Reflections on "Report on the 2016 UN Forum on Business and Human Rights," Statement of Beatriz Balbin Chief, UNOHCHR Special Procedures Branch Office

As the international business and human rights communities gear up for the 6th UN Forum on Business and Human Rights, it might be useful to pause and consider what, exactly, the Forum organizers themselves thought about the event.  This is particularly useful as a reminder that perspective drives meaning and that the perspective of the Forum organizers and those they represent tend to have a greater influence on the shaping of the "realities" of the UN's efforts around the UN Guiding Principles for Business and Human Rights, than any other stakeholder. (Contrast my own reflections here).

To that end it might be useful to reflect on the Statement by Beatriz Balbin, Chief, Special Procedures Branch, Office of the United Nations High Commissioner for Human Rights, made to the 35th session of the Human Rights Council Geneva (16 June 2017) entitled Report on the 2016 UN Forum on Business and Human Rights. It provides a short and focused distillation of the "learning" extracted from the Forum and points to the both the premises and perceptions that guide what for many are perceived as thought leaders. (The 2016 Forum chairperson's summary report can be downloaded here).  In that context and in the sprint of transparency my own guiding principle on engagement:

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. (here).

The Report on the 2016 UN Forum on Business and Human Rights and my own brief reflections follow.

Beatriz Balbin's Report on the 2016 UN Forum on Business and Human Rights should be read carefully for a number of reasons.  First, it is a useful gauge of the distillation of knowledge, as a repository of what is heard and retained.  Second, it is a useful gauge of the relative value of information retained and information discarded, as a repository for what is not heard. Some of this reflects the increasing self-referencing nature of the Forum process, one where a ritual of proceeding recycles a small group of identifiable actors with expected roles and expected interventions. But even echo chambers are useful reflections of the actual state of the world and its self conceptions among those with the authority to influence others (and the shape of official discourse); that is of the views of a dominating class with oversight and authority within a sector of activity. And the light shed by this group exposes as well the darker recesses of what may ultimately develop beside or beyond the formal work of established state based organs. 

Beatriz Balbin's Report, then, provides data about the focus of the UN Human Rights establishment beyond the immediate perceptions and concerns of the UN Working Group itself.  It thus provides a good measure of the way in which the knowledge production from the Forum of Business and Human Rights is translated into received wisdom.  That it, it swerves as a baseline for what key stakeholders "hear" and "retain" from the lecture and presentation filled program (along with the concept notes, written submissions and other writings and oral pronouncements attached to the event).

This can be understood in two different guises.  The first suggests the value of the Report as data--a compilation of information that is deemed worthy of memory (that is the set of harvest worthy data retrieved from the proceedings of the Forum itself). The second suggests the value of the Report as a sorting-valuation device--as a first cut at determining a hierarchy of usefulness of knowledge distilled--what "takeaways" from the conference are worth remembering, which are not worth a second thought, and which might provide openings to further action.  

What was heard.

There are a number of points worth highlighting, points that appeared to have been underlined by the UN establishment in the articulation of the Report.

1. The structural element. The structural  of the function of the Working Group within the constellation of the mandate of the Office of the High Commissioner and of the Human Rights Council is an important consideration for putting the efforts of the Working Group in perspective. Ms. Balbin emphasized two points in particular.  The first is that the objective of the Forum is discussion. The second is that this discussion is guided by the Working Group (with the assistance of UN staff as appropriate), the summary of the aggregate product of this guidance to be memorialized by the annual Forum Chair (with the assistance of UN staff as appropriate). 

2. Participation data is critical to the legitimacy of the Forum as discussion venue. Data, used and misused, has become a mainstay of ewven the most qualitatively minded organization.  It serves as the essence of legitimacy especially where, as here, the core mission of the event is discussion. The ideology of engaged discussion in early 21st century international organization requires a fair mix (and representation) of identified (if essentialized) groups.  In this case those include representatives of the three estates established by the Guiding Principles--states, enterprises and NGOS (each serving as avatars of people, distinguished by status and function). Tghus, the emphasis on "biggest annual conference"  and "bringing together all relevant players" and scope ("take stock of ongoing efforts, new opportunities and challenges").  And thus, as well, the importance of data. 

