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I am posting and providing brief reflections on the essays that make up the excellent new online symposium organized by the marvelous Caroline Omari Lichuma and Lucas Roorda and appearing on the blog site of the Business and Human Rights Law Journal. Entitled Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe. The essays (and the symposium) means to expand the conversation about human rights from out of its hub in the UN apparatus in Geneva and begin exploring in more depth the sometimes extraordinary developments occurring outside the highest reaches of elite curation in the Global North.
The third of the essays is Jernej Letnar Černič--"Business and Human Rights in the Western Balkans."
Jernej Letnar Černič is an Expert in Human Rights Law, Business and Human Rights, and the Rule of Law. Jernej is a Full Professor of Human Rights and Constitutional Law at the European Faculty of Law and the Faculty of Government and European Studies of the New University (Ljubljana/Kranj, Slovenia). He is also a Visiting Professor of Law at the European University Viadrina in Frankfurt (Oder) in Germany and the Riga Graduate School of Law in Latvia. He is an author of »Corporate accountability under socio-economic rights«, Oxon; New York: Routledge, 2020. His studies have been cited in the reports of the United Nations, the European Parliament, the European Court of Human Rights and the Council of Europe in decisions of the Slovenian Constitutional Court and academic studies from all parts of the world. He has been active in various roles in Slovenian and global civil society, participating in numerous domestic and international humanitarian projects.
Jernej Letnar Černič's contribution follows below and may be accessed as originally posted here. Černič considers the Eastern peripheries of Europe (Albania, Bosnia and Herzegovina, Kosovo, North Macedonia, Montenegro, and Serbia), that once were the Western peripheries of the Ottomans, and before that the world spaces of the Greek-Roman Empire (Dalmatia, Macedonia, Epirus; Moesia Superior). Černič makes the following points which are worthy of some reflection:
1. Peripheries, especially in Europe, tend to be ignored until they trigger something greater elsewhere--an assassination, large scale clan and ethnic conflicts, and the like. As borderlands, they tend to be restive and resist imperial homogenization--whether Ottomanization or Western Europeanization, or variations of Pan-Slavism. The region, in many ways, serves as a sort of first tier subaltern within an Empire but not quite attached to it in an inevitably reliable way. It is expected to conform, but perhaps more as an afterthought ("So far, little attention has been paid to business and human rights in the Western Balkans. The issues have not been at the center of discussion in the field. Accordingly, not much has been written on business and human rights, challenges, and possibilities for reform in the Western Balkans." ("Business and Human Rights in the Western Balkans")). In the language of the 19th century, the regional states are the poor relations to the respectable middle classes of the rest of Europe (and here) burdened with the responsibility for defining and enforcing an idealization of its notions of respectability, much like business enterprises are now burdened with the responsibilities of respectability in the form of the standards of human rights the realization of which remains elusive for states. That makes the issue of human rights in greater Dalmatia -Macedonia-Moesia so interesting, especially after centuries of invasion, settler migrations, and general upheavals.
2. The European periphery remains disordered, rebellious--and violent. It produces its own diasporas as tokens and memories of that violence and instability. And, like other peripheries, its institutional organs and their elites indulges, sometimes astutely, in playing off empires against each other. "The region has been embedded mainly in the European market, with many EU-based companies having subsidiaries, suppliers, and other business partners. On the other hand, some countries, such as Serbia, have received substantial Chinese and Russian investments." ("Business and Human Rights in the Western Balkans").
3. That provides the context for the issue of human rights on the frontier. And on the frontier one understands that things are rougher than perhaps can be admitted in the heart of the metropolis: "Business-related human rights concerns in the regions are plentiful, from human trafficking, modern slavery, and poor health and safety conditions to failure to provide a living wage" ("Business and Human Rights in the Western Balkans"). These though might serve as the stick against which both prosperity and the size of the diaspora communities might be measured. And the response is what one might expect on the frontier--formal action enough to satisfy superior powers, but enough play in the application of these standards to satisfy the realities of communal assessments of what it takes to survive. "Western Balkans countries introduced formal standards of the rule of law, constitutional democracy, and pluralism. They have introduced modern concepts and created current state institutions based on the rule of law and constitutional democracy. Nonetheless, a coherence gap exists between formal standards and their implementation in practice."("Business and Human Rights in the Western Balkans").
