6th Forum on Business and Human Rights – 27th-28th-29th November. Genève – Switzerland
These past weeks have been a time of great work intensity. The main theme that was discussed at the 6th World Forum on Business and Human Rights has been the Third Pillar of the United Nations Guiding Principles on Business and Human Rights: Remedy. Specifically, how companies and states ensure access to fair, real and affordable redress mechanisms when human rights abuses occur. A very important part of this conceptualisation is also prevention. However, the mere fact of using preventive systems does not exempt from the obligation to grant reparation mechanisms. Reparation is a right. These systems can be based at a state level or at an operational level, and in turn, can be judicial and non-judicial mechanisms.
I want to inform you of what was exposed there. Many of the aspects that were discussed, could be addressed in a single forum due to the large amount of information and content that is broken down from them. But I want to maintain the global vision of what happened there. We are living an evolution in the international system. In all the rooms, that desire for personal improvement, with which the human being looks forward, was palpable. That emotion of overcoming limits when facing challenges and obstacles. You could breathe the desire that humanity needs to reinvent itself once more and surpass itself.
Let us begin!
Conclusions taken after three days
There is a real intention for the evolution of the debate on Business and Human Rights. Having said that, there are countries, industries and companies that stand out for their action and not so much for their words.
1. Countries such as France and the Law that establishes the "Duty of vigilance"(Note1) for large companies; or the United Kingdom and its Modern Slavery Act of 2015 (you can see more details in this report) were the most used examples in the Forum. But there was also talk of Switzerland and its future projection that due diligence mechanisms could be mandatory for Swiss companies; or of Australia and its intention to implement legislation that addresses modern slavery. The United Nations Working Group -hereinafter UNWG- that addresses the issue of business and human rights, stressed the need for all countries that signed the Guiding Principles to commit themselves to the development of the National Action Plans (NAPs) of Business and Human Rights. The list of all the countries together with the characteristics of the NAPs can be found here. Representatives of some Southeast Asian countries such as Malaysia, Indonesia and Thailand remained committed to the drafting and establishment of these plans by 2018.
2. Although I still do not have official data, there were many and varied representatives of companies. Some of them were: Adidas, Microsoft, Ikea, The Coca-Cola Company, Nestlé, Ben & Jerry's, Flamingo Horticulture Kenya Limited, Tesco, Heineken International, BP, BNP Paribas, UBS, Apple, Hewlett Packard Enterprise, RUSAL, Aviva Plc., Newmont Mining Corporation, Sakhalin Energy, Rio Tinto Company Limited and Google. These are just some. However, it can be deduced from this sample that we cannot speak of an equal presence of all industries. Companies still consider it a taboo subject to get involved in these initiatives, since speaking openly about human rights abuses is seen as a danger to investors and consumers. A perspective that must be modified both by companies themselves and by governments. The participating companies were able to give their opinion to the stakeholders who were present at the Forum such as government institutions or the various members of civil society. Transparency in business is increasingly valued and necessary to avoid risks. Even for academics like me, transparency is more necessary than ever! Recognising a problem does not make you guilty, but conscious. As extra an information to consider, just to mention that the voice of employers worldwide is the International Organisation of Employers, and their participation was very active in the Forum.
3. Looking at specific industries, some of them had their specific place for discussions. For example, the Indonesian Minister of Marine Affairs and Fisheries Susi Pudjastuti presented the Indonesian regulations that require fishing companies to establish human rights management systems and to undertake a mandatory certification of their compliance with the regulations (you can read more about the regulation at the Business and Human Rights Resource Centre website). On the other hand, Microsoft outlined a framework for a Digital Geneva Convention where to address the human rights implications of state – sponsored cyberattacks (you can read more about this initiative here and here). Since Business and human rights topic is about the value chain, the garment industry was also mentioned. For example, the Head of Environmental and Social Affairs Asia Pacific at Adidas, William Anderson, suggested that the ‘first thing for business is to do not accept the norms that are currently operating in the world or the places where we operate’. Adidas Group works in Asia with Trade Unions because most of their factories are associated with large and small unionists. They put in place a group of people with a worker’s priority and not looking for the company interests. William Anderson made clear to the audience, that Adidas’ point of view was based in keeping remedies within a local level. More about Adidas Group and their strategy can be found here- please note that this website is available until 31st December 2017, there is no more information so far.
The role of the Human Rights Defenders was a very prominent issue in the panels. Currently, Human Rights Defenders are living a period of stigmatisation. Those who deal with issues related to corporations and economic projects, such as those who fight for land rights, for labour rights or for women's rights, are seen for many people as "anti-development" people. In addition, the defenders themselves can become victims of abuse. For all these reasons, they need an action plan with international support to ensure that their work can be carried out freely. To address this situation, the UNWG has launched a project calling on all interested parties to formulate suggestions, reports and proposals for the creation of space for these defenders and civil society. Look here for more details. Human rights defenders can be indigenous leaders, lawyers, activists, professors, academics, journalists, groups of workers, writers, politicians, students, among others. There is no clear and official definition for a Human Rights Defender. Therefore, many professions can be part of this group. Some concrete ideas and problems with respect to human rights defenders were:
1. The UNWG expressed its intention to continue the talks for the creation of a global network of pro-bono lawyers. This concept refers to the work done by certain professionals in a specific field for free. The work is normally provided for non-profit entities or/and individuals.
