Wednesday, January 25, 2017

Remembering Nigel Rodley

This post has also been shared at The Essex Justice League blog.

I am still processing the news of this loss, but it appears Professor Sir Nigel Rodley, KBE, has passed away. There will be many more tributes to Nigel in the days to come, but I hope he will be remembered not just as an eminent scholar but as a good teacher.

I did my LLM dissertation under Nigel's supervision. We developed the topic in December after he gave a lecture on torture and the US legal approach at Guantanamo Bay, and for most of the thesis, it was an unremarkable working relationship with someone I deeply admired and enjoyed talking to, even if I remained intimidated by him long after it was warranted.

(*Lest my American friends think I got the terminology wrong, I'm using UK terminology here.)

There are two stories from that time, however, that stand out. I'm only prepared to share one publicly now (the other, which is more embarrassing for me I tell to my own students & mentees when they freak out about their work):

I disagree with Nigel on the importance of severity in the definition of torture. By September 2009 – when I was to hand in the dissertation – I had known this for a few months but had not yet spoken to him about it. This disagreement was weighing on me, in part because I wanted a good mark and – like many students do – I feared that disagreeing with someone of his stature could be taken as either insolence or inaccuracy and affect my result.

About a week before the paper was due, I ended up seated across from Nigel at an end-of-year dinner my class put on. I felt this was a good opportunity to sound him out, so I gathered my courage and said:

“Nigel, I have a bit of an issue I want to discuss. I kind of disagree with Manfred Nowak on part of the definition of torture.”

I said I gathered my courage. I didn’t say I had a lot of courage at that moment.

He leaned forward. “Really, my dear. I tend to agree with Manfred. What do you disagree with him about?”

“Well, I disagree with him on the issue of severity.”

He looked at me for a second and said, “Oh, well, yes, I do agree with Manfred on that.”

I blushed. “I know. I just didn't think it was polite to tell you to your face that I disagree with you.”

He leaned back and shook his head just slightly. “No, my dear. You are now at a point in your career where you should feel free to disagree with anyone in this field, so long as you do so with logic and have good references to back you up. So, tell me your thoughts.”

I laid out my case, to which he said, “Well, yes, you have a lot of support in that. As long you provide adequate references, you should feel free to embrace that position.”

We talked a little longer about that issue specifically, my dissertation generally, and about my career trajectory. I don't remember all of what was said, but that part of the conversation – the idea that I had a right to disagree with someone of Nigel’s stature so long as I laid out my case with logic and adequate references – has stuck with me.

Obviously, not every human rights academic embraces Nigel's humility and I have, on rare occasions, found myself disappointed upon meeting a name I have cited and admired only to realize they aren’t the quite as gracious as I’d come to expect after working with the likes of Nigel and Kevin Boyle and Francoise Hampson and Sheldon Leader.

Nigel’s words continue to inform how I conduct myself. One of the (weirder) compliments I often get is that people are glad I am present for meetings and workshops because I tend to ask good questions and provide good feedback. That is the result, I think, of knowing that I belong in the room. I don’t ask questions or give comments for the sake of getting my name known in part because Nigel (and separately and in different ways, Kevin, Francoise, Sheldon, Clara, Sabine, Lorna, Andrew, Geoff, etc…) imparted in me a belief that my opinion mattered regardless of my title or lack thereof. At the same time, that opinion comes with a responsibility to be careful and ensure it is well-informed and given only when relevant and when it adds something to the conversation.

It is a lesson I hope I impart on my own students. 

I have so many other memories with Nigel from my PhD and after -- I visited him to discuss my ideas, and in the final year, he would step on as my committee chair, bringing one more informed and opinionated voice into the very robust discussions my supervisors and I routinely "enjoyed." 

But, it is that LLM dissertation story that I always come back to with Nigel. And it's one that I think he appreciated as well. 

About 18 months ago, he asked me to co-edit a book on human rights institutions and enforcement (that process is ongoing). One of the byproducts was that I could easily persuade Nigel to come to Aarhus last September for a conference we hosted on the 50th anniversary of the ICCPR and ICESCR. I chaired his panel (which also featured the wonderful Janelle Diller). When I introduced him, I shared this story. I sort of sprang it on him actually, knowing that if I told him in advance what I was to say he would insist on a slightly less generous introduction. And sure enough, Nigel, being Nigel, ended up a bit flustered at the start of his talk. He regained composure, but it struck me how often I had seen him blush at compliments I assume were rather routine for him. Confidence balanced with humility. That's a pretty rare quality. 

Separately at that conference, I reminded him of the other, more embarrassing story as well. It was clear from his reaction that he also preferred the one I've shared here. I think that humility and generosity is how he hoped to be remembered, and it is what so many of us are thinking about today.

My friend (and mentor) ClaraSandoval, Director of the Essex Human Rights Centre, called Nigel a “brilliant and unpretentious colleague, an inspiring and generous human being and a wonderful mentor and friend.”

There will be many tributes coming out for Nigel in the next few days, but I think Clara’s will remain the most apt.

RIP Nigel, and thank you.

