Comment: 3rd Annual Forum on Business & Human Rights - Engagement Matters

Speaking to company representatives in the lead up to the UN Forum on Business and Human Rights I found them somewhat sceptical: too dominated by civil society, accusatory and one-sided were the key words. However, as a first timer at the Forum, I found the event to be quite impressive – and to the contrary, it seemed that this year businesses were given a fair chance to participate and present their experiences, progress and also shortcomings in exercising effective human rights due diligence. Their voices could be heard at around a third of the workshops and nearly all of the plenary sessions.

In 2014, 400 business representatives including consultants, lawyers and business associations were present, roughly the same number as in 2013 (and about 1,600 from other sources). The increasing number of overall attendees reflected the growing international and national attention to the subject. Chaired with humour and energy by Mo Ibrahim, the Forum quickly became a “family affair” where the importance of a joint multi-stakeholder movement was underlined at all possible occasions. Mo seemed to bring a bit of new wind to the movement, including spontaneous break outs from the agenda. The choice of sessions and topics was daunting and it was difficult to decide where to go; plenty of interesting and ambitious initiatives or ideas such as the corporate human rights benchmark were presented and discussed. The discussions on twitter were lively and in the end, participants‘ feedback has been positive. Now what did we take away?

First, governments are moving forward in their efforts to develop national action plans outlining their activities and setting out their expectations to ensure that the UNGPs move from an abstract reference framework to tangible practice at the national level. Multi-stakeholder processes are the instrument of choice in this context and the expectations towards these policy instruments are increasing – both from civil society and business side. The speaking government representatives did not only involve the usual suspects, with, for example, the Chinese delegation presenting new Guidelines for overseas mining and mineral trading firms and addressing critical questions by civil society in relation to Chinese investment in Myanmar.

Second, the debate around the implementation of pillar three of the UNGPs is beginning to take shape. Both in regards to the development of companies’ own grievance mechanisms, and on potential instruments to increase corporate accountability through more legalistic approaches – being pursued by activist lawyers and under the Office of the High Commissioner for Human Rights. It’s clear that we are moving towards greater accountability of companies for negative human rights impacts – or violations – they are implicated in, one way or another. The “intelligent mix” between private and public measures will require further attention in the upcoming years. In particular, whether private mechanisms and remedies can limit or exclude legal action. Our reflection is that companies and their lawyers will need to see effective private grievance handling and remedy as an effective defence in the court of law, much as human rights due diligence is proposed to be.

Third, the measurement and ranking of companies’ human rights performance will increase and become a more important source of external pressure for companies to assume their responsibility to respect human rights. Next to a number of emerging and established sector-based ranking initiatives, the corporate human rights benchmark project has the most ambitious task: Creating credible, publicly accesible human rights ranking of at least 500 global companies' human rights approach and performance. The question is whether it will see its way through with clarity to meaningful benchmarks, or become bogged down in the complexity of its task. Again, the engagement of the companies involved in the consultations will be essential in increasing momentum and awareness amongst the business community.

Notably, while the proposed binding treaty for multinational enterprises did receive airtime, nobody seemed to be much distracted from their task by it – whether that be the companies developing due diligence or the governments and their national action plans. There was a certain sense of maturity and progression around the forum this year. However, early contention in the plenary session between Sharan Burrow and the Qatari government over the Kafala employment practice, and Amnesty International’s Audrey Gaughran very critical account of the UNGP’s practical impact at the end of the Forum exemplified that the time of heated debates is far from being over – and lots remains to be done.

We look forward to working with companies in 2015 and continue to develop innovative approaches to social sustainability and respecting human rights. We will report on them at the next Forum.