Some thoughts on the minutes of the Dec. 2013 “single-stakeholder” (business only) meeting at the UN Forum on Business and Human Rights

An excellent and comprehensive set of minutes is available from the Office of the High Commissioner for Human Rights.  Even though it was an exclusive meeting, the transparency provided by the reporting is admirable and helpful to the process.

The meeting was a “second pillar” meeting, i.e. addressing the obligation on business to “respect” human rights imposed by the “Protect, Respect, and Remedy” framework  of the UN Guiding Principles.

Hence the quantities of baroquely intricate corporate language, such as the first speaker’s discussion of the “period of ‘absorption’ [that] has been taking place whereby leadership companies are working to integrate the UNGPs into management systems and core business processes.”

To be fair, there was discussion of specific examples and practices.  A speaker from Microsoft described two human rights impact assessments his company conducted with respect to beginning and expanding operations in Myanmar and China, respectively.

The minutes note several efforts to think about fresh and/or practical ways to engage businesses that are not yet conceptually invested in the notion of human rights.  For example, expanding from Health, Safety & Environment (HSE) programs, which most companies have, maintain respect for, and which have an obvious overlap with key human rights areas.

Similarly, the participants note that the most progress thus far has been made via sector-specific initiatives: companies in a sector understand their shared challenges with sufficient concreteness to conceive of potential practical steps, and may have sufficient experience working with each other to get collective efforts going in a more reasonable time.  Sector-specific work is by far the most realistic possibility for meaningful results in the near future and should be prioritized.

The minutes reflect a tone of sincere effort to reach out to and work with the representatives of affected communities or rights-holders.  One participant discussed his or her company’s decision to work with “a campaign-oriented NGO” – gasp! – as part of a team effort.  Another explicitly made the point that the “politeness” of a group “should not determine whether a company engages or not” because the attitudes of many communities are understandably affected by legacies of “broken promises.”  Plus, “not all communities have access to [presumably polite?] international NGOs to act as intermediaries.”

The minutes note the assertion that that “if an NGO is naming and shaming it does not mean that the concerns/claims/insights lack credibility.”  I should hope this wasn’t received as a controversial proposition.  “Business and Human Rights” is, after all, roughly the same field as “corporate accountability.”  Accountability still matters.

Though this was a “second pillar” meeting, I’ll gratuitously note that the critical parallel discussion of remedies – third pillar stuff – isn’t really addressed until literally the last sentence of the minutes, when it is noted that participants “welcome[d]” the “development of diverse forms of access to remedy beyond judicial approaches and litigation.”

Certainly everyone welcomes the notion of non-litigation-based remedies – perhaps, more than any, those stuck in litigation.  Whatever they are going to be, however, they need to be of comparable strength in terms of due process, fairness, accountability, and legitimacy as the existing (albeit problematic) option of litigation.  They cannot and should not be a “second class” option.

Which means, in turn, there is a lot of institution-building to be done with respect to these alternate, diverse forms – and the clock is ticking.  The truly extraordinary sunshine of consensus and cooperation that the Ruggie framework and the UNGPs have enjoyed in this otherwise harshly divided field will not last forever.  The deadline arises from the nature of legitimacy itself, and from the limits to the already-tested patience of affected individuals and communities who need to see real change.

With all due respect to “periods of absorption,” it is getting time to start moving—to start the real work of cleaning up.