I borrowed this picture of an Essex Human Rights Center end-of-year party from my former flatmate and friend, Rukamanee Maharjan. Nigel's in the first row, seated far left. I am in the second or third row (depending on how you count), about 5 people from the right. I believe this was the year that Nigel and I tried - unsuccessfully - to work out how Todd Landman's magic tricks work.

Monday, November 28, 2016

The Media as Business & the Application of the UNGP: Part 1

picture credit: BillyBragg
(with appreciation to Evelyne (Schmid) for drawing my attention to it)

Until now, this blog has been rather uncontroversial (at least in my opinion), but today that’s likely to change because how the media operated throughout #brexiTrump raises questions about when we should stop according the media special protection and when we should start treating them like any other business, subject to the UN Guiding Principles on business and human rights (“UNGP”) It’s a question that Sarah (Joseph) tackled in a piece titled “Is Fox News a Breach of Human Rights?”* published in the Business & Human Rights Journal last July. This piece builds on some of what Sarah said and you may benefit from reading that piece either before or after this post (it’s still not behind a paywall, which is great). 

While Sarah addresses all three of the UNGP pillars, I want to focus primarily on pillar 1 – the state’s duty to regulate. I want to address two questions: (1) how should states regulate the news media for the protection of human rights; and (2) if there is a different standard, when should that standard be applied? When does the media start and stop being “The Media,” a moral force as much as a business one in which the society as a whole provides extra protections for the purpose of gaining a clear social benefit, and when is it just an ordinary business driven by profits that needs to be strictly regulated for the protection of others?  Today, I’m going to start with the first question. Next week, I’ll tackle the second of issue, when does the media become “The Media.”

The State’s Obligation to Regulate under pillar 1

As Sarah explains, the relationship between the media as a platform that protects human rights, notably the right to free expression, and the media as a business is a difficult one to navigate and gives rise to legitimate concerns about the appropriateness of any government regulation that would curtail the media’s purposes and/or rights. How should states regulate a business for the protection of human rights when its very core function is an exercise of another right?

GP pillar 1 expects states to regulate all businesses to ensure the protection of human rights. Amongst several issues she raises, Sarah rightly questions whether “the nature of the media industry . . . is such that it deserves special ‘light’ treatment under the Guiding Principles” (at 252)? And if so, does this “indicate that it is difficult to apply the Guiding Principles when companies have . . . human rights ‘responsibilities’”?

Asking the state to regulate content or diversity of opinions risks undermining the purposes of a free press (we’ll go to those next week). Yet, our societies recognize that there are inherent limits to the exercise of free speech and free expression. The question is, always, how do we find the appropriate limits?

Recognized Limits to Free Speech

We have some guidance already. As Sarah notes, ICCPR Article 20 requires states to prohibit propaganda for war and the advocacy of national, racial or religious hatred. The US, with its rather extreme understanding of free speech, has a reservation to that clause stating that it cannot be applied in a manner that “would restrict the right of free speech and association protected by the Constitution.”

Yet, even US courts have recognized that some types of speech have greater value than others. The US Supreme Court has found that “false statements of fact are particularly valueless.” The media is given some “breathing room” to make false statements in regards to issues of public concern / public individuals; however, the media can still be responsible for defamation of public officials if there is “actual malice,” meaning that the false statements were “made with knowledge of [their] falsity or with reckless disregard of whether [they were] true or not.”

The US finds commercial speech to be more valuable than factual falsehoods but less valuable than political or artistic expressions. As such, it can be subject to regulation, including some content restrictions. These can include requiring disclosures (forcing particular content) and prohibiting certain statements (such as, “this juice cures cancer!”). 

Each of these limitations has a human rights element to them – and Sarah discusses some of these in more detail in her article – but they were not developed through the lens of human rights. Gaps in human rights protection remain. Notably (and again, this appears in Sarah’s article), there have been instances in which media outlets have encouraged hatred for a particular group. Leading up to #Brexit, several UK newspapers were particularly vitriolic in their discussions of immigrants and refugees. What the papers did probably falls short of the advocacy of national, racial or religious superiority, but at times they toed that line pretty damn closely. Where there were factual misstatements in bold headlines and front-page stories, leading at times to harassment of those identified, the corrections appeared later, in smaller print, and at the bottom of an inside page. Following the vote, there was a noted uptick in racially motivated attacks and harassment. Was there a human rights obligation on either the UK to regulate these papers or a responsibility on the papers themselves to engage with a human rights risk assessment and mitigation plan in regards to these articles?

Sarah seems hesitant to say yes specifically because of the tension caused by competing human rights. I understand this reticence (there’s a reason why I haven’t written this as an academic article even though, like Sarah, I’ve been contemplating this issue for a few years). Encouraging states to regulate the news media – even for human rights – is dangerous, and I am aware that almost any answer we in human rights provide to this could be abused by an authoritarian regime looking for justifications to curtail legitimate speech. I’m also aware that my homeland, once a bastion of free speech even when we wish otherwise, currently faces the threat of rising authoritarianism at the hands of a man who claims there is media bias because no one is reporting “evidence” of voter fraud that he seems to be making up. (This was after claiming the election was rigged when he was losing, wasn’t rigged when he won, and expressing confidence that there is no need for a recount despite his allegations of voter fraud…). I am fearful that his direct attacks against the media generally, and specific journalists individually, are likely to increase, and I fear giving him any ammunition for that. 

