Tag Archives: human rights

The young start to reclaim their future

What “strong and stable” really means…

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Last night’s election result in the UK was a victory for the young. The final results are still coming in but it seems that young voters (you need to be at least 18 to vote in UK Parliamentary elections) were a decisive part of the vote against Theresa May’s government. 16 and 17 year-olds were able to vote in the Scottish independence reference in 2014, and it is likely that if they had also been able to vote in the UK’s 2016 referendum on leaving the European Union, then the young (and the rest of us) would not now face the prospect of losing our burgundy passports, a falling pound, 2-3% inflation and a slumping economy.

The critique of the young has always been that they are passionate advocates online, they delight in witty memes but when it comes to election day – they do not walk into the church hall, community centre or sports club (or wherever the polling centre might be) and vote. The old-fashioned act of putting a pencil cross on a piece of paper was thought to be too “old school” for the young. The talk against the young was at best patronising but often much worse. Even overnight, mainstream politicians, including some members of Jeremy Corbyn’s own party, were maligning the young for falling naively for the sweet bribes of no tuition fees, ending zero hours contracts and showing reluctance to maintain nuclear weapons. “There is no magic money tree” was a favourite remark of Prime Minister May during the campaign – as if she was reading a cautionary fairy story to young people everywhere.

To get a flavour of the arrogance – read one of many commentaries in the Murdoch-owned press or the ever spiteful Daily Mail (a paper that revels in ephebiphobia and every other type of fear and prejudice, not least its front page this week basically insinuating that Jeremy Corbyn was a friend of terrorists).

But despite, and may be because of this prejudice, 72% of 18-25 year-olds voted last night, a higher percentage than the general population and they voted for their futures. They voted against a “Hard Brexit” and virtually everything else that Theresa May represented, from the return to selective education (“Grammar Schools”) to her recent threats to undermine our nation’s commitment to internationally-recognised human rights.

Theresa May’s minority government is likely to limp on for the months ahead with the support of Unionists in Northern Ireland. Her government is in no position to negotiate on Brexit and in many ways she has lost her mandate to do so. David Cameron’s referendum on EU membership was self-serving, as was this recent unneeded and premature election. On both occasions, they have been called out by the electorate.

The young will now have a more powerful voice in British politics and they will need to be listened to more attentively by all the political parties. This is perhaps what “strong and stable” really means. The recent terrorist attacks in Manchester and London Bridge were in large part an attack against the young. Their response is not one of hatred, xenophobia and retreat, but quite the opposite. Think no further than Ariana Grande’s “OneLove” Manchester concert last weekend for the victims murdered at her show two weeks earlier, watched in by 10.9m, 49% of the total UK audience, with 22.6m watching at least three minutes of the broadcast. Her closing words were: “I think the kind of love and unity you’re displaying is the kind of medicine the world needs right now. Thank you for coming tonight, I love you so much, thank you.”

 

“Americanism not globalism”

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The unenlightened self-interest of Donald Trump

When you visit the magisterial Lincoln Memorial in Washington DC you can read not just the words of the 16th US President himself, but also buy copies of all the great speeches made there. Perhaps the most famous being Martin Luther King’s “I have a dream” speech made in 1963. Donald Trump’s oratory in Cleveland Ohio last night, accepting the nomination for US President from the Republican Party (the Party of Abraham Lincoln), will be in many books about speeches – but perhaps not in the same section as you might find Lincoln or King.

Trump’s speech was no less effective than a King speech but its purpose was to divide not to unite. For whenever Trump talking about coming together and making America strong it was, implicitly or explicitly, at the expense of others – Mexicans, Muslims, and – one would assume from his one-sided take on recent violence in the US – African Americans too. For the rest of the world the message was also clear: American interests to come first. But of course, every US President must put their country’s interests at the heart of their policy, but this was not the “enlightened self interest” of Alexis de Tocqueville but a different variety – perhaps more the self interest of Donald Trump himself.

Some today have already compared his effect on the audience to that of European dictators of the 1930s who also rose through democratic systems (no names necessary here). I would not go so far perhaps, but parallels with Richard Nixon or Ronald Reagan only take us so far: Trump goes beyond into deeper more visceral territory. That many of his claims are not supported by any facts apparently matters little at all to many of his supporters. We saw some of this in the recent Brexit debate in the UK. During a CNN interview broadcast globally shortly before the speech, Trump’s own campaign manager dismissed the FBI’s figures on falling crime rates, not by providing better figures but by questioning the integrity of the FBI itself. It is a Presidential campaign that has now started to attack the foundations of the US state itself – the police are “good”, federal agents are “bad”.

Such was the hatred directed towards Hilary Clinton that it is almost certain that her security detail will have been reviewed this morning. As we saw in the UK with the murder of one of our own politicians recently, shouting “Britain First” as he plunged the knife, “America First” will have its own looney and violent fringe that now feel increasingly legitimised.

So when Trump says “Americanism not Globalism” it is not really clear what he means – which seems to suit him fine. But it suggests less free trade, less solidarity with other nations and that a Trump administration will be less bothered by upholding international law. Trump’s comments on NATO have already sent shock waves amongst the NATO periphery from Kiev to Helsinki about what might be in store. It is not beyond the realms of possibility that something small and symbolic might happen even next month if Russia is barred from the Rio Olympics.

Trump’s “Americanism” also reminds me of another speech, one made by a head of state in Geneva in 1936 as his country was being bombed and invaded by Mussolini. Haile Selassie begged the League of Nations to uphold international law and save his small country from aggression and invasion. It fell on deaf ears. The USA was not even there to hear it, having never joined the very organisation that Woodrow Wilson had helped create as it retreated away from internal affairs for nearly two decades (1920s and 1930s). So far, Trump has done much to embolden America’s enemies and very little to keep either America or the World safe. The USA has played a very important role in maintaining the balance of power in Europe and East Asia. Trump’s “Americanism” might throw this all away.

Children’s rights and the internet

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The following is my keynote speech delivered at the UNICEF/GSMA conference on Children’s Rights and the ICT sectors in London today. I would like to thank the Institute for Human Rights and Business for letting me reproduce it here.

By 2050 there will be nearly 10 billion people on this planet and 2.6 billion of them will be children. The aim of the 2015-30 Global Goals on Sustainable Development is to “leave no one behind” and it is vitally important that we leave no child behind in a world where national inequalities are growing in most countries. As Anthony Lake, the Executive Director of UNICEF said at the 2016 Mobile World Congress in Barcelona two weeks ago, mobile technology allows us to reach these children and there is both a moral and a practical case to do so.

One third of the world’s births are never registered –making the fight against social exclusion all that harder. Mobile technology can clearly help here, from birth registration, to education, to vaccination programmes and helping control epidemics and the spread of disease.

Mobile technology is a lifeline for the refugees across Europe and upon its borders. Humanitarian agencies have noted that refugees are in need of shelter, food and water, and Wi-Fi. Innovative projects are providing charging stations and wi-fi hotspots to help refugees stay in touch with family back home.

An increasing number of refugees are children – sometimes unaccompanied. This weekend, Save The Children estimated that 38% of those refugees on the border between Greece and Macedonia are children. Mobile technology has a role to play in reuniting refugees and IDPs fleeing conflict.

I salute the companies and other organizations in this room that work with UNICEF, UNHCR and other organizations to help these vulnerable children connect to protection as well as some limited but vital opportunities for education and health.

But when we look at our own societies, including here in the UK, we know there are dangers also in the relation between children and ICT. Only last week, Stephen Kavanagh, the Police Chief Constable leading the fight against digital crime in the UK, called for new legislation to tