Thursday, November 29, 2018

1-Reflections on the 2018 U.N. Business and Human Rights Forum

(Pix © Larry Catá Backer 2018)

The United Nations Working Group is to be commended for putting together yet another highly interesting, relevant and successful set of programs for its 2018 Forum on Business and Human Rights (and here). As the Forum has increased in visibility and popularity, the task of producing relevant and up to date programs that engage key stakeholders in a rapidly changing environment becomes ever more difficult. 

This post includes reflections on the 2018 and some suggestions for future consideration as the Working Group continue to strive for perfection in the organization of this important event. 

1.  The Rise of "Statements Sessions".

There was a curious increase in the tendency for speakers to produce statements, formal expressions of policy or assertions of undertakings and achievements, that brought a measure f formality to the proceedings.  We should, of course, welcome such statements from states  and other political communities.  Surely such an opportunity  enhances the value of the Forum especially to state participants. And yet one wonders whether such statements, especially when they absorb all of the time of a session, effectively contribute to enhancing the value of the sessions for participants. The value of the sessions, in part, derive form the ability, even in small ways, to interact with those with the authority to issue statements.  It is, in effect, one of the few institutionalized venues in this field to engage with power. States, civil society organs, and enterprises have power aplenty within the scope of their authority.  They have much to say.  They say this carefully.  But should they perhaps concede a little larger space for engagement?

There are two alternatives that might be considered.

The first alternative would require statement makers to deliver their statements before the session.  The statements would then be posted to the site at which the session is described on the Forum website (or its program).  The session would then be devoted to participant comments on the statement or questions to the statement makers related to the substance of the statements.

The second, alternative that might be considered--engagement with an absent power holder.  For this alternative, the first half of the session might be devoted to the statement maker (states, civil society officials, enterprise representatives, etc.) for the purpose of reading their statements (and perhaps also permitting publication). The second half of the session (with equal time) would be devoted solely to comments from participants, during which statement holders remain silent, and listen.

I understand that neither alternative will likely gain much traction.  Power holders--states, enterprises, and the great civil society actors--tend to be prisoners of their own group cultures. They tend to be reluctant to move beyond their customary practices in their usual interactions with others.  Moreover the customs of the Forum itself is becoming institutionalized, creating even at this stage an inertia with respect to practices and expectations, especially in interrelationships between power-holders and others. Moreover there is a perhaps well founded fear that the sessions will devolve form polite spaces for the conveyance of views (though not necessarily for conversation or engagement to be undertaken off site and out of the glare of public spaces) to spaces hijacked by those who cannot resist the allure of agit prop tactics to make a point or leverage their own interventions. One has seen versions of this in other spaces associated with other business and human rights mechanisms. Still, one has to start some place and this may be a way.

2. Accountability and Assessment.
One of the oddest things about the development of the discourse of the UN Forum has been its love-hate relationship with accountability and assessment.  On the one hand, there is a tendency to engage in ersatz assessment of the UNGP grounded in the perceived lack of speed within which the objectives of the UNGP have managed (to the satisfaction of those who make these assessments) to evidence uptake of the UNGP and its preferred behavior norms for states (but mostly for business).  On the other hand, there is a somewhat surprising lack of interest in assessment and accountability mechanisms.

Of course, assessment and accountability are two different things.   Assessment focuses on the relationship between practice and objective, it focuses on the extent of alignment between expectations and performance.  To that end assessment requires engagement in the difficult enterprises of developing practice  and of defining objectives in ways that can be measured.  It requires the even more daunting task of figuring out how to understand the ways that expectations can be created that can be connected, in effect, to forms of performance. More important, assessment poses substantial human rights issues around data and analysis.

Accountability, on the other hand,  suggests the process of applying judgment to analytics.  That is, while assessment produces a set of relational measures, accountability then applies a different site of measures to the ends of making a determination about the quality of assessment and its consequences. Those consequences range from needs to improve performance, revise operations, or indicate the need to engage in remediation. Accountability, of course, is central to the UNGP.  But its centrality is fractured along a number of lines--enterprise self accounting (internal monitoring); accounting to others by states, by enterprises and others, rendering account (remediation) and the like.   