But these fears cannot justify a failure to engage with the responsibilities of the state to regulate news media, which functions in many places as a business motivated primarily by revenue generated through readership or viewership.  

A Two-Step Test?

While I’m still wrestling with the “right” answer to this question, I am inclined to believe that the question of how to apply the UNGP to news media requires a two-part answer. First, the media is a business, and no matter how noble the business, it must be accountable for human rights. The UNGP reject “offsets” between human rights specifically because you cannot justify making money off violating, or encouraging the violation of, human rights no matter how great your business is in other areas.

Where the media functions solely as a business – this will include some, but not all, “entertainment media” and may include some aspects that are seemingly “political” but are in practice entertainment – it should be required to undertake due diligence the way a normal business would. It should assess its risks, both direct and indirect, and mitigate its human rights impacts.

But, where the news media functions as more than just a business – where it functions as “The Media – there is a balance between rights that needs to be struck. This balance should not be confused with “offsetting” – the media does not get “credit” for protecting some human rights and “deductions” for failing others. We need to draw a difference between “offsetting” and “balancing” human rights and it is a difference that stems from the standards set out in ICCPR Article 19 (and its regional counterparts), which recognize the tension between individuals’ rights when it comes to free speech.

Offsetting v Balancing (I swear it's not just semantics)

When we talk about “offsetting,” it refers to the notion that because a company does “good” in one area of human rights or for one set of people we can ignore, downplay, or forgive its impact on other human rights or on the human rights of other individuals. It is an unthinking and unprincipled approach to the conflict between human rights and profit, which allows businesses to claim to be "good corporate citizens" without addressing the systemic issues in their operations.

The balancing of human rights, on the other hand, comes from the recognition that at times human rights come into clear tension with one another, for instance when I want to yell that the sky is falling in the same spot that you want to use in order to yell that the sun is rising. We can't both occupy the same area at the same time to exercise our free speech rights. The ICCPR recognizes this tension and allows states to balance to the rights, limiting some expression because it is necessary to protect other expression or rights. Balancing of rights allows the police to delineate space on the stairs of the U.S. Supreme Court for both “pro-life” and “pro-choice” protesters.

photo from Susan Walsh, via AP

A balance between interests is in line with the ICCPR and can justify publishing or running controversial stories that have negative human rights impacts. Even those ignorant of reality are entitled to free expression, and recognizing that and providing space for it is not about “offsetting” harms but about finding the appropriate relationship between rights that simultaneously exist while sitting in tension with one another.**

In striking this balance, there will rarely be a "correct," much less a "perfect" answer. There are likely to be incorrect answers, but in what Sarah calls the "grey" areas, there is room for editorial judgment and individual priorities. This is true for states in addressing competing interests, and it should remain true when the responsibility is transferred to the media. A newspaper may legitimately find that the rights of a specific editorialist fearful that refugees pose a national security threat outweigh the potential impact on the rights of the generalized refugee population to seek asylum and to freedom from cruel, inhuman or degrading treatment or punishment, no matter how repugnant I find that position to be. This would not be a human rights “offset” but rather an exercise of the balance already struck within human rights law itself. Requiring an outcome-driven consideration in which only “human rights friendly” stories are acceptable would be an inappropriate balance under general international human rights law, and therefore can’t be an required, or even an appropriate, reading of the UNGP, which finds its legal basis in that same human rights law.

Human rights appropriate regulation?

But human rights law generally, and the UNGP specifically, would allow (maybe even expect) states to require a process-driven approach to human rights in the media. States could require media outlets to have a human rights policy, engage in human rights trainings, and have an internal system for addressing tensions when they do arise. The lack of "correct" answers does not mean that the media should be entitled to an anything-goes or internal-ethics-only approach to editorial decisions, at least not when it is playing with other people's lives (if Rupert Murdoch wants to vilify himself, he's welcome to do so without consideration for human rights).

Additionally, it is necessary to consider whether states should require the news media to print or televise corrections to factually false statements that negatively impact human rights in a manner that is on par with the original distribution of the falsity. Where false headlines have been used to drive revenue-generating ratings or readership, and those headlines threaten the human rights of others, it is not unfair to require clarity in the correction. That clarity cannot come if the headline takes up half of the front page while the “correction” comes on the inside and in small print. 

For this to work, it would need to be limited to manifestly false statements, not issues of opinion or dispute. The Media should be asked to employ such corrections only where – in the words of the PolitiFact rating system – its statements are “false,” or worse reach a “pants on fire” level of falsity. Allowing the state to require such corrections has the potential to create a dangerous line in which the state becomes the adjudicator of what constitutes a “fact” – and that is a line we should tread quite carefully. But it is not inappropriate to conclude that the special protection accorded the media for its work (e.g., the protection of sources) comes with attendant responsibilities to ensure that false statements are either avoided where the falsehood is obvious or could have been easily confirmed, or are corrected when they cannot be avoided (which would serve as a means of mitigating the negative human rights impact). 