2. The creation of mechanisms and commitments was invoked along the Forum, so that human rights defenders do not suffer intimidation, threats or even fear for their own lives when defending their own rights and those of their representatives. Indigenous peoples reclaimed their right to protest and to be able to say NO to certain projects. And at the same time, companies should not be allowed to denounce those who raise their voice to defend their rights. In addition, it must be guaranteed that human rights defenders do not suffer the penalty and defamation of the press for this. The special vulnerability of indigenous women was highlighted, since they are exposed to sexual aggressions by security companies that monitor the projects. Here you can read the case of Angélica Choc, present in the Forum, Margarita Caal Caal and other indigenous women of Guatemala, against a Canadian mining multinational for events that occurred in 2007.
3. The Canadian initiative 'Voices at Risks' was mentioned by the Canadian ambassador to the United Nations. This is a guide for defenders and a commitment by the Canadian government to support human rights defenders. The Executive Director of the Bangladesh Center for Workers' Solidarity, Kalpona Akter, spoke about her personal experiences in the struggle to defend labour rights in Bangladesh. She called on businessmen and those states that do business with the Government of Bangladesh, to lobby and make their voices stronger. There was also a very interesting proposal from my point of view. Debbie Stothard, General Secretary of the International Federation of Human Rights (FIDH), spoke of the creation of an ombudsman to act as an international figure to collect complaints on the ground. In summary, all those present agreed that when those who defend their rights are criminalised for it, it is a crime in itself.
It was recognised the positive or negative social function that companies can play when faced with anti-immigration, xenophobia, religious discrimination or prejudice against refugees. The companies that officially participated in this specific analysis were Ben & Jerry's and IKEA. You can see the panel on the UN Web TV here.
In the closing panel, the UNWG committed to creating a guide for states and companies to help implement a gender perspective in the Guiding Principles. On the other hand, the representative of indigenous peoples, Liliana Hernandez, stressed the importance of recognising the Convention 169 of the right to prior consultation of peoples in the Guiding Principles. This consultation should be free and informative. However, as they denounced in the Forum, this agreement continues to be violated.
From my point of view, the Human Rights Benchmarks are key elements for the evolution of the subject. These instruments create rankings among companies, using specific evaluation criteria in terms of human rights. They are tools used by investors, since they report on the performance of the companies' activities, offer examples of good practices and position the way forward for other companies. For example, some criteria evaluated in the Corporate Human Rights Benchmark (CHRB) deal with the mechanisms that companies use to facilitate remedy, or how they respond when there are serious allegations of human rights abuses. In terms of providing a remedy, it was quite representative to know that 90% of the companies evaluated do not establish a way to guarantee that these mechanisms are publicly explained and accessible. Or, for example, that 80% of companies do not show how they remedy impacts when they take place. KnowtheChain Benchmarking and the Corporate Responsibility Index in the Digital Rights Ranking were two other initiatives exposed. The Coca-Cola Group was present in the panel with Matthias Thorns, Manager of International Labor Relations and Rights of the Workplace. He explained how Oxfam International acts as an independent third party in the monitoring of the work that is carried out in the sugar production chains. You can read more here. The idea behind this tool is to show the differences between what companies say and what they really do. There were three reasons to use this mechanism: they are learning mechanisms, they are a way of rendering accounts and, in addition, they are useful tools to acquire information and make investment decisions. Benchmarking is the beginning of the conversation and not the final goal. Along with that, it is a good idea to unify all the participants of the Business Community and Human Rights.
Financial institutions were also present at the Forum. As an example of the role played by financial institutions, I will simply mention the acquisition of a document in one of the panels that talks about the launch of the Dow Jones Sustainability Index MILA Pacific Alliance (DJSI MILA Pacific Alliance). A point of reference that aims to "promote the participation of MILA capital markets in environmental, social and government investment strategies". It was launched on October 18, 2017 in New York by: S & P Dow Jones Indexes, the International Finance Corporation (IFC), RobecoSAM and the stock exchanges of the Integrated Latin American Market (MILA). The promotion of investment portfolios in sustainability is undoubtedly a hook for financing. Here you have more information about the Index, and here is the presentation of a webinar made by RebecoSAM.
Very interesting was the approach given to the role that lawyers play in this issue. There is a need for lawyers trained and prepared to deal with business activities with respect for human rights. Additionally, it was very clear that companies must accept that they need legal advice on this issue. In addition, the fact that both law firms and consultancies are expanding their legislative notions to grant new services for clients was very palpable. Mainly in the conceptualisation of due diligence in human rights, which is an essential part of the Guiding Principles and which begins to be a fundamental part of NAPs. The Norton Rose Fulbright company, which was present at the Forum, together with the British Institute of International and Comparative Law, shared data extracted from its due diligence project on human rights. You can read it here. There were many more law firms’ representatives in the panels, but I opted to mention this in particular because they distributed the report that I mention and I was able to take it with me. We were many people all documents and reports distributed were run out immediately at the beginning and at the end of the conferences!
