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The Office of the High Commissioner of Human Rights, along with the UN Working Group for Business and Human Rights along with the Geneva Human Rights Platform, and Friedrich-Ebert-Stiftung Geneva office--a virtual top level People's Political Consultative Conference of leading business and Human Rights organs--now seeks to exercise consultation on the form and function, as well as the targets, for a mass push toward the construction and operation of systems of help desks to facilitate the embedding of the appropriate expectations and drivers for business and human rights. An invitation has been extended to those ends (discussed here; concept note for the event here; on the German template here). That hour long consultation (structured as a leading groups panel format) will take place in Geneva at the end of June, 2024.
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This post considers one of the background documents around which the consultation has been framed, starting with the OHCHR Business and Human Rights Section, "Helpdesk on Business and Human Rights: Concept Note." The object is to get a sense of the nature of the project and its parameters so that useful inputs might be offered. Stefania di Stefano's excellent, "Research Brief: Parameters for a Global Helpdesk on Business and Human Rights
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Overall, this is a quite worthy project, and one that aspects of which I have considered a while ago before the idea acquired its current forms (see, e.g., here, and here). The analysis that follows is part of my input on the idea and operationalization of a "help desk" feature. The hope is that careful engagement might provide some benefit for decision makers to enhance the proposed interpretive facility's respect of the spirit of the UNGPs themselves in a way that remains positive and useful for everyone but sensitive to context, time, place, and space.
The analysis that appears below, as well as its initial suggestions about the Helpdesk concept, may also be accessed HERE.
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"Helpdesk on Business and Human Rights: Concept Note."
1. Introduction. The "Introduction" of the Concept Note sets the stage for the Concept, its placement within the OHCHR, and its institutional character. It was written as part of a fundraising document; it "presents the main contours of the BHR Helpdesk proposal. The note is part of OHCHR fundraising efforts to implement the recommendations of the UN Working Group on Business and Human Rights in its Roadmap for the next decade of UNGPs implementation. A full funding proposal can be presented upon request" (Concept Note n. 1).
To that end it advances certain principles and premises. First, that the UN Guiding Principles for Business and Human Rights are the "authoritative global standard for preventing and addressing human rights harms in the context of business activities." (Ibid., p. 1). "Second, that the OHCHR is the focal point for "providing uniform guidance and clarification" on the interpretation of the UNGP.
With respect to the first, there does appear to be a consensus about the importance of the UNGP as the framework for addressing issues of human rights harms in economic activity. That framework offers a set of processes, addressed to States and to third parties (including business enterprises). The framework processes addressed to States are founded, at a minimum on the international legal obligations of States, and and are realized through the traditional mechanisms of international law with respect to State obligations in the international system. The framework processes addressed to business enterprises, are grounded at a minimum on respect for the human rights instruments identified in UNGP Principle 12, which are realized through the development and application of systems of human rights due diligence. Both States and non-State third parties to which the UNGP might be applied, are responsible for ensuring remedial protections under standards described in the UNGP's 3rd Pillar. That,might be understood as the cluster of authoritative standards to which the Concept Note refers. But one cannot be sure.
With respect to the second, the notion of the constitution of the OHCHR as the focal point has had a curious history, reflecting intent, certainly, but also perhaps regulation or formal authority less. It does suggest a way of approaching interpretation and meaning making wit respect to which there may be less familiarity among stakeholders than might be assumed.
The genesis of this premise might be found in the work of SRSG Ruggie in the final years of his mandate. On the very last paragraph (¶ 126) of SRSG Ruggie's 2010 Progress Report on the operationalization of the "protect, respect, and remedy" framework (A/HRC/14/27; 9 April 2010) SRSG Ruggie spoke to having become the de facto focal point for business and human rights. He expressed the hope that after the end of his mandate that an "advisory and capacity building function" would be "anchored" in the UN. He suggested further that "Logically, this should rest with the OHCHR." (Ibid., ¶ 126).
Two years later, that desire was recast as something substantially more formal by the UN Secretary General in his Report on "Contribution of the United Nations system as a whole to the advancement of the business and human rights agenda and the dissemination and implementation of the Guiding Principles on Business and Human Rights" (A/HRC/21/21; 2 July 2012). Citing SRSG Ruggie's desire expressed as ¶ 126 of A/HRC/14/27 as support, the SG turned desire into fact ("The institutional focal point within the United Nations system for providing uniform guidance and clarification on issues relating to the interpretation of the Guiding Principles rests with OHCHR")--with the additional requirement that the OHCHR work "in close collaboration with the Working Group" for Business and Human Rights. (A/HRC/21/21; ¶ 33). Now treated as self-evident, the Working Group, eleven years later, relied on that assumption/practice/desire/expectation as a premise on which the concept of a helpdesk, as they would now develop that concept, could be developed authoritatively under the authority of the OHCHR. (Report of the Working Group for Business and Human Rights, "Building Capacity for the Implementation of the UNGP (A/HRC/53/24; 18 May 2023) at ¶ 71).