By requiring The Media to undergo trainings, to consider how they address conflicts of rights, and to correct human rights related factual falsities in a manner on par with their original assertion, states may strike an appropriate balance by ensuring third parties’ human rights are part of the business considerations without being the only consideration, and without suppressing discussions that are necessary and important for the society to have.

But when does the media become The Media and when is it just a business?  That, my dear friends, will have to to wait until next week.


*Having had to watch Fox News with my father, the answer is yes, it is a breach of human rights … more than 10 minutes of watching can definitely give rise to a violation of ICCPR Article 7. But that’s not the question Sarah tackled (although I really, really wanted it to be).

**In typing that sentence, I must admit that I felt myself channeling my former supervisor and friend Sheldon Leader. I think everyone who studied under him – from the likes of Michael Addo and Geneviève Paul down to the most recent Essex LLM grads – will recognize his imprint there.

Special thanks to Ebba (Lekvall) for reading an earlier draft.
Special note to Jena Martin: you were right. You are always right.

A Call for Papers / Panel

My friend Ginee (Pillay) and Colin Moore have issued a call for papers & a call for panels around the theme "Interrogating the Corporation." It will serve as a stream at the 2017 meeting of the Socio-Legal Studies Association, in beautiful(?) Newcastle upon Tyne, England. According to the call for papers:

This new stream provides a space for those who wish to critique, interrogate, reform, derogate, or defend, the corporate form. Since corporations possess distinct personalities within the legal order, we welcome papers that address specific regulatory issues concerning such personality, or indeed wider corporate activity. We also welcome contributions focussing on the presence and effect of corporations on a wide range of critical socio-legal issues. 

Find the remainder of the call - or submit an abstract - here.

Monday, November 21, 2016

Now you can subscribe via email! :)

Remember how I said that the bells and whistles would come as the blog developed? Well, I have my first bell and whistle (technically bell or whistle, I guess).  You can now subscribe for the posts to be sent to you via email. Find the little 'subscribe' box on the right-hand side, just below my bio.

If you have more suggestions for bells and/or whistles, please feel free to share either through a comment here or via email. 

Where do we go from here? Business & Human Rights Post-#BrexiTrump

My plan is to move to posting on Mondays, but as I posted so much over the weekend, I'm going to cheat this week and use my post for the Essex Human Rights Centre Blog, hosted by my alma mater the University of Essex. When I post elsewhere, I'll cross-post a snippet here with a link to the larger piece on the original blog. 

This year’s UN Forum on Business and Human Rights took place last week. Repeatedly, speakers raised the significance of #brexiTrump (the combination of the #brexit and Trump votes) while questioning its impact for the field. This post attempts to respond to questions from colleagues in the field about where we go from here and how we support students who want to pursue B&HR.
For those unfamiliar with business and human rights, it’s the subfield that focuses on how businesses negatively impact human rights and how we should best respond to those impacts. The focus is on the negative impacts because while we recognize that businesses – all businesses – can have positive impacts on human rights, businesses are not allowed to “offset” their negative human rights impacts by providing positive ones elsewhere. Instead, businesses are expected, at a minimum, to respect the range of human rights for all people, to mitigate any threats they can identify in advance, and to remedy any impacts that are unavoidable. Businesses are to take responsibility for their impacts across the range of human rights (the leading document calls for them to consider the rights present in the UDHRICCPRICESCR, and the ILO’s fundamental Conventions) and for all individuals they impact.
So in light of #brexiTrump, where should the field go? I have three “takeaways” for the field of B&HR.

  1. We share concerns with Trump supporters. Let’s influence the discussion.
See the rest of the longer post here.

Saturday, November 19, 2016

Norwegian Bank Pulls out of Dakota Access Pipeline

A press release claims that Norway's largest bank, DNB, has responded to a Greenpeace-supported petition by selling its assets in the controversial Dakota Access Pipeline. 

For those unfamiliar with the Dakota Access Pipeline, the US-based pipeline is being developed by Texas-based Energy Transfer and is intended to span 1,172 miles (1886.151km). An estimated 85% of the pipeline is completed already, and once finished it will reportedly carry 500,000 gallons of crude oil each day. 

It will cross under a lake that the government owns, over traditional lands claimed by indigenous communities, including burial sites, without those communities' consent, and it will cross the Missouri River, the longest river in the US and one of the country's most important watersheds.  

Federal regulators have temporarily halted the project as they re-review the proposal. 
President Obama has expressed hope that they can still address the concerns of indigenous and other activists. 

The project has resulted in numerous human rights violations, many of which have been outlined by the UN Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-Corpuz and the UN Special Rapporteur on Freedom of Peaceful Assembly and Association, Maina Kiai. Amongst the worst human rights violations are the use of police dogs and private military and security companies to disrupt protesters encamped near a construction site. Police dogs bit protesters, while police have reportedly used rubber bullets and mace, and there have been allegations that detained protesters "were housed in what appeared to be dog kennels, without bedding or furniture." 

The response to protests has also led to absurd attempts to silence media reports. Amy Goodman was famously arrested and charged with "participat[ing] in a 'riot'" because she reported from the protest area. During her 3 September report, she showed images of police releasing dogs on protesters. The violent imagery has been shared more than 300,000 times on Facebook (at the time of this writing). Despite her association with the news outlet Democracy Now, the state's attorney general argued that she was "basically" protesting herself since "[e]verything she reported on was from the position of justifying the protest actions." A judge dismissed that case in mid-October, but it represented a chilling attempt to silence the media. 

