Monday, October 1, 2018

A final plea to #bizhumanrights Forum organisers

The programme for the 8th UN Forum on Business & Human Rights is up. For those who submitted proposals and haven't heard back, it appears this year is different and if the panel wasn't accepted, we're just not hearing anything.

But I do know that, as in past years, forum organisers are again being paired up and asked to create a coherent panel out of very different proposals. That process appears to be ongoing, so I am writing this as a final plea to panel organisers -- or a set of final please, really.

Please keep the following in mind:

1. Questions & answers should not be an afterthought. You are speaking to a well-informed audience. Some of the members of that audience might actually be more well-informed on the topic than you or your speaker.* With adult learners generally, but with informed adult learners specifically, lectures have limited benefits -- for you and them. For the learner, a general lecture (and if you have 5-8-12 speakers in 1.5 hours, you will only ever get a general lecture) will often fail to address their real questions and will leave then feeling dissatisfied and unimpressed with the content of your talk. The time for questions and answers (Q&A) allows for your idea or concept -- which will only ever be a sketch when you present it -- to be transferred in a meaningful way to the audience members. For you, the failure to include significant time for Q&A means you're missing an opportunity to get significant feedback on your approach from a well-informed audience who can help you more successfully operationalize your approach or idea.

This can be particularly difficult when multiple organisers are put together and everyone wants their speaker and issue out there. There are ways to address this. I was part of a multi-organiser panel a few years ago on human rights in conflict-affected areas. The way we handled this was to come up with one common question we could all answer while showcasing our own work and that fed into the larger issue. Then each speaker was given 5 minutes on the panel to answer this one question. The rest of the time was spent engaging with the audience on their particular questions. On another panel, we turned it into a bit of a debate, and then the audience weighed in with questions after our opening statements. These approaches allow for your comments to go beyond a superficial level and to really hit core issues you need to address.

Once you've set aside your Q&A, work backwards to see how long each speaker should get and how many speakers you can accommodate. But to make your ring-fencing of Q&A time meaningful, you need to be realistic about people speaking past their allotted time. Assume that each of your speakers will run over by 1-2 minutes (and if they are men of privilege, you should assume 5 minutes and allow yourself to be pleasantly surprised if they stick to time).
*I will never forget the woman from a well-known business interest group who promoted her org's approach to investment & trade agreements as 'a higher standard' than existed elsewhere, but then couldn't answer a basic question about how their approach fell short of the expectations of the two major UN human rights treaty bodies. Needless to say, whenever that org speaks at a UN Forum -- and they get a lot of time at UN Forums -- I find myself highly skeptical of every claim they make.

2. Learn from the Universal Periodic Review and have some critical and different voices on your panel. If the first time you're hearing criticism for your new project or your approach is during the Q&A, you're doing something wrong. The Forum is not a PR stint; it's supposed to be an exchange of ideas between stakeholders. That exchange only comes if you allow it by ensuring those with different perspectives are on your panel. The UN has another routine activity - the Universal Periodic Review (UPR) - that allows for a good model for what we should be striving for. In the UPR, a state presents its understanding of its human rights record, and then it's questioned by 3 other states, known as the troika, who are responsible for running the review. While all the states on the troika all friendly-ish, their presence is intended to ensure that the record is really examined, rather than just accepted as it's presented. In addition to the troika, all other UN Member States can raise questions and give comments or recommendations for the state under review. The troika also ensures regional representations, so that's there's a variety of experiences, knowledge, cultures, and perspectives on the panel.

The purpose of the UPR, like the purpose of the Forum, is to ensure an exchange of ideas and best-practices. The critical voices & critical questions are important when you're trying to do that. You should embrace them rather than try to side-line them. Put a critical voice on your panel, someone who will probably disagree with the other panellists, but who is well-informed enough to really drive forward your practices.

3. If you don't like the UPR, learn from academia.

One of the best and most freeing things about being an academic is that you learn very early on that your idea is not perfect, it can almost always be improved, and even then it won't necessarily satisfy everyone. This means that we have to take on a lot of criticism and feedback -- in public, in front of other academics -- and then we sift through that feedback to figure out what we want to take on board and what we don't. This is part of the process of improving your thoughts and practices, and a failure to do this would harm even the most skilled academics (all of whom routinely seek critical perspectives anyhow).

4. Let rights-holders speak.

Last year was amazing in this regard. We had rights-holders and community organizers on almost every or every panel. This year, with the focus on what businesses can do better, there's a real risk that panel organisers will forget the rights-holders.

This would be an unforgivable mistake.

Nothing we do in this field should be done without ensuring the rights-holder is at the centre. Nothing. And that includes panel discussions. If the rights-holders aren't telling you what works and doesn't in their experience, you are missing the central pieces of your puzzle.

This year, supplementing my list of academic voices, I will be counting the panels that do not very clearly include rights-holders and I'll name them on this blog because that lack of inclusion raises important questions about the fundamental purpose of the panel.

5. Academic voices can help you.

Unsure of bringing on a critical voice? Academics can help you. With no skin in the game, we're generally willing and able to be appropriately critical. We also tend to have a wide-range of knowledge that goes beyond our publications, and we tend to be quite practical. As I said last year, I don't know a single academic in business & human rights that doesn't also work with states, NGOs, and businesses on translating the UNGPs into practice. So we (probably) won't ask you to rope the sun and the moon for us, but we will be able to give you specific tips on how to improve your thinking and your work.

And don't worry -- since part of our job is to find nice things to say about even the most awful submissions from students, we'll probably find something nice to say about your project or idea no matter what it is.

6. Don't forget about female academics.

When I say, "ask an academic," who does your mind immediately think of?

I can guess it's probably one of my very qualified and fine male academic colleagues. Part of the patriarchy is that when we think of 'experts', we think of men and male voices. Studies -- even in places like Denmark and Sweden -- show that men and women are listened to, heard, and respected differently. The only way to overcome that is to ensure women are given opportunities to serve and speak in their areas of expertise.