3. The Forum as discourse sorting device.  Again, status and legitimacy are conventionally grounded in competitive review and exclusion (or rather the inclusion of only the best or most relevant interventions). This manifested in two ways.  The first was by the relevance of the winnowing process (from 160 submitted session proposals only 67 sessions were authorized). The second was by relevance to the annual Forum theme.  These themes were crystallized as (1) states leading by example; (2) business leading by management of their production chains; (3) action and accountability (not of states but of business); and (4) remedy.

4. Conference themes. One of the most interesting aspects of the Report was the way in which it heard the conference themes applied to functional objectives.  That "hearing" served as the central element of the Report ("Discussions provided a number of important observations and recommendations. I would like to briefly flag a few of these"). My focus here is on tone and thrust, rather than on the substance of the memorialization.  With respect to states, the discussion was deferential and positive.  Joy at the movement toward the adoption of National Action Plans was emphasized (supporting the Working Group's core ideological line about the importance of NAPs in the construction of post-endorsement Guiding Principles implementation) was tempered by caution about the quality of some of those NAPs. Joy was also expressed about national efforts to legalize some aspect or other of portions of the Guiding Principles (not necessarily touching on Pillar 1 state duty but of the legalization of Pillar 2 enterprise responsibilities).  More notable was the noncommittal tone  in which key elements of the 5th Forum were noted: state duty around their state owned enterprises, public procurement, and state roles in promoting respect for human rights in supply chains. These were "given specific attention"  or were "examined across Forum session." With respect to enterprises, the discussion focused on lessons learned.  Here the Forum provided narratives that might be fashioned into obligation.  It provided stories that might serve as templates for mandatory behaviors.  And it identified (unlike the discussion touching on state duty) specific actors whose role or status gave them access to or an authority to shape corporate practice.  The value of embedding principles in internal processes, the role of "shapers2 of institutional culture and the role of finance (for enterprises the accountants) could as well have been usefully applied to states.   Most interesting, perhaps, the  Report took pains to underline the positive reaction of business sector representatives of the lessons provided for their edification ("Stakeholders, including business representatives themselves, noted that many Forum sessions provided concrete practical value, such as discussions on responsible exits and the use of leverage when companies identify human rights abuses in their supply chains."). 

5. The messages. A number of messages were highlighted.  One touched on the connection between the Guiding Principles and the Sustainable Development Goals. Efforts were made top compartmentalize the SDGs ("focus on the "people part" of the SDGs).  This was an odd turn, especially where other mandate holders have emphasized the human rights aspects of environmental issues, for example (see, e.g., here). It was clear, however, that this fragmentation of the SDGs, and its fractional application to business through the Guiding Principles will have some significant effect on the activities of the Working Group in the future--and one that might be lamented. "Another important message was that transparency and innovative collective approaches have potential to deliver better protection and respect for human and labour rights in global supply chains." (Report). It is here that, obliquely at least, one saw the gaze shift from state and enterprise to non governmental organization and collaborative efforts. 

6. Human rights defenders.  A key portion of the Report reported on the issue of human rights defenders. The emphasis was on the ways in which the Forum might contribute to efforts already undertaken elsewhere ("to bring together the collective power of business, civil society and Governments to address the crucial need of protecting human rights defenders").  The oddity was the concession that states are incapable of ordering their own houses. Ironically the Report might be understood (inadvertently of course) further evidencing of the evisceration of the value of the 1st Pillar and increasing reliance on governmentalization of the enterprise and legalization of the 2nd Pillar ("In this regard, the examples heard at the Forum of corporate actors that are willing to take action when human rights are under threat in the countries where they operate, were encouraging."). Others have driven home the point explicitly (e.g., Sarah E. Mendelson, “Dark Days for Civil Society: What’s Going Wrong—And How Data Can Help,” Foreign Affairs, March 11, 2015). As long as the forms of sovereignty are observed the functions of government might be assigned elsewhere it seems. For all that, some indirect suggestions to states were noted--the need for land reform and protection of indigenous land rights, the prioritizing of gender perspectives, and the movement toward Western values in the context of the legal status of sexual non conformists. 

