Tuesday, November 22, 2016

Reflections on the 2016 U.N. Forum on Business and Human Rights ("Leadership and Leverage: Embedding human rights in the rules and relationships that drive the global economy”)

For the last several years I have offered reflections on the U.N. Forum for Business and Human Rights, a great gathering of critical stakeholders--states, enterprises and civil society--around the the U.N. Guiding Principles (UNGPs), its development and application ().

The 2016 UN Forum on Business and Human Rights program continued its fundamental objective 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. For the 2016, this effort was framed around the Forum theme: Leadership and Leverage:Embedding human rights in the rules and relationships that drive the global economy” (for explanation see here).

This post is a collection of impressions on the 5th Forum in light of its themes :
  1. State leadership and leverage: discussions will focus on the need for Governments to step up their efforts to protect human rights and lead by example in their own business-related operations.
  2. Business leadership and leverage: sessions will unpack the dual concepts of leadership and leverage across the company value chain and in business relationships with various stakeholders.
  3. The role of financial institutions: participants will take a closer look at how human rights intersect with capital markets and explore the responsibility of financiers to drive respect.
It suggests that the burdens of maturity now require some hard reflection by both the Working Group and its Secretariat respecting both the mission of the Working Group and the direction of future Forums.

The 5th annual Forum on Business and Human Rights presented a well balanced and varied program of events and speakers, all carefully balanced among its perceived stakeholders and contemporary sensibilities of ethno-gender and national balance (55% women-45% men participants and rough balance among key stakeholder groups). The Forum retained a string fidelity to its objectives and scope of organization:
The UN Human Rights Council, under paragraph 12 of its resolution 17/4, established the Forum to serve as a key global platform for stakeholders to ”discuss trends and challenges in the implementation of the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights.” It is guided by the Working Group on Business and Human Rights. (see here)

The details of the program, as presented included the following:

Latest speaker list
Programme (quick view/printable)
Programme (longer version)
"modalities of participation"
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As in the past, the Forum was organized along a number of themes that marked the focus of the Forum (and that change form year to year). From its Short Programme:

The 2016 Forum programme addresses key human rights challenges around the globe where greater State and business leadership and leverage urgently need to be applied. Now in its fifth year - reflecting also the fifth anniversary of the endorsement of the UN Guiding Principles on Business and Human Rights -the 2016 Forum aims to drill down on a number of core issues and demonstrate the role of many different stakeholders along the value chain and across business relationships.

Broadly, the Forum sessions reflect four key messages:

1. States should “lead by example”: there is an urgent need for governments around the world to step up their efforts in policy, law and enforcement to implement the Guiding Principles. One lagging area concerns their own business-related activities, such as the conduct of State-owned enterprises, government procurement activities and the decisions and actions of public financial institutions.

2. Leadership and leverage should be exercised by all enterprises that make up the value chain (including parent companies, suppliers and financial institutions) and by all relevant company functions (from the board and legal teams to the sustainability and communication departments). It is not sufficient for attention to be focused merely on consumer-facing brands and a couple of business functions within a company. There is also a pressing need to better understand how the “capital supply chain" can better incentivize business respect for human rights
and how to create markets that reward good corporate conduct.

3. We need better models of action and accountability to drive business respect for human rights in order for companies to play a meaningful role in implementing the Global Goals. Respect for human rights should be at  the heart of a company’s contribution to sustainable development. Adverse human rights impacts cannot be offset and companies should first and foremost consider the effect of their core operations on people ahead of unrelated corporate philanthropy/CSR activities.

4. We need to step up our efforts to improve access to remedy for victims of human rights abuses and take concrete action to protect those in particularly vulnerable situations, including human rights defenders, indigenous peoples, migrant workers, trafficked persons, children and those facing  discrimination for their gender, sexuality, and disability.

These messages are captured across these general session headings:
 Plenaries
 State leadership and leverage
 Business leadership and leverage
 Money & finance
 New models
 Local action
And, indeed, the Forum largely lived up to its billing. And for that we can be grateful.  Through the hard work of its Secretariat, the Working Group event has been able to acquire something of an institutional form.  It is now well serving its mandate to provide a space where critical stakeholders may interact, and the rest of us might engage to the extent we can, to ”discuss trends and challenges in the implementation of the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights.” And for that we should be grateful.  The Forum serves us well in that respect.  It's transparency alone is invaluable for helping participating communities have a sense of where trends are taking global conversations and where critical actors mean to manage the shape of discourse, conceptualization, subject and project emphasis, and approaches to the business of human rights in economic activities. For states, enterprises, civil society and other actors with a stake in these matters, the transparency function alone is worth the cost and effort of the Forum. 

