On 27 November more than 2000 representatives of governments, business, international bodies, academia, trade unions, the media and civil society met in Geneva for the 2017 annual UN Forum on Business and Human Rights. The forum discussed issues relating to the UNGPs (UN Guiding Principles on Business and Human Rights) which are based on three main principles: Protect, Respect and Remedy. The UNGPs, endorsed by UN General Assembly in 2011, provide a framework for a global standard that applies to all states and businesses. The UNGPs recognise the adverse human rights impacts of business and the role that business should play in taking reasonable steps to prevent, monitor and mitigate human rights abuses. This is particularly important in a world where some multinational actors are wealthier and more influential than many states.
Whilst the UNGPs recognise the primary role of states in “protecting” human rights, they impose a responsibility on businesses to “respect” human rights across their operations including their supply chains, through a standard of “human rights due diligence”. Accordingly, businesses’ duties are not merely to their shareholders but to any stakeholders whose human rights could foreseeably be adversely impacted by their operations. The ambit of the UNGPs covers serious fundamental human violations (for example forced labour and complicity in torture) and also for example to violations arising from environmental damage in the extractives sector, and working conditions and practices in supply chains.
The UNGPs have been widely endorsed by governments and businesses. In March 2017, the French government passed legislation imposing a requirement on companies employing more than 5,000 people to publish a “vigilance” plan which identifies and makes proposals for monitoring and mitigating adverse human rights impacts. The French national action plan is considered to be the most forward-reaching by the human rights community. More recently, in July 2017, Spain’s national action plan was approved, which seeks to apply the UNGPs through non-binding bills and motions, and to strengthen the competitive advantage of Spanish companies. Spain’s national plan responds to recommendations made by the European Union’s Action Plan on Human Rights and Democracy and the EU strategy on corporate responsibility. Other EU states which have produced national action plans include the UK, Ireland, the Netherlands, Germany, Poland, Italy and Belgium. However, despite the seeming endorsement of the UNGPs by many governments, assessments of national action plans have highlighted a failure by most governments to deliver a robust business and human rights agenda.
As a result, civil society has voiced serious criticisms over what it perceives to be a widespread failure to implement the UNGPs. Key concerns include: the inadequacy of “national action plans” that states are required to produce under the UNGPs; businesses are applying the UNGPs as a “tick box” exercise; and the voluntary, rather than legally binding, nature of the UNGPs. The latter has resulted in a parallel process, led by Ecuador and South Africa (supported by an array of developing countries), who in 2014 succeeded in securing a UN Resolution to establish an Open-ended Inter-Governmental Working Group, mandated to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” There is a clear division between the Global North and the Global South, the former supporting continued development of the UNGPs and the latter supporting the creation of a legally binding treaty.
There is a consensus that the third pillar of the UNGPs (Remedy) is the most challenging, overlooked and deficient in terms of its implementation. It requires action by states to enhance national laws, procedures and practices to ensure more effective access for victims to judicial and non-judicial remedies. Predictably, there appears to be little evidence of much progress on the part of states, or enthusiasm from business, in relation to judicial remedies. The absence of access to effective remedies for victims renders the UNGPs meaningless. Therefore, the central theme of the UN Forum –“Realising access to an effective remedy” (for victims of human rights abuse) – is critical.
The field of business and human rights has grown exponentially over the past 20 years and is no longer ignored by any serious business. Time will tell if theory and words are converted into practically effective methods to prevent human rights abuses and to provide adequate redress for victims. The Forum was an important stepping stone in this journey.
