Guest post: Josh Curtis reflects on the United Nations Business and Human Rights forum 2014

I am very pleased to have this excellent guest post from Josh Curtis, who attended the third annual Business and Human Rights Forum in Geneva, from 1-3 December. Josh is a PhD candidate at the Irish Centre for Human Rights, National University of Ireland Galway.

With the extension of the Working Group’s mandate in July and a record 2,000 registered participants, this year’s Forum on Business and Human Rights seemed comfortable in its developing permanence and growing institutionalisation. A number of those in a position to compare with the earlier Forums reported a clear sense of solidification in the tripartite relations between the three main groups of stakeholders, States, business and civil society, a reduction in acrimony and a greater focus on substantive solutions, steadily displacing knee-jerk posturing and traditional divisions.

Given the scale of the Forum and the number of parallel sessions any individual perspective is necessarily impressionistic, yet this post will focus on two aspects that were central to this year’s event and briefly relate them to the Irish context. Firstly, the Forum evidenced a clear move towards the standardisation and harmonisation of National Action Plans on business and human rights (NAPs) and the concretisation of guidance to States in this area, as per paragraph 5 of the Human Rights Council’s resolution 26/22. To the relief of many, the second aspect was a distinct turn towards a constructive rapport in the relationship between the more established process of implementing the UNGPs and the new initiative on a binding treaty. As Amol Mehra, the Director of the International Corporate Accountability Roundtable puts it, “treaty” is no longer a bad word.

National Action Plans

Building on a seminal toolkit and recent recommendations from the Working Group, a double session on NAPs emphasised convergence around some basic expectations on States regarding the development, structure and implementation of their individual Plans. For example, they should include an initial baseline assessment to enable the measurement of subsequent progress or otherwise. They should include a gender focus and be formulated through extensive consultation with complete transparency. They must be based on discussions between all governmental departments to ensure policy coherence. For the same reason NAPs should include attention to broader issues of trade and investment, taxation, export credit and government procurement. The draft NAP should be returned to the stakeholders for advance comment that should be incorporated before adoption. NAPs must also deliver tangible outcomes, and must be subject to an effective process of regular monitoring and review.

There were numerous calls for the Working Group to exercise closer oversight of NAPs to aid a necessary harmonisation to a high standard. This would avoid a patchwork of approaches and levels of effective human rights protection that provide opportunities for arbitrage by some multinational corporations and systematically disadvantage the ethical forerunners. These calls were echoed across all three stakeholder groups, with one representative of the Global Business Initiative on Human Rights making a particularly strong case in this regard. In this context a governmental representative from Japan stressed the building of bridges between the national and international scenes, and there were further suggestions for formalised dialogue between States and between national human rights institutions toward the same end. These dialogues would seem to be necessary to address the broader issues mentioned above, such as trade and investment.

The Chair of the 3rd Forum, Mo Ibrahim, himself suggested the need for an independent body, co-funded by business, States and civil society, to monitor and publish on progress in the implementation of the UNGPs. The Chair of the Working Group, Michael Addo, stated that there is a planned process for States to send their NAPs directly to the Group for assessment and evaluation on where they may be “falling down”. A UK member of the European Parliament also suggested that issues involving NAPs should be raised in the Universal Periodic Review process. This all constitutes a clear consensual trend in the development, implementation, and soft-enforcement of an international standard on NAPs.

A Binding Treaty

Earlier this year extreme reactions to the nascent process on a binding treaty, and fears this could degenerate into archaic ideological posturing that might break the consensus around the UNGPs, seemed to threaten the viability of both initiatives. Such extremities and fears were largely dispelled by the pragmatic and balanced approach that clearly carried the day at this year’s Forum. Over and again it was stressed by participants from the floor and those on numerous panels that both initiatives are not only fundamentally compatible, but also deeply complementary and mutually supportive. This complements recent indications of support for the treaty process from France and the European Parliament.

The circumspect, open-minded and gradual approach to a binding treaty, adopted by Ecuador and South Africa at the Forum and by other influential developing countries such as China, set a tone that placated fears of debilitating conflict. There was a distinct openness to alternative viewpoints on the inclusion of domestic companies alongside multinationals within the scope of the treaty, which could have been a deeply divisive point. Furthermore, there was considerable support for the viewpoint expressed by Professor Surya Deva and others in one session; that support for the treaty process is arguably required by the combination of UNGP Pillars I and III read together in the context of widespread corporate impunity.

The ethos of constructive rapport between the UNGPs and the treaty was captured by Professor John Ruggie himself in the final speech of the Forum. He rightly warned of the complexity of the treaty process, the need to include domestic companies, and the danger of excessive abstraction from the situation of concrete human rights violations. However, he made it clear that “much more needs to be done”, and mandatory measures must be included within the “smart mix” contemplated by the UNGPs. As he stated,

I see no intrinsic contradiction between implementing the Guiding Principles, on the one hand, and further international legalization, on the other. Therefore, I urge in the strongest possible terms that as the treaty negotiations unfold, we resist any attempt to polarize the debate as one between the Guiding Principles and a treaty.

This implies that all States must be at the table, engaging in a constructive and supportive process, sharing and building on the lessons learned from implementation of the UNGPs to ground the development of progressive and realistic international rules. Going a step further, it is arguable that such cooperative participation in negotiations is mandated, by the UNGPs themselves, and by other elements of international law such as those distilled into the Maastricht Principles on the Extraterritorial Obligations of States.

This brings up an important opportunity embodied in the treaty process that was mentioned at the Forum; the potential to envision substantive elaboration, structures, and perhaps institutions, realising the extraterritorial duties on States to cooperate for the protection of human rights. After all, the creation of a truly beneficial international business environment is a State-based collective action problem par excellence, one of many which the Maastricht Principles were distilled specifically to address. These Principles need to be an integral part of deliberations in the treaty process, and a sustained focus in the implementation of the UNGPs going forward.

The Irish Context

Emanating from the Forum, there is a clear expectation that within its NAP process Ireland should engage meaningfully with the inputs already provided, as mentioned previously on this blog. Ireland should take note of the current standard of acceptable NAPs and learn from the omissions and inadequacies of those already conducted. Ireland should also look towards a dialogue with other States that have developed, and are currently developing their NAPs. This would strengthen habits and institutions of cooperation necessary to address broader issues of investment and taxation for example. Ultimately, the process Ireland is now embarking on will become an important yardstick by which the nation will be judged.

There is also an emerging consensus that no stakeholders, especially States, should actively boycott or frustrate the binding treaty process. For Ireland, as one of the 14 States that voted against the Human Rights Council resolution initiating the process, this would entail the future adoption of a more cooperative approach.

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