Just before gathering in Argentina for the G-20 Summit in early December, many global leaders met first in Geneva for the annual United Nations Forum on Business and Human Rights. The meeting drew 2,000 participants, including representatives from more than 100 governments. The United States, however, sent no delegation.
The cold shoulder signaled to foreign leaders across the world that the United States doesn’t concern itself with corporate responsibility for human rights abuses. Beyond the symbolism, though, it also severely restricted America’s ability to mold the agenda. Binding law is at stake.
In the absence of the United States, other nations used the Forum to solidify the terms for a binding treaty on business and human rights that could ensnare American companies abroad in the future. This treaty is seen as counter to U.S. economic and political interests, and it does not clearly protect those whose rights are being abused. The U.S. government should have been at the Forum to demonstrate why and contribute to alternative proposals.
The U.N. Forum on Business and Human Rights is a gathering of leaders from government, civil society, academia, and business to advance ideas and agendas that improve the human rights performance of multinational companies. It is rooted in a July 2005 mandate from former U.N. Secretary-General Kofi Annan to political scientist John Ruggie, then newly appointed as a special representative for the task, to lay out a framework for the role of businesses in human rights.
Ruggie spent three years building broad consensus toward a non-controversial position: Governments must protect and promote human rights, while companies should respect (i.e. not violate) them. He spent his next three-year mandate meticulously defining “respect” as a proactive duty. Companies should “know and show” how their operations interact with human rights conditions on the ground so they will be confidently in a position to disprove any allegations of human rights abuses. This second mandate produced the U.N. Guiding Principles on Business and Human Rights, which the U.N. Human Rights Council unanimously endorsed in June 2011.
Since then, Ruggie has left states, activists, and businesses to their own devices, with mixed results. Data show that companies have written human rights policies but failed to implement them. In the meantime, violent attacks on human rights defenders campaigning on issues related to corporate activities have increased, not decreased. Simultaneously, governments that are home to the world’s largest multinational companies have embarked on developing National Action Plans that predominantly put a human rights spin on past actions and existing legislation, rather than laying out plans for future actions.
Treaty on Human Rights and Business
Citing a lack of progress, governments of the Human Rights Council stunned companies in 2014 by greenlighting a treaty drafting process to create legally binding rules around business and human rights. A “Zero Draft” of this treaty – so named to indicate how preliminary and subject to change it is – went public in July 2018, after years of haggling among contributors, and was slated for debate at the Forum.
The treaty talks, chaired by Ecuador and South Africa, included 95 governments and hundreds of academics and civil society groups, as well as a smattering of former U.N. Special Rapporteurs. States promoting the treaty have provided strong arguments to more clearly define “victims” of corporate abuses and establish clear statutes of limitation. The supporters are primarily smaller states that are home to fewer multinational companies. Of the 47 Human Rights Council seats, 10 are held by countries that have actively supported the treaty process, while an additional 26—such as Bangladesh, Burkina Faso, Nepal, and other states that often have experienced foreign investment spurring violence—are “host” countries to foreign companies based elsewhere but doing business there.
In contrast, countries opposed to the treaty are home to a greater number of transnational corporate headquarters—states like the United Kingdom, Australia, Spain, and Denmark, who together form a minority on the Human Rights Council. While their decision to boycott treaty negotiations since 2014 is seen by some as cynical, these countries argue that, if the aim of a treaty is to prevent the human rights abuses caused or contributed to by business activities, there needs to be a much better idea of what it would take to actually anticipate — and thus hopefully prevent — human rights abuses.
National laws provide evidence of this need. For example, the U.K. government passed a “Modern Slavery Act” in 2015, which requires companies to prove that they have taken action to eliminate forced labor from their supply chains; however, it includes no provisions to remedy the abuses experienced by trafficking victims and fails to ensure that companies put in place mechanisms for evaluating whether protocols identifying trafficking in their supply chains are actually working. Essentially, the government is not equipped to safeguard rights or fact-check protocols.
Two years later, activists hailed a French “Duty of Vigilance Law” as an improvement, since it requires France’s largest companies to demonstrate that they have vetted their supply chains for all human rights violations. Yet, French companies presenting on their work to date at the Forum proved how ineffectual the law has been at helping them understand how their operations are actually affecting human rights on the ground. French telecoms giant Orange, for example, published a supply chain plan indicating that it held meetings at headquarters to determine what human rights were at greatest risk, and then they sent out that list of rights to their subsidiary operations in countries like Burkina Faso and Russia. Suffice it to say, the rights considered pertinent in Paris were not deemed particularly relevant in those contexts. Orange focused on child protection from online predators and digital inclusion. Burkinabe and Russian stakeholders are far more worried about state abuses of technology to invade privacy and repress political opponents.
Western governments like France and the U.K. have been unable to evaluate the adequacy of human rights protocols, because knowing whether a protocol is adequate would first require knowing whether it was fit for purpose for both the industry and the context. As Orange’s myopic understanding of salience indicates, one size does not fit all. For instance, a human rights plan built to address human rights risks associated with infrastructure construction in Uganda, where child abuse is a risk, will be completely unsuited to addressing the human rights risks associated with a social media company’s entry into Myanmar, where use of Facebook helped trigger a genocide.
Governments don’t yet have the personnel or the skills to act as arbiters of corporate human-rights due diligence. A treaty cannot mandate capacity-building by governments or corporations in the absence of good practice guidance, which, unfortunately, given our present limited understanding of the human rights impacts of businesses, remains out of reach.
Alternatives to the Treaty
In the absence of the United States at the Forum, other nations — such as Australia, the United Kingdom, and European Union members — have taken up the mantle of promoting alternative paths to improving business and human rights without a treaty.
For example, while sitting in Forum sessions, Australian representatives live-tweeted a parliamentary session back home where lawmakers were voting on a Modern Slavery Law; when it passed, the action received a standing ovation from the whole Forum auditorium. Meanwhile, the Swiss government, a reluctant participant in the treaty discussions, has been debating a law at home to require its companies to carry out “due diligence” on their potential and actual human rights impacts; 90 Swiss companies used the timing of the Forum to release a statement supporting the due diligence law, simultaneously with the Swiss Government’s launch of principles for rights-responsible commodities trading. Meanwhile, the Dutch spent 2018 launching a series of business and human rights initiatives and attended the Forum to advocate for similar reforms in other countries, with the Foreign Ministry, development bank, and investors associations from the Netherlands all holding speaking slots.
These approaches have corporate appeal, while providing models for other states to follow. Presented jointly by government and company authorities on panels, they show how seriously these states are taking their human rights responsibilities.
But the United States missed such opportunities. The State Department boycotted the Forum because it is housed under the Human Rights Council, which the United States left in June 2018.
U.S. Obstinacy Will Not Protect Its Companies
As a human rights advocate, I always greet the Forum with tepid enthusiasm. Presentations like the one by French companies remind me that we have a long way to go, but their willingness to share their protocol is a step forward and can be used to promote better processes in the future. Businesses represented 30 percent of participants at this year’s Forum—a new high.
It is disappointing that the United States has forfeited leadership on business and human rights. It is also delusional. If the United States does not help set an agenda, a treaty akin to the Zero Draft may move forward, and U.S. obstinacy will not protect American companies from litigation abroad. By failing to take the lead, the United States puts its companies in far more jeopardy of international pressure and influence than it would by revitalizing its own commitment to human rights.
Action on business and human rights is urgently needed, and even though a treaty will not protect people from abuses until we have a better grasp of what to demand from companies complicit in or causing the violations, keeping our head in the sand as progress happens will certainly be detrimental to both business and human rights.