When thinking of your critical voices, and thinking of the academics to invite, please don't just go with the first person who comes to mind. Think seriously about who is an expert on the area you're addressing, consider whether there's someone whose name doesn't pop up immediately but who has the knowledge and critical perspective that you need. For your ease, here's the copy-and-paste of my list of women academics who weren't invited to speak last year but who would've made great panellists (with a few additions):

Justine Nolan (twitter: ), Nadia Bernaz (twitter: ), Mary Footer, Karin Buhmann, Nicola Jagers (twitter: @NicolaJagers, Joanne Bauer (twitter: @JoanneBauer), Erika George (twitter: @ProfErikaGeorge), Jena Martin (twitter: @JenaTMartin), Sara Seck (twitter: @SaraSeck) Chiara Macchi (twitter: ) Anil Yilmaz-Vastardis (twitter: Katerina Yiannibas (twitter: ) Ciara Hackett (twitter: @ciara_hackett), Samentha Goethals (twitter: ), Daniela Heerdt (), Charline Daelman, Dorothee Cambou, Krisztina Huszti-Orban, Basak Baglayan (twitter: @basakbc), Jelena Aparac, Dorothee Baumann-Pauly (twitter: @DoroBauPau), Clare Patton (@c_patton_) Flor Wegher Osci (twitter: @florwegher), Harpreet Kaur (@hkaur0304), Attiya Waris (@AttiyaWaris), Sabine Michalowski, Sabrina Rau, and Rachel Chambers, Bonita Meyersfeld, Andrea Saldarriaga, Andrea Shemberg.

For now, Anita Ramasastry (twitter: @ARamasastry) is (as is usual for me) excluded from my list of academic experts for the Forum only as she serves there in her capacity as a member of the UN Working Group. But the rest of the time, she's front and centre in this discussion!

My list is admittedly Western-centric, which is a serious problem and a failing on my own part to make connections outside of my immediate circle. There are exceptions to this, of course, but I would encourage you to think about non-Western, female academics as well (and please recommend their names to me so I can include them in future lists!).

Edited to add the following women scholars from Latin America and the Caribbean, with gratitude to Humberto Cantú Rivera (@HumbertoCantuR) for most of thes ones from Latin America and the Caribbean: Kathia Marti-Chenut (@kathiamc1); Camila Perruso (@camilaperruso); Claret Vargas (@claretmarcia); Carolina Olarte; Maria Laura Böhm; Ana Claudia Ruy Cardia (@mackenzie1870); Danielle Anne Pamplona.

I'd also add Vivian Ng, who is now based at Essex, and Aishah Bidin, from Malaysia, who serves on the Board of Directors for the Global Business & Human Rights Scholars Association. Humberto and I also serve on that Board (as does Anita), and I'll take this moment to encourage other scholars to join the Association as it's a valuable resource for exchanging scholarship.

I'll keep adding names as they're suggested to me by people I respect and trust. I should have remembered both Laura Bernal-Bermudez and Manoela Roland on my own - they're both fantastic so sincere apologies to both for leaving them off the initial list. Thanks to Daniel Marín López (@marintencionado) of Dejusticia for the reminder, and for highlighting the work of the wonderful Fernanda Hopenhaym (@fernanda_ho) of PODER (@ProjectPODER), which, like Dejusticia, is a bit of a hybrid NGO-think-tank with high quality research.

Think about who amongst this list might have the specializations that you need and insight that can push you forward.

(And yes, I will again be counting the number of women academic speakers when we have a list of speakers.)

That's all I have in terms of requests for now. The programme looks interesting. I've started to mark my preferences (apparently we can 'log in', click our preferences and sync our choices to our calendars... if you trust technology enough for that).

Sunday, August 26, 2018

Fixing Underrepresentation: Some Reflections on the Lack of Women in Legal Top-Scholar Lists

I haven't posted in a while as the move to Essex from Aarhus was a little more intense than I expected. But the situation of women in law academia deserves a proper post and not just some twitter thoughts, which is what it's been so far.

Yesterday, Oona Hathaway drew my attention to how few women appear on Brian Leiter's annual lists of the most cited US law scholars. I went through the numbers and it was pretty abysmal.

There are no women on the overall most-cited list. In the subject-specific areas, here are the numbers for top-ranked scholars:

Corporate & Securities: 2/10
Commercial: 0/10
Criminal Law & Procedure: 4/20
Public Law: 6/25
Constitutional Law: 1/20
Election Law: 2/10
Law & Economics: 1/15
Law & Social Sciences: 2/15
Law & Philosophy: 2/10
Legal History: 0/10

That's 20/165 slots for top-cited US law academic staff. 12%.

Admittedly, as I based the division a bit on stereotypes about the names, perhaps I missed 1 or 2 more (Michaels & Toms were all assumed to be men).

In response to Oona's tweet, Brian suggested it's not surprising because the lists are dominated by scholars over 60. I wanted to know if this was a solid explanation. It isn't.

I was even more inclusive when compiling numbers for scholars under 60 -- looking not only at top-ranked scholars but also those included in the 'other highly-cited scholars' list. But still, men are out-cited to their female counterparts in disproportionate numbers.

77 of the top 165 slots are held by people 59 years old and younger. Obviously, with no women featuring as top-ranked scholars, there were no women under 60 on the overall top-ranked list. There were, however, 2 men. And, again, the subject-specific areas do not fare much better (this time the second number is the number of slots occupied by people under 60):

Corporate & Securities: 1/5 (20%)
Commercial: 0/7 (0%)
Criminal Law & Procedure: 2/12 (16%)
Public Law: 6/16 (37.5%)
Constitutional Law: 0/3 (0%)
Election Law: 2/8 (25%)
Law & Economics: 1/7 (14%)
Law & Social Sciences: 0/8 (0%)
Law & Philosophy: 1/5 (20%)
Legal History: 0/4 (0%)

In total, there were 12 slots held by women, meaning 15%. The only list in which women appear as more than 1/3 of the top-cited scholars under 60 is in Public Law. And thank goodness for the Public Law scholars because without them it's 7/61, meaning 11%.