It is with that in mind that I offer the following thoughts.  They are drawn from a quite serendipitous effort to sample the many programs on offer, and to speak with a variety of actors and observers--both participants and audience--as I might have bumped into them throughout the course of the three days of the event.  To focus on the ideas rather than the persons, I avoid identifying most of them in what follows.

1. The idea to merge the traditional formal program and side event into an integrated event is a good one--for several reasons.  First, it provides a more democratic space.  The format focuses on ideas more than the place in the hierarchy of the event at which they are addressed.  Second, it makes programing more flexible, amplifying the ability of the Working Group and its Secretariat to more deeply engage with annual themes in a coordinated way.  Third,   it reduces the possibility of capture by powerful and influential stakeholders who otherwise might over represent their points of views and their agendas in what should be a space for broad and collective discussion. 

2.  The last point--on capture--remains an important area where continued vigilance is necessary.  It is altogether too easy for the "usual suspects" to capture the Forum, its programming, and its conversations in ways that may all them to use the space for their own ends but which do a great disservice to its founding principles and it value to the global community. A careful balance is necessary--of course.  So-called thought leaders--those powerful stakeholders represented in the state, civil society, business and academic sectors--play an important de facto role in shaping the discourse and moving it forward along the logic of their respective agendas. These discourses and agendas are also shaped to some extent by the consequences of their interactions and clashes. Global society is vitally interested in what they have to say, how they have to say it, how they mean to prioritize and implement, how they choose to shape conceptualization, and where their interests clash.  At the same time, a fixation on the desires of the mighty will tend to increase the distance and construct the hierarchies, that separate those with such influence (and eventually authority) from those who do not.  Yet human rights space ought to be democratic space.  And the highest and mightiest, like the most humble, ought to cultivate the arts of listening as well as that of leading--together.  It is altogether too easy to fall back into patterns of hierarchy in official--and especially state led international fora.  That is a pity.  The consequence is that the most eminent will speak more authoritatively to those who will see in that speech the spaces for resistance.  That is not a healthy way for the human rights in economic activity project to mature. 

3,  It is in this context, of course, that the great battles of efficiency and authority versus open and robust democratic messiness are waged. Hearing the influential voices is both efficient and necessary.  Efficient because they tend to speak for others, and necessary because they tend to have the power to implement their own views or at least influence those who do have that power.  At the same time, recent experience has shown what happens when the influential live in  a bubble and listen only to each other.  Worse when they do that and assume an arrogant distance between themselves and those who ought to listen and conform. We are living in a time when such attitudes can be transformative but can also produce extreme reaction. And these reactions may not just happen from below--but also from newly emerging powerful actors who might wrest stakeholding space form those who view their power and control unassailable.

4.  Efficiency and influence dictate that speakers representing influential organs from the state, enterprise, civil society, and academic communities be given pride of place. Yet the underlying principles of the business and human rights enterprise suggest a more democratic collective effort toward consensus and solidarity.  This contradiction might be resolved through the cultivation of a number of techniques that might well be considered and applied by the Secretariat.  First, the Forum might institute a number of listening sessions. These would permit the critical stakeholders pride of place but for the purpose of listening rather than speaking. Second, the sessions must do more than provide a formal ceremonial of complaints.  Listening must be structured as something more than formal sessions where the "little people" get to complain for the cameras--it must be implemented so that it is effective.  That may include creating incentives for stakeholders provide responses to all statements made; not at the meeting but thereafter and posted to the Working Group website.  Third, providing an option that listening sessions include written responses and ongoing engagement through the Working Group website.  The interplay might provide the Working Group as well as high level stakeholders with a means of facilitating communication and engagement in ways that will move the project forward and deepen consensus. This is particularly important when specific stakeholder groups push forward a distinct consensus building project based on their own values--e.g., Nordic state group on approaches to the responsibilities of state owned enterprises and the duty of the states that own them; civil society on specific models of access t remedy, etc.