4. How might one measure this gap? Černič looks to the creation of state institutions and legal frameworks for state owned enterprises. He looks at the failure to develop UNGP inspired National Action Plans. He sees a positive development in the start of National Baseline Assessments on Business and Human Rights in Bosnia and Herzegovina, North Macedonia, and Serbia. And he notes the small number of special instances brought in the region under the OECD Guidelines for Multinational Enterprises. That is a fair way to gauge compliance as a legal and cultural matter. And what Černič finds is this: "Accordingly, the capacity and willingness to implement the United Nations Guiding Principles on Business and Human Rights in Western Balkans countries has been lukewarm in the past." ("Business and Human Rights in the Western Balkans").
5. But things may be changing as its elites become more intimately embedded within the larger cultural currents and expectations of elite European collectives--to be, as Nietzsche suggested in Beyond Good and Evil good Europeans ("Indeed, I could think of sluggish, hesitating races, which even in our rapidly moving Europe, would require half a century ere they could surmount such atavistic attacks of patriotism and soil-attachment, and return once more to reason, that is to say, to "good Europeanism." Beyond Good & Evil ¶ 241). Černič notes examples of a pan-Europeanism: "Private companies and chambers of commerce have promoted business and human rights standards in much of the region by advising and organizing events. International organizations such as OSCE have regularly organized events on business and human rights. As such, businesses in the region have been gradually introducing business and human rights standards throughout the supply chain. Regional business associations have been educating their members concerning human rights due diligence in their supply chain." ("Business and Human Rights in the Western Balkans").
6. For Černič al of this suggests a way forward. This requires the embrace of 4 steps: (1) the positive and well directed engagement of professional networks on business and human rights in the region; (2) the strengthening of rule of law structures grounded in "leading by example" strategies among leading public and private forces in the region; (3) the strategic investment in capacity building within a loop of public actors, civil society. and business; and (4) the intervention of European institutions and international organizations more pro-actively. Hope is placed on the ability of the EU Corporate Sustainability Due Diligence Directive to drive formal and functional change. Nonetheless, the lesson of the Eastern frontier in Europe might be best not left forgotten. To that end the Europeans have th same challenge here that they face in Ukraine--they must commit to the incorporation of these refions within Europe, or they can continue to treat them as almost-European subalterns. The latter choice will have profound effects, and not just with the business of human rights.
Links to the essays in the BHR Blog Symposium:
Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 5: Barnali Choudhury--"BHR Developments in Canada: Targeting Low Hanging Fruit"
Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 9: Cristiane Lucena Carneiro and Nathalie Albieri Laureano --"Regulatory Initiatives on Business and Human Rights in Brazil – From the Domestic to the International and Back? "
Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 10: Lisa J, Laplante, "The United States 2024 National Action Plan on Responsible Business Conduct"Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 11: Erika George and Enrique Samuel Martinez, "The Uyghur Forced Labor Prevention Act: An Assessment Of Enforcement Efforts"
Business and Human Rights in the Western Balkans
This post examines the situation of Business and human rights in Western Balkan countries (Albania, Bosnia and Herzegovina, Kosovo, North Macedonia, Montenegro, and Serbia) through the implementation of the United Nations Guiding Principles on Business and Human Rights. So far, little attention has been paid to business and human rights in the Western Balkans. The issues have not been at the center of discussion in the field. Accordingly, not much has been written on business and human rights, challenges, and possibilities for reform in the Western Balkans. This post discusses some recent business and human rights developments in the region.
The region differs from the rest of the European states based on its shared history, traditions, culture, and customs, as most states spent decades behind the Iron Curtain and most countries, except for Albania, being part of former Yugoslavia. The consequences of inter-ethnic wars still affect political and socio-economic livelihoods. The region has been embedded mainly in the European market, with many EU-based companies having subsidiaries, suppliers, and other business partners. On the other hand, some countries, such as Serbia, have received substantial Chinese and Russian investments. Business-related human rights concerns in the regions are plentiful, from human trafficking, modern slavery, and poor health and safety conditions to failure to provide a living wage. In recent decades, large portions of the population have emigrated to North European Countries and North America. Currently, five countries from the region have achieved the status of candidate countries (Albania, Bosnia and Herzegovina, Montenegro, North Macedonia, and Serbia) for the EU.