These numbers are important and they need to be acknowledged. We cannot afford to go on instinctual reasons like "but it's mostly older scholars, so that's why they're cited." Clearly that's not it.

As I woke up this morning, I was still thinking about these numbers. When I went back to twitter to comment further, I found I was tagged (by the brilliant Carla Ferstman) in a thread raising awareness of female law professors on twitter ('law professors' being used in the US, not UK, sense, to mean those who teach & research on law at Universities). The thread, with the hashtag #WomenAlsoKnowLaw, was started because Nancy Leong asked the legitimate question:

It's not a coincidence - nor is it shocking - that the most cited law scholars in the US and the most followed law scholars on Twitter are men. The question is what causes this and what can we do better in the future. In the next hour (I'm setting a time limit for this so it won't be exhaustive), I'm going to outline what I think are the causes and what we can do differently. Some of this will be old-hat to women in legal academia. Still, we need to keep discussing this until there are changes.

Structural Barriers

There are three structural barriers I want to discuss: (1) the impact of maternity; (2) the impact of student evaluations; and (3) non-promotable tasks.


Maternity is still a hindrance to professional success for women. Women are expected, and sometimes financially required, to stay home with their children after birth. But it doesn't stop there. The cost of child care means that I don't know a single scholar-mother who doesn't research and write in between feedings and diaper changes and football (soccer) matches. I do know scholar-fathers who are able to escape all that, at least for a day a week.

Scholar-mothers are often less likely to travel for longer conferences, whereas scholar-fathers seem to rarely cut their conferences short because they can only leave their spouse and child for 48 hours not 72.

Yet, we expect scholar-mothers to produce at the same rate as others. We treat any lost time as a delay and something to be caught up from. And we don't promote them until they "catch up." We don't say "actually, since you were off work for 12 months we only require X-1 papers for promotion, not X."

With delayed promotions comes delayed prominence, beginning a downward spiral that many women never catch up from.

I don't think this is getting better. While my University has a nursery on campus that is supposed to make things easier, an early career researcher could easily spend half of their take-home salary on nursery tuition. These fees make it harder for scholar-mothers to prioritize in the same way non-mothers do.
(Since this is about research and not teaching, I'll just briefly mention that (1) the nursery operates the same hours as our teaching timetable, so there isn't time to both drop off and pick up children outside of potential teaching hours, and (2) the nursery also requires parents to decide which days they'll send their kids to the nursery around the same time as our draft timetables come out. So before the final timetable is announced, our faculty-parents have to tell the nursery when they'll need it, and they might not be able to change days if their teaching schedule changes.)
Student evaluations

We know student evaluations carry implicit bias. This is not a debate anymore; the only debate is how extensive of a problem it is. We know it affects women, ethnic and racial minorities, persons with disabilities, non-native speakers, and immigrant faculty members.

We know the bias gets worse when it's intersectional, so that an Asian, immigrant, non-native speaking, woman with a disability is likely to be perceived as less competent and less intelligent than I am even if we deliver the same content in the same way.

Age is also a factor here. The younger a woman looks, the less competent she is for students. For men, it doesn't appear that they are ever too young to be competent. Instead, in my experience, the younger a man looks, the more students see this as indicative of his 'rising star' status and of his 'gravitas.'

Male colleagues assume it's not a social or structural barrier. They assume it's about the women themselves because they don't have that issue, and this protects the 'honesty' and purity of the praise that they receive.

This is important to understand because student evaluations remain a factor in promotions. And promotions remain a factor in prominence. Until we find better ways to evaluate teaching -- more time-intensive but more honest ways -- then we will continue to under-value women in the field.

Non-promotable tasks

There should be no such thing as a 'non-promotable task' in higher education. If it's worth someone doing, if it's something we need for the department or the programme to function, it should be promotable. In the UK, that should include non-glamorous admin roles (if I had a pound for every time someone told me to be bad at admin because it's non-promotable, I could afford a nice 4-day weekend off in Paris), and personal tutoring.

Even where these roles are assigned and assigned hours, if often isn't considered essential to promotion, or even a promotable criteria. So what happens when certain members of staff fail to do the non-promotable tasks? They fall on others, usually women and junior members of staff. As a result, women often end up pulling more than their fair share in non-promotable tasks, taking time away from their research, and then ultimately from their citations.

When men refuse to or fail to do tasks that are deemed 'non-promotable,' it essentially steals women's research time and hampers their career.

Sometimes this is in the power of the department to fix, but sometimes it's not (i.e., I'm told students come to women more because they feel more comfortable discussing feelings with women; this is likely the result of implicit biases). But one way in which it can be fixed is to ensure these tasks are part of the promotable criteria. If it's essential for the department to run well, then it's an essential part of our job and needs to be promotable.

Social Barriers

There is just one social barrier I need to address in addition to the social-structural issues above: implicit bias amongst scholars.

Students are not the only ones who carry implicit bias. Scholars do, too. This is most obvious when we sit down to develop a list of invitees to any scholarly endeavor.

It's easy for me to come up with a list of 'top legal scholars' in business and human rights.

It would also be easy for me to make that list all-male (or all-male plus Anita Ramasastry).

It shouldn't be that easy. The legal landscape of business and human rights is female dominated.

But, if I wasn't attuned to these issues?

Surya Deva, Michael Addo, David Bilchitz, Sheldon Leader, Jernej Letnar Cernic, Larry Cata Backer, Doug Cassell, Shane Darcy, Andrew Clapham, Nicholas Carillo, Humberto Cantu Rivera, Robert McCorquodale, Peter Muchlinski, Olivier de Schutter, Danny Bradlow, Daniel Augenstein, Radu Mares, Camilo Sanchez, and John Ruggie (despite his not being a lawyer, he had a profound impact on the law).

There's not a man on that list that I don't respect, even when I have vehement disagreements with them. And if I wasn't thinking strategically about who to invite to a conference, these are names that would easily flow and that could easily lead to a full conference.

The same thing is true for scholarship. If we are not attuned to who we cite and why -- is it default? is it habit? is it necessary? -- it is easily to fill up our citations with men. Men who Say Important Things, but male voices all the same.