Despite the protests and the attendant human rights violations, the CEO of Energy Transfers has indicated the company will not (voluntarily) re-route the pipeline. President-elect Donald Trump has a $2 million dollar investment in the $3.7 billion pipeline.

Pressure has mounted on companies invested in the Dakota Access Pipeline. As outlined in the UN Guiding Principles on Business & Human Rights ("UNGPs"), all businesses are expected to respect human rights, and should utilize due diligence to identify potential risks they pose to the rights discussed in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, collectively known as the "International Bill of Human Rights." 

By allowing (requesting?) state police and private military and security companies to disrupt peaceful protests, to cage protesters in dog kennels, and to arrest journalists, all for the company's benefit, Energy Transfers failed to meet its responsibility to respect. If it had conducted adequate human rights due diligence, it would have undertaken consultations with the relevant indigenous communities. Data about impacts would have been disaggregated so as to determine any disproportionate impact on minority groups. The consultations and the disaggregated data should have shown the company's human rights impacts at the outset

Knowing those impacts, any company in Energy Transfers' position would be expected to work to mitigate the impacts and to remedy and repair any impacts it could not mitigate. Mitigation in this case would include re-routing the pipeline so as to avoid indigenous communities' sacred lands and to limit the potential impact on the Missouri River watershed. 

Instead, the Dakota Access Pipeline was re-routed to avoid an impact on a populated city, Bismark. This meant the pipeline was moved closer to the indigenous communities, leading to a larger negative impact. The move has been characterized by the noted activist Rev. Jesse Jackson as "the ripest case of environmental racism I've seen in a long time. 

Energy Transfers' actions implicate all of its associated companies, including investors such as DNB. All of this is outlined in the UNGPs, which expects companies to take responsibility not only for their direct impacts, but also the impacts that occur through their business relationships. 

Collectively, DNB's ownership and loans appear to have provided roughly 10% of the Dakota Access project budget. Even when a company like DNB is not directly responsible for a human rights violation, it is still expected to use its relationship and leverage to affect positive change. If its efforts are ineffective, it must determine (1) if the relationship is necessary for its operations and (2) if it can remedy its impact. If a relationship is not necessary -- and it's difficult to imagine how a loan relationship can be 'necessary' for the bank making the loan -- and the impact cannot be remedied, the company likely needs to cut off its relationship. 

It appears from its divestment, DNB has determined its leverage cannot adequately impact Energy Transfers' plans or conduct. The good news is that it recognized this and divested its ownership interests. The bad news is that DNB has not yet cancelled its loans

The bifurcated response by DNB raises a few questions. Since DNB is Norwegian, one might assume that the company has received adequate guidance about incorporating human rights into its loan conditions. If they have, why is the company continuing to provide three loans to Energy Transfers? If there is no human rights clause in the loan agreement, why not? 

DNB should explain its ongoing relationship with Energy Transfers. If the company has a human rights clause in its loan terms, then it needs to explain why it is still supporting these projects when it has recognized that Energy Transfers' actions are causing human rights violations. Either it must believe it can affect change -- in which case its ownership divestment may have been premature -- or it must recognize such attempts are futile and cancel its loans.

If, on the other hand, the company failed to include human rights in the loan terms, this should be treated as a potential 'learning moment,' in which the company assesses its practices and reforms so as to ensure its ongoing respect for human rights. But the Norwegian government and civil society should make it clear to DNB that the company only gets one 'learning' moment. Any repetition of this conduct should come with significant consequences from the state and from consumers who use the bank. 

This may be more difficult for the Norwegian government than it is for individual consumers. It turns out that the Norwegian sovereign wealth fund (a state-operated investment entity that generates revenue for the state) and the National Local Government Pension Fund (a state pension fund) have both invested in companies involved in the Dakota Access Pipeline. The state's own commitment to human rights should therefore be questioned. 

Norway is often hailed for its human rights compliance, but a state that benefits financially from repeated -- and serious -- violations of indigenous peoples' rights cannot be a paragon of human rights virtue. If Norway wants to retain the respect it has earned in the area of human rights, it must do the necessary work to actually comply with human rights. 

In this case, the Norwegian funds and the Norwegian state should be using their leverage to ensure the pipeline is rerouted so as to protect the indigenous community. If they cannot get the project rerouted, they need to terminate their relationships with the companies supporting the project. Anything less and we should assume the state is knowingly benefiting from ongoing human rights violations in the US, and condemn it for doing so.

UPDATE:  Since first writing this post, the situation for Dakota Access Pipeline protesters appears to have gotten worse. Much worse. Video from protesters last night indicate that the police used water canons on the protesters - at night in 26F/-3C weather. The police claim that water canons were not used, but instead that "water was only deployed to put out fires set by" the protesters. The use of water canons in this situation can give rise to a violation of the prohibition on cruel, inhuman or degrading treatment or punishment. It may even give rise to a violation of the prohibition on the use of torture, depending on the various factors. Given the gravity of these accusations, the US government is under an obligation to institute a proper investigation into the water canon allegations -- investigations that should not be done by the local Sheriff or state police agencies, but from independent and external agencies. Additionally, DNB and the Norwegian funds should begin their own investigation in line with traditional human rights due diligence. 