5. The Secretariat took a step in the direction of more interactive engagement by seeking to include presentations that included audience engagement.  These sessions were well intentioned.  And to the extent that they enhanced discussion among participants, especially those who might not have otherwise ever had cause to speak with each other, this sort of presentation format ought to be encouraged and expanded. However, it might be useful for the Secretariat to help participants organizing sessions of this sort to enhance their utility.  That might involve far less time with the presentation portion, better management of the discussion (smaller group interactions, designations of a reporter and time for group reports), and of the construction of discussion topics that lend themselves to short discussion producing decision or choice. Here is a suggestion: prepare a problem requiring the application of the UNGP in a particular specific context.  Spend 10 minutes describing the problem, break the participants up int  groups of 5  and give them 20 minutes ot decide on a course of action for states, civil society and enterprises. Then bring the group back and (1) get a sense of how the groups all tended to decide and then (2) have each group report on the basis for their application of the UNGP to that specific context. 

6. This brings me to a fundamental organizational point.  The 5th Forum has become, and necessarily so, a multi-purpose event.  Among its key functions; (1) introduce stakeholders to the basics of the UNGP; (2) capacity building for new, small and financially modest stakeholders (states, enterprises and civil society); (3) advance knowledge of human rights within context of economic transactions; (4) facilitate high level discussion to move forward consensus on issues of relevance to the BHR project; (5) highlight specific areas of emphasis related to the Working Group mandate (e.g., access to remedy, state owned enterprises, national action plans, etc.); (6) provide a space where stakeholder groups might network (an engage in politics) and engage in discussion between different stakeholder groups (civil society with enterprises, states with civil society, etc.); (7) develop plans of action for implementation in specific sectors and in the context of common problems (weak governance zones, context specific supply chains, etc.); and (7) engage in other activities that deepen the integrity and coordination of the UNGP project (technical assistance, etc.). But it is likely to prove increasingly difficult for the Forum to adequately serve each of these functions consistently and effectively within a tightly packed three day conference.  At some point soon the Secretariat, with the guidance fo the Working Group, may well have to consider the ways in which these functions might be better served not just within the Forum framework but elsewhere.  In a sense, the Working Group structure lends itself to the task of splitting functions and offering programs throughout the year that touch on each of these functions more effectively.  Technical assistance and capacity building would be nicely framed around the work of the Secretariat--for example by developing a facility for that task.  The state duty to protect human rights might itself be well manifested by funding such activities.  It may as well be time--for educational purposes and knowledge dissemination--to develop a library of MOOCs and other on line teaching forms that may be accessed by interested people, and in a variety of languages. Here is an area in which academic institutions and civil society might well usefully contribute effectively as part of their responsibility to respect. In any case these are matters of fundamental organization and on the character of the events "on offer" at the Forum that might benefit form from strategic and long term thinking. 

7.  The "modalities of participation"provide an interesting opening for an important issue.  That issue does not touch so much on civility (though the use of this mechanism to cut short or manage debate has its own dangers; e.g., here, and here), but rather to think about what the Forum means when it seeks "debate" and what might be understood, more broadly, when state duty or enterprise responsibility raises the obligation to consult or engage in discussion with groups. Consider the case of an indigenous community that wants to be left alone.  For them discussion would have a single purpose--to figure out ways they might be left alone.  But to the state, whose claims to the underlying resources may be paramount, and the enterprise, whose operations are based on the application of a rule and hierarchy of law, the sanctity of contract and the centrality of property in economic relations, the issue might be one of "satisfaction substitution" (that is how much money would it take for the community to feel they have the monetary equivalent of the value of being left alone).  It might be worth considering the meaning of communication, of negotiation, and of consultation in a world in which these terms have either lost their meaning or acquired potentially incoherent meanings among groups.

8. The Working Group increasingly appears to be working as autonomous actors rather than as a group.  It might be useful to develop some appearance f solidarity among them.  While I favor each Working Group Member to follow his or her own agenda within the Working Group and expressed through the Forum, institutional coherence might demand that at least the opening plenary (for example) serve as a manifestation of consensus of the Working Group with respect to highlighted aspects of the UNGP and its development. Perhaps the opening plenary ought to be devoted to the string signalling by each of the Working group members of their approach and a manifestation of their commitment to their joint work. That would provide a nice focal point for each Forum and serve as an organizing node for Forum events.