This is starting to change with conferences because people are demanding that it does. Every organizer I know now does a Santa Claus -- going through their lists and checking it twice to make sure they're not being naughty but ... intentional, professional, and inclusive ('nice' is not the right word there).

But it hasn't trickled over, in my experience, to written scholarship, where the dynamic is less visible. We know there's one woman on the panel because we are looking at it with intention. We don't as easily know that women are under-cited in an article because that takes a lot more intentional examination. We need to address this and start holding ourselves and others accountable.
By the way, my go-to women legal scholars in business & human rights include (in no real order and off the top of my head): Anita (obviously) Sabine Michalowski, Nicola Jagers, Nadia Bernaz, Sara Seck, Erika George, Jena Martin, Justine Nolan, Sarah Joseph, Mary Footer, Chiara Macchi, Anil Yilmaz-Vastardis, Olga Martin-Ortega, Rachel Hatch, Charline Daeman, Katerina Yiannibas, Harpreet Kaur, Penelope Simons, Ciara Hackett, Tineke Lambooy, Bonita Meyersfeld, Beth Stephens, Erica Bravo, Sigrun Skogly, Lisa Laplante, Gabrielle Holly, Lise Smit, and the late, great Gwynne Skinner. [See how many more there are??]
The Quirkiness of US Law Reviews

This has to be recognized as a serious barrier to the advancement of women in legal academia: US law reviews remain, predominately, student-run. American scholars entrust students who haven't yet completed their first law degree to decide who gets prominence in a journal. That prominence has carry-over effects in a variety of ways.

Let's start with one: student decisions on prominence impact perceptions of prominence amongst scholars.

A while ago, for personal reasons, I wanted to move back to the US. It hasn't happened yet (and I love being at Essex), but I did apply through the AALS system a few years ago. When I showed my CV to American profs, I was asked "Are any of your journal articles lead articles?" That's not a question anyone in Europe has ever asked me. It doesn't appear on my European CV that I do, now, have a lead article (although the fact that the page numbers start at 1 should be a good clue).

But it carries weight in the US. And yet it's something decided by students who haven't yet finished their first degree in law.

And it's disappointing when we understand that students, who are not generalized specialists in all areas of law, are put in the position of taking short-cuts, and that those short-cuts in turn exacerbate inequality issues. US decisions (generally) aren't blind and they aren't peer reviewed. Back in the days when I was less attune to these issues, the Editor-in-Chief and Managing Editor for the Law Review I was on were discussing whose paper to select. One of the criteria? How would they impact on our citations. How did we decide that? Where did they publish last time, how prominent was that piece, and how many citations did it get?

Even European scholars know that if you want to publish in a US journal, you try to get accepted at a 'lower' review and then play that against the students at the 'higher' journals, because the students are looking for external indicators about the significance of the piece as they are not advanced enough in their careers to judge a work solely on its internal quality and significance. 

This all becomes cyclical. Students elevate certain scholars to more prominent positions because other students elevated them to a more prominent position because they had once a more prominent position. In doing so, we ignore the very clear link we know exists in student evaluations between student perceptions of competence and gender.

The US law journal system exacerbates gender inequality (and I assume race inequality as well). It builds on and is built on the structural and social barriers discussed above, and until American scholars require a different approach, the entire system will remain fundamentally broken.

What we can do Differently

1. Do our Due Diligence. We examine who we invite to speak at our conferences. Why don't we apply that same diligence to our scholarship? And if we do, why don't we expect other scholars to do so and call them out when their footnote list looks like a Who's Who of Male Scholars in My Field?

2. Stop using student evaluations in promotion criteria. There's no need for it. Bad data = bad results. Let's instead start using student evaluations how they should be used -- to identify any consistent, serious, and documented / documentable deficiencies. If student evaluations actually flag up something that needs to be followed-up on, then there should be a process for that that is separate from promotion criteria. It should lead to more peer-reviews and training, but not a stalled career.

3. Elevate non-promotable tasks to promotion criteria. If something is essential for a programme to run, and it's essential that an academic member of staff do it, then it's an essential part of our jobs. It should be promotable. When women get promoted, they gain prominence; when they get prominence, they get cited; when they get cited, they gain more prominence, and the spiral moves upward.

4. Let's change our expectations for mothers. Yes, there are exceptional mother-scholars, and some women will object to this suggestion, but we need to have better and more appropriate assessment criteria for mothers. By suggesting this, I am not indicating that this is some sort of affirmative action. It's instead recognizing that motherhood is like other 'non-promotable' tasks that we often require women to do. It should be recognized and it should affect our expectations of them.

5. Introduce standard blind, peer-review in the US. We know it's not fun (sorry to the law journal I owed a review to on Friday; it'll come tomorrow). But it's also necessary, it helps protect the quality of the scholarship, and it combats implicit biases that emerge when students are required to use short-cuts to decide impact and importance.

Tuesday, December 5, 2017

Jeers for the Forum (part 2 of 2)

As I explained yesterday, my reflections on this year's UN Forum on Business and Human Rights comes in the form of the "Cheers and Jeers" that used to appear in my hometown newspaper. Yesterday, I started with the "cheers" (positive notes) and today I'll conclude with the "jeers" (problems and constructive criticism).

More extensive criticisms will come, I'm sure.


1. That Pavel Sulyandziga, a member of the UN Working Group, was unable to attend. It used to be that fame for a human rights defender also meant protection. States like Russia and Honduras avoided direct attacks against their known activists lest the world turn their attention to atrocities in the state. This reality partly explains why Nobel Laureates like Aung San Suu Kyi and the Dalai Lama remained under house arrest or in exile while lesser-known activists were thrown in jail or killed. It is also the very premise of Peace Brigades International's accompaniment work. It is therefore particularly disconcerting that a member of the UN Working Group on business and human rights has had to seek political asylum because his work as a human rights defender and indigenous leader has left him and his family vulnerable.

