EIRIS Foundation Submission to the UN Working Group on UN Guiding Principles 10+
The UN Guiding Principles celebrated its 10-year anniversary recently. It is hard to overestimate how much change has occurred in the last decade on business and human rights.
To continue this great work, The UN Working Group on Business and Human Rights requested civil society to input into their next ten-year plan. We have submitted our response to the Working Group’s 5 questions:
(1) Where has progress taken place in UNGPs implementation over the course of the last decade? What are the promising developments and practices (by governments, businesses, international organizations, civil society organizations, etc.) that can be built on?
- Companies are talking about it, internally and externally. At the very least, it is hard for companies to claim any longer that they have no responsibility to anything other than profits.
- Some companies are doing a lot as can be seen from The Corporate Human Rights
Benchmark (CHRB) project. This project also demonstrates that a mixture of transparency, competition, clear requirements and goodwill on the part of in-house human rights staff can lead to significant improvements in disclosed compliance. Projects like the CHRB and other benchmarks (like Know the Chain) have built a guide for companies on how to comply with the UNGPs.The detailed CHRB data shows leading companies have been able to develop “learning” cultures in which the explain the challenges they face in tackling particular human rights issues (or in rolling out the plans they had devised to do so) and can provide examples of the further steps they took to overcome the challenges identified.
- Some companies have been able to present statistical analysis of the effects of different interventions on human rights outcomes (for example, which interventions on child labour work best for girls and which for boys).
- And one last point, in recent years, more cases against companies have been reaching courts and other quasi- judicial forums. One particular positive element is that in the EU and the UK courts have expanded the remit of what is their jurisdiction in a way which makes corporates more accountable.
(2) Where do gaps and challenges remain? What has not worked to date?
- The challenge demonstrated by CHRB is that while there are leaders, most companies are still far from compliant even with basic human rights due diligence (HRDD). It is also difficult to see the exercise being repeated in the same way across the tens of thousands of companies that need to do HRDD if the UNGPs are to achieve their potential. Another trend that can be seen in CHRB is that companies learn how to use the lingo without necessarily genuinely adopting the principles of UNGPs.
- Establishing norms is a great achievement but the EIRIS Foundation has found that people do not act on these norms without other pressures. CHRB started in 2017 and every sector covered turned out to start from a low base (despite the UNGPs having been in existence for several prior years making the norms pretty clear).
- It would be useful to see the UNGPs explicitly incorporated more often into other mechanisms like other UN or international bodies/framework (for example, the SDGs.
- The issue of remedy is often unclear and quite under-developed – Pillar 3 of the UNGPS needs more attention: Remedy is being developed company by company and institution by institution. As well as asking each player to provide remedy, there needs to be visibility for the overall “remedy environment” available for different victims in different contexts. In principle, a victim might pursue remedy or seek leverage to receive remedy with the immediate businesses involved, with clients or investors of the business, with trade associations or national contact points, and/or by legal means. In addition to asking each business to address their individual responsibilities, there should perhaps be more of a focus on the overall “remedy environment” in different contexts and how victims can navigate this environment. The overarching goal would be for some global “tracking” of whether “the global B&HR system” is working for victims or not, context by context to motivate more granular innovation.
- Though the UNWG clarified the issue of operating in conflict areas, there are still gaps which it identified.
- More clarity and attention to the role and responsibilities of investors, particularly as the EU starts to make them all report on their impacts and moves to reduce harm on a systematic basis.
- Adhering to UNGPs is difficult for small companies if they must fully understand the entire process and its philosophy to act as expected. Another related question is how can UNGPs help people working in the informal (gig) economy?
- For those companies who have adopted the UNGPs, the disclosure of their risk assessments rarely give systematic details of the scale and scope of the risks or impacts that they identify and which they have gone on to use as the criteria for prioritising the most salient. This means that a report reader cannot easily judge whether the action plans adopted are proportionate to the challenges identified. This also makes it harder for an investor (or a purchaser in a supply chain) to get an overall picture or prioritise their engagement across a “portfolio” of businesses.
(3) What are key obstacles (both visible and hidden), drivers, and priorities that need to be addressed to achieve fuller realization of the UNGPs?
- The increased power of some companies over government and vice-versa.
