Monday, December 4, 2017

Cheers for the Forum (part 1 of 2)

Now that the #UNForumBHR 2017 is over and done, here are some brief reflections in the form of "Cheers and Jeers" that used to appear in my hometown newspaper. Today, I'll start with the "cheers" (positive developments) and tomorrow I'll conclude with the "jeers" (negative realities).

More extensive criticisms will come, I'm sure.


1. Anytime a victim is on a panel about investment law, you know victims are being heard. The Working Group on business and human rights ("WG") clearly made an effort to find and include victims, and not only did they do a brilliant job of it, but I think it helped shape the nature and focus of the Forum in a positive way. I no longer left half of the panels frustrated at the complete disconnect from state-business promises and the reality I know to exist on the ground. Reality got to speak first and set the terms of the conversation. Hopefully that will carry over throughout this year to affect the kind of progress to come.

2. Having a single theme allowed for a more coherent string throughout the entire Forum. I'm sure there are people who choose one "track" each year, but I've never been one of those people. My Forum experiences, while often inspiring, have also been quite scattershot, hopping from a session on NAPs to a session on victims' voices to a session on this great-awesome-exciting-new-tool that this one company employed to semi-moderate success on the one issue they feel comfortable addressing because they don't want to actually address their major human rights impacts. This Forum, I felt like things were building on each other even when they were not explicitly related.

Additionally, while the focus was on Pillar 3, we could not adequately discuss that pillar without also touching upon the interlinked and inseparable Pillars 1 and 2. This year demonstrated that a narrow and focused theme does not need to cost us a comprehensive approach to the UNGPs.

I would like to see the WG continue this by choosing one 'pillar' for each year.

3. As Larry Catá Backer has so eloquently noted, "the Forum itself manifested a move away from a focus on the human rights effects of economic activity to a discussion grounded in the economic manifestation of human rights." This was a refreshing development and I encourage you  to read Larry's more thoughtful and thorough examination of this development on this blog.

4. There were multiple all-women panels. This doesn't quite make up for last year's all-male opening, but it does go a long way.

Oh, and before anyone asks: yes, it's okay to have an all-women panel despite the fact that it is not okay to have an all-male panel. Globally, the power dynamics are such that women's voices remain undervalued and underutilized. All-male panels reinforce this power dynamic; all-women panels do not.

5. Security seemed to work much faster this year. And the security guards at the UN are always so nice (firm, but nice). I just want to go down the line and hug them at the end of the three days (but I don't because they have a job to do and hugging me is not it).

6. These quick, visual summaries of each discussion, created on the spot by Lucia Fabiana of They beautifully captured the main points of each discussion -- which is an impressive feat when you really understand that she had no idea what the presenters were going to say until they started talking! I'm so glad this was integrated into the Forum. As I said on twitter, in the future I think these should be auctioned off and the money raised can be used to provide travel grants to speakers and panelists for future Forums. More importantly (selfishly?), I want them to be sold off just so I can buy one and hang it in my office.

7. The evening debate on the effectiveness of non-judicial remedies. The debate, organized by the German Institute for Human Rights and the Global Alliance of National Human Rights Institutions, pitted Justine Nolan, Prabindra Shakya, and Fernanda Hopenhaym, arguing that non-judicial remedies are ineffective, against Mark Taylor, Gwendolyn Remmert, and Debbie Stothard, arguing that non-judicial remedies are effective. I want to note at the outset what moderator Christopher Schuller did, which is that the speakers were each assigned a side that may or may not reflect their actual position.

Now, I have the utmost respect for Mark, Gwendolyn, and Debbie (the last being one of my favourite people to catch up with each Forum), but in my opinion Justine, Parbindra and Fernanda walked away with this (the total vote count suggests the debate was much closer than I felt it to be).

The format of a debate was refreshing. It was fun, light, and interesting -- exactly what we needed if we are to stay focused until 7pm. Honestly, I would love to see this integrated into the Forum's main sessions in the future. Surely this would be a perfect plenary approach for day 2. We don't need to only have an opening and a closing plenary, do we?

