Although it was often difficult to see coherence amongst the disparate representatives from governments, businesses, labour movements, NGOs, indigenous groups, academics and others, there was at times a palpable sense of the business and human rights movement generating its own momentum – with the hope (if not yet expectation) of becoming a vehicle for good in the post-globalisation corporate world. However, a degree of evangelism was perhaps to be expected amongst speakers and an audience already largely converted to the cause.
When the dust has settled and the congratulatory tweets have subsided, the hard realities will begin to sink in. It will be a monumental challenge to change not just the attitude but the practice of states and businesses: requiring them to place the rights of others at the forefront of their otherwise predominantly political or profit-based impulses is, to paraphrase the unintended pun of a large oil boss at the conference, like turning a supertanker. Yet some would say that even this description might be exaggerating the chances of success – large container ships do at least have a steering mechanism that permits them to divert from their course, and a captain with the will to chart a new course. Many states and companies do not yet have the mechanism or the inclination to change.
To remind ourselves, the Guiding Principles comprise three central premises, or ‘pillars’: firstly, they call upon states to protect against human rights abuses within their territory and/or jurisdiction, including those committed by business enterprises; secondly, they urge companies to respect human rights by avoiding violations as well as addressing adverse impacts when they occur; and finally they require states to provide an effective remedy when human rights abuses occur on their territory and/or jurisdiction. Noble aims and exhortations, but it is equally important to remember that the Guiding Principles do not yet have any binding legal status. For now, they are at the level of voluntary guidelines, with states and businesses free to choose whether to apply or to ignore them.
How well then did the Forum achieve its principal aim of constructively discussing the implementation of the Guiding Principles, and were there any other beneficial outcomes?
As often happens at conferences of this kind, the Forum functioned on two levels: on the one hand, the official presentations and debates in the grand assembly hall and side rooms; on the other, the corridor and coffee room opportunities to meet and to exchange business cards, ideas and impressions. In both cases there was equal scope for being clear, reasonable and informed, as there was for getting bogged down in development-speak, platitudes and unfocused point scoring. Much like the United Nations as a whole (or any large gathering), it was possible for delegates to get everything or nothing from their participation.
Chief architect of the Guiding Principles and Chair of the Forum was Harvard Professor John Ruggie. The highly credible and persuasive champion of the business and human rights movement, his belief in the imperative need to embed the notion of greater business accountability rang true. He struck the right opening tone by reflecting on the unprecedented opportunity the Guiding Principles presented whilst acknowledging that the work had only just begun. The time for talk was over, he said. The time to build on the foundations had begun, and the politically endorsed platform the Guiding Principles represent should be taken as a new ‘constitution’ for the business and human rights movement.
Fine rhetoric indeed, yet the longest applause in the opening session came from a panellist who began her presentation with a roll call of some of the victims of corporate abuses, killed or imprisoned in violation of their human rights. There were sporadic efforts throughout the Forum to remind us all that the motive force for the gathering was to reduce real adverse effects on real people. Or, as one speaker from the Council of Global Unions put it, to implore businesses to constantly ask, ‘what are we doing and how does this impact on others?’ Every movement needs a cause, a rallying call, and this was it.
During an often-bewildering series of overlapping and simultaneous sessions, it would be difficult to catalogue every issue discussed. The following are a few highlights as I saw them, although not in any particular order.
When things go badly awry and violations are perpetrated, what are the consequences for offending corporations? Many speakers called for the Guiding Principles to be reinforced by the threat of serious and effective criminal sanctions. However, despite the now-solid definitions at the international level of crimes against humanity, war crimes, genocide and torture, it is an unfortunate reality that there is not as yet any international criminal mechanism to address egregious corporate human rights violations.
One solution would be for the International Criminal Court to extend its jurisdiction to include companies as legal entities. Currently restricted to ‘natural persons’ (ie, human beings), the ICC would seem to be the obvious forum for offending corporations to be prosecuted where the host states were unable or unwilling to try them. Would the Working Group on Business and Human Rights request the Human Rights Commission to petition the ICC in this way, I asked? It was unsurprising if deflating to receive the reply ‘yes, the Working Group could make that request, but it would depend on assembling the available evidence'. Yet here were we all gathered, rallying to Professor Ruggie’s battle cry that something must be done to halt corporate abuses.
