Business and Human Rights: The time is now for radical change

Liz Umlas 

Thursday, December 2

The 10th annual UN Business and Human Rights (BHR) Forum has just ended. Normally held in Geneva, the event was virtual due to the pandemic. This year also marks the 10th anniversary of the UN Guiding Principles on Business and Human Rights (GPs), the authoritative framework in the field, covering state duty to protect human rights, corporate responsibility to respect human rights, and access to remedy for those harmed by corporate activity. The GPs’ central role in multiple aspects of the field of BHR is a tribute to the Principles’ author, John Ruggie, who passed away earlier this year. The theme of the Forum was “The next decade of business and human rights: increasing the pace and scale of action to implement the Guiding Principles on Business and Human Rights.”

BHR as a field has made important strides in a short period of time. The GPs, while a soft law instrument, are being worked into hard law in multiple jurisdictions (for example, France, Germany and Norway as well as a proposed directive in the EU). A draft treaty – the “Legally Binding Instrument” on BHR – is being negotiated, and while it faces an uphill battle, it is increasingly referred to as a “parallel track” to the widely endorsed GPs, in itself an achievement. At the outset of the Forum, the UN Working Group on BHR launched a comprehensive “roadmap” that takes stock of the past 10 years and provides recommendations on accelerating implementation of the GPs in the next 10.

Another sign of the field’s maturity is the depth and breadth of work, in both practical and scholarly domains, being done to address the many serious gaps in BHR. There were interesting and useful sessions on several of these at the Forum: preventing corporate capture of the regulatory and policy spheres; confronting systemic racism in private sector activity; exploring how to regulate tech companies; addressing the critical need for access to remedy for those harmed by corporate operations.

The temptation might be to think that we know what the problems are, and now we just need to fix them. But that shouldn’t be the takeaway from the Forum. What floated to the top during the conference was an uncomfortable truth: we need radical change. This became obvious in repeated references to the fundamental, increasing and unsustainable imbalance of power between corporations and many of their stakeholders (including workers, suppliers, local communities and even host countries). It emerged in calls – from human rights NGOs and Indigenous representatives – for entirely new models of development that are not extractive or destructive of nature, calls that have become acute in the face of climate crisis. And it came across in the palpable frustration voiced by a panelist representing Afro-descendent communities in Latin America, who expressed disbelief and despair at the continued criminalization of Indigenous peoples “for defending something as basic as water”.

And yet violent attacks on human rights defenders keep rising, especially in the Global South, implicating both states and corporations. Even “clean energy” projects have led in some cases to serious violations of the rights of Indigenous and other local communities, underscoring that too many people are paying, sometimes with their lives, for the “progress” enjoyed by others. The last thing we should do as practitioners and scholars of BHR is to become complacent in the face of these hurdles.

The Working Group’s roadmap contains elements that imply fundamental change, including embedding respect for human rights into corporate governance regulation and business models, centering human rights within digitalization and a Just Transition, and moving to worker-led social responsibility to replace failed schemes of corporate self-regulation of labor rights. These recommendations are crucial, and will require enormous political will in the face of inevitable corporate resistance, and the courage to dismantle entrenched systems that stand in the way of respect for human rights. The extreme disruption caused by COVID-19 could provide an opportunity to advance some of these changes.

We still need maps, standards and public fora where views can be debated openly. Efforts at legal reform, enhanced corporate accountability and improved access to judicial and non-judicial remedy mechanisms must be intensified. And we must keep using the tools that we have, including, for example, engaging directly with companies willing to collaborate with critical stakeholders. Many in the BHR movement work in that incremental space, and those elements will continue to play an essential role. But the bigger message from the Forum is that the path ahead is not straightforward. It is a constant struggle, and one that is going to require tremendous persistence, imagination and vision, and yes, radical change.    

Liz Umlas is a senior fellow at the Croatan Institute and a researcher and consultant in business and human rights.

Feature image credit: Ludovic Courtès