Undoubtedly, human trafficking within the supply chains was also discussed. In addition, a very interesting document was distributed: 'A call to action to end forced labor, modern slavery and human trafficking'. This call was launched on September 19, 2017 during the 72nd session of the General Assembly of the United Nations. This document, with the countries that approved it, can be found here. If your country is on the list, you can apply pressure on them to act NOW against modern slavery, as this is an irrefutable political commitment. A phrase said by a representative of the OHCR was that 'slavery is not a disease, but a consequence'. And I think there is no better way to describe this problem. The global and complex nature of supply chains is what creates the barriers to accessing justice. The idea that due diligence measures should be legally binding was heard several times in the forum because of the lack of precise guidance. The French surveillance duty mentioned above is intended to be a start point. Here, political will is important.
The National Contact Points (NCPs) were also discussed. For those who are not familiar with the NCPS, to say that they are established points in all countries that adhere to the OECD Guide for Multinational Enterprises. They are a key element in the development of this debate, since they are points where individuals, NGOs, unions, among others, can bring complaints about companies that do not respect the Guide operating in a specific country. One of its main chapters covers human rights and labor rights, providing to these mechanisms an enormous potential. Here is the information about the NCPs. But when it comes to the Forum, there was a panel focused on the effectiveness of non-judicial mechanisms, specifically the NCPs. The analysis focused on the relevance of the peer review process, a commitment that NCPs acquired in 2011 and for which they undergo voluntary reviews to identify strengths and weaknesses. On behalf of the NCPs, the representatives of Belgium, Austria and USA were officially present. They agreed that the mechanism is important for the NCPs themselves, since it is a way to exchange good practices and serves as a learning process. They also agreed that working collaboratively with stakeholders helps generating changes. On the other hand, Kristine Drew as Senior Policy Advisor at TUAC and Joseph Wilde as Senior Researcher at SOMO / OECD Watch Network, gave the critical view of the reviews. As key points, the representative of TUAC said that these revisions were important points for accountability, that the unions would welcome the fact that these revisions were mandatory and that they would like to see governments establishing an approach to follow. For its part, the representative of the alliance between SOMO and OECD Watch, proposed recommendations for the next peer review processes. Some of them were in terms of transparency (for example, explaining the way in which the responsible states are made), in terms of clarity (that the NCPs clearly detail what they do and do not do) and in terms of focus. The latter with reference to the questions given in the questionnaires.
I found a very important consensus in the fact that the Sustainable Development Goals (SDGs) go hand in hand with the Business and Human Rights issue. From my point of view, both the language used by the panellists and the background message of many of the panels that I attended illuminate the path of the 2030 Agenda (for example, the opening plenary made up entirely of women with whom the Forum opened). When there is talk that companies should use due diligence in human rights to measure their impacts, we also talk about Goal 16 and its objective of promoting peace and justice. When it is said that companies should investigate and monitor their supply chains, we are talking about Goal 8, which seek s decent work and economic growth. Or when it is said that companies must introduce anti-discriminatory policies and encourage the participation of women in economic decisions, we are also talking about Goal 5, focused on gender equality. And so, one may continue with many more crossroads. The shared vision is indisputable. Governments and companies must develop alliances in the fight against corruption and tax evasion. In addition, it is necessary to have commitments from companies and investors. They can persuade governments to give the guidelines to follow for tracking supply chains. In summary, it is necessary to maintain a holistic approach to this issue where the total value is greater than the sum of its parts. In this case, nobody is left; but there are still many more missing.
I would like to finally mention that some multi-stakeholder initiatives were addressed and they had their own discussion space. These tools are essential in this topic. However, the limitations of my resources did not allow me to delve into them. I will mention only some (because there are many more), so that the reader can do his own research:
I hope you enjoyed this article as much as I enjoy writing it. It is a period of great movement at the international level. The unique space for dialogue offered by the United Nations Forums is an opportunity to immerse ourselves within a specific topic, to make relationships and to deepen in the different points of view in which a topic can be covered. The Business and Human Rights community only grows and grows, and it is increasingly diverse. Let's continue working to expand the voice!.
I hope to read your comments here, by email or on social networks.
1. LOI n ° 2017-399 du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d'ordre. This Law requires the following companies to establish and implement an effective surveillance plan: companies that at the end of two consecutive financial years employ at least 5,000 workers within the company and its direct and indirect subsidiaries, and also have their headquarters in French territory ; or companies that have at least 10,000 employees in their service and in their direct or indirect subsidiaries, whose headquarters are in French territory or abroad (unofficial translation). Failure to do so will compel them to compensate for the damages caused by due diligence measures.