Now, if I were ranking items in terms of cheer-worthiness, I would've ranked this much higher. I saved it for the last 'cheer,' however, because the debate raised some significant substantive issues I want to touch upon.

An audience member asked Justine's side why we continue to use non-judicial remedies if we consider them ineffective. On twitter, I likened it to a man wandering through the desert looking for water. He stumbles upon a shop that only sells Coke (or Pepsi, or any other name brand soda pop). Now, if you have access to adequate, safe, drinkable water, it doesn't kill you to have a Coke every now and then (it's not great for you, but it doesn't kill you). When you cannot access water, Coke is inadequate means of addressing your biological and practical needs. A Coke will wet your palate but it will not quench your thirst, and depending on your previous intake of Coke, it could have harmful impacts. If you're the man wandering the desert dehydrated, do you drink the Coke anyway? I think you do because you hope that it will buy you enough time to find some water. You do so because you are so desperate to alleviate the pain you are feeling that you would drink the sand if you could.

That is how I feel about non-judicial remedies: they are Coke to a dehydrated population desperate for anything resembling water. If they were supplemented by adequate and effective judicial mechanisms, they would be an appropriate alternative -- one option amongst many that might not always be the right answer but can be a good choice in some circumstances.

Right now, we lack effective judicial remedies in much of the world. Where states do offer remedies, they are often not available to those who are harmed by the state's corporate nationals overseas.* The difficulty of crossing legal systems, the corporate veil, standards for discovery, forum non convenience, costs, and the lack of legal aid can each quickly turn what is an effective remedy into an ineffective one.
*I specifically asked whether the Chinese government was considering the need to open its courts up to claims by those harmed by its corporate operations overseas. No one on the panel wanted to answer that question.
Desperate for anything resembling justice, victims avail themselves to non-judicial mechanisms. But these mechanisms are not supposed to be our only hope.

There are two insidious threats that come from relying primarily or exclusively on non-judicial mechanisms.

First, non-judicial mechanisms are generally one step above naming-and-shaming. They sometimes (although not always) allow for a discussion or dialogue and a meeting of the minds. This kind of engagement is only appropriate with some human rights violations. When I was in Myanmar, I heard stories from people whose sacred trees had been cut down to make way for an oil pipeline and all they wanted was an acknowledgment of wrongdoing from the company and/or state. A non-judicial mechanism can accomplish that. While working on Colombia, I was confronted with stories of people whose indigenous leaders were beheaded and whose family members were killed in front of them. A non-judicial mechanism is inappropriate for redressing that kind of a violation, in part because the state is under an ongoing obligation to investigate, prosecute, and punish the perpetrators, and in part because a non-judicial mechanism generally cannot issue an enforceable order for the variety of substantive reparations necessary to make someone whole in those circumstance. They generally cannot order changes to policies that would amount to guarantees of non-recurrence; they cannot issue enforceable compensation awards; they cannot require mental, physical and social rehabilitative services; they may not be able to issue a formal declaration of wrongdoing absent the company's consent; they may not be able to require publication of the record in a newspaper or require the development of a memorial to those killed. They can commence a dialogue and they may issue findings of fact (although this is not always possible), but a non-judicial mechanism facing allegations of serious or criminal breaches of IHRL will be rendered ineffective by the limited substantive remedies it can facilitate or order.

Now for the insidious threat: where victims and communities are forced to rely on non-judicial mechanisms, they can lose their naming-and-shaming power. Victims often set aside public advocacy in the name of 'dialogue and discussion' through the non-judicial mechanism, but they do so without gaining significant enforcement capability. This exchange compromises the limited power of the affected individuals and communities outside the mechanism without giving them commensurate power within the mechanism. The absence of an effective judicial oversight to which the rights-holder(s) can appeal means that states and businesses can effectively undermine the non-judicial mechanism without any consequences while placating a desperate community and avoiding the harsh spotlight of media campaigns.

