New UN Working Group Pursues Global Governance of Business
ECONOMICS, CORPORATE CITIZENSHIP, HUMAN RIGHTS, SOCIETY & CULTURE
Wednesday, January 4, 2012
In early November 2011, a United Nations expert body charged with the promotion, dissemination, and implementation of a new set of universal corporate social responsibility standards was launched. That body, the UN Working Group on Human Rights and Transnational Corporations and Other Business Enterprises (the "Working Group") is charged by the UN Human Rights Council with identifying and promoting good practices and lessons learned on the implementation of the UN Framework and Guiding Principles on business and human rights, which "outline what States and business enterprises should do to ensure that human rights are respected by business, and to ensure access to effective remedies for those whose rights have been adversely affected by business activity."
The objectives of the Working Group are to 1) advise governments on the development of domestic legislation relating to business and human rights; 2) help build the capacity of relevant actors to address business-related human rights impacts; 3) work to enhance access to effective remedies for those whose human rights have been affected by businesses; and 4) where necessary, conduct country visits and identify and promote good practices.
For its first order of business, the Working Group hosted an online consultation with governments, companies, trade unions, international agencies, national human rights institutions and NGOs. Those participants were invited to submit recommendations and advice that the Working Group should consider in formulating its work program. Unfortunately, the submissions reveal a decidedly pro-global governance agenda among the groups that participated in the consultation, with several championing more influence over domestic legislation and stronger oversight powers for the Working Group and other international organization-related bodies. For instance (emphasis added where appearing):
• The International Federation for Human Rights recommends that the Working Group give attention to providing further guidance, "including through recommendations regarding the development of domestic legislation and policies relating to business and human rights … on how States can discharge the obligation to protect, in particular to ensure domestic coherence."
• The Indigenous Populations Links suggests that the Working Group "develop a relationship with international oversight bodies, such as the National Contact Points of the OECD Guidelines on Multinational Enterprises, the World Bank Group Office of the Compliance Advisor/Ombudsman and other non-UN avenues of complaint and redress. Their focus on the practices of corporations, as opposed to state responsibility, would maximize the impact of the Working Group in ensuring rights compliant business operations."
• The Centre for Research on Multinational Corporations (SOMO) calls on the Working Group to include in its work plan the development of proposals for strengthening existing mechanisms, as well as proposals for new grievance mechanisms at national, regional or international level that are in line with the goal of the Guiding Principles to fill gaps in the provision of remedies for alleged business-related human rights abuses by expanding the mandates of existing non-judicial mechanisms and/or by adding new ones.
• The Centre for Research on Multinational Corporations (SOMO) urges the Working Group to "systematically monitor the implementation of the Guiding Principles by business and governments, by undertaking a baseline study at the start of its mandate and by developing clear indicators...Only by undertaking such as systematic monitoring of implementation of the Guiding Principles, will the Working Group be able to assess whether the Guiding Principles provide enough tools to close the global governance gap, or whether additional international measures are needed."
• Right2Respect calls for the creation of a matrix of human rights "principles," "international standards" and "acceptable alternatives." "This is an important issue in the context of States that have ratified international human rights treaties, but have not enacted domestic implementing legislation/regulations, especially with respect to economic, social and cultural rights where progressive implementation of the right is permitted based on a State's particular circumstances and, therefore, universal international standards do not exist, corporations have a significant challenge in determining the content of their corporate responsibility to respect those human rights."
• Human Rights Watch expressed strong concern that the Human Rights Council had not gone far enough in terms of the Working Group's mandate, since the Group "lacks a clear mandate to monitor and assess compliance with either the fundamental human rights principles embodied in the UN Framework or the concrete actions detailed in the Guiding Principles. Instead, the Council's mandate for the Working Group largely emphasizes promoting and disseminating the Guiding Principles . . . In our view, the rhetorical support governments and companies have given to the UN Framework and Guiding Principles is not meaningful unless it is translated into actual changes in practice to reduce the extent of business-related human rights abuse and ensure accountability for harm suffered. In this light, we appreciate that the Working Group's public invitation for input highlighted several priority tasks "[b]esides promoting and disseminating these Guiding Principles," including to “ensure that they are effectively implemented by both governments and business."
Though dwarfed in numbers by NGOs and other entities, several groups submitted recommendations on the Working Group's work program on behalf of private industry. The International Organisation of Employers (IOE), the International Chamber of Commerce (ICC) and the Business and Industry Advisory Committee (BIAC) to the OECD (the "Industry Group") filed a joint submission that, reflected in the select recommendations below, takes a more narrow, "bottom up" approach to the subject of business and human rights. According to the Industry Group (emphasis added where appearing):
• "Business is committed to meeting its responsibility to respect human rights and we fully expect that States and other stakeholders will do the same within their respective duties and responsibilities. Our organizations are also committed to working with the UN Human Rights Council, the Office of the High Commissioner for Human Rights, the UN Working Group and other stakeholders to advance the dissemination and implementation of the framework and the Guiding Principles in a way that creates a sense of ownership of the issues among our members, which is essential in achieving broad adoption and implementation of the Guiding Principles."
• "The Working Group process should be based on dialogue and consultation among all the relevant stakeholders in order to build trust and successfully promote adoption and implementation of the Principles. This type of approach would sustain business engagement in the implementation of the Principles by ensuring that companies have the necessary space and time to apply the Principles in ways that reflect their particular circumstances."
• "The Guiding Principles are flexible and avoid a "one-size fits all" approach: the Principles present a flexible framework that can be adapted to different circumstances."
• "The Guiding Principles clearly distinguish between the roles of States and business enterprises: the State duties to respect, protect and fulfill human rights are fundamentally different from the corporate responsibility to respect. Companies cannot and should not take on the role of States."
The UN Working Group on Human Rights and Transnational Corporations and Other Business Enterprises will take the proposals above and others into account in advance of its first session, scheduled for January 16-20, 2012. During the session, the five independent experts that compose the Working Group will determine its key thematic priorities and activities. Global Governance Watch will continue to monitor the activities of the Working Group, including its first session, and report on the resulting threats to national sovereignty, limited government, and the free market.
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