Friday, November 18, 2016

A Call for Rethinking the UN Forum on Business & Human Rights

When starting a blog, I always think it's a good idea to start small, on a minor issue, like reforming a five-year-long process that has been at the heart of the UN and international discourse on business and human rights. (that was sarcasm.)

The Forum concluded Wednesday and as anyone following me on twitter knows, I have been struggling with the purpose and effectiveness of the Forum's setup this year. It didn't help that I twice sat in on sessions where the 'lead' speakers -- people releasing their organization's great best practice guidance -- were clearly not experts on human rights or the law or how to implement human rights law (an example of that shortly). 

After a frustrating week, I thought about what we could do differently (and by 'we' I obviously mean the UNWG and the OHCHR, as I have no power in this decision). I think I have a 'solution' to what I've been struggling with... 

What if we put victims - not businesses - at the heart of the Forum?  

The business centered focus of the Forum is best evidenced by the plenary setups. This year's plenaries followed a familiar pattern - first "leaders" discuss the issues for the week, with a significant presence from businesses (this year in the form of Aviva's CEO and the Programme Director of the Global Business and Sustainable Development Commission). The second plenary brings together representative stakeholders for a conversation about the benefits and challenges of the UNGPs. Again, business is well represented (Anglo American's CEO and a Director for BT Group and Standard Chartered), while states / intergovernmental organizations feature prominently (Kenya, OAS), and CSOs are represented by a single person (this year, Global Witness's CEO). 

Finally, in the third plenary we heard from Laura Caceres, Berta Caceres's daughter. Then we finished up with reflections on our hopes for the future. As usually happens, we had both a positive business perspective (this year provided by the wonderful Vanessa Zimmerman), and a strong CSO presence (from one of my favs, ICAR's Amol Mehra). In the past, the makeup has been slightly different but never dramatically so.

Let's think of what this structure tells us. Whoever speaks first, sets the agenda for two days; their comments are quoted, built on, and responded to. Whoever speaks last has the benefit of helping us set the agenda for the future but they lose the momentum of having 2500 people gathered in one place thinking of what they said and how they can respond to the demands made. By placing business at the front of the Forum, and victims at the back, we are told that businesses are the focal point for these two days. They are the ones with knowledge and it is their needs and interests that form the basis for moving forward.

Now I know members of the OHCHR and UNWG would object to that characterization. They would possibly argue that the business leaders and thought leaders allow us to focus on the practical impacts of the UNGPs and are showing us how business can work towards the integration of human rights. But that's not what I hear when I hear business speak first - and I suspect it's not what victims hear either. 

What Happens when the Forum Starts with Business and Works its Way Back to Victims?

When the Forum starts from the point of business, the story of the UNGPs gets skewed. This year, more than any other, I felt that the understanding of the UNGPs as minimum expectations for business conduct was lost. The opening plenary included Mark Wilson, CEO of Aviva. He was persuasive and 80% of me believes that his company is firmly committed to human rights. But he presented the issue of business & human rights in the framework of its benefits to business. 

As Ruggie said himself, the UNGPs aren't about the benefits to business; they were meant to provide a benefit to the *humans* whose rights are threatened. If businesses gain because of human rights compliance, that's great. If they lose because of it, c'est la vie and deal with it. That might sound like a harsh response to a very real struggle businesses face -- and I appreciate the complexity of issues involved and I promise that we will get to discuss those issues with future posts -- but it is the natural consequence of recognizing that business compliance with human rights is a minimum expectation, not a nice additional benefit. As I tweeted during the opening plenary - the business case for human rights is great but the human rights case for human rights should be enough.

Later on in that first day, I sat in a session on the investor "ecosystem" in which Aviva's Chief Responsible Investment Officer was present. The ecosystem was presented as important information for NGOs to have so they could "put pressure on" companies and investment funds. This session focused on "helping" individuals and NGOs understand the power they could wield and the pressure points where they could affect change. That's a great tool to have - truly - but what I was expecting, and what is needed if you put human rights first, is a discussion centered on how investment companies translate the UNGPs into their work and into the investment infrastructure. 

Let's look for a second at the graphic that Aviva put out showing the investor ecosystem. 

Everything in that ecosystem except the individual investors on the right and the individual workers on the left -- everything else -- is a business. Each entity carries with it the responsibilities set out in the UNGPs. 

Telling NGOs and individuals that their pressure is necessary before change will occur implicitly presents a picture by which businesses are not responsible for ensuring their own compliance with human rights. With such an approach, 'human rights' becomes a commodity rather than a responsibility, and due diligence becomes something that companies should be praised for instead of a minimum expectation.

I understand that a few years ago we needed to praise companies for developing due diligence. We were solidifying support for the UNGPs by showing that companies could successfully take on board their demands and that the companies understood their responsibility. But five years later, businesses shouldn't get a gold star for meeting our minimum expectations and we shouldn't continue to suggest it's the responsibility of NGOs and individuals to put pressure on businesses to comply with the UNGPs. We should be operating under an assumption of compliance, condemning those who fail to meet that standard and wrestling with the actual and real problems businesses face when implementing due diligence. 