- The status and impact of International Law is not as significant as it should be.
- Progress on human rights (HR) can be hard to measure.
- There is a lot of attention on climate change and less on Human Rights. For example, the IFRS is looking at launching global sustainability reporting standards, but suggesting that they should start only with climate and only with impacts on the firm rather than including salience and the impacts of the firm upon society and environment. They seem to be driven to this view by the urgency of climate change and the complexity of “dual materiality”. The inter-relationships need to be better understood, and the de-prioritisation of human rights avoided.
- Within the private sector, Business and Human Rights needs to move from a specialist “leading companies” activity to “business as usual”. That means a much wider range of managers and departments within companies playing their part, as well as a much larger number of companies. It means developing a human rights culture in the way that many more companies seek to develop safety cultures, or quality cultures, for example.
(4) What systemic or structural challenges need to be tackled to realize sustainable development based on respect for human rights?
- The competition for attention between Human Rights and Climate Change actions and the potential for pursuing one at the expense of the other.
- How to include the Informal (gig) economy.
(5) In concrete terms, what will be needed in order to achieve meaningful progress with regard to those obstacles and priority areas? What are actionable and measurable targets for key actors in terms of meeting the UNGPs’ expectations over the coming years?
- In the next ten years, one of the main tasks is to scale up the implementation of the UNGPs by many more companies, especially smaller ones. What is required is an ‘economy of scale’ – one in which it is cheaper and easier to find the parts. It is not to say that the implementation of the UNGPs will become entirely a mass-produced box-tick exercise (although some aspects might be systematised). Rather, we would like to see a process similar to that of the health and safety (H&S) movement which has been ongoing over the last 100 years and more.
H&S is now a field where individuals and companies have clear, concrete guidelines and procedures to follow so that they can ensure operations are not going to kill or injure people or harm the environment. And when things go wrong, there is a process to follow. Ideally, a thorough investigation ensues which leads to clear lessons and to remedy for the victims.
A similar process should happen to with the UNGPs implementation. Companies, especially small ones who cannot employ a team of CSR professionals, need tools, training and procedures to follow the UNGPs. We do understand that every situation is unique; that rights apply in different ways and that the essence of this cannot be summarised into a generic procedure. However, it is also clear that some patterns and processes are similar and we believe that an attempt should be made in clarifying and breaking down to easy procedures at least regarding some situations/rights. For example, the process of stakeholder engagement might benefit from formal standards at the ISO level. While every stakeholder engagement is different, there are a lot of the challenges that repeat themselves. Such standards might also help particular corporate cultures take these ideas on board more easily.
- There is also a need for an overview of the state of businesses’ human rights impacts and risks. It should look across different rights and different contexts to help business and other stakeholders prioritise their efforts most effectively. A global “tracking” that can assess the effectiveness of action on business and human rights in aggregate and provide actionable feedback to individual businesses and initiatives in their own tracking of progress.
- There would be value in more effective sharing of “discoveries” about the most effective interventions in particular situations, and also seeking to expand upon collaborative working and “escalation” strategies (to governments, multilateral bodies or civil society) in cases where companies identify a problem as symptomatic of wider issues in the communities where they are doing business or which they cannot tackle alone for other reasons.
- It may also be helpful to think about clarifying the role of different teams within a business (purchasing, innovation, finance, human resources, legal etc) and their different functions. The implications of a major scaling up include most of the work inside companies being done by people who are not human rights specialists but still being clear about the larger whole to which they are contributing without “everyone chasing the ball”.
- Businesses should be encouraged to be explicit about their assessment of the scale and scope of the human rights risks and impacts they identify and to address directly whether they believe that the action plans they put in place are proportionate to the challenges they have identified. If not, they should be clear what further steps they are considering.
- One way that we envisage a number of these things happening is by establishing a UNGPs panel of experts somewhat like the role of the IPCC in relation to climate change for the UNFCCC process. This panel could develop a matrix for specific rights and identify easy tools and guides on specific human rights violations (or identify gaps that civil society and business should fill) or clarify specific issues such as ‘what engagement with stakeholders must include’. This will enable a process of scaling and expanding uptake of UNGPs also by smaller companies.
- As mentioned before and by many others, there is a need to provide clarity on remedy and its mechanism.