Another pertinent recurring legal theme was the need to standardise domestic definitions of international crimes. As Professor Ruggie lamented, "national courts appear not to share a consistent understanding of international standards prohibiting gross crimes." The potential solution to the problem of weak domestic enforcement of criminal norms would be to promote the doctrine of extra-territorial jurisdiction, which permits a ‘home’ state to prosecute a company domiciled within its borders for commission of international crimes in a foreign ‘host’ country. This was rebuffed by some corporate speakers who argued that insisting on an agenda of extra-territorial jurisdiction would dissuade companies from investing in poor communities in the first place, the suggestion being that this would be disastrous for development. This disingenuous argument masks an unpleasant sub-text suggesting that occasional corporate human rights abuse must be tolerated in exchange for investment and development, which is of course antithetical to the entire spirit of the Guiding Principles. However, not all business representatives were as cynical or sceptical. 'We need to change the view that human rights are an obstacle to growth – we should relay the message that, in fact, they promote growth,' said one enlightened corporate speaker.
This debate highlights one of the principal challenges the business and human rights movement faces: how to retain control of the message, as well as the language used to convey it, especially in the cross-cultural environment inhabited by the trans- or multi-national corporation. In a fascinating example of the power of language within the field, a Japanese corporate speaker explained some of the difficulties in communicating the concept of human rights in Japan. The expression in the Japanese language and script has its origin in Chinese. However, the Chinese characters were simplified so that the literal meaning of the Japanese character is ‘consideration for others.’ The speaker explained that the understanding of human rights in Japan has thus traditionally been restricted to issues of discrimination, rather than the full panoply of universal fundamental rights.
Accepting that the business and human rights movement is still in its early stages, the obvious question repeatedly posed was how and where to advance both debate and practice. Several themes emerged.
One of the best interventions from the corporate sector came from the US Council on Business. Detecting a not always helpful focus on TNCs and MNCs, Adam Green from the CoB argued that it is critical to stimulate national audiences to debate the General Principles. This would then encourage greater uptake amongst small and medium enterprises, who themselves make up a significant proportion of the corporate world and whose acceptance of the Guiding Principles was critical to their success.
A linked theme to emerge was the idea of creating ‘safe spaces’ within which multi-stakeholder groups – businesses, civil society, governments, affected communities – could debate the issues surrounding human rights, ethical business and sustainability. It was suggested that existing Global Compact Network groups would be the obvious arena within which discussions of business compliance with the Guiding Principles could be facilitated. To paraphrase the Chairman of the GCN Sir Mark Moody-Stuart, businesses should ‘dine with the devil’ (NGOs and affected stakeholders) in such safe spaces. As he put it, ‘you can only have an influence over someone if they believe you have an understanding of the problems they face.’
However, as one commentator put it, whilst due diligence is a broadly accepted concept, civil society wants to know what human rights due diligence amounts to in practice. Surely everyone would be better informed by focusing on more concrete examples of how to implement the Guiding Principles in practice. To that end, a welcome development was the suggestion that a global fund will be established to develop greater capacity for implementing the Guiding Principles in areas affected by conflict or weak governance.
An entire afternoon session was devoted to discussing the implementation of the Guiding Principles in conflict zones. Professor Ruggie has repeatedly underlined that the greatest human rights abuses occur in such regions. This consequently requires the greatest effort to prevent, mitigate and remedy the violations that occur in this context. As an international criminal lawyer, I was looking forward to this debate perhaps most of all. Presumably, he discussion would centre upon the need to ensure respect for international humanitarian law and criminal law (both national and international) as the baseline for developing compliance with the Guiding Principles. Somewhat disappointingly, there was only the merest passing mention of IHL – and no discussion whatsoever of criminal law or penal sanctions for violations.