Let me put it another way: my nephew turns five today (Happy Birthday Lightening McQueen!*). When he was 2, he started counting. And I don't mean that he knew how to go fast from 1 to 10. I mean, I would point to pumpkins on a house stoop and say, "Lightening, how many pumpkins are there?" And he would hold out his little fingers as he counted, "1, 2, 3, 4." And then he would stop, look at me and say "Thewe's fauw Aunt Tawa!" ["There's four aunt Tara!"] And I would clap and tell him what a good job he did. 

Now, Lightening has a little sister who turns 3 today (Happy Birthday Queen Elsa!*). She is not as good at counting. She knows her numbers and can count, but sometimes when she gets to about 7, if she's not too focused it comes out something like this: "7, 9, 11, 2, 8, 4." This is when Lightening decides to be helpful. "1, 2 ... 8, 9, 10! There's 10 Aunt Tara!" And he looks up at me, thinking he was being helpful and expecting me to clap like I do for Queen Elsa. Now, it is hard for me to look in that face and deny him anything at all, but I have to stop myself from clapping for him. I expect more from him -- I need to expect more from him -- than being able to count to 10. So I tell him, "Yes, that's right Lightening. Now, can you show Queen Elsa how to do it?" And after he takes the time to count things with his sister, I praise her for counting and him for helping. "You're such a good big brother, Lightening. Thank you for helping her understand the meaning of the numbers! Now, Lightening, if I add 6 more, how many will there be?"** 

[*In case anyone is concerned, no these are not their real names.
**Yes, I really do talk to him like this.]

Praising my nephew for counting to 10 would do a disservice to him -- and to the rest of us. He could easily start to believe that the highest expectation we have of him is to be able to count, rather than to pass on that knowledge and gain new knowledge in an ever-developing quest for learning that I hope he never loses. He would start to expect praise every time he did something he was expected to do. "Look, Aunt Tara, I didn't scream in public! Where's my cookie?" 

Instead of praising Lightening for things that were age-appropriate or even advanced 2 or 3 years ago, I praise him for doing things that are age-appropriate now. In doing so, I hope to positively contribute to his development.

The same principle needs to be applicable in how we approach businesses. The binding legality of human rights through the two International Covenants is celebrating its fiftieth birthday this year. The UNGPs, like my nephew, are five now. These "birthdays" make it clear that we should be past the point of either praising businesses for meeting the minimum expectation or allowing businesses to usurp the Forum for self-promotional purposes that ultimately twist the UNGPs into being a "good thing" rather than a minimum expectation. We need to instead build on the UNGPs by addressing real challenges in implementation. This requires honesty and a willingness to work through serious and concrete problems collaboratively. That occurs now, but it does not often occur at the Forum. 

Instead, what we get at the Forum is a series of 'new' initiatives rolled out by businesses, consultancies, NGOs, and academics. Those have a place - a very real and significant place at the Forum. But they alone should not take up 2 days of our time, and they shouldn't be the starting point for each new panel. This year, I attended two panels that I found interesting but problematic. In one, a business sector organization rolled out it's new 'guidance' on an issue I'm deeply passionate about. But as the guidance was explained, it became clear that it was not meeting the legal standards set for states parties to both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Those legal standards have been interpreted by the the relevant treaty bodies responsible for overseeing compliance with these two treaties through concluding observations and in general comments. When I asked the speaker to clarify why the proposed standard was so low in comparison to the interpretation of the Human Rights Committee and the Committee on Economic, Social and Cultural Rights -- why it was "weak" in my words -- I was told that their guidance might be lower than "other entities -- I don't know what those entities are that you're talking about," but that the new guidance was an improvement on the organization's previous guidance. 

Now, I'm intentionally obscuring here any identifying information because I share this story not to shame someone I believe probably has good intentions and definitely represents the interests of her constituency well, but ... if your new guidance isn't built around existing law and existing minimum expectations, then why are we promoting it at the Forum? It simply can't be an example of best practice if it's not even an example of good enough practice. Why is it being heralded as guidance that others should follow or even listen to? When we promote initiatives with lower legal standards than the ones victims are entitled to, we are not assisting in the development of business & human rights; we are hampering it. 

The other session included Anglo American CEO Mark Cutifani, who was one of two CEOs discussing 'business leadership on human rights in areas affected by conflict, political instability, and social unrest.' Like Wilson, Cutifani was very convincing -- and often honest about the struggles Anglo American has faced. But in the end, the honesty was about problematic behaviour that everyone in the room should be familiar and it really only came after a question from the floor. I give a lot of credit to Cutifani, who, unlike a lot of other business personnel we've seen over the years, did not shy away from the criticism. It's problematic, however, that businesses can come to the Forum and promote themselves as "business leaders" in human rights without having to recognize or own up to their own historical grievances. (And to be clear: Cutifani was not the most egregious example of this behaviour this year.) 

Currently, Victims Voices and Needs Get Lost.