9.  A few comments about the substantive focus of the Forum and the UNGP may also be in order:
a.  The initial Plenary made clear that the Working Group and Secretariat would be well advised to focus greater attention on the convergence between UNGP and the Sustainability Development Goals.  And indeed, more generally the Secretariat should continue to show sensitivity to avoiding the compartmentalization of the UNGP project and its isolation from the great movements in law and societal norms of which it forms a part. The UNGP, the state duty and the corporate responsibility cannot be detached from the larger obligations--in law and norms--to engage in a better understanding of the human rights dimensions of development (not in its obsolete 1970s style New International Economic Order  framework (lamentably fashionable again)) but in its effect on and realization through the new modalities of globalization (economic, social, cultural and civil).  

b.  It is no longer possible to compartmentalize environmental rights, responsibilities, and duties from human rights, responsibilities and duties.  The global community is moving toward consensus that environmental rights are human rights and as such within the UNGP framework (e.g. here).  Much more work is required in this regard.  The continued failure to center these discussions in the work of the Working Group may substantially impede both its work and the relevance of its efforts.  

c.  It is no longer possible to ignore corruption as an important element of the state duty to protect and the corporate responsibility to respect human rights. I welcome the Secretariat's inclusion of some discussion of corruption in  the 5th Forum.  But corruption must be much better understood as a methodology and a set fo practices deeply embedded within  the normative obligations of states and enterprises.  To that end it is altogether too easy to mis-focus the discussion (e.g. it is "all about" enterprise corruption, or state corruption, or quid pro quo corruption, or systemic corruption, etc.). The Working Group would do well to reach out and provide some capacity building and action plans in this regard. 

d. In the opening Plenary John Ruggie asserted that "doing no harm" is not enough for business., that the UNGP requires positive as well as negative obligations.  It is to those obligations that the Forum might at some point devote itself.  Here again, the scope and nature of those positive obligations would be different for states and enterprises.  They might as well also involve the consequential development of positive obligations for those elements of civil society embedded within the UNGP processes.
 e.  The intersection of the UNGOP, especially as part of the legal duties of states and other critical aspects of law await better study.  Clearly constitutional  and labor law is always at the ready and well marked in the discussion.  But sometimes that is not the most important legal element in the everyday embedding of the human rights project for states and business. Particularly with respect to competition law, environmental law, finance and development and tax law, the role of human rights and the UNGP are understudied. The connections between corporate law and the UNGP project remains more polemical than substantive with the ideological battle over the autonomy of corporations, their legal personality, asset partitioning and shareholder wealth maximization overshadowing more substantive work. That is a pity. 

f.  Human rights as a fetish.  It is altogether too easy to fall back on shorthand expressions and proxy language to quickly reference a large and nuanced cluster of ideas, law, rules and systems.  This is especially true in the context of the UNGP with respect to its fundamental object--human rights.  But it is also easy to lose sight of the problem of human rights within the UNGP--it means quite distinct things in distinct context and when deployed by distinct actors. There is no singular human rights around which states, enterprises and civil society organize their approaches to the UNGP.  The content of human rights int he first and second pillars are different; and within the first pillar the content of human rights depends on the state one references.  Additionally, human rights presents quite differently  depending on the frame of reference. It references norms at a conceptual level; yet at an operational level it may be understood most usefully as particular actions and particular consequences.  Yet this lends itself to an interests analysis with a particularly perverse consequence: the reduction of human rights to notions of interests that ought to be protected by law, and which cannot be appropriated without consent or damaged without compensation.  And from this a quite perverse consequence, the rise of the idea of human rights as property.  These are concepts that are increasingly implicit in the discourse (left and right) and that ought to require  some discussion, if only because their repercussions are so profound. 

f. Sector specific sessions ought to be encouraged further.  The UNGP are now mature enough that the particular application to quite distinct sectors is now important for the development of the UNGP and the capacity building for those operating within those sectors. These also provide a useful venue for the three critical stakeholders--states, enterprises and civil society--to come together in discussion over the range of issues that touch on the human rights issues of production chains. 

