Thursday, December 07, 2017

Final Reflections ("Suggestions for Moving Forward to the 7th UN Forum"): United Nations OHCHR Forum for Business and Human Rights (27-29 November 2017)

(Pix © Larry Catá Backer 2017)

As in past years (here, here, here, and here) I am again happy to report on the annual United Nations Forum on Business and Human Rights. The 2017 Program materials provide the background and a marvelous source of materials around the activities of the Forum.

Links to the Reflections for each of the three days of the Forum may be accessed here:
Day 1 "What is the continuing relevance of the U.N. Guiding Principles?";
Day 2 "What is to be Done?";
Day 3: "'Connecting the dots' and 'calls for action: From Estates General to Governance Trade Fair and Back Again.'"

Final Reflections: "Moving Forward to the 7th UN Forum."

Again, as has been my practice over the last several years (e.g., 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”)) and building on my reflections on the 6th Forum, I offer observations and suggestions for the 7th UN Forum, to be held in 2018.  My suggestions are divided into six categories: (1) the Snapshot Program: (2) Working Group Solidarity; (3) the scope of human rights; (4) listening; (5) silos; and (6) showcasing.

1. The "Snapshot" Program. I applaud the efforts of the Working Group and the Forum organizers to experiment with new forms of engagement.  More particularly I thought the new Snapshot feature was an excellent idea and would strongly encourage its retention for future Forums (see, e.g., here). There were many Snapshots to pointed to potentially important research and engagement initiatives that will substantially contribute to the UNGP project and facilitate the work of states, enterprises and civil society in undertaking their obligations with respect to human rights in economic activity.  It was a pity that the sessions tended to be under attended and there were many in the building who were less aware than they should have been about this important new addition to the Forum. Here are some suggestions for the future respecting the Snapshot feature:
(A) The program should be better publicized earlier.  One can appreciate that the decision to include this feature might have been made late, but there was still a sense of the marginal place of this event that might have been communicated to attendees to the detriment of the program. .
(B) The organizers might consider a better choice of rooms.  Room IX is a lovely space, but it is also about as far from the core of the Forum activities as one can get.  The signalling of space allocation significantly contributed to the sense that these were marginal events of marginal interest to the attendees.
(C) The idea to record and upload the presentations is an excellent one. One hopes that eventually the recording will be posted and generally made available.  One wonders however if it might be possible to also collect and make available links to the many excellent PowerPoint presentations that were central to the success of many of the Snapshots.   Real Time posting might also be a middle term objective.
(D) Many of the presenters would doubtless appreciate the opportunity to further engage with interested viewers.  It might be useful to make it possible for viewers to reach out to the presenters, perhaps by providing contact information or serving as a contact clearinghouse. 
(E) It was a great pity that several Snapshot participants did not bother to appear for their events at the appointed time.  That necessitated moving up other presenters which created a double challenge.  Several of these presenters were not in attendance waiting for the scheduled time in which to appear.  More importantly several presentations that were pushed up produced disappointment as several people who had intended to assist in specific Snapshot events were unable to do so because of the constant changes in schedule. Perhaps a mandatory attendance and presentation procedure on the morning of presentation date might help reduce the challenge of no-shows.
(F)Snapshots provide a great opportunity for non English speakers, especially from the Global South, to present original work.  It might be worth the expense to provide at least limited simultaneous translation of that work (by concentrating all non English presentations in some segment for example= to expand the range and source of knowledge generation at the Forum.
2. Working Group Solidarity. One of the most interesting structural decisions made at the time of the constitution of the Working Group was to encourage individual work by each member of the Working Group.  In some Forums it was almost a misnomer to refer to a "Group" as each of its members was free to pursue their own interests within the annual Forum theme.  This had a number of significant benefits--the Working Group was able to expand the scope of its engagement in many ways and wrre able to leverage their collective talents  to the benefit of the UNGP project.  But there are costs as well.  One of the mots noticeable is the loss of Working Group solidarity.  Though it exists and is manifested throughout the year in the collective work of its Members, it is hardly on display during the Working Group's signature event.  And thus the suggestion--perhaps next year, the 7th Forum Plenary might  consist of the Working Group's members all  on the stage at one time and in one place speaking to the issues of the Working Group itself--the challenges they face, the value f team work and the importance f their collective work to the mandate. That gesture would go a long way to signalling the importance of collective action especially in the context of a UNGP framework that is itself built around the necessity of the three great governance communities--states, enterprises, and civil society--to do the same.

