If you want to surprise people working on business and human rights in Scandinavia, the Netherlands, the UK or the US, introduce them to the current state of business and human rights in Germany. Or, even better: show them the absence of human rights thinking in the mainstream German Corporate Social Responsibility (CSR) dialogue. These encounters at the UN Forum on Business and Human Rights (UNBHR) in Geneva showed me that a post on this issue could interest some of our readers. I am a personal advocate of “you only gain the right to complain if you help solve the problem”. Consequently, this post presents you with my vision for corporate human rights responsibility in Germany.
This vision is a side-result of the continuous stream of information I receive from my job-hunt. A crucial part of my hunt for a position in Corporate Responsibility is analysing where there is potential demand for my skills.The vision is an ongoing project and I may update this post in regular intervals, preferably, because companies are developing much faster than I will have anticipated.
Where Do We Stand Today?
This post focuses on the corporate responsibility to respect human rights as put in words by the UN Guiding Principles on Business and Human Rights (UNGPs).
Exemplarily, I focus on the elaboration of the first German National Action Plan on Business and Human Rights (NAP). NAPs are supposed to help implementing the UNGPs at national level. They are not hard law, but can be the first step towards legally binding companies by national law. The process for the German NAP started in 2013. It was said to be finished in May 2016. The publication of the draft has been postponed due to strong resistance by some Ministries led by the Conservative Party, notably the Ministry of Finance. The Action Plan needs to be approved by the Federal Cabinet before it can officially enter into force.
Current status: heated discussions among Ministries about whether the NAP should oblige the biggest companies (in June 2016: 50 percent of those companies with more than 500 employees) to establish human rights due diligence with a specific time-frame and, if companies failedo do so, establish legally binding rules instead.
Next steps: Publication of an official NAP draft which all members of society can comment during a three-week period. At the grapevine, it is claimed that the German NAP is most likely to be adopted by Federal Cabinet in January 2017 (highly unlikely). However, there is a potential danger that the German NAP suffers the same fate as any uncomfortable issue because of the upcoming campaign for federal elections in September 2017.
UPDATE: Hurray, the German NAP was published on Wednesday, 21 December. Read it in German, or check out this short post. In any case: The difficulties in getting a German NAP exemplify to which extent Germany lags behind.
Three Reasons Why Germany Lags Behind
Belief #1 We Do Not Need It
= We Have Done the Work Already. Germany is a social market economy and there is still a persistent belief that our social institutions like healthcare and collective bargaining are sufficiently working to ensure human rights are protected. Since the introduction of measures to weaken labour law and our social protection system (key word: Hartz IV) at the beginning of the millennium, there is greater awareness among some that there is no harmonious balance. Joanne Bauer described and analysed the strong belief among Germans that there is no need for CSR in Germany back in 2013. As a German citizen residing in Germany and working on Business and Human Rights I fully agree with this article.
Belief #2 We Are Environmental Champions
This is the argument where two different camps meet: on the one hand, those who claim that German companies have already done their fair share of work including environmental awareness, and those who acknowledge that there may have been some issues, but claim that they are being solved. The current mainstream practice in CSR focuses on environmental protection, and human rights do not form part of this corporate CSR language. If you want an example, surf on the CSR pages of any German industry and company. In the majority of cases, CSR seems to translate to a German company as “show how green you are”. Human rights can only be found indirectly as basis of the labour standards which some of the social codes require, e.g. the CSR page of the four largest umbrella organizations for industries and employers.
Establishing measures to maintain and save our environment is crucial, but I cannot shake the impression that this focus on environmental protection is also a discourse of deflection. By promoting their products as environmentally-friendly, companies occupy that tiny space in our minds with information, distracting us from other aspects, for instance, human rights. Simultaneously, there is the implicit claim that there is only a specific degree of commitment you can expect from a company. If it has committed to this, for instance, by measures to environmental protection, the company has fulfilled all of its obligations. The problemacy of this offsetting is discussed in more detail below. Additionally, the idea of a binary between environment and human rights is… extremely weird if you think about the fact that those who invented it were also living and breathing mammals.
