Wednesday, June 16, 2021

Brief Celebratory Observations on the 10th Anniversary of the Endorsement of the U.N. Guiding Principles for Business and Human Rights

It must be borne distinctly in mind that _it is not merely because this remark is trite that it is bromidic_; it is because that, with the Bromide, the remark is _inevitable_. One expects it from him, and one is never disappointed. And, moreover, it is always offered by the Bromide as a fresh, new, apt and rather clever thing to say. He really believes, no doubt, that it is original--it is, at any rate, neat, as he indicates by his evident expectation of applause. The remark follows upon the physical or mental stimulus as the night the day; he cannot, then, be true to any other impulse. (Gelett Burgess, Are You A Bromide? The Sulphitic Theory Expounded And Exemplified According To The Most Recent Researches Into The Psychology Of Boredom Including Many Well-Known Bromidioms Now In Use (1906))

Today we all celebrate the 10th anniversary of the UN Guiding Principles on Business and Human Rights (UNGPs). That they were unanimously endorsed by a divided UN Human Rights Council spoke volumes to their appeal to states, to a somewhat more wary the business community and to a perhaps more suspicious community of non-governmental organizations.All of us were elated of course; and some of us could not wait for the endorsement to be announced before transforming the event into the bottom step of a stairway that was going to lead elsewhere. But that is politics--and certainly that was the politics around the UNGPs. The important thing was that the UNGPs produced just enough common ground for people, institutions, and systems that could barely speak to each other at the start of the mandate of John Ruggie, not only came together for this brief instant, but also agreed--de facto or de jure--that the UNGP would henceforth effectively provide a common language and framework for approaching the human rights responsibilities of states and other actors in their economic activities.

ἀλληλούϊα or perhaps better in its original Hebrew הַלְלוּ יָהּ‎ (praise the higher power) that brought about this (in retrospect miraculous) event.

 In the West, humans, and their institutions, are sometimes obsessed with the magical quality of the passage of time. Time, of course, IS magical, in the sense that it signals first a thrusting toward vigor that then progresses toward an inevitable rigidity and a decline preceding death and its re-incarnation as memory. Every life, every effort, every endeavor, within the realities constructed through this obsession, is both marked by time, and doomed to a cycle of initial vigor and eventual decline, irrelevance, and oblivion (more more delicately put, toward ascent to a more eternal space of memory or joinder with a higher power). * * * It is no surprise, then, that one has reached such a period of magical signification in the evolution of the life (vigor, decline, death, transfiguration into memory or progeny) of the United Nations Guiding Principles for Business and Human Rights. Aaaahh, but not exactly for the UNGP, rather signification attaches here not to the principles themselves but to a rhythm that is a function of the year in which the UNGP were endorsed by an authenticating body--the UN Human Rights Council. Not just that, of course, for the spawning also produced a living memory of the event (Open Call for Input from the UN Working Group for Business and Human Rights: Next Decade 10+ "Business and human rights – towards a decade of global implementation").
Indeed, to mark the event, our global grandees in the realm of human rights have taken a moment to produce obligatory statements (and this being 2021 also obligatory statements video recorded). Links to those statements follow.  And they are the bricks on which this edifice of celebration are constructed. That exercise is to be praised, though perhaps more for its positive noise than for the content of the praise.

 I come to bury Caesar, not to praise him. The evil that men do lives after them; The good is oft interred with their bones; So let it be with Caesar. (Shakespeare, Julius Caesar (Act III, Scene 2 (Mark Anthony)

Buy-in at the top reminds all of us that hierarchy still matters in the elaboration of a system of human rights based on the equal dignity for all people and their robust inclusion in global discourse. That is a matter of persuasion, engagement, and incentive.  Buy-in at the bottom of course, is entirely another matter. And it also reminds us that it is the global vanguard whose leadership and guidance produces the orthodox vision of things around which the work of translation from abstract statement to everyday life is organized. The Chinese core of leadership has sought to remind the global community not just of this fairly self obvious reality but of the multiple ways in which this leadership core may be organized. The order of video statements of global human rights grandees provides at least a glimpse at the construction of guiding leadership within the liberal democratic camp. It is perhaps in this spirit that the Working Group for Business and Human Rights also marked the passage of 10 years with its grand project: 

As part of its mandate to promote the UNGPs and the UNGPs 10+ project, the Working Group on Business and Human Rights is taking advantage of the 10th anniversary to take stock of implementation to date of the UNGPs and to chart a course for action in the decade ahead. This “roadmap” for implementation in the next decade will be available in December 2021 (HERE).

A worthy project indeed, and in  a good cause to further a vision incorporated into the narrative discourse of human rights now a decade ago the meaning making around which requires careful cultivation and quite precise direction. 