Pavel's absence, for anyone who was used to his clear presence in past Forums, was unmistakeable even before he appeared on the big screen during the final plenary. Pavel's asylum claim -- and as a result his inability to be in Geneva this year -- follows the noted killing of Berta Cáceres, whose fame was supposed to protect her, and an attack on her daughter Bertha Zuñiga (sister of last year's closing plenary keynote speaker Laura Cáceres). Bertha's leadership role, her fame, and the infamy around her mother's death should have protected her from attack as well. Hundreds of human rights defenders are being killed for their work on business and human rights. And the sad reality is that we cannot secure justice for all of them straight away. But if we allow our most famous activists to be murdered and their killers to enjoy impunity, then there is no hope for justice for the most vulnerable and newest human rights defenders.

Russia and Honduras are under ongoing obligations to investigate, prosecute and punish, respectively, the threats against Pavel and the attacks against Berta and Bertha. I doubt either state will ever meet their obligation, which is part of the problem. These attacks send a clear signal of just how precarious our current situation is, and how vulnerable to attack members of our community are. But, that's also part of the point of such high-profile attacks, isn't it? If a member of the UN Working Group on Business and Human Rights cannot attend the UN's annual Forum for fear of an attack, can any of our grassroots and community organizers believe themselves to be safe? The message to the less-famous is clear: shut up or risk your life and the lives of those you love.

Instead of allowing Pavel's absence to be used to silence grassroots and community organizers, I hope it serves as a call to action for the rest of us to use our privilege to protect and elevate these voices. In 2012, the US passed the Magnitsky Act prohibiting travel to the US by individuals responsible for the death of a tax accountant who investigated fraud and corruption by Russian tax officials. The US later expanded the legislation into a Global Magnitsky Act (see HRW's brief overview here), which can be used to take action against foreign individuals implicated in gross human rights abuses. Their accounts can be frozen and they can be banned from traveling to the US. Canada has a similar law, which has already been robustly acted on in regards to Russia, Venezuela, and South Sudan. The UK has an intentionally less robust (and therefore less effective) version of the law as well.

The Magnitsky Act has worked on Russia, although admittedly only to moderate success. The anger and vitriol Russia expresses when new Magnitsky legislation is adopted is a testament to the power of the law. Expanding its use -- ensuring that systematic and state-sanctioned attacks on human rights defenders will be punished -- is necessary. We need four things:

  • States with Magnitsky laws should identify Honduran leaders to be sanctioned because of Berta Caceres's murder and because of the threats against Bertha Zuñiga. Thanks to an investigative report by a panel of experts, we know who Honduras should be pursuing for Berta's murder, and we know a lot of the evidence against these individuals. 
  • Serious consideration is needed as to how the global Magnitsky Act can be used to respond to threats like those experienced by Pavel and his family, which force defenders into exile even if they do not culminate in murder.
  • More states need to adopt Magnitsky laws and use these laws for the benefit of human rights and land defenders.
  • Corporations who are pro-human rights, and who abide by international standards for business and human rights, should pressure their governments to adopt global Magnitsky laws and to use them to sanction business and human rights violations.

I realise that Pavel's absence is something the WG, and Pavel himself, could not control. But it is something the rest of us can and should respond to.

2. Development and Remedies are Not the Same Thing. There is a time and a place to brag about your development project. It is not at a Forum about remedies. This was the most annoying, repetitive issue this year. You cannot build a school because you polluted a community and then stick a "remedies!" sticker on it and move on. Similarly, if you benefitted from child labour, building a school is not an adequate reparation. It's a start, but it doesn't get you there.

In a Forum dedicated to remedies, too many states and businesses failed to address remedies. Or they talked about the process of their remedies but not their substance. Substantive remedies and development are not the same thing. We need states and businesses to understand that.

Now, I loved the opening plenary. It was fantastic. But I don't remember an extensive focus on remedies within the plenary. Seeing how that played out over the next 2.5 days -- with people confusing remedies and development, or ignoring the full character of remedies -- I think we could have benefitted from a little overview of what is expected when we discuss remedies. I don't think every panelist needs to address that, but I think there should've been one designated legal mind who reminded the audience what we mean when we discuss 'remedies' and what the demands are, both substantive and procedural. If we continue with the pillar-based themes -- and, again, I really hope we do -- I hope we somehow integrate a 'common language' discussion into the opening plenary.

3. There were still times in which the role of women made me uncomfortable. I recognize that we had at least two all-women panels and that more women appeared on behalf of businesses this year. But, these panels were noteworthy because they still largely remained the exception.

Too often, we saw a single woman on an otherwise all-male panel. Such panels now annoy me almost as much as all-male panels. We know how women are listened to and there is enough evidence to suggest that women are listened to in a different way when there is one of them at the table versus when there are two. Yet, the one-woman demonstration was on display at the Forum.

There was at least one panel where they clearly so desperately wanted a non-critical woman that they got someone who had no background in this area and didn't know what she was talking about and put her on a panel she was ill-equipped to handle. How she was used was so appalling to me that not only did I not tweet about her talk out of pity for her, but I refuse to name the panel even now because she should not be publicly humiliated simply because someone belatedly realised they should have "gender balance" on their panel.
Edited to note that in this context the "they" does not refer to the WG or the Forum Secretariat. Based on the circumstances, I do not believe they were responsible for the choice of speakers on this panel. 
There were also several panels in which men were positioned as 'experts' and women were positioned as 'victims' or 'rights-holders.' Yes, women can be anything and therefore can be victims' voices, but women can also do a lot more than just speak from the heart or speak about their own experience. We need to stop thinking of "gender balance" as a numbers-counting exercise. You can't go "oh, well, there's one woman there, so we're golden."  We need panels that feature women as experts. We need panels in which the women are empowered to challenge, disagree with, and respond to the men as their equals (and sometimes their superiors).