The second insidious threat comes from the non-judicial remedies themselves. Ineffective non-judicial mechanisms have little incentive to improve their own standards because people will use them anyhow. While an effective judicial mechanism would throw into sharp relief an ineffective non-judicial mechanism, that is impossible now in much of the world. Our judicial remedies are morally bankrupt so that our non-judicial remedies have little incentive not to be as well. Ineffective  mechanisms can still justify their existence to donors and victims because there is no competition to shows their inadequacy, and no means of challenging their decisions effectively.

Some will accuse me of being unfair and jaded. I will plead guilty to being jaded -- I consider it a necessity and a benefit in this field -- but not to being unfair. I am not impugning the work of the many dedicated servants who work on and for non-judicial mechanisms. I am simply noting how their work can be manipulated by those who want to avoid serious accountability. Additionally, there are some non-judicial mechanism that will have an internal desire to improve because they value the service they offer. This is not, however, true for all non-judicial mechanisms and simply hoping this to be true is not just futile but dangerous.

In states where litigation is an option, I am an advocate for (some) non-judicial mechanisms. But I have no reason to believe non-judicial mechanisms as a whole will ever be effective as long as they remain our only or primary means of securing redress. The expectations for full and complete justice for every type of human rights violation is a weight non-judicial mechanisms are simply not designed to bear. By using them as a substitute for, rather than a complement to, judicial processes, we render them ineffective.

There is hope on the horizon. Last week, a Canadian court once again allowed a business and human rights based claim to proceed against a Canadian mining company. This is the third case winding its way through Canadian courts.

This is a huge win, in part because Canadian mining companies have long been the worst of the worst in our field. In comparison to Canadian mining companies, most US companies are as sweet as a group of golden retrievers playing in the snow.

(And why, yes, I did choose this as my metaphor because this wouldn't always translate well to different cultures. Just like US companies!)

By the way, that's not a compliment to US businesses; it's a condemnation of Canadian mining.

If states like Canada continue to push forward access to judicial mechanisms, then we may be able to one day rely on and justify the existence and efficacy of non-judicial mechanisms. But we need a more significant take-up. It shouldn't only  be European, US, and Canadian courts that are capable of enforcing orders against large multinational enterprises. I am not so naive as to believe states like the Eritrea,* where Vancouver-based Nevsun Resources allegedly enjoyed the benefits of forced labour, can quickly be reformed so as to ensure adequate and effective remedies. But there are plenty of states who can reform and need to.
* On a side-note, Nevsun Resources made the argument that Eritrea could provide a fair trial. Am I the only one who believes that such an argument crosses the line from robust advocacy to outright lying to the court? It's like arguing that Princess Leia could have challenged the destruction of Alderaan through the domestic courts of the Galactic Empire but simply chose not to. 

The global project of judicial enforcement needs to expand beyond a few select states dominated by, but not exclusive to, the WEOG group. We need to develop model business and human rights remediation legislation that could quickly and easily be rolled out in new states. We need to ensure that there is adequate training for judges on the state's obligation to provide remediation as well as how this can be realised appropriately in existing systems. I know some of this work is ongoing, but I'm a bit impatient at the progress.

My impatience is heightened by the unwillingness of states to do this work on their own. This year's "model" development - the French due diligence law - is not a law for remediation. It is a nice law for regulation and for reflection, but not for remediation. In the same vein, it is noteworthy that the developments in Canada are happening through the judiciary, not through the legislative process. The Canadian government -- meaning its legislative and executive branches -- have not done anything of significance to expand access to remedies for rights-holders harmed by Canadian companies overseas.

States continue to move incrementally towards accountability, and then only reluctantly so. They seem to hope that the use of non-judicial mechanisms will quench our thirst. This shows a deep misunderstanding of the relationship between judicial and non-judicial mechanisms. If we want effective non-judicial mechanisms, we need to ensure effective judicial mechanisms. We need the real water if we want to have Coke as an effective alternative.

Tomorrow: Jeers

While I am feeling quite positive about this year's Forum, there are still areas for improvement. Tomorrow, we'll get to the 'jeers' (which can now be found here). Before I conclude, however, I want to share this with you, which I found when searching for 'golden retrievers playing' in google. It's a Monday and Mondays can always be improved by a bit of randomness:

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