Pix Source Jooin
Who could possibly add anything but bromides (and thus the opening quote above) to these efforts and those statements? And, indeed what could possibly be more bromidic than the cluster of comments that can be reduced to variations of what proceeded from the Office f the U.S. Secretary of State: "As we look forward to the next decade under the UNGPs, we recognize there is still much work to be done" (Statement of US Secretary of State Antony J. Blinken, 16 June 2021; full statement HERE). See to the same effect ¶6 of the Working Group Stocktaking Report: Guiding Principles on Business and Human Rights at 10: taking stock of the first decade (2021) ("Therefore, the 10thanniversary is much more than a landmark. It is a reminder of the challenges that still lie ahead."). These pose a danger of turning a celebration into a eulogy, and the UNGP from an action object in present and future tense to one understood only in the past tense; to something that is remembered as once having served a purpose. Thus in the theme of "Onward and Upward" another temptation to the bromidic.

I add my voice only to also applaud not just the passage of a decade during which the UNGP have not merely survived but, in its own (sometimes surprising) way thrived. My celebratory observations follow; these serve as a short list of perhaps unorthodox reasons for really celebrating the UNGP and its project.

1. The UNGP project exposed the changing character of state power, and not for the better. The contrast between the 1st Pillar (the state duty to protect human rights) and the 2nd Pillar (the corporate duty to respect human rights) is the difference between 20th and 21st century sensibilities.  The state pillar remains rooted in the 20th century; it is a recognition that state utility in the project of human rights within global production chains, is instrumental and partial. It has been of little interest to anyone but state political figures (who see in it a nice means of enhancing political standing within their network of necessary connections) and academics who see in the state some sort of incarnation of aggregate perfection that somehow can be coaxed out of the genius of the nation. Its highest and best expression to date has been in the theater of National Action plans--but even that draws the state away from its 1st Pillar duties to the far more relevant construction of the 2nd Pillar. State engagement with human rights remains as problematic as it was in 1918 when the issue first arose in Versailles with respect to the rights of minorities in states built on the butchered territories of empire.

2. If the 1st Pillar is proving to be a forgettable relic of a past century that itself is a candidate for substantial amnesia (not just for its horrors but for its follies with an emphasis of the madness inherent in its etymology), the 2nd Pillar has proven to be the element of the UNGP that consumed the rest.  The 2nd Pillar overcomes the contradiction of states within the context of human rights in important ways.  First its focus is on enterprises and markets directly connects object, instrument, and norms. Second, the irrelevance of the constraints of territoriality based law permits the construction of coherent global norm systems, in this  case around the International Bill of Human Rights. Third, the emphasis on markets recognizes the changing character of demos within territories built along production chains, whose key stakeholders exist within but beyond states. Third, the evolving character of enterprise governance provided a suitable institutional vehicle for the construction of human rights based governance systems that borrowed the sensibilities of administrative agencies (and their risk aversion), and the practices of contract based law making.

3. The 2nd Pillar's vigor has been too powerful to resist--by states.  The last decade has seen states abandon even the pretense of seeking to critically assess the alignment of their constitutional orders with the normative imperatives of human rights in business (much less in other areas).  Instead, the temptation to legalize and oversee the 2nd Pillar has proven to be irresistible. But that itself produces something of an ironic paradox. What made it irresistible was the ability of states to delegate even the pretense of actualizing any sort of duty to protect human rights to enterprises, and to do so in a way that effectively shielded their national territories from its effects. State power was not growing in this sense, but rather the governmentalization of the private sector suggests that it is the power of enterprises that continues to grow as their jurisdiction joins economic power (the oversight of production chains) with administrative authority (the power through mandatory human rights due diligence statutes for example) to  produce a political authority  at the international level that can effectively challenge state power--even state power that purportedly is the source of the legal obligation in the first place.  States take a step back.  Their police and juridical powers remain important instruments--but they no longer drove human rights and business through law. Due diligence, markets, and production drive compliance.  Compliance is the framework for accountability.  And accountability is the gateway to the normative foundation on which these systems are built. 

4. What ten years has revealed is the power of due diligence; the easily naturalization of the working styke of administrative agencies  in enterprises; the ease with which a fairly coherent normative baseline can be used to develop globally applicable rules for the operation of production; and the compatibility of all of that with efficient markets based systems of economic production.

5. But the UNGP also suggest the rich complexity in markets for both norms and its aligned administrative apparatus.  The real battles of the last ten years has not been so much about bringing the UNGPs back into states and their domestic legal orders, as it has been between the primacy of public or private actors as the primary sources of norms and the superior instruments for their oversight.  In either case the object is the same -- the battle to determine through whom enterprises are accountable. 