The processes of accountability, then, are quite distinct from those of assessment. Both are necessary to the enhancement of the integrity of systems developed and operated in conformity with the UNGP.  Both are intimately bound up with human rights due diligence as a mechanism for assessment (though not its entirety) and as a means of producing analysis that are ripe for accountability, especially for rendering account. It is a pity, then, that neither assessment nor accountability in its rich and complex embedding within the UNGP, have been centered.  There has been attention paid to both from a high degree of generality. Devoting more space to both issues at the operational level might be useful in the future.   

3.  The political economy of business and human rights.
No one really focuses on the political economy of human rights. Everyone is aware of costs of remediation, but few consider the cost to develop and operate systems of remediation, and modalities of human rights due diligence.As a result there is an unacknowledged emphasis on fairly well resourced apex companies, and fairly well developed states as the model proxies for the development of the "ideal" in the relationship between these actors and the UNGPs. That is a pity.

The political economy of the UNGP on enterprises and on states remains under-explored.  One element is centered on issues of technical capacity.  These are usually embedded in the discussion of the "challenges" of small and medium sized enterprises, especially those in the middle or lower levels of global production chains.  They are also embedded in discussions of the "North-South" problem in building and operating effective UNGP mechanisms.  The usual course of discussion consists of identifying the challenges of capacity, and then using that as a doorway for the intervention of either developed states and international organizations, or of apex enterprises. And then the discussion returns where it started--the leading role of these powerful actors as the most "equal" members of communities of states or of enterprises aligned in production chains. But that sometimes blind reinforcement of power hierarchies in economic and political spheres ought not to go un-noticed.

A related challenge revolves around issues of funding.  Many developing states and smaller enterprises do not have the financial capacity to embed the UNGP to an ideal level. That, in turn, may open the door to discussion of the acceptance of current premises about appropriate business models, or relating to how one understands profitability (or economic or political viability).  Instead, it suggests the means through which developed (OECD and related states) states and apex enterprises ought to displace, in effect, the other stakeholders in the construction of UNGP operational systems.  Those reflexes, certainly, are worth discussing.  They tend to occupy a space at the margins.  Perhaps these ought to move closer to the center.  But so moved, they ought not to be developed as complaints sessions. Rather they suggest the central role of the political economy of compliance at the heart of the UNGP project--not just with respect to remedy, but also with respect to the character of a duty to protect and a responsibility to respect that itself respects the autonomy of states and of enterprises.  
4. Empowerment and Victimhood and Forum Self-Reflection.

If issues of capacity under the UNGP already surround some of the fundamental approaches to the UNGP with respect to states and enterprises, it also appears in the re-construction of the capacity of rights holders. I have had much to say about this in other contexts (here and here).
There are two trajectories whose arcs appear to be pushing in different directions, both of which appear to be joined in newer approaches to human rights instruments (discussed briefly here in that context). Both also appear to more and more clearly define  the "new era" of human rights in economic activity, especially (and for some only) when undertaken by classical profit making enterprises. The first touches on the legal construction of the status of "victim" bound up in the relation between individual and their attached rights. The second suggests the way that this new legal status appears to strip its bearer of agency--the conferral of the status of victim makes an individual a victim twice over. The first takes place when the individual's (legal, moral, societal, communal or other) rights have been violated; the second occurs when the state confers a status on the rights holder that effectively shifts agency over both rights and vindication from the individual to those who mean to manage both.  (Here).
The victimization of rights holders in business and human rights, the ease with which those with power take it on themselves to develop well meaning systems that effectively strip rights holders of agency (all for perfectly respectable reasons or to further perfectly respectable causes) is a subject ripe for discussion at at future Forum. This might be considered one aspect of the larger issue of empowerment (the other side of the victimization coin) that lies at the heart of the UNGP--empowering states to fulfill their duty to protect human rights, empowering enterprises to fulfill their responsibility to respect human rights; and empowering rights holders to determine their own fate and to fairly vindicate their rights.  The issue of empowerment, then, within the modalities of human rights due diligence and grievance mechanisms, ought to assume a larger role in the proceedings of the Forum.  But empowerment must be understood not just with respect to a voice in the creation and operation of human rights due diligence and grievance mechanisms, but also in the joint ownership of information and the processes through which rights may be protected, and if violated, then vindicated.And again, it folds back into challenges posed by the political economy of human rights.

