Celebrating the 5-year anniversary of the current global framework to render states and companies responsible
The 5-year anniversary of the United Nations Guiding Principles on Business and Human Rights (UNGPs) took place on Thursday, 16 June 2016. Anniversaries on the level of the United Nations usually give rise to self-congratulating speeches by politicians and press releases listing demands from civil society organisations. Anniversaries also come very handy for drawing attention to a topic among those who do not yet know about it. This is what this post sets out to do: after a brief introduction to the UNGPs, we benefit from a speech by David Pitt-Watson to ascertain why the potential impact of the UNGPs is so great. The post concludes with an overview over challenges and achievements of the UNGPs during the last 5 years.
Since the UNGPs treat human rights and business, we will firstly clarify what these two are about – and how they interlink.
Human Being = Human Rights
The relationship between human rights and business activities may sound very abstract and academic. Already the term “human rights” sounds complicated to many people. At their very foundation, there is nothing difficult or abstract about this question. Human rights are rights which every human being – everyone living on this planet – enjoys for no other reason than being human. The catalogue of human rights is ever growing just as is our awareness of what it is that human beings need to lead a life in dignity. Agreed, expressions like “the right to water” and “the right to be free from torture, inhuman or degrading treatment” do sound abstract. Clarifying their exact meaning is the daily work of lawyers, courts and institutions. Institutions like, for instance, the Committees to UN human rights treaties. They issue so-called “General Comments” on what exactly is to be understood by specific provisions in these treaties.
Clarity already exists about two things: firstly, human rights are owed to the individual by the state. You as an individual cannot violate the human rights of your friendly neighbour by breaking into his house, killing his family, stealing his TV and eating the last chocolate cookie. Your (formerly) friendly neighbour is endowed with his human rights by being human. It is the state which receives duties as a consequence. The state is obliged to take steps to protect human rights like your neighbour’s rights which you infringed. That is why human rights treaties bind states. The UNGPs reflect this in their first part, so-called Pillar I: states remain the primary duty-bearer in international human rights law, including when they engage in economic activities like creating investment treaties with other states.
Secondly, you cannot lose your right to be treated like a human. Reality in many places of our world unfortunately looks different. There are even laws contradicting this fundamental pillar, and presidents claiming waterboarding would not be torture. But in the world of human rights you enjoy all your rights whether you ate the last chocolate cookie or became a terrorist.
Business in Society = Corporate Responsibility
A glance over the news is often sufficient to see the various ways in which companies impact human rights: from air pollution by manipulated catalytic converters in VW cars to World Bank water projects. Ascertaining to which degree impacts are related to a company is as challenging as is identifying concrete steps to change daily operations to respect human rights and to remedy where necessary. The UNGPs are a framework which offers the conceptual departing point for all companies to develop their own, tailor-made process for paying due diligence to their human rights responsibility.
“Stop!” you may say, “isn’t the state the only one responsible to ensure that my neighbour and I can enjoy our human rights?” This gets the gist of a heated legal debate – and is the reason why the UNGPs in their second part, which is dedicated to companies, do not speak about ‘obligation’ but ‘responsibility’ for companies. Some purists still criticise that. At the very end of the day, however, I think: one of the reasons the UNGPs are so useful is that they pay due regard to the reality of corporate power. And we all know that what Spiderman and others before said is true: with great power comes great responsibility. Moreover, companies were part of the multi-stakeholder negotiation process which finally led to the UNGPs.
At its very core, the question is about the purpose of companies. The UNGPs stipulate that companies exist to serve human beings and that it is their responsibility to respect internationally recognised human rights. These human rights are at a minimum those stated in the documents enumerated in principle 12. There is a whole range of debates on the purpose of the corporation as you can see in Sofia’s post “Beyond Capitalism: Other Ways to Organise Ourselves” and my introduction “Another World is Already Happening”. If you want to join the debate, you can comment on those posts, email us and/or join the initiative Purpose of Corporation by Frank Bold.
“No One Ever Washes A Rented Car”
On Thursday, 9 June 2016 I attended an exciting conference on Responsible Investment in Europe. Kevin Chuah kindly allowed me to include this link to his excellent summary of the conference. The key note speaker was David Pitt-Watson, Chair of the UNEP Finance Initiative.