7. The conundrum of remedies and the Remedial Pillar of the UNGP. Almost a quarter of the Report  was devoted to the issue of remedies--not with respect to the discussion at the 5th Forum but rather looking forward to the discussion of the 6th Forum in 2017. The paragraph of the Report devoted to remedies of the 2016 Forum noted the relevance of the comprehensive treaty for business and human rights and the initiatives  of the High Commissioner. Notably absent was discussion of efforts directed by or through the Working Group. That deficiency was covered by a substantial focus in the 2016 Report on the anticipated successes of the 2017 Forum with respect to remedies.  The Report expressed the hope that "The 2017 Forum provides a unique opportunity to bring these various groups together to examine recent initiatives and explore common ground and practical solutions for ensuring more effective access to remedy."

What was not heard.

1.  The theme "States lead by example" appears to be in danger of a reductionism that will transform "leadership" into a fetish invocation rather than a program of action. One of the most notable continuing absences at the Forum is any emphasis of the 1st Pillar.  It appears to times as if the entire purpose of the UNGP was centered on the 2nd Pillar and addressed to enterprises, the obligations of which are to be legalized through national action (the withered extent of the 1st Pillar) and implemented through national courts (the transformation of remedy to judicial mechanism focused on form rather than on effective delivery to victims). Within conventional supra national organizations this approach is both natural and necessary.  But it tends to eviscerate the effectiveness of the UNGP as the interlocking nexus of three autonomous and equally vibrant parts. 

2. The remedial Pillar. The discussion of the remedial pillar reminds one that, like the 1st Pillar state duty pillar, remedies appears increasingly to serve as a methodological appendage to the second pillar. as an appendage of corporate responsibility in the way that the state duty pillar serves as a legalization appendage to the 2nd Pillar. This appendage approach to the UNGP is distressingly distorting.  But it is also easy--easy on civil society and on states. This was particularly noticeable in the context of protections for human rights defenders, with respect to which state duty appears almost wholly absent (but see here). .  

3. The responsibilities of civil society.  Civil society appears as an abstraction whose work is felt and recognized but whose institutional character remains veiled. It is lamentable that while the Forum has respected the institutional character of states and enterprises, they have failed to do the same with civil society.  In a sense one can see the difference in the way that states and enterprises are treated as aggregations of capital (and productive forces) while civil society is treated as aggregations of individual labor, as labor collectives rather than as institutionally autonomous bodies corporate). That choice has consequences, principal among them the difficulty of developing robust principles of civil society responsibility to respect human rights and their collective role in remedial mechanisms.

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The usual caveats apply.  The Report was a formal document with its own special requirements as to length and format.  The Report  could not possibly deal with nuance especially in a topic and complex and multilayered as the UNGP.  The Report is a diplomatic (political) document with all of the stregths and weaknesses of that form of communication. And yet. . . . . What does one come away with from a reading of the Report? One gets a sense of the sectors considered and discussed.  That is data.  One also gets a sense of the relevance of states principally as expressions of economic activity. State activities in the economic sector appear to be significant as do stories of business behaving well. Most important one senses a change of direction, and an alignment of the focus of the working group to better fit in with the work fo other mandates and the High Commissioner.  Human rights defenders and remedial mechanisms play a large part in cementing coherence across the Geneva establishment. This is a good thing.  More lamented, perhaps, is the way in which the UNGP might. as a consequence change its character within the constellation of human rights instruments developed within the public international sector. That shifts appears to privilege the question: "how can we use the UNGP to achieve normative ends?" over the question "how do the UNGP inform duty, responsibility and obligation of all actors involved in economic activity?

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Report on the 2016 UN Forum on Business and Human Rights

Statement by Beatriz Balbin
Chief, Special Procedures Branch
Office of the United Nations High Commissioner for Human Rights

35th session of the Human Rights Council Geneva, 16 June 2017

Mr President, Excellencies, distinguished delegates

I am pleased to report on the 2016 annual UN Forum on Business and Human Rights, which took place here at the Palais des Nations in November last year.