The issue of the slide toward the victimization of rights holders in whose service those with power appear ready points to a larger issue--the need for the Forum and the Working Group to engage in the practice of self-criticism, that is of a public session for assessment of the Working Group's efforts and an openness to hearing from the Working Group's key stakeholders in an open forum on issues and challenges that may require attention.  One will welcome the development of a robust mechanism for Working Group assessment of its own work as part of the practice of accountability where the Working Group might help by leading by example. 

5. The Snapshots
The Snapshots remain a work in progress.  I have been a great fan of this mechanism (e.g. here). There is still room for improvement for thr snapshot element of the Forum.  That requires, first, a sensitivity to complaints that snapshots are marginalized by way of their room assignment or references in Forum discussion. Second, it also requires a sensitivity, in a Forum that cannot escape its class based divisions (states, civil society, and enterprises), that snapshots are places where sub-classes of these actors are parked. There was a sense among many of the participants that their neither understood the "snapshot", nor its relation to the "real" sessions at the Forum and thus in thinking about attending might have chosen to pass on otherwise excellent presentations of forward looking work.  

There are a number of small things that can be done to make the snapshot more effective, and to draw it suggestions. First, live stream the snapshots. That leverages the audience beyond those who might be able to attend in person. Second, move snapshots into the web site where Forum information is distributed.  As it stands web searches for snapshots usually prove frustrating at best. Third, reconsider the present means used to distribute calls for participation in snapshots.  It is not clear that current distribution modalities are effective as they could be.

6. The role of technology.
Block chains, analytics and algorithm as a substitute for or as the future of human rights due diligence? What is the business model for blockchain in human rights within companies and as a stand alone industry? What is the the role of algorithm in decisionmaking? Should it substitute for human judgment or should it serve as a basis for accountability of that judgment? How might one understand the landscape for the corruption of analytics and data mining as human rights laden? To what extent should the process of data gathering, of the analytics undertaken through them, and related algorithms, are themselves subject of human rights due diligence for their effects? These and related questions require much further study, and much greater attention from the Working Group.  The problem with technical questions, of course, are that they are technical.  And for many stakeholders the technical may prove daunting.  Yet if the application of the UNGPs and its operationalization will increasingly be undertaken with and through technology it seems that the Working Group is in the best position to provide a space where education and discussion might be undertaken. The Working Group has taken the initial steps in that direction over the course of the last two Forums, but perhaps they might better integrate issues of technology more generally.

7. Small and Medium Size Enterprises
One of the most dynamic areas of development in the operationalization of the UNGP touches on the role SMEs.  SMEs are interesting in at least twp respects.  The first is as independent centers of responsibility at the top of localized production chains.  The second, and more difficult role is as a subordinate organization within larger global production chains.  Sometimes SMEs occupy both roles simultaneously. Most often these are the enterprises through which the the production chain (finally) meets rights holders in direct interaction. SMEs are sometimes autonomous actors; sometimes SMEs are severely constrained by the policies and operational constraints imposed on them by apex companies who tend to garner almost all of the interest of stakeholders in prior UN Forums. It may be time (again) for the Forum to center SMEs within the the operational and normative universe of UNGP.  Perhaps in the coming years at least one principal stream might focus on the SME and the UNGPs.

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