Several Ph.D.s could be written to explain why environmental awareness in Germany is higher than awareness for human rights, especially fair treatment of workers. A likely explanation is that elaborating and maintaining environmental standards involves concrete steps which are measurable and may also save money, e.g. by lowering energy costs. Human rights, in contrast, seem to be messy, difficult to measure and likely to increase costs, e.g. higher wages. But these disadvantages were, once upon a time, also attributed to environmental protection. All the green labels and green marketing may be intended to tell the story that corporate responsibility if fulfilled if the company cares for the environment. For me it is a symbol for how much can be changed.
Belief #3 CSR Is Sufficient
Those who acknowledge that companies currently cause problems which are not solved by either applicable law or by being environmental champions present CSR as a means to solve these problems. That would not be a problem if they acknowledged that these problems include the negative impact companies have on human rights. In their view the “social” in “CSR” is sufficient, no need for human rights talk. Indirectly, the way in which this belief is communicated underlines its ignorance: instead of showing how CSR takes care of human rights, this concept is purposefully swept under the carpet.
A good example is provided by the two large German industry associations, the Association of German Employers and the Association of the German Industry. They have strongly argued against a German NAP. In 2013 they were already known for their particular strong attitude against the UNGPs. I have attended public presentations where representatives of these associations explained to German parliamentarians why human rights should play no role in supply-chains and trade relations: it is not feasible, not doable, just not possible to pay due regard to human rights while doing business. No mention of the developed body of international human rights law.
By negating the existence and validity of human rights arguments, current German CSR takes the easy way of claiming that CSR is enough. I assume that these smart corporate lawyers have noticed the development of the UNGPs, and that their reasoning was based on omitting arguments they could not counter.
Steps to the Future
Against this backdrop, two complementary considerations are particularly useful for measuring the development of corporate respect for human rights in Germany:
#1 From ‘people part’ to ‘human rights’ talk
Just as John Ruggie said at the end of the opening panel at the UNBHR 2016 (1h:23min):
“the people part (…) is framed in human rights terms”.
To this end, there is some movement in Germany. One the CSR actors which has begun speaking about human rights when thinking of CSR is the Federal Ministry of Labour and Social Affairs. It is in charge of organising the CSR prize. With this prize the German government now also honours companies which engage in responsible supply-chain management. According to stakeholders in the elaboration process of the German NAP, the Federal Ministry of Labour and Social Affairs is discussed as potential Ministry to be responsible for monitoring the implementating the NAP. The idea is to merge the CSR activities by the Federal Ministry of Labour and Social Affairs in some form or another with the work on the NAP. Ideally, this would lead the concept of corporate responsibility for human rights to become part of the Ministry’s understanding of CSR: human rights terms like the process of human rights due diligence would become the framework for the “people part” in CSR.
Supporters for a stronger focus on human rights terminology are also to be found in the UN Global Compact Network Germany which launched its new online resources on human rights due diligence during the UNBHR 2016.
Interestingly, colleagues both from the UK and the US told me that the awareness of human rights in business in their countries started in corporate communications departments. They were the first to be faced with communicating on corporate responsibility. This led to CSR departments which then developed to corporate actors speaking about human rights in their own professional language. Some people with whom I spoke even argue that business and human rights academics and lawyers should not want companies to adopt the specific legal language employed by international human rights lawyers. Their reasoning is that legal human rights language has its time and space, for instance in grievance mechanisms and in conversations with victims. But if we want business professionals to deal with human rights issues in their day-to-day operations, we must translate human rights considerations into a language which is meaningful and doable for these corporate actors. A new language for these new processes is the likely outcome.