The Council established the Forum as a venue for global discussions on trends and challenges in implementing the Guiding Principles on Business and Human Rights.

The Forum is guided by the Working Group on the issue of human rights and transnational corporations and other business enterprises (Working Group on Business and Human Rights), and Mr. Sergei Alexandrovich Ordzhonikidze, who served as Forum chairperson, was responsible for preparing a summary of the Forum discussions.

You will find the summary as well as a note by the Working Group on key messages and discussion highlights on the Forum website.

Excellencies

The annual Forum has become the world’s biggest annual conference on business and human rights, bringing together all the relevant players to take stock of ongoing efforts, new opportunities and challenges.

The 2016 Forum attracted more than more than 2,000 participants from 140 countries, up from some 1,000 registered participants from 80 countries at the first Forum in 2012, representing all stakeholder groups. Around 14 per cent of participants were from State delegations, 24 per cent from the business sector, 30 per cent from civil society, 12 per cent from academia, 7 per cent from the UN system and other international organizations, and 3 per cent from national human rights institutions. 55 percent of registered participants were women.

Distinguished delegates

The comprehensive Forum programme covered 67 sessions over three days. It included three plenary sessions and 64 parallel sessions. The sessions were organized by the Working Group, OHCHR and external organizations, on the basis of extensive consultations and some 160 submitted session proposals.

The theme of the 2016 Forum was “Leadership and Leverage: Embedding human rights in the rules and relationships that drive the global economy”. The programme reflected four key messages:

 States should “lead by example”.

 Leadership and leverage should be exercised by all enterprises that make up the value chain (including parent companies, suppliers and financial institutions).

 We need better models of action and accountability to drive business respect for human rights and companies’ positive contribution to the Sustainable Development Goals (SDGs).

 We need to step up efforts to improve access to remedy for victims of human rights abuses and protect those in particularly vulnerable situations.

Forum discussions highlighted a number of areas where we are seeing progress in implementation of the Guiding Principles as well as remaining gaps and challenges across regions and industries. Discussions provided a number of important observations and recommendations. I would like to briefly flag a few of these:

With regard to Government action, States are increasingly taking steps to develop national action plans to implement the Guiding Principles. This was seen as a welcome development by all stakeholder groups. At the same time, several recommendations were made regarding the content and quality of such plans. The Forum also discussed several notable policy and regulatory developments in all world regions that reflect key elements of the Guiding Principles. With regard to concrete policy areas, the role and responsibility of State-owned enterprises were given specific attention. As was the importance of making progress in integrating human rights in public procurement, including in order to achieve policy coherence in efforts towards sustainable procurement. The role of States in protecting and promoting respect for human rights in global supply chains was another key issue examined across Forum sessions.

Discussions on business leadership and leverage considered lessons by companies in integrating their responsibility to respect human rights in internal processes; and the role of ‘shapers’ of corporate practice, such as boards, corporate lawyers and investors in achieving wider and deeper commitments and action by companies with respect to human rights. The Forum also for the first time considered the role of accountants in advancing the corporate responsibility to respect human rights and the role and responsibilities of insurance companies. Stakeholders, including business representatives themselves, noted that many Forum sessions provided concrete practical value, such as discussions on responsible exits and the use of leverage when companies identify human rights abuses in their supply chains.

In discussions on the relationship between the SDGs and the Guiding Principles it was stressed that businesses must put efforts to advance respect for human rights at the heart of the ‘people part’ of sustainable development, and that the Guiding Principles articulate how businesses are expected to contribute to the social components of the SDGs. However, the Forum sought to address head-on the risk presented by some SDG narratives within the business community, where the understanding that respect for human rights needs to be the bedrock of the private sector’s contribution to sustainable development is being ignored.