Mr Pitt-Watson did not mention the UNGPs. He focused on investment issues, for instance that almost 350 global institutional investors representing over $24 trillion in assets called on government leaders to provide effective carbon pricing for a shift to green economy before the Climate Summit in autumn 2015. Thus, companies took position for an issue usually advocated by civil society organisations. This example as well as the whole speech by Mr Pitt-Watson resonated with the content stipulated by the UNGPs: together, we must go beyond good-and-evil in the fight for human rights. For civil society this means engaging with companies which are willing and able.
The usual perception of black and white is based on the understanding that corporate human rights abuses result from the desire for profit-maximisation by an anonymous corporate body. Mr Pitt-Watson presented a different reasoning. He explained the gap between the idea that a company should conduct human rights due diligence and the absence of due diligence in reality with the refusal to take ownership for shares and companies. Just as “no one ever washes a rented car” business people will not take care of business and its impacts as long as they are trading, e.g. selling shares, instead of owning what they do. If you do not own something, you do not feel fully responsible for it. According to Mr Pitt-Watson, it is the trading structure, not business people’s and politicians’ lacking ethics, which is the cause of this refusal of responsibility.
What is Mr Pitt-Watson’s solution for rendering investors – he was speaking about them exclusively, I think – to accept ownership of their actions and their consequences? The concept of a “civil economy for responsible and accountable capital markets”. It took three to two centuries for democratic civil society organisations to develop into the force they are today, so the development of a civil economy is only at its beginning. Since capital is not national, but globally fluid, Mr Pitt Watson concluded by demanding that the campaign for a civil economy must be global, too.
This was a perfect speech for launching the European Network for Responsible Investment. And a great contribution to the general debate since Mr Pitt-Watson highlighted central aspects which need to be fulfilled in order to place respect for human rights at the heart of corporate activity. The UNGPs have the potential to fulfil these prerequisites to make companies serve humans again – which is the reason why I regard them as so important that it is worth celebrating their 5-year anniversary:
For starters, the UNGPs are crystal-clear regarding their fundamental understanding: they explicitly state that all companies have a human rights responsibility arising from the impact of their actions on people and planet. The UNGPs still leave plenty of crucial questions open, for instance about legally binding rules which can be enforced with sanctions. Where in the spectrum between 100 percent voluntary self-regulation at the one end, and national laws imposing regulation at the other end should specific business sectors in individual countries be put?
But the UNGPs are clear that companies have human rights responsibility. Moreover, they have created spaces to find answers to the resulting questions. Legal, political and geographical spaces to imagine new approaches and, thus, create potential for instruments to place human rights further up on the corporate priority list.
Secondly, the UNGPs refuse the black and white i.e. “Us versus Them” thinking. This logic is a certain guarantee for a lose-lose outcome. The recognition of corporate human rights responsibility in the UNGPs results from negotiations which took years and were conducted, inter alia, with companies. Companies are part of the creation as well as of the implementation of the UNGPs. Thus, the clear opposition between evil company and good civil society is no longer valid.
Last, but definitely not least: The problems caused by international investment and transnational supply chains are global. Also global is the recognition of the UNGPs. The people collaborating to realise objectives under the UNGPs come from different countries and continents, for- and not-for-profit organisations and use new technologies for new forms of cooperation. Maybe this is not the “civil economy” Mr Pitt-Watson meant. It is definitely a new international movement.
In the past five years since the declaration of the UNGPs, this movement has been able to achieve some successes across all pillars of the UNGPs. “All pillars” includes a third area of activities: pillar III is about access to remedy. Access to effective justice mechanisms after being wronged by state and companies is the litmus test for showing whether a right is respected on a practical level. You can read the whole UNGPs including the official commentary for free online. How have they done in the five past years? You can see steps ahead as well as setbacks, remaining challenges and opportunities in the three timelines provided by the Business and Human Rights Resource Centre spread across this post.
If you are passionate about fighting injustice, it is so easy to forget the achievements, the victories against the overwhelming resources and resilience of corporate power. There are constantly new challenges, day in and day out. Among activists there is this saying: “We know that we cannot achieve one single victory which will resolve all struggles. So every day we fight to fail a little bit better”. Though true at its core, it often negates that there is progress and that those who worked hard for it should take time to celebrate it. Therefore, I wish to end on an explicitly positive note honouring all of those individuals, groups and organisations investing themselves in the clarification, communication and implementation of the UNGPs.
Congratulations to You – and Happy UNGP-Anniversary to Us All!