4. That leads me to my ongoing complaint: the lack of academics generally and the lack of women academics specifically. I know I've discussed this before, but I'll keep discussing it until there's a noted improvement. There are times when academics fill a void no one else can or should. For example, on the Chinese businesses panel, a non-Chinese academic could have been a nice independent voice that pointed out that development and remedies are not the same thing, that China raises unique state-business nexus issues that change the nature of its obligations, that we need China to develop accessible remedies for the benefit of those harmed by their corporations overseas, that China needs to ensure human rights are protected within the context of investment contracts, etc. I'm aware that such a voice would never be approved by the state, but that should be part of the conditions for receiving a panel presence at the Forum. If you want to promote yourself and your approach to business and human rights -- and let's be real, that's why states and businesses have panels at the Forum -- you should be subjected to scrutiny, and the WG should ensure that happens by ensuring each panel is balanced.*
*I realise this is unfair to the WG, who do their job on a voluntary and unpaid basis and for whom ensuring each panel is balanced would probably add (a hyperbolic) 16,000 hours of work, but someone needs to be doing this and they're the only ones (besides OHCHR) who can.
Relying on Q&A to present critical voices is unwise for several reasons. First, half the panels run out of time during the Q&A. Second, several panelists just clearly ignored critical questions and never felt the need to answer them. While this may remain true if the same questions are posed by a fellow panelist, it is simply much harder to do. Third, there's a randomness to the Q&A so that means you're not necessarily securing criticism. Fourth, there is a benefit to the simultaneous translation often offered during the sessions. I was invited by one speaker to discuss my question after the panel (because they chose not to answer it fully even though there was time for it), but I couldn't ask the question in Japanese and he -- apparently? maybe? seemingly? -- couldn't listen to it in English. So, I will now beg -- because I am not above it -- beg the members of the WG to ensure that there are independent voices capable of being critical on each panel moving forward.

5. Where were the states?? And do they know they can make good faith, civil, and non-confrontational recommendations in situations other than the UPR? The Forum, which is premised upon and mandated to be a place for sharing and cooperation across stakeholder groups, is a great place for states to carry over all the lessons they've learned on constructive criticism and cooperation at the UPR. That simply didn't happen this year.

Andrea Saldariagga noted that they could not get a state to appear on their investment law panel (which is sad because it was a really good panel this year). I noted lots of state placards around the various rooms but never heard a state representative ask a question or make a recommendation to panel of a general nature. And while there were state representatives on panels dedicated to developments in their own state (Colombia, China, Myanmar), they didn't seem to appear on a lot of other panels. I will commend the Government of Brazil, who responded to direct criticism from one panel with promises of listening and engaging in dialogue with stakeholders. During a Forum in which it felt like states only appeared on "friendly" panels, this ends up being praise-worthy. That is rather sad.

If stakeholders are talking and states aren't listening, there's little benefit to the Forum. We can't make the institutional changes necessary without states. And while Room XX is very pretty, if I'm only going to talk to academics and NGOs we should do that where we can buy cheep pizza and beer immediately afterwards.

6. 3 hour panel sessions? Okay, so clearly none of the academics on the WG were responsible for this because academics know you simply cannot maintain focus for 3 hours while people talk at you. We can either have 3 hours sessions or we can have panel speakers, but we cannot have both. Despite feeling really engaged with and committed to the topics I attended this year, by hour 2.5 of each session, I felt like some combination of these guys:


In case you're wondering, in order, that's: sleepy, sleepy, and irrationally confused and annoyed by simple things. If it wouldn't have compromised my reputation, I probably would've ended up like this more than once:

Okay, that's an exaggeration, but how could I not include that adorable puppy in this post??

7. While I love the security guards, I definitely do not love the elitist name badge system. It's not just colour-coded now, but it brands you with a letter. In the case of academics, we were literally wearing a "Scarlet A". Listen, I know we're not loved at the Forum, but this was a bit much, wasn't it? (kidding. sort of.) The badges made the writing easier to read, but I suddenly felt like there was a clearer pecking order, and that extended well beyond the legitimate color-coding necessary for fast security procedures.

I also ended up spending way, way too much time trying to decipher the meaning of the letters. I got A, I, N, G, and O, but what the heck are R and Z for?? (Also, if we're going to have letters in the future, can't there at least be a B so we could play badge-based Bingo?)

So those are my 'jeers' for this year's Forum. I was much more pleased with this year than recent forums, but there are always some things that can be improved upon and I hope the WG will consider some of these suggestions.

(special note to Debbie: I was going to include a single puppy at the end of this post just to improve your day, but then I found all the adorable sleepy puppies and ... it might've gotten a little out of control.)

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:

Wednesday, November 8, 2017

The Lack of Women Academics at the 2017 UNWG Forum

I wrote a 50-part twitter comment on the lack of women academics speaking at the 2017 UN Forum on Business and Human Rights. In hindsight, that seems like a waste of time. I should've just made it a blog post. I haven't kept this blog very active as my publication obligations increased significantly this year. So this seems like a good way to revive the blog. I'm pretty much copying and pasting the tweet rant, but I'll add links to the people I identify. I have also edited this briefly for coherency and appropriateness on a blog (instead of twitter), and to add some details, but here's mostly what I wrote on twitter:

Now that I’ve complimented on the inclusion of women in the Forum, let’s discuss lack of academics – and particularly women academics. I was surprised there were no academics on the keynote plenary so I investigated further.

In total, it appears there will be seven academics speaking on all the panels at the UN Forum on . They will speak on five panels. This is out of (if I counted correctly) 75 panels total. This tells us how we appreciate (or fail to) academic expertise. There are three women academics: Dr Attiya Waris, University of Nairobi; Dr Harpreet Kaur, Ashoka Uni (twitter); and Dr Patricia Palacios Zuloaga, University of Essex. Drs Kaur and Palacios Zuloaga will discuss women’s human rights and Dr Waris addresses African perspective on remedies.We have to go to Day 2 of a three-day Forum to hear a woman academic speak. This, unfortunately, tells us how women academic experts are valued (or not) in .

While I am calling out the UNWG, they alone are not responsible for this. Organizing the Forum is a massive undertaking and they rely on external organizers for most panels. But still… something important fell through the cracks on this one.

