Friday, November 20, 2015

Summing Up and Moving Forward, Thoughts on 2015 United Nations Forum on Business and Human Rights

The 2015 UN Forum on Business and Human Rights offered a program that meant to deepen efforts to strengthen action on the U.N. Guiding Principles (UNGPs), and its conceptual framework grounded in the "protect, respect and remedy" framework. It also sought to engage with the efforts to forge  a platform which which negotiations for a comprehensive treaty on business and human rights might emerge.

My thoughts on prior sessions of the Forum may be found here:

Day 2 sessions; and
Day 3 sessions.

What follows are comments and reactions summing up my 2015 Forum experience.

Summing Up. The 4th Forum provided a nicely balanced program geared for veterans and neophytes to the UNGPs specifically and the business and human rights project generally.  Much of the program served as a valuable exercise in informational transparency--bringing people up to date on the thinking, progress, work, experience and future plans of a large number of influential stake holders from the three  major player groups in this enterprise--states, civil society and enterprises. There was no question that the sessions were engaging and exciting.  Some broke new ground, others deepened knowledge.  I have shared by own intense engagement in these posts.  

There are some lessons, though, that might be useful for future Forums.  

First, traditional panels are necessary but not sufficient within a communication space in which dialogue might be as essential as information transmission.   The Forum organizers might consider adding a panel stream in which panel leaders would very briefly set the tone, but whose principal efforts would be to facilitate robust discussion around a panel theme. A great example form this Forum was the Book Launch Panel for Business and Human Rights at a Crossroads? Moving Forward, Looking Back (Cambridge 2015).  Michael Addo did a superb job of moving the focus of discussion from the panelists to the participants and weaving the interventions into a valuable conversation. These sorts of events are valuable, especially for those who want to expand both the depth of their interventions and those who would otherwise remain sidelined and silent.  A number of variations are also possible: a session made up of smaller conversations around specific topics among participants who had pre registered; small session multi-stakeholder engagements putting together representatives from civil society, business and states; case study sessions devoted to participant discussion of different fact patterns for which the UNGPs may be useful, etc.   Indeed, such sessions would make more immediate the essence of the UNGP in promoting consultation and engagement at the very heart of the UNGP project. 

Second, providing thematic themes throughout the Forum was a good idea, but better defining those themes for participants might be useful.  This is especially the case where, as this year, the Forum was tied closely to six closely interrelated themes. Sharpening the focus of the panels might be helpful in some cases.  Because of the limitations of time, a tight focus around a well defined theme would aid focus not just be participants but also in audience questions.

Third, it might be interesting to organize multi smaller panels around specific stakeholder interests, or around issues that the Working Group wants to advance.  For example, organizing a panel for business voices on the state duty to protect human rights; or a panel for state voices on the remedial pillar; or a panel of civil society actors on their roles under each of the three pillars wuld be quite useful.  The reasons should be obvious.  The UNGP has crystallized these three voices and privileged them within the UNGP system.  It is critical for these voices to come together so that stakeholders can come to understand both consensus of views within these stakeholder communities and also those areas where consensus remains elusive.  It provides a way of communicating among stakeholders in a more communal way, something necessary within the UNGP framework that targets individuals but understands governance stakeholders in aggregate terms.

Fourth, another approach might have been to organize small discussion panels, led by a facilitator expert around the Forum themes: (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.  These might be organized formally or informally and provide a site for two things to happen.  First, to engage individuals more directly in those aspects of UNGO development of most importance to the Working Group in any particular year.  Second, it provides an excellent way for the Working Group to better its communications with the business and human rights community.  Facilitators might, for example, be able to report summaries of the group engagements to the Working Group.  The possibilities of broadening the scope of communication both from and to the Working Group in this way might enhance engagement and better direct the efforts of the Working Group as its moves forward on its mandate.  

Fifth, there is a tension between continuity and broadening engagement in the Forum.  On the one hand, it is important that the Forum speak consistently and effectively through individuals whose knowledge and deep involvement make them legitimate voices for the Working Group or for other influential actors who are critical players in the activities of the Working Group.  At the same time, the ultimate success of the Working Group's mandate depends to some extent on its ability to expand its base of experts and broaden its engagement with those communities--among states, civil society and business--on whose shoulders lie the real work of embedding business and human rights sensibilities.  To that end, the Working Group ought to keep and perhaps strengthen those sessions valuable for orienting stakeholders new to the UNGPs through engagement with those individuals now well known as excellent speakers in the Forum.  To push its key agenda points, as well, the most well respected "repeat players" are essential to ensure that the Working Group's message is clear and authoritative (whatever stakeholders might make of that).  Still, there is room, in many of the sponsored panels for new voices and distinct perspectives that blend well with the agenda and message that the Working Group is seeking to enhance through its interventions in the Forum.  Forum organizers might be sensitive to the benefits of a greater "opening up" of its session speaker portfolios.  Beyond the value of bringing new voices for participants to engage with, it might deepen relations with a broader range of stakeholder and secure greater buy in to the work and vision of the Working Group among a larger set of actors.