By starting with businesses and working our way back, we let businesses self-promote around practices that may not meet our minimum expectations. It's easy for them to do this because we don't start by reminding them of why we're here -- to find practical solutions to the needs of victims. Victims' voices and needs become afterthoughts to the considerations and expectations of business. 

It took until Day 3 for the Forum as a whole to hear from Laura Caceres, whose mother was brutally executed in Honduras. Larry (Catá Backer) has produced a translation of her longer speech, which was given as part of a side-panel on the experience of victims. It was only on the last day and in the last session that Laura Cáceres was able to set out for all those in attendance the foundation of what the Forum should be focused on: 
On March 2 of this year, Berta Cáceres, Mi madre, was killed for her struggle to defend the territory of indigenous peoples and Mother Earth. This political assassination, political femicide, showed us that the economic interests of companies are still more important than our lives, that as indigenous women, we continue to pay with our blood in the defense of our territories. ... We had to suffer the murder of Berta, of my mother, for FMO and FinnFund barely and provisionally to suspend funding for the Agua Zarca hydroelectric project.  ... We need urgent action, to prevent and stop the violence that we as peoples are suffering.
What the Forum should be focused on is addressing the issues raised by Laura's testimony. Why and how is it that states still prioritize business over human rights, what tools have been developed to empower victims and to hold accountable the responsible businesses and individuals, what responsibility is there for funding agencies, how has it been implemented, what actual problems do they face in implementation, what are the appropriate remedies in a situation like this, who owes those remedies - procedural and substantive - and under what circumstances, and what effective barriers are there for victims seeking remedies. Those are the issues the Forum should be tackling. Taking account of how far we've come on those issues is significant and strategizing on how to improve in these areas should be the focus of our collective work.

But because Laura's testimony was on the last day, all we could get in response to her foundational call was the sympathy of both panel and audience members. There was no solving her issue; there was no quoting of her at session after session, no recalling what it was that we were there to address. 

It was powerful. It was impactful. And then the Forum was done. 

Towards a Victim-Centered Approach to the Forum

But what if we had started with Laura? What if the foundational problem the Forum was forced to confront was not how businesses can better integrate and benefit from human rights, but rather how victims can receive better protection? What if that opening session did not involve the High Commissioner describing the execution of an unprecedented number of human rights and environmental defenders in 2015, but was the actual testimony of one of those victims? What if her testimony became the central focus?

I definitely think the tone of the Forum would be less self-promotional, because seriously, how can you possibly brag about your process when faced with the reality of Laura's testimony? I would suspect that businesses would be forced to address the realities of their bad practices. I would hope that they would be more honest in reflecting on what they've done well -- but also what they've done wrong. I would hope they would be able to ask the more reflective questions -- what should we have done? How do we prevent this in the future? What are we missing in our due diligence and remediation processes? 

Some might argue that many of those issues have been solved by the development of the UNGPs themselves. If that were true, we wouldn't need a Forum at all. We could say "thank you very much, John Ruggie," and spend those 3 days skiing in the Alps. We need to be honest that having the UNGPs only get us so far; the Forum should facilitate discussions about the next steps necessary to protect human rights victims.  

Two Modest Suggestions

Starting with Laura's testimony would have set a tone about how far we still have to go, rather than suggesting where we are may be enough. It may have been a somber reality for some to confront, but it would be more honest, and more worthy of the victims who continue to suffer at the hands of businesses.

Changing the nature of Forum may seem difficult when we've just finished year 5, but I would like to start by suggesting two small changes. The first is to restructure the order of the plenaries. Let's start with hearing from victims in panel 1, and then states and CSOs in panel 2, and conclude with states and businesses in panel 3. We can then conclude with some final remarks about the future, but let's let the final plenary be substantive reflections about what's been said over the past 2 days about the challenges we still face. This would put the focus on where it should be -- the human rights part of the 'business and human rights' title -- and allow for a real consideration of what victims still need. Next year's focus on "remedies" is the perfect opportunity to implement this concept because it is clearly victims, not businesses, that are in need of remedies and the effective implementation of Pillar 3.

The second change would be to have a single day -- or even a morning or afternoon -- in which we have parallel sessions all grappling with actual challenges faced in the implementation of business and human rights. We could break it down by sector, and have representatives from stakeholder groups serve as the panelists. After presenting a a concrete issue or case (hypothetical if need be), the panelists could each present their 'solutions' and suggestions. This would allow for a communal understanding of how various stakeholders would approach the issue, it would allow them to discuss their concerns with the others' approaches, and potentially generate new agreement on necessary changes to practice or to domestic laws. This approach could provide clear benefits for victims without losing their voice as the focus of our work. Each session could then result in a report for the final plenary, outlining responses and challenges. I realize this setup wouldn't work for whole Forum, but if we took this approach for a few hours towards the beginning of the week, it could be a strong way to set the tone and expectations for participants.

There is No Perfect Forum.

I realize that the Forum has evolved, and is continuing to do so. I know that it's hard work to put it together and that with the plethora of stakeholders there is not and will never be a perfect formula for these three days. But, I do think we can do better by victims, and work to ensure their problems are the center, not the sideline, of all of our discussions. 

I hope others will join in the comment section with their own proposals for reform.

Particular thanks to Jena and Judith who let me run these thoughts past them.