3.  The Scope of Human Rights. I have always been struck by the indeterminacy of human rights--a central element in the UNGP project.  That indeterminacy is born out of the delicate relationship between norm making at the international level (that produces aspiration but no obligation or duty), law making at the international level(that produces a law that binds states in their relationships to each other but carries no legal effect within the territories of many states), the differences between state duty to other states under international law ad state willingness to adopt and embed international law within their domestic legal orders. This produces indeterminacy in the sense that there is no definitive catalogue f rights (i law) that binds all states (except a very small number of potential rights that might eb understood as jus cogens) The Web Site of the Office of the High Commissioner for Human Rights in discussing human rights dances delicately around this indeterminacy and puts the best possible face possible on the issue.  The UNG  produces an advance but in an ironic way--it defers to the indeterminacy of meaning of human rights in the state sector and under public law, but specifies a core catalogue of human rights in the societal sphere applicable to enterprises (UNGP ¶ 12; but "Nothing in these Guiding Principles should be read as creating new international law obligations, or as limiting or undermining any legal obligations a State may have undertaken or be subject to under international law with regard to human rights." Ibid General Principles). And yet across the six years of the Forum there has scarcely been any attention paid to the issue at the core of the UNGP project--the question of the normative and specific content of human rights. It might make sense for the Working Group to consider some focus on the scope of human rights.  In the absence of this effort, there is always the possibility, which grows with time, or reducing "human rights" to fetish--a rhetorical trope without content, or worse with only such content as power seeks to compel (e.g., here).  And thus my suggestion: there should be at least one panel focusing on giving content to the notion of human rights at the state level (political-legal space), at the enterprise level (societal-regulatory space), and at the civil society level (cultural moral space).

4. Listening.  One of the great strengths of the Forum is its ability to speak to multiple constituencies.  Indeed there is a lot of "speaking to" at the Forum.  This assumes a somewhat ironic turn as Forum speakers tend to spend more and more time speaking to the importance of listening; that is of listening to people other than themselves and those they represent in the state, the enterprise and the highest levels of civil society (positions that speakers tend to occupy).  It might be useful to devote at eats one small space for listening--that is a space within the Forum that people who otherwise do not speak at these events may contribute in some small measure to the dialogue.  These might be recorded (id appropriate and safe) and made available to the Working Group and their staff.  And then they might provide responses shared with the business and human rights community. It is easy enough to speak about listening; it is a much harder thing t institutionalize listening.  Perhaps that is the great next task of the Forum.

5. Silos. The Forum organizers ought to be lauded for increasingly opening the Forum space to the deeply related issues of sustainability and environmental concerns, including climate change.  Not that there has been much choice.  States and other important actors have increasingly sought to tie together issues of climate change, of the vulnerability of women and of sustainability together as a set of integrated and co-dependent rights (of individuals) and obligations (of states, enterprise s and civil society actors). The remarkable thing is that the United Nations system itself has created a number of mandate holders who are working in areas of rights and obligations intimately connected with the UNGP. It might be quite useful, therefore, for the next Forum to sponsor at least one panel event in which these mandate holders might be given a substantial spotlight at the Forum.  At a minimum it might be useful to invite the UN Special Rapporteur on human rights and the environment, whose Draft Guidelines on Human Rights and the Environment (available here in English, French, Spanish) are certainly worth considerable discussion at the Forum (e.g., here).

6. Showcasing.   The Forum presents an opportunity to share among a large number of influential members of the state, enterprise and civil society communities.  Much of that sharing of knowledge neither requires presentation at a formal panel nor the engagement of a Snapshot. These might include information about prior work, reports, toolkits, activities, monitoring results, and efforts at compliance, with respect to which something more modest might be appropriate.  And it would be appropriate because in many cases some of the most innovative ideas are generated not by the most powerful states, the most well known enterprises or the largest civil society organs, but by small local and committed states, enterprises and civil society actors who usually work in the shadows of their more dominant counterparts.  Some effort might be made--perhaps along the hallways or other open spaces, little used during the Forum, to permit these a small amount of space to showcase or distribute information about their efforts. Providing them with a space to showcase, and distribute, and to speak with conference attendees would do much to broaden the base of those engaged in and committed to the work for which the Forum was in part created to which it is in part dedicated.

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