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.


  1. Fully agree with your proposals, Tara! Question is, for next year, shouldn't we have the actual legal operators (ie. judges, complaints mechanisms, prosecutors) appear to provide -alongside victims, of course- their testimony as to what challenges they face and how to find ways around them?

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  3. Thank you for this Tara. It's hard for me to relate as I've never made it to the forum. Those sound like sensible suggestions however. The focus really should be on action.

  4. Thanks Humberto & Nadia - and it's nice to see you both on here. :)

    Humberto, I *love* that idea. It could really be a good way to start the Forum, by having first a victim and then judges, prosecutors, and complaints mechanisms frame the issues and problems they have. Then we can spend the next few days really wrestling with those ideas. It could be a perfect setup for next year's remedies theme!

  5. And Nadia - yes! I know *why* it's been functioning as it has been, but we really need to move to real concrete action. And here's my personal plea that you come next year! We can share a flat and solve the world's problems over just the right number of glasses of wine!

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