In the past, Western Balkans countries introduced formal standards of the rule of law, constitutional democracy, and pluralism. They have introduced modern concepts and created current state institutions based on the rule of law and constitutional democracy. Nonetheless, a coherence gap exists between formal standards and their implementation in practice. Accordingly, business and human rights development in Western Balkans countries has lagged. However, state authorities in Western Balkans have not created state institutions nor adopted laws to ensure that state-owned enterprises comply with Business and Human Rights standards and guidelines. None of the countries in the region have developed National Action Plans on Business and Human Rights to implement the United Nations Guiding Principles on Business and Human Rights. Some countries, such as Bosnia and Herzegovina, North Macedonia, and Serbia, have developed National Baseline Assessments on Business and Human Rights. Even though the OECD Guidelines on Multinational Enterprises on the Responsible Business Conduct apply in the region for those companies based in the OECD member states; only a few cases from Western Balkans have been brought to National Contact Points.
UNGPs on Business and Human Rights in Western Balkans
Accordingly, the capacity and willingness to implement the United Nations Guiding Principles on Business and Human Rights in Western Balkans countries has been lukewarm in the past. Nonetheless, recent developments in the region in past years have been promising. The government of Bosnia and Herzegovina has been working towards developing a draft National Action Plan on Business and Human Rights. However, the process has stalled due to political tensions. In contrast, the Serbian government announced at the 2023 UN Business and Human Rights Forum that it will adopt the National Action Plan on Business and Human Rights. Other governments (Albania, Kosovo, North Macedonia, Montenegro) have yet to pay much attention to developing national strategies or action plans for business and human rights. Civil society, international organisations (such as the Organisation for Security and Cooperation in Europe – OSCE, the Council of Europe and the European Union), and private companies have tried to engineer momentum for more discussion and attention to business and human rights.
Building Business and Human Rights Capacity in the Region
Several policy and academic events on business and human rights have been recently organized, connecting individuals working on business and human rights in the region. For instance, Sustineri Partners, a think tank, has organized a well-attended Adria ESG Summit in the broader business and human rights field. Private companies and chambers of commerce have promoted business and human rights standards in much of the region by advising and organizing events. International organizations such as OSCE have regularly organized events on business and human rights. As such, businesses in the region have been gradually introducing business and human rights standards throughout the supply chain. Regional business associations have been educating their members concerning human rights due diligence in their supply chain. For instance, the Chamber of Commerce and Industry of Serbia established a Responsible Business Hubwhose experts aim to build capacity through training and workshops on responsible business conduct and supporting companies.
Way forward
One can notice among different stakeholders in the region the awareness and willingness to adopt novel business and human rights and implement and strengthen existing standards. Nonetheless, there are four steps that all stakeholders should employ to strengthen their capacity for business and human rights. First, professional networks on Business and human rights in the Western Balkans countries and regions are helpful ways to collaborate with stakeholders in the business community, government, civil society, and beyond to share knowledge and create incentives for improving Business and human rights in Western Balkans. Second, the rule of law in the public and private sectors should be strengthened by ensuring that state institutions and private state-owned companies lead by example in introducing business and human rights and that the private and public sectors share good practices. As such, and thirdly, the governments should aim to develop the capacity of governments and civil society in the region to develop national strategies and action plans on business and human rights. The national plans are declaratory commitments. However, they can create short- and long-term impacts and incentives for streamlining commitment to business and human rights throughout public and state institutions. Fourth, international organizations, particularly the EU, should leverage state institutions to show and internalize a more significant commitment to business and human rights in the region. Once the newly adopted EU Corporate Sustainability Due Diligence Directive starts to apply, it can be expected that the EU investors will continue to impact responsible business practices in the region, which hosts suppliers and other businesses of many of the EU-based corporations. As such, it is also indispensable that the region’s governments lead by example, setting out their expectations for responsible business conduct concerning human rights and the environment.
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