10.  Among the great lacunae of the Forum has been the focus on the costs of UNGP compliance.  This is in part, perhaps, a consequence of the notion that human rights are non negotiable and therefore it is bad manners to speak either of price or cost.  Yet, the issue underlies all discussion, precisely because the inability to marshal resources, and to understand the cost of that marshaling, will play an important role in shaping (and limiting) the UNGP project.
a. With respect to enterprises: Human rights implementation is not cheap.  How does due diligence and compliance affect either (1) cost of capital; (2) fees to lenders; or (3) product or service pricing. To what extent does it increase the costs of good sold or bank costs to loan making (lawyers, accountants, consultants, etc.)? How are these accounted for in the bank's performance measures? How has human rights compliance been accounted for? Is there a human rights aspect of accounting practices fr human rights compliance?

b. With respect to states: Human rights implementation requires substantial administrative capacity along with sustained political will.  Many states, especially those that are developing have neither resources nor sufficient capacity to effectively deploy their administrative apparatus or to provide sound judicial remedies. To what extent have states undertaken the porject of costing or prioritizing human rights related work in the construction and maintenance of their administrative and judicial strctures? To what extent have aid been focused in that direction? To what extent ought developed states have a duty to facilitate the development of administrative capacity? What are the roles of IFOI? of private lenders? To what extent is tax law and policy now inherently at the center of a national human rights discourse? These are the questions one hardly ever hears discussed at a Forum with respect to the success of which the answers are critically important. 

c.  With respect to civil society: the UNGP project has vetsed civil society with an extraordinary role, and burdened it with the obligation to ensure that it remains faithful to the interests of the people it serves.  Human rights in economic activity does not end with state duty and enterprise responsibility.  Human Rights in economic activity ought to be centered as well on the obligations of civil society to act responsibly.  Yet it appears that the role and responsibilities of civil society are taken for granted rather than subject to the same healthy reflection as now devoted to enterprises and states.  It may well be time to consider the extent of civil society's own responsibility to respect human rights in its own internal operations ans in its interactions with states and enterprises under the UNGP.
11. Lastly, a word of gratitude: it was heartening to see the High Commissioner for Human Rights as well as the President of the General Council of Switzerland serve as keynote speakers.  That lent a nice touch of legitimacy and underscored the importance of the event.  But beyond the atmospherics and the symbolism of their presence there are a few points they raised that are worth considering for elaboration in future events: 
a. The High Commissioner spoke to the issue of the human rights responsibility of enterprises to serve as sources of accountability for states that fail in their duty to protect human rights. That represents an interesting twist and an advance to the UNGP with substantial ramificaitons.  It bears further exploration. This is particularly important int he context of governing downstream supply chain enterprises: many apex corporations have been increasing linked to acts of intimidation and violence against human rights workers., mining, agribusiness, hydrodams and logging.  States are primarily responsible, but companies need to take a stance against hr abuses in their operations and through their supply chains.

b.  The High Commissioner again expressed concern for human rights defenders.  And this year there was substantial attention paid to this issue in the Forum. The High Commissioner, though. also spoke to those specific actions that enterprises and civil society might take in the context of attacks on human rights defenders (example of Thai shrimp industry (providing bail, testifying and supporting him when brought to court form criminal defamation about his research) nod in direction of financial institutions embedding human rights--dutch banks agreement (including development banks). These practical implications might be worth further attention. 

c. The Swiss President's speech was most interesting for noting the connection between the UNGP and stability in global trade.  That certainly is an aspect of the UNGP projects contribution to the legitimacy and deepening of globalization that is almost always taken for granted. To that end he also noted that the object is to preserve global trade not to constrain it.  And he raised an issue that ought to be of increasing concern to future Forums: Free trade is facing challenges.  The results of the US election and Brexit viewed as anti trade (e.g., here). Protectionism is becoming more fashionable. This is disastrous for Switzerland, but perhaps more so for emerging economies. Social peace is an economic advantage and both trade and UNG move us in that direction; the resulting stability is a key measure to be protected and advanced. These are subjects that may be worthy of more attention as the coming year unfolds. Swiss NAP fills governance gaos--exporting their law structures through economic activity. 

d. The Swiss President's point is or ought to be well taken: An algorithm is a political statement. This, a piece of graffiti that drew his attention, contains an immense insight. For the future, he was right to ask, how to incorporate business and human rights into business algorithms. The contest between narrative and numbers in the elaboration of UNGP compliance is one of the last great unexplored areas worthy, in time, of intense study.  In this respect my sense is that as civil society and the state abandon this field, enterprises and their accountants and financial advisors/risk managers will come ot dominate and manage the enterprise.  That may ultimately not serve all stakeholders well.

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