The object of this history is not to suggest that the OHCHR lacks capacity to develop administrative mechanisms that are meant to offer guidance and interpretation--however they may be authoritatively received (or not). Rather it is to highlight the interpretive methods, and the trajectories of that interpretation (along with the principles that they might advance) that would be built into any mechanism so organized. In other words, in the operation of an OHCHR helpdesk, one must be prepared to address issues of guidance and interpretation in the manner and forms illustrated in this simple but telling example. For those unversed in the subtleties and practice tropes of this administrative organ, it might well be that capacity building will be necessary to ensure the capacity to acquire the substantive capacity proposed.
These initial premises are central to the objectives of the project--the avoidance of fragmentation in interpretation and divergence of understanding among stakeholder groups (Concept Note supra, p. 1). That objective was drawn directly from the SG's 2012 Report A/HRC/21/21; ¶ 32). In 2012, the SG was worried about securing the "full benefits of convergence" which would be threatened by fracture in implementation. A single interpretive narrative was thought a necessary response. Yet at the time, that narrative disciplining of collective meaning was supplied by the dissemination by the OHCHR of its 98 page "Interpretive Guide" to 2nd Pillar Corporate Responsibility compliance (HR/PUB/12/02; 2012). By 2023, that was not enough. Two principal reasons were offered in the Concept note (supra p. 1): (1) the growing popularity of the UNGP augmenting the risk of interpretive approaches at variance with what might be preferred within the OHCHR apparatus; and (2) Conversely, the popularity of the UNGP had also increased the number of requests to the OHCHR for authoritative interpretation that threatens to overwhelm that apparatus.
The solution: institutionalization and upgrading "of this line of work" to provide service more fairly, as the OHCHR understands that term (Concept Note, supra, p. 1). The Working Group's 2023 Report (Action Area 8 in its UNGPs 10+ Roadmap report; and A/HRC/53/24) proved a useful source of suggestion (Concept Note, supra, p. 1). And, thus, here we are.
2. Background. The Concept Note used the "Background section (Concept Note, supra, pp. 1-3) to drive home three points.
The first was to add authority, continuity, and legitimacy through forms of consultation, by sourcing the idea for the helpdesk in the "stock taking" work of the working Group, the OHCHR "and other partners" around the Working Group's UNGPs 10+ Roadmap report. The Help Desk Concept was then echoed in the Working Group's 2023 Report (A/HRC/53/24). In addition, the work of the G7 under the German Presidency added weight to the concept. "An OHCHR report on sustainable global supply chains prepared for the German Presidency of the Group of Seven (G7) echoed the Working Group’s Roadmap recommendations, calling on G7 States to “commit to using their broad powers across domestic policy areas to implement more ambitious supporting measures” to implement the UNGPs as a complement to mandatory approaches."
The second focused on lessons learned from the ongoing guidance and technical support by OHCHR (Concept Note, supra, p. 2). Here the OHCHR was recast as the "guardian of the UNGPs" (Ibid.)--a heroic, and no doubt a necessary characterization. A reference to the ongoing written guidance was made to suggest the demand side arguments for a helpdesk (link here), and the popularity of its 2012 Interpretive Guide was noted. Most interesting in its recital of the activities that keep it busy in this respect are the "demand side clients. They include States (especially with respect to their regulatory ambitions and their National Action Plans); business; civil society organizations (which have access to OHCHR) and other international organizations.
One gets the sense that demand side pressure is generated at the high end--actors who matter, who have impact. Human rights adverse impacts risk bearers do not appear to engage in any sort of meaningful way. For them reliance on these mass organizations--political, economic, social, and international, seems to be the expectation. For human rights bearers, the ARP Project with its focus on remedy is on offer; for institutional actors a place at the table for system building and the development of significant interpretive consensus is also available (Concept Note, supra, p. 3). Capacity is certainly an issue, but it is as likely that the unconscious premises and power of arborescence that also plays a role. Already one gets a sense of the power of hierarchy and impact in the design, purpose, and operational style of the helpdesk: this is not to foster neural pathways but rather a routing from top to bottom. That may make sense; the acceptance of that model without much discussion might make less sense given the nature of the subject and its objectives.
The third focuses on structuralist and system building principles and objectives. One of them appears to be to enhance the role of the OHCHR as the hub of interpretive activity when it comes to human rights. Fair enough. The object here is not merely convergence, but convergence within the apparatus of the OHCHR, and with it the control of the parameters, premises, and objectives of interpretation. Another appears to be inherently administrative. Functionaries are quite concerned about the scope and limits of jurisdiction--and the jurisdictional limits of the interpretation facility of the UNGP is no exception. "Thus, while it could be appropriate for the helpdesk to provide an assessment of the extent to which a draft law aligns with the UNGPs, it would be out of scope for the helpdesk to comment on the legal implications of national laws related to business and human rights" (Ibid., p. 3). A sort of principle of subsidiarity might be developed with national issues to be handled locally and core interpretive directives handled from the center. (Ibid.). The same applies to labor standards. Also interesting is the functional differentiation of the OHCHR helpdesk organ with the role of the Working Group. "Further, the BHR Helpdesk and OHCHR’s advisory role is meant to be distinct, but complementary, to the activities of the UN Working Group on Business and Human Rights. . . in performing a BHR Helpdesk function, OHCHR will liaise closely with the Working Group to ensure alignment in approaches to interpretative and practical matters relating to the UNGPs." (Ibid.).