My general stance is that efficiency beats efficacy and that there is too much time wasted on talking instead of walking. Simultaneously, I acknowledge that there is a huge risk in translating human rights into business: losing the human rights aspect in the business thinking. A safeguard to this danger is the thinking expressed with the word ‘balancing’ in the second element which I suggest to consider when discussing the progress of corporate responsibility to respect human rights in Germany.
#2 From Offsetting to Balancing
There is a danger that the current focus on the environment in Germany will render it more difficult for German companies to become equally progressive regarding human rights standards. It has become acceptable that companies offset environmental damage with good actions. This is very account-friendly since it can nicely be placed in balanced sheets. This thinking stands, however, in contrast to the fundamental basis of human rights: all human beings enjoy human rights simply because they are humans.
“The UNGP reject “offsets” between human rights specifically because you cannot justify making money off violating, or encouraging the violation of, human rights no matter how great your business is in other areas.”
Unfortunately, in the world outside of textbooks, we must balance certain human rights with others. This balancing exercise is a fine art of words in which usually only lawyers and judges indulge. To the business mind, balancing may more than easily be translated as ‘offsetting’, especially when they usually express their actions on in financial and economic languages.
In her post, which is an interesting analysis applying the UNGPs on media as business, Tara Van Ho also explains that, traditionally, the state as a duty bearer is responsible for striking the balance between the conflicting human rights of different actors. It is unlikely that there can be a perfect balance. The debate on the German NAP shows how opposed lobby groups try to influence the state to consider their view more than others in its balance.
Returning to business responsibility, Tara’s differentiation between ‘offsetting’ and ‘balancing’ provides us with a good criterion to ascertain the value of a company’s commitment to human rights. Companies embrace their responsibility to respect human rights when they start to balance their interests with diverging interests of other stakeholders and begin to address the underlying systemic issues. We can use this idea to analyse the language as well as the benchmarks and indicators used by German companies for human rights considerations: do they mirror the idea that the company can offset a negative with a positive impact on human rights? Or do we find intentions to balance?
Ultimately, with these questions we can check whether a company after clothing the ‘people part’ in human rights terms (criterion #1) is really doing the walk. When CSR in Germany has arrived at the point where offsetting is no longer possible, it has well incorporated the corporate responsibility to respect human rights.
Vision for the Future of the Corporate Responsibility for Human Rights
Having established my approach and the current state of corporate responsibility to respect human rights, I am now offering a suggestive timeline.
Short-Term Perspective: Where Is the Corporate Responsibility in 2017?
March 2017: German National Action Plan 2017-2021 is enacted by the Federal Cabinet
Election Campaign May 2017 until September 2017: Merkel uses the NAP to promise that Germany is taking on a leadership in Business and Human Rights in line with the G7 declaration from June 2015 and its G20 Presidency which started 1 December 2016.
Middle-Term Perspective: Where Does Corporate Responsibility Stand in Five Years?
- Pushed by the NAP, German companies are hiring human rights graduates to meet their new needs.
- German universities start offering business human rights courses with business schools taking a lead role and law faculties lagging behind.
…and in Ten Years?
- The great majority of German companies with translational ties and/or international supply-chains has a CSR department.
- German companies are qually well represented as their UK and US counterparts at fifteenth anniversary of the UN Forum for Business and Human Rights in Geneva.
Long-term perspective: Where Will Corporate Responsibility Have Arrived in Fifteen Years?
- Even the laggards among German companies have CSR departments by 2031.
- The great majority which had a CSR department ten years ago now have at least one staff member with a background in human rights to deal with business and human rights issues.
… and in 2036?
- In 2036, a third of German companies will have disbanded their CSR-departments to better mainstream human rights considerations. A step taken by Unilever twenty years earlier. Staff at crucial points such as buyers or supply-chain-managers is now trained to regard human rights and directly report to a human rights officer within their department.
This is an ongoing process, and I am very curious to look back at this post in six months, one year and later to measure the then-present against this vision. If you think I have been overly optimistic or overly pessimistic, or that there are crucial aspects I have missed out, comment below or enlighten me via our bizolutioner email.