6. And the great lacunae of the UNGP follow: the unwillingness to concede that it is possible to account for the human rights effects of economic activity has made it impossible for a deep embedding of human rights norms within the fundamental operating structures of the enterprise--a fundamental structure based on pricing and built into the cultures of financial statements.  There is a bit of hypocrisy here--the same voices loudly raised in horror at the thought of pricing human rights are more than happy to lend a hand in the development of a great (and I am actually a supporter of this development) system of human rights torts based on the legal consequences of human rights due diligence, control of production chains, and the legalization of international norms.  The great contradiction here is that this emerging transnational tort sensibility is itself grounded in the concept of compensation for wrongs--compensation that at its core is built on premises of pricing human rights related losses. 

7. The last point raises a perhaps more urgent point--a decade of UNGP continues to expose the challenge of remedy. Indeed, what the 3rd Pillar provided was an invitation to work through the remedial project, rather than a suggestion for its solution.  It is here that the UNGP comes close to the reproduction of liberal democratic judicial bromides.  And yet the framework might well have been the impetus needed for the Office of the High Commissioner to begin to develop a 3rd Pillar Plus in the OHCHR focus on remedy, but one not confined to the UNGP framework. 

8. Lastly, a decade of the UNGP project suggests that its central focus, human rights, if interpreted in a traditional and orthodox way, may be as obsolete as the 1st Pillar. The great irony of the unanimous endorsement in 2011 was tat at the moment of its triumph the very framework of the UNGP--that centered the project of responsible business conduct on human rights, and the human rights project on individuals--was being celebrated even as the realities of climate change and sustainability were emerging as the necessary dominant framework for discourse especially in the context of economic activity. Certainly few would deny that the UNGP is a 'living document'--though that term is also bromidic in its discursive kitsch. Yet sustainability invites a shift of focus, of principles, and of the way society values actions and consequences--from the individual at the center, or even collectives of individuals at the center, to a centering of the plant itself. It is not that sustainability and climate change (biodiversity and the like) have human rights implications (the concession generally made by the core human rights crowd), but rather that human rights are better understood within the broader context of, and is dependent on a sensitivity to the prerogatives of, respect for sustainability in the sense of humanity within and as part of a larger ecosystem on which humanity's existence is dependent. It is to that project, perhaps, that the UNGP might devote substantial attention in the decade to come.

9. Lastly, a decade of the UNGP also evidences a great danger of transformative normative projects like it.  Ten years has evidenced the ease with which a complex instrument can be--simultaneously--(1) reduced to a fetish, an invocation, an incantation which is then invoked in the service of a myriad of other activities, and (2) expanded into a complex codex effectively removed from and inaccessible to the people who need it most, not those populating the expensive eateries of New York and Geneva--but those on the ground at the end points of global production chains. In either form the greatest danger of the next ten years is that the directness and simplicity of the UNGP may become lost, and the UNGP lost with it, in the great campaigns to reduce it to an invocation or to expand it into an unreadable codex.


UNGPs 10+ stocktaking resources

Marking the UNGPs 10th anniversary: Video statements

From UN leaders, Governments and international organizations

From trade union, indigenous peoples, civil society and business organizations

From UN leaders, Governments and international organizations

António Guterres, Secretary-General of the United Nations

Michelle Bachelet, United Nations High Commissioner for Human Rights

H.E. Ms. Erna Solberg, Prime Minister, Norway

H.E. Mr. Heiko Maas, Federal Minister for Foreign Affairs, Germany

Guy Ryder, ILO Director-General

Achim Steiner, Administrator of the United Nations Development Programme

Sanda Ojiambo, CEO and Executive Director of the United Nations Global Compact

John Ruggie, former UN Secretary-General's Special Representative for Business and Human Rights; Berthold Beitz Professor in Human Rights and International Affairs at Harvard's Kennedy School of Government

Allan Jorgensen, Head of the OECD Centre for Responsible Business Conduct

From trade union, indigenous peoples, civil society and business organizations

Sharan Burrow, General Secretary of the International Trade Union Confederation

Joan Carling, co-convenor of the Indigenous Peoples’ Major Group for Sustainable Development; founding leader and co-director of Indigenous Peoples Rights International (IPRI)

John W.H. Denton, Secretary General of the International Chamber of Commerce

Christy Hoffman, General Secretary of the UNI Global Union

Abby Maxman, CEO, Oxfam America

Herman Poelmann, chairperson of amfori

Ron Popper, CEO, Global Business Initiative on Human Rights

Roberto Suárez Santos, Secretary-General, International Organisation of Employers

Brian Sullivan, Executive Director, IPIECA

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