How to mind the gap and bridge it: business and human rights after 10 years
Ten years after the adoption of a UN Guiding Principles on Business and Human Rights, challenges still remain when it comes to putting them into practice and ensuring people affected are able to access remedial action, write two advisers to the framework, Gerald Pachoud and John Grova.
This year marks the tenth anniversary of the United Nations (UN) Guiding Principles on Business and Human Rights (UNGPs). At a time of globalisation with a lot of confusion between the respective roles and accountability of business and states, their adoption by unanimity by the UN Human Rights Council – a body not precisely well known for its ability to find consensus – provided a clear definition of the responsibilities of each actor without going down the dangerous slope of substituting states and companies. No one is excused by the shortcomings of the other: states must protect human rights; businesses need to respect them and remedies should exist when wrongs happen.
Moving from theory to practice, the UNGPs have, for the most part, firmly established the concept of corporate human rights due diligence. In essence, this new concept is a tool for companies to “know and show” how they are addressing potential and actual rights issues arising out of their own operations or across their value chain. Human rights due diligence is also a benchmark and means for any external stakeholder, from civil society to investors to public authorities, to assess the efforts of companies.
In other words, the UNGPs have provided a way to measure what it means to be a “responsible business”.
At a time where multilateralism in general, and the human rights system in particular, are under intense pressure, the UNGPs are also an interesting “escape route” out of the diplomatic deadlocks in the sense that they are a concrete application of global polycentric governance, calling on multiple actors, in addition to states, to shape responsible business conduct, ranging from civil society advocacy campaign to market or investors pressures to corporate governance.
Ten years on, there is a broad consensus that the UNGPs have led to significant progress and that considerable challenges remain when it comes to uptake, coherent implementation or ensuring access to remedy for affected people. More fundamentally, as mentioned in the UN report, taking stock of this decade of implementation of the Guiding Principles, “(q)uantifying the ‘success’ of the UNGPs is fundamentally a futile exercise: not only is 10 years a blink of the eye in ‘international time’, but a corporate executive will focus on the many positive developments that have taken place over the decade, whereas the victims who suffer from corporate-related abuse will see the many challenges they still face”.
What we have seen in very concrete terms is progress in business practices. We have also seen a strong enough appetite from states and business over the last ten years to pave the way for hard regulation, evolving from specific issues such as “conflict minerals” or modern slavery and forced labour to more comprehensive laws in France, Germany or Norway as well as wide ranging business and human rights regulatory initiatives at the European Union and at the UN levels. But none of it is fast enough nor wide enough.
The UNGPs 10+ Roadmap for the next decade – launched at the 2021 UN Forum on Business and Human Rights on 29 November in Geneva – sets out action areas for getting closer to a fuller realisation of the UNGPs. Its ultimate objective echoes that of the UNGPs themselves—that they should be translated to practice so as to “achieve tangible results for affected individuals and communities, and thereby also contributing to a socially sustainable globalisation”.
A key challenge addressed by the roadmap is the need to address the lack of coherence between international policy agendas. This is a critical issue, as the road to a sustainable and just transition and making responsible recovery from the pandemic crisis goes through respect for people, which is a different way to say respect for their human rights. The UNGPs provide not only the global framework to do so, but also a concrete tool of human rights due diligence.
Sustainability, climate change and human rights still tend to be dealt mostly in silo as separate from each other. But an encouraging sign of more convergence on these issues is the 2020 EU taxonomy for sustainable activities. This piece of regulation specifically requires businesses' economic activities to be carried out in alignment with the OECD Guidelines for Multinational Enterprises and UNGPs on business and human rights to be qualified as sustainable.
This challenge also represents a key opportunity for Geneva as a centre for global governance, and for sustainable finance. While there are some timid signs, seizing fully the opportunity to position Geneva as a truly responsible centre will require policy- and decision-makers to move beyond lip service to human rights and impact to people, indeed to know and show.
Gerald Pachoud is the managing partner of Pluto advisory, a boutique consulting firm focused on public policy and corporate responsibility, a professor of practice at SOAS School of Law and an associate researcher at the Geneva Academy of International Humanitarian Law and Human Rights. He served as the special adviser to the secretary general's special representative on business and human rights, Professor John Ruggie.
John Grova is adviser to the UNGPs 10+ project of the United Nations Working Group on Business and Human Rights and an associate researcher at the Geneva Academy of International Humanitarian Law and Human Rights.