Lastly, the Working Group's 2015 themes deserve comment.  They were well chosen and provided necessary anchors for discussion.  Understood as signals to further discussion and indications of the state of play of each, they were quite valuable.  It would be lamentable, though, for discussions of these themes among stakeholders to languish between Forums.  Working Group signalling is better served by working through mechanisms for further input after the Forum, for example by providing places on the website for further theme related commentary or discussion.  And it would be quite useful for the Working Group to provide guidance on its thinking after the Forum and a hint of their thinking going forward. This might be useful to develop the Working Group's paths forward in line with its  agenda.  That, in turn, might enhance partnering and reduce the burdens of leadership (and the necessity for disciplining "correct" following). It is in that light that one might think through more specific comments on the themes:

(1) assessment metrics (tracking performance).  A focus on this discussion is long overdue.  But the debate over qualitative versus quantitative measures needs to be enhanced.  And, equally important, the measurements of engagement by states, by enterprises, and by civil society, each requires its own distinct track.  The issue of measurement, of course, tends to focus first on the 2nd pillar obligations of enterprises.  But that ought not to act as a shield for the discussion of necessary assessment metrics for state compliance with their duty to protect, or metrics for assessing the form and effect f civil society engagement, including the application of 2nd pillar principles to the operations of civil society organizations themselves. This last point would make for a quite lively and important conversation at a future Forum.

(2) coherence: embedding the UNGP in existing and emerging trade/investment frameworks. Coherence issues are central to the UNGP and they have been a fixture all at Forum events. Yet there does not appear to be coherence in discussion of coherence.  Again, it may be time for more specific engagement on the distinct issues of coherence relating to states, relating to enterprises, and relating to civil society actors.Coherence is also central to the emerging to-be-constructed relationship between UNGP and Treaty.  That is a subject ripe for conversation as well.

(3) coherence: embedding the UNGP in national action plans and the problem of the state owned enterprise.  National Action Plans have been at the heart of the Working Group agenda for years, and rightly so. But the discussion of NAPs appear to have languished a bit.  That is not to suggest that discussion has grown stale.  On the contrary, the need for basic discussion as a disciplinary mechanism to engage states and to enhance the willingness of enterprises and civil society actors to push states toward the development of NAPs is an important function. But NAPs themselves must be subjected to a more rigorous analysis--though laudable, the mere production of something labelled a NAP by a state may be the equivalent of corporate blue-washing, which ought to be avoided. It is in more rigorous discussions of NAPs--not merely sessions designed to make states feel good about having gone to the trouble of drafting one (though again, that is to be lauded, perhaps a ceremony or recognition of some kind might be appropriate at a drinks reception after the panels are concluded)--will take the NAP project further.  I note as well the view of some that NAPs may serve multiple purposes--including serving as a dry run for testing state approaches to treaty content.  That itself is a relationship well worth exploring.

(4) Corporate compliance (human rights due diligence and supply chain "issues").  There are two issues here and it would a great shame to lose the value of either through the conflation of both.  The first touches on issues of corporate compliance.  This is the bricks and mortar work of developing procedures, protocols, for the detailed work of operationalizing human rights due diligence, as well as framing the first and second pillar sources of liability for enterprises along the supply chain (see, e.g., here). The second touches on issues of managing supply chains, for which purposes human rights due diligence might serve as a means, but for which human rights due diligence analysis misses the essential point. That later point touches on the critical issue of managing supply chains, only one aspect of which touches on the scope of the downstream responsibility of enterprises or on the more technical point of the use of HRDD to operationalize that responsibility.  The supply chain itself, as a system, cries out for greater attention (e.g., here, here, and here), and for its own focus, one which I hope the Working Group attends to in future Forums.  The difficulty, of course, is to rethink supply chains from a context within which interventions may be made to one in which the supply chain itself becomes the object of regulation.

(5) systemic breakdowns (threats to human rights defenders).  Human rights defenders are critical elements of any system of accountability--both for state and enterprises.  They also serve to discipline civil society by holding them to account for their obligations of representatives of the interests of others through their own work. Yet these human rights defenders tend to be valued only when they advance the interests of states, or enterprises or civil society. The spotlighting on their roles and the dangers to their personal safety is to be lauded. Yet I might suggest that the effort remains incomplete.  Greater focus perhaps ought to be made on the specific duties of states, the responsibilities of enterprises and the obligations civil society to these actors.  More import, perhaps, is the need for greater work in identifying human rights defenders and better connecting them, perhaps through programs designed by or through the working Group in collaboration with others. 

(6) access to remedy.  One of the great pillars of the work of the Forum, this theme never grows old and will unlikely be exhausted in any of our lifetimes.  But one must continue to be wary of sessions that merely decry the incoherence or failures of remedial activity by states or enterprises, or that serves as sites for self serving storytelling about some or other small triumph--without a clear connection to its utility to help others develop capacity or modify their behaviors. In this context, perhaps a future focus might lie in specific efforts at capacity building--for enterprises and civil society actors.  And also knowledge production and dissemination for states.

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