When the UN Guiding Principles on Business and Human Rights (UNGPs) were unanimously endorsed by the UN Human Rights Council in June 2011, they gave birth to a new field of endeavour that aims to confront, diminish, and eliminate business-related conduct that violates or otherwise harms human rights. Eight years on, the Intergovernmental Working Group has published a revised draft of an international treaty on business and human rights. The advancing discussions on a binding international treaty reflect how far this field has come in such a short time. More than 50 countries now have emerging or established national action plans on business and human rights. Dozens of organisations and initiatives have been established to monitor, advise, or promote respect for human rights in business, and an expanding pool of companies now publicly disclose how they manage their human rights impact. Yet, with all of the momentum and apparent buy-in, the fate of business and human rights remains decidedly uncertain.
More fateful than the treaty
There are numerous sources of uncertainty. The first is the obvious question of how effective any treaty would be. A weak treaty would give only the illusion of progress. A strong treaty could prompt states to take leadership and champion the business and human rights agenda at home and abroad, however even then it is unclear to what extent this would translate into real change for workers and other affected persons. No treaty is watertight, and even a promising one will contain grey areas and loopholes, leaving room for rights-washing, and other measures to circumvent human rights.
The esoteric assertions and compromises of specialists will determine whether the field of business and human rights brings about real change or merely results in a new collection of checklists.
Thankfully the fight for business and human rights is much larger than the push for this one document, but success in these other areas is also far from certain. Contributors to a recent publication, Navigating a New Era of Business and Human Rights, describe a field in flux and at constant risk of corporate capture. The fateful question is whether the field will be able to withstand the pressure and continue to uphold the essence and spirit of human rights.
Corporate capture occurs when a business community purposefully or instinctively uses its clout to shape agendas and activities to become more business friendly. This may conjure up images of a standoff between the human rights community and the business community. But in reality, the struggle manifests itself primarily in highly technical negotiations between specialists with different profiles and priorities. Their esoteric assertions and compromises will determine whether business and human rights is a field that brings about real change and repairs glaring gaps and deficits, or merely results in a new collection of checklists and ceremony.
Another box to tick
There is no insidious plot within the business world to neutralise the human rights community. Corporate capture takes more benign forms. It manifests as sensible excuses and attempts to mould human rights so that they can be easily incorporated into business as usual. It manifests as smoke-screening and deflection. It manifests as technical solutions to political problems. It manifests as requests to make human rights more business friendly and demands to hear the business case for human rights before committing to the cause. It manifests in platitudes and in focusing on select human rights issues that put companies in a positive light. All of this slowly but surely chips away at the fidelity of human rights to the point that the field becomes little more than technical jargon and ceremonious exercise that do not move the needle.
Adjusting human rights to the schedules and schemes of the corporate world is, unfortunately, a lose-lose enterprise. It leaves all stakeholders, not least business enterprises, without the type of resiliency and sustainability that only human rights-based undertakings can provide. The purpose and function of human rights in business is two-fold. First, human rights introduce a system that enables companies to identify and confront predatory or otherwise harmful conduct in their purview. A human rights lens prompts companies to identify areas where harm or misconduct is most likely to occur, while also offering evidence based and best practice methods to respond to those risks. Second, human rights prescribe processes, feedback loops, and approaches that create cultures of accountability, effectively mobilising stakeholders across entire value chains to protect themselves and others. At first glance, enabling stakeholders to take action on their own behalf, to exercise their rights may seem burdensome for companies. That is short-term thinking. When done well, sound corporate human rights policies and processes can translate to a more resilient, sustainable, and appealing value chain.
A tough sell
The fate of the field of business and human rights depends on the willingness of formidable forces to buy a tough sell. The easy sell is one of convenience: the business and human rights agenda simply asks companies to publicly commit to the cause and make some tweaks. Such an approach is unlikely to change anything. It almost certainly won’t lead to a future state where risks are reckoned with, predatory and harmful conduct is confronted, and stakeholders are in a position to protect themselves and one another.
A human rights-based approach is a much harder sell. It calls upon governments and business enterprises to go into a domain that is not shiny or easy, where the most salient risks and issues reside, where harm and predatory propensities take centre stage, where companies make substantive changes to safeguard and mobilise the most marginalised and impacted stakeholders. Yet, only the tough sell can deliver upon the promise of a more responsible and sustainable way of doing business. With or without a treaty, only those governments, business enterprises, and ecosystems that choose the courageous path will stand ready to adapt and sustain new expectations, new consumers, new technologies, and new challenges.