It was heartening to see that representatives from indigenous peoples were given such a prominent place at the Forum – both on the panels as well as from permitted questions from the floor. As Cree Chief Willie Littlechild powerfully expressed it, ‘indigenous peoples are not just vulnerable groups or stakeholders, we are business owners and rights holders too.’ This intervention brought the first and only cheer from the audience in the closing session, although Working Group member and indigenous leader Pavel Sulyandziga injected a note of realism, regretting the slow pace of change in the situation for indigenous peoples.
The debate’s ebb and flow, from memorable sound-bite to bland restatements of theoretical concepts and back again to throw-away re-hashed rhetoric, was only to be expected. But the nuggets were there for those who were patient enough to listen. One of the most thoughtful speakers across both days was Working Group member Margaret Jungk – although even she confessed to needing time and perspective to be able to adequately synthesise the lessons to come out of the Forum. She was very clear on one point, however: in order to make the transition in implementation of the General Principles from the ‘innovators’ to ‘early adopters’ stage, everyone would need to move quickly if the momentum and ideas were not to be lost. She implored business leaders to bring more of their colleagues from the corporate world to next year's Forum.
On the issue of why companies should be motivated to embed issues of human rights due diligence into their management and processes in the first place, one statesman made the stark point that corporate wrongdoings can now be posted on YouTube within five minutes, from anywhere in the world. The rise of social media, and the clear awareness-raising benefits that it brings, ensures a qualitatively different environment. Severe reputational damage can result from unwelcome media coverage, which in turn may have disastrous consequences for a company’s share price. The converse must surely be true: there is a real business case to be made for a company proving concretely it respects human rights, with the prospect of gaining a competitive edge in the market. However, numerous NGOs cautioned against an exclusive focus on profit as the motive for businesses to apply the Guiding Principles. Safeguarding the rights of others, it was argued, should be a sufficient incentive in itself.
One senior business representative claimed that 'a well-managed company will usually manage the human rights issues well.' This was rather too convenient and glib for my liking. Again, it hints at an unhelpful subtext, namely that some companies can be trusted to continue to self-regulate without outside assistance, guidance or engagement. History and experience tells us this would be unwise.
Another recurrent theme was the function of the state as a prudent regulator, creating a conducive environment for companies to be able to respect human rights throughout their business activities. The recent US Dodd-Frank Act was cited as an important precedent in this regard. However, whilst such state initiatives are to be applauded, we should be uncomfortable with any attempts to focus exclusively on state actions: the corporate sphere must be ready to play a major role in the development and implementation of the Guiding Principles.
Perhaps the defining theme of the Forum, repeated several times during the closing session at the end of an intense two days, was the power of collective action. Professor Ruggie reminded everyone that the quickest uptake of the Guiding Principles has been by collective actors such as OECD, ASEAN and business and labour associations.
The Chair of the Working Group, Puvan Selvanathan, with predictable hyperbole declared it had been ‘an unprecedented and fantastic two days of activity’ that was ‘beyond our wildest expectations’ whilst (somewhat less predictably) likening the thousand-strong Forum to a Lady GaGa concert ‘when fashions start and merchandising happens’. Mr Selvanathan, now warming to his theme, roused himself for a final rhetorical flourish urging all delegates to be ‘heroes’ in championing the Guiding Principles in the face of scepticism and ridicule to ensure ‘exponential growth’ of implementation.
Well, that was all a little over the top.
Yet real connections and collectivisation of ideas were to be found in the hundreds of human interactions taking place throughout the Forum, in the side events, the stairwells, beside photocopiers, through Twitter and even in the queues for rapid refreshment and refuelling the organisers had forgotten to make time for. Business leaders rubbed shoulders with indigenous claimants. NGO representatives spoke to state officials. Labour and union officials exchanged views with human rights auditors. It was in such meetings, random or planned, where it felt like the business and human rights movement was really something to be part of: not least because of the tangibly pioneering, game-changing spirit in which some of the conversations seemed to be taking place.
For the cynics and pessimists, whether this grass-roots spirit is enough to steer the twin supertankers of government and business towards the rosy horizon painted by John Ruggie and his human rights evangelists may be another matter. This writer is sufficiently persuaded to believe in the cause – and in the real possibility of change to bring about more responsible corporate conduct and greater state protection, with effective and strong remedies when things go wrong.