Larry Catá Backer: Input and Suggestions to the SG Report, Advancing the Business and Human Rights Agenda of the "Protect, Respect and Remedy" Guiding Principles (23 March 2012))
That, of course, was much in evidence in the course of the Rana Plaza factory building collapse--where the focus was on building safety standards and worker rights, which might or might not apply only to those factories in which transnational brands have an interest (see, e.g., here). And it remains the operative structure for the weaving together of (hopefully) intermeshed but autonomous governance and law systems which cross cross integrated supply chains. But the centrality of the UNGP and internationalize business and human rights norms seem to play a residual role in these fractured governance impulses. Brands respond to pressure from media, civil society, consumers and investors. States respond to pressure form powerful states (and international financial institutions) that hold their macro-economic policy hostage. States impede worker rights by reinforcing labor monopolies that produce substantial disparities in wage labor market pricing across the globe. One is left with a number of actors chasing regulation that affects portions of but does not manage the systemic behaviors of supply chains. And that failure necessarily follows from the structural and ideological constraints of the governance actors bound by the limits of their authority.
3. Multi-Stakeholder engagement. The Working Group sponsored a reprise of a case study approach to multi-stakeholder engagement involving a U.S. indigenous group and then focusing on Cambodia. The case studies were useful to describe the history and politics of of engaging in the business of human rights sensitivities in domestic and transnational supply chains. They suggested both the difficulties and possibilities of using the coherence of supply chains to leverage regulatory intervention. Many of the lessons were embedded in stories of successful negotiation--leveraging reputation risk and market power to force reluctant downstream members
Conspicuously absent from the discussion, however, was any mention of a role, either as a normative standard or as a remedial facility, for the Guidelines for Multinational Enterprises and the institutional apparatus of the OECD National Contact Points. In the case of the story from the United States, it was notable for the presence of a representative for the U.S. Department of Labor, but no representative from the U.S. State Department, in which the U.S. NCP is lodged. No doubt an oversight, it might have added an interesting wrinkle, and a broader willingness of the United States to facilitate the broadest engagement, had the NCP been able to offer something tat might have been useful for other efforts beyond that highlighted on the panel.
4. Closing High Level Plenary. This last session was well attended. The Working Group Chair, Margaret Jungk, sought to weave together the multiple Forum themes. Other speakers touched on related themes.
Mention was made of the Global Compact Sustainable Development Goals. The focus, as usual, however, was to single out business and treat as an object of regulation. That is an easy fallback for international organizations and states--one that permits it to spotlight business as an actor-object, and in so doing draw away attention from their own complicity and failures in the attainment of either sustainability goals to the deepening of rule of law and human rights in economic activity. Even more regrettable was the focus on what ought to be changed in business without considering that the other partners in this enterprise--states and civil society ought to be subject to the same sort of analysis. The obsession with changing business rather than drawing them into sustainable governance systems in accordance with the logic of their own environment will continue to hobble efforts to deepen the governance "bones" of a three pillar framework that is dependent on states, business and civil society as partners--and all as both object and sources of regulation.
National action plans have been a great focus of the Working Group over the last several years. They remain hobbled by the logic of their own organization and objectives (see, e.g., here). For all that, NAPs serve a useful, though quite limited, purpose. That purpose is focus and the most generalized framework of sustaining political discussion within domestic legal orders of something that approaches the obligation to fulfill a state's duty to protect human rights, sensitive to both its constitutional traditions and its international obligations. And NAPs appear to be the only form in which states have been willing to do more than engage in speechmaking in the context of the UNGP. But they remain a flabby exercise, and for the moment a means through which developed states appear to be setting template for developed states to follow. And that utility will be tested by the exercise of national will to turn action plans into legislative action. For developing states it will also serve as a test of the constraints on national approaches that my not be consonant with the approaches of developed states. But in any case, the NAP project lamentably exemplifies the quite limited willingness of states to actually engage with the enterprise of business and human rights as a law reform project, or more ambitiously as a project of the internationalization of domestic law. This was noted by at least one of the last plenary speakers, to great applause.
On that note a very exciting Forum concluded. Looking forward to next year and a greater emphasis on measurement and on supply chains!