Let me acknowledge my methodology and some short-comings to this very unscientific inquiry into the 2017 Forum’s programme:

(1) I didn’t include members of the UNWG who are also academics as “academic speakers” because that’s not the role they're speaking in;
(2) I also relied solely on titles given in the programme for the same reason (and because I have an actual job and limited time). Where a speaker is about to become an academic (and I know of at least one) but that’s not their “role” for the Forum, I didn’t include them.
(3) I also didn’t include sessions before the opening plenary or evening sessions because while they are now included in the programme they have never been treated the same way as day-time sessions.
(4) It appears 25-30 panels have either no information on their speakers or limited information. I did assume one academic speaker (Sheldon Leader) based on reasonable assumptions. [Edited to note: Sheldon will not be speaking, although there will be a male academic speaking on a panel Sheldon is moderating. I feel it's also important to note here that Sheldon is not only my colleague, former PhD supervisor, and friend, he has also promoted my career regularly and routinely.]
(5) Where sessions are divided into Parts 1 and 2, I treated each panel as a distinct part.
(6) I only counted once, so I didn’t cross-check to ensure the number of panels. But I was careful with finding and identifying speakers. I wrote each speaker's name in a column titled "academics" that totaled all academics. Women academics were then written in a second column titled, shockingly, "women academics." Finally, I used shorthand to link academics who were speaking on the same panel and to keep track of the number of panels academics were speaking on.

With methodology out of the way: There are several notable panels where academics, and particularly women academics, could have been helpful. Anything addressing the financial regulation and/or the banking sector, for example. And, of course, the women keynote panel. There are two panels –- the UDHR at 70, organized by OHCHR, and child labour in cobalt supply chains – that appear to *only* have businesses or business-oriented organizations. Head-scratching b/c neither of these are topics that should only include businesses.

(Also, how do we have an entire Forum focused on remedies and yet multiple panels that are dominated by businesses while we have very few dominated by victims and none dominated by academics? Wasn't this the year we were going to make sure victims were at the centre of everything? Or was that just my own wishful thinking?)

I noted last year (via twitter) that academics shouldn’t be treated under the larger umbrella of “civil society.” This is for two related reasons: what we bring to the table; and what we don’t bring to the table. Academics can provide objective critical voices. We don’t necessarily have a stake in a particular project, but we have a stake in the development of the field as a whole. This allows us to be constructively critical.

Academics also often can make overarching connections that are not made by those working on a particular project. You want to discuss Colombia’s peace process and the UNGP? Excellent case study, but don’t forget that Colombia is following the experiences of South Africa, Liberia, Sierra Leone, Timor-Leste, Guatemala, Honduras, and will need to be adopted for use in Nepal, Myanmar, South Sudan, Syria, Afghanistan, Iraq. Academics don’t forget this and their insight in linking these cases, in developing nuance between them, and identifying important factors can be helpful.

We’re also professional educators, and generally professional educators for adults. This means we know when the language gets too dense for non-academics and usually have 3-6 analogies in our back pocket that will help clarify the situation. (I teach the sources of international law by talking about marriage, true love, and friends with benefits. I've had adults come to me months and years later and say "I know what customary international law is -- it's true love!" Of course, customary international law is not as lovely as true love. But it is analogous.)

Academics in are not Ivory Tower academics. We work with businesses and communities and victims groups. We just do it in a different way than civil society. And then we learn how to explain that work to a non-academic audience. Over and over and over again. It’s our job.

Academics are not, however, stand-ins for civil society or victims’ groups. I work with a lot of NGOs and victims, but it would be wrong for me to take a victims’ seat at a table. I don’t have their experience and their voice needs to be heard. I cannot tell you what an “adequate remedy” is for a child labourer in the cobalt industry. That has to come from the victim because the obligation is to make the victim whole again. They need to speak for themselves. But I can tell you what the remedial obligations are, what some options are for ensuring remedies, what has worked for child victims in the past, and where the often-hazy line is between providing remedies for a past violation and beginning to fulfil a distinct new obligation. For example, I'll make sure you understand that providing child labourers with an education is not a remedy; it’s a distinct obligation. Providing child labourers with extra support to address gaps in their education that developed because of their use in labour can be a remedy. Similarly, providing adults who were once child labourers with an education can be a remedy. But don't confuse the remedies and the distinct obligations: finally realising a distinct obligation is not, by definition, providing a remedy. If you don’t understand that, I have 4 other ways to explain that to you. Ask me. I'm happy to tell you at least one other way to get you to understand.

Don’t lump us in with civil society or with victims’ groups. We’re not. We’re a distinct stakeholder group. We bring a distinct value-added to these discussions. When you have a panel with 3-6 corporations, 1 or 2 victims, and no academic voices, you should know that you’re probably missing some important and helpful insights.

Now, that’s academics generally. Let’s briefly discuss what happens when you have no women academics – or three in a Forum with approximately 75 panels. And the problem with those three discussing only two issues: women’s rights and a regional perspective.

Let me be clear: if I were doing anything on women rights ever, I’d want Drs Kaur and Palacios Zuloaga on that panel. I don’t know Dr Waris and haven’t heard her speak, but a quick review of her CV indicates she’ll be a great speaker on remedies. We also absolutely need the panels they’re speaking on (although we could do a better job of mainstreaming both issues). But women’s rights and regional perspectives are not the only things women are experts in. Dr Waris, for example, would be appropriately placed on panels addressing state-owned businesses. Dr Kaur would be perfect on panels about the SDGs and UNGPs or on accessing community voices. Dr Palacios Zuloaga would give an added value to any panel on reparations and remedies.

They are not alone. The list of women academics in is long and distinguished. Yet senior academic women like Justine Nolan (twitter: ), Nadia Bernaz (twitter: ), Mary Footer, Karin Buhmann, Nicola Jagers (twitter: @NicolaJagers, Joanne Bauer (twitter: @JoanneBauer), Erika George (twitter: @ProfErikaGeorge), Jena Martin (twitter: @JenaTMartin), Sara Seck (twitter: @SaraSeck) and Gwynne Skinner are all notably missing. And don’t even get me started on “younger” female academics: Chiara Macchi (twitter: ) Anil Yilmaz-Vastardis (twitter: ) Katerina Yiannibas (twitter: ) Samentha Goethals (twitter: ), Daniela Heerdt (), Charline Daelman, Dorothee Cambou, Krisztina Huszti-Orban, Basak Baglayan (twitter: @basakbc), Jelena Aparac. All those women were off the top of my head. None are speaking. Over three days and 75 panels.