Another important message was that transparency and innovative collective approaches have potential to deliver better protection and respect for human and labour rights in global supply chains. The Forum examined a number of concrete and innovative initiatives, such as:

 The KnowTheChain initiative, which helps companies and investors to understand and address forced labour risks within their supply chains

 The ACT (Action, Collaboration, Transformation) initiative on ensuring a living wage in garment supply chains, which brings together international brands and retailers, manufacturers, and trade unions

 The Principles for Human Rights in Mega-Sporting Events, which are based on the common goal of ensuring that mega-sporting events showcasing the best in humanity are built on respect for human rights throughout their lifecycle

Ladies and Gentlemen

A central premise for the Forum is that the voices of affected stakeholders and human rights defenders must be heard by States and businesses as well as everyone else engaged in the business and human rights agenda.

Another key message emerging from the discussions was that there is a pressing need for collective action to address the crackdown on human rights defenders. The Forum heard the personal story of Laura Cáceres, the daughter of community leader Berta Cáceres, who was murdered after coordinating a campaign against the Agua Zarca Dam hydro-electric project. The High Commissioner for Human Rights, and other speakers, underlined that the story of Berta Cáceres is not an isolated incident. While the issue is being raised by a number of actors – including by the Human Rights Council, Special Procedures and civil society across the world – Forum discussions highlighted that it is time to think critically about how to bring together the collective power of business, civil society and Governments to address the crucial need of protecting human rights defenders. More engagement is needed at all levels, even if discussions at times are difficult. In this regard, the examples heard at the Forum of corporate actors that are willing to take action when human rights are under threat in the countries where they operate, were encouraging.

Other key points emerging from discussions on the protection of human rights of persons in particularly vulnerable situations included:

 in order to effectively protect the rights of indigenous peoples affected by business activity, it is crucial to ensure recognition of land rights; the right to self-governance; free, prior and informed consent; and full and effective participation of affected communities;

 the gender perspective is missing from the business and human rights discourse generally and from national action plans in particular;

 in the contexts of national legislation that criminalizes same-sex relations, business can play a positive role in supporting civil society actors and addressing the gap between international standards for protecting and respecting dignity of LGBT persons and domestic practice.

Finally, let me highlight Forum discussions on initiatives to address the continued struggle of victims of business-related human rights abuses to access effective remedies, including deliberations on a new internationally-binding instrument and the outcome of OHCHR’s Accountability and Remedy Project that was presented to the Human Rights Council in June last year. In that regard, stakeholders underlined the opportunities presented by the OHCHR policy recommendations for bringing about the necessary changes in law, policies and practice to make domestic legal systems more effective in responding to business-related human rights cases, including in cross-border cases. Discussions also considered ways to improve the effectiveness of various non-judicial grievance mechanisms.

Distinguished delegates

Let my conclude with a few words about this year’s edition of the Forum.

The Forum’s central theme is “Realizing Access to Remedy”, and it will examine both shortcomings in existing efforts as well as emerging good practices and innovations, with a view to achieving greater coherence and committed action in the service of human rights and rights-holders. Discussions will include the full range of mechanisms covered by the third pillar of the Guiding Principles: from State-based judicial and non-judicial mechanisms to non-State-based remediation and grievance mechanisms involving companies, industry bodies, multi-stakeholder initiatives and regional and international institutions.

The Forum aims to enable action-oriented dialogue aimed at identifying concrete commitments from actors in positions to advance change and overcome existing barriers to remedies. Moreover, such dialogue needs to involve victims, human rights defenders, community and workers’ organizations, civil society from all regions, governments, national human rights institutions, business associations, companies, lawyers and investors. The 2017 Forum provides a unique opportunity to bring these various groups together to examine recent initiatives and explore common ground and practical solutions for ensuring more effective access to remedy.

The Forum plenary and other sessions will also address broader policy trends and consider the role of the business and human rights movement in today’s political and social contexts around the world.

As in previous years, the programme will reflect inputs from stakeholders. There has been an open, transparent process for making session proposals, which closed on 26 May. Programme details will be released in due course and registration will open in late August.

Mr. President,

The Working Group and the Office of the High Commissioner for Human Rights look forward to the Forum and to continue – within the constraints of limited resources – to build on the event’s success.

I thank you for your attention.