3. The BHR Helpdesk Concept--Function and Organization. The last 2 pages of the Concept Note are devoted to sketching out a rough structure for the Helpdesk. It is built around five functions which are conveniently illustrated through a set of interlinked circles, suggesting not just linkage but equivalence.
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a. Interpretive advice. The Concept characterizes the function of advise in terms of platforms--though it is not clear what either the authors, or the concept, mean. Platforms are spaces where consumers and producers of things of value to both meet and exchange. But it also suggests that producers and consumers may constantly shift roles. Moreover, platforms are spaces for the harvesting of data. It is not clear whether that is also contemplated, though the expanding portfolio of possible applicable (European) law may be an issue. In any case, it appears the notion is that this platform will cat like a router in some cases, and (on the basis of analytics it is presumed) also develop more summary forms of response based on the routinization of forms of requests. Of course, the danger there will be in the essentialization of advice that, the more generic it gets loses its value to its consumers. The Issue of confidentiality is left deliberately vague--a worrying sign if indeed the principal object of this enterprise is to centralize and enhance buy in for a coordinated discipline of the narratives and understandings (as well as the application) of the UNGP.
b. Policy coherence and alignment. The focus here is on a coordinated approach to the disciplining of national measures in line with and subject to the OHCHR interpretive principles for the UNGP. The objects are states, but the request for such pronouncement may come from business and civil society--and in contested political fights, likely from both. Little is said about alignment with the OECD, though one might expect that this is implied.
c. Technical advice and capacity building. Advice apparently builds capacity; it might also produce dependence. And as the authoritative effect of the Helpdesk becomes more pronounced, it might serve to reduce capacity as well as autonomy. But it will produce a substantially integrated administrative apparatus that cuts through the differentiation among collective organs exercising different sorts of jurisdictions and power--States, business enterprises, civil society, and international organizations. It will certainly do little to enhance the capacity of ground level actors without the means or capacity to reach out to Geneva. Thus if there is ant capacity building it would be to enhance the capacity of middleperson institutions to augment their authority as representatives of smaller states, businesses, civil society organs. . . .and of course individual rights holders.
d. Development of BHR tools and resources. The expectation appears to be that the Helpdesk will not just produce reasoned interpretation when approached by stakeholders, but that it will contribute to the glossing of the UNGP. Yet that ought also to be a more democratic process, at least with respect to obligations to consult not just with the usual actors and those already intimately connected to the UN Geneva apparatus but others who have and will produce their own glosses and applications of the UNGP. This is especially important with respect to such efforts at the operational level of economic activities and especially in those remote venues which may be more difficult to access from Geneva. There is a worry here as well--one already hinted at in the 98 pages of the initial OHCHR first effort at glossing the UNGP's 2nd Pillar corporate responsibility to respect human rights--and that is that the tendency towards the baroque-to the highly sophisticated and perhaps abstracted glossing of the UNGP text that may well serve important functions at a very high level of authority, will prove to be less useful to those who may well be tasked with operationalizing those interpretations among communities of rights holders unable to benefit from those efforts.
Second, and perhaps more importantly--given the broad range of plausible interpretations in the UNGP any facility that speaks to interpretive heresy ought to be approached with caution. One references here the sentiment expressing in the Concept Note: where BHR Helpdesk staff detect trends in misinterpretations of the UNGPs, materials can be developed and shared publicly to clarify those areas." (Ibid., p.3). If the OHCHR has an agenda then it is certainly free to pursue it--but in matters relating to the UNGP, all stakeholders must be permitted that margin of appreciation built into the text--as for the rest that is part of a healthy politics that should be transparent and well debated--but not as a form of heresy control.
e. Platform for referrals and collaboration. The routing function of the Helpddesk is augmented through this function. And in this sense the idea of Helpdesk as platform acquires some additional value. Little, however is said about the use of this facility for data gathering and analysis. And perhaps that is the greatest gap in the conceptualization of a Helpdesk that invariably will become a significant source of data collection about business and human rights practices and concerns, All of that, in turn, will serve an essential role in the objectives (hopefully transparent) of the OHCHR to (re)shape and manage the narrative of the UNGP, and with it, of the expectations and imaginaries of economic activity under the umbrella of rights.
f. Governance.The preliminary plan for a governance mechanism follows the usual path. One hires a "coordinator" anchored within the OHCHR's Business and Human Rights Unit. The coordinator would be aided by staff--likely also encumbered with other duties. The coordinator would be expected to be entrepreneurial in leveraging UN Geneva resources ("leverage the wider OHCHR system" Ibid., p. 4). Most important, and perhaps like the SRSG himself during his mandate, he will have to rely on the kindness and self interest of stakeholders--especially well resourced States, business and civil society--to undertake the work envisioned. For all of that, this very very thin administrative apparatus hardly aligns with the vastness of the five principle objectives of the Helpdesk, and one might well fear that the project's governance, will doom it to disappointment. That, anyway, is the risk.
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