This suggests that the field of is comfortable with women academics in areas long deemed “acceptable” for women: women (obviously), children (because we’re supposed to be mothers/caretakers, right?), and sometimes regional experts or voices. But we remain forgotten on other issues. When women academics are only given a few spaces to explain their expertise – “comfortable” areas – we lose two things: we lose hearing their insights and expertise and we lose the vision of women as experts. We lose hearing about insights that might spur us to think in new ways. We lose insights that pull together large and vastly different experiences. We lose insights that are well-informed by the latest research and that come from ethically reviewed investigations.

We also lose the vision women as experts. Women academics undertake deep, knowledgeable and nuanced investigations into both individual issues and approaches that can be extrapolated thoughtfully and carefully for broader application. This isn’t to say that the numerous women speaking as representatives of states, business or civil society organizations are not experts or knowledgeable, thoughtful or nuanced. But their role and their use of expertise is different. After posting on this on twitter, I was approached by a PhD student who said she still feels it's rare to see women academics treated as experts in this field. That's a problem. And it's not the PhD student's problem -- it's the field's. It is important that women academics be included in discussions of free speech, access to remedies, the legitimacy of arbitration for , and – yes – historical reflections on where we’ve come from and where we need to go 70 years after the UDHR.

We also know that routinely seeing and listening to women academics changes how all women are listened to. I have attended more than one on and I’ve been to numerous ones where one woman speaks out of 8 or 10 planned speakers. Usually, the audience is 75% women and includes at least one or two of the senior women academics I named above. Yet we listen to 8-10 men tell us about their own interests in the field. I love listening to my male colleagues -- heck, I love discussing #bizhumanrights with anyone who will discuss it with me and that sometimes means random strangers in buses, planes, and or taxis. But by ensuring men dominate the academic discussion, we are not just missing what women have to offer (and that's a lot in this field) but we are reinforcing the notion that men should dominate the discussion. Please note that I used the word "ensuring" intentionally in that sentence. Choosing speakers is a choice; it is a political and social act, even when you want it not to be one. If you ask exclusively or predominately men, you are "ensuring" that men dominate the academic discussion. It's not a natural occurrence in this field and you are making a choice about how you want men and women to interact and be perceived in this field.

Sadly, it remains the default that when you want a
"expert," you call a man.
This happens for many reasons, but one reason is that people often do not appreciate women as experts until they see women experts. If you only see or hear women in some roles, you only envision them in those roles. Women aren’t deemed capable of being “experts” until enough women are actually recognized and seen as experts. The more people see women in that role, the more routine the inclusion of women in that role, the more likely women are to be listened to as experts, but also across the board. By recognizing women as experts, we acknowledge that they can and do add clear value, judgment, and insight. This can change how we more generally
perceive comments from women all around. Women become more than just their emotions; they become beneficial and relevant members of our team.

When you fail to include academics in the discussion, you generally miss out on some relevant and important insights. When you fail to include women academics, you reinforce a patriarchal system that still refuses to acknowledge women as legitimate experts. Having speakers that address only "comfortable" subjects that women are "allowed" to dominate does not change this.

Again, I know this does not fall on the UNWG alone. It’s a communal failure within the field. It will only get better, however, when we acknowledge it’s a problem. I apologize to my friends and respected colleagues on the for singling out their efforts at the Forum first, but let’s start with acknowledging the problem in the places with the most power. I am not going to hold an academic institution just getting started in #bizhumanrights to a higher standard than I hold the UN Working Group. Instead, I'm going to hold them all to an equal standard while recognizing that the power dynamic means the UN Working Group will have a stronger impact on the field and future discussions.

For future organizers of conferences: if you want an academic / woman academic, ask me. Even if you don’t want me I am always happy to refer to you to someone in the – very large! – network of women academics working on issues. Alternatively, you can tweet to and ask to share the request with their broad network.

Women academics and their expertise need to be heard.

(And women academics in business and human rights -- and this includes all who identify as women -- if you are interested in being contacted by organizers, we have a google form for that. Fill this in and we'll share with any organizers who reach out to us: ).

UPDATE: The UN has now released a "speakers' list." It's 15 pages. Using the same methodology as above, but attempting to save myself time, I did a search for the terms "Univ" "Professor" and "School" to find academics. There are 16 academics (at least 16 serving in academic roles here), and of those 9 are women academics. The problem, however, is that this list appears to include moderators, not just speakers. While some will argue that I shouldn't differentiate between moderators and speakers, I do.

A moderator's job is to say this: "This Man is very accomplished. Mr. Man, please tell us what you think about this subject. ... Mr. Man, your time is up. [2 minutes later.] Mr. Man, we really need to move on now. [2 more minute later.] Mr. Man, I really need you to wrap up now. [1 minute later.] Great, thank you Mr. Man. Now, does anyone have questions for Mr. Man? We'll take 3 at a time. [Pointing] 1, 2, and 3." A speakers' role, on the other hand, is to provide expertise, nuance, and clarity about specific issues and to substantively respond to the audience's questions. The roles are simply incomparable -- as is the impact on the audience's understanding of expertise.

I have too often seen women academics asked to moderate panels after the organizers realize all the speakers are men. I've been used in this role too, which is why I now check the speakers list before agreeing to moderate a panel. Once we have a full programme that differentiates moderators from speakers, I'll go through it and update this post with the real numbers.

It is also worth noting that Dr. Palacios Zuloaga is no longer speaking, but two women I identified before -- and at least two I should have! -- are now on the list. The list of women academics now includes Jena Martin, Justine Nolan, Bonita Meyersfeld and Andrea Saldarriaga. I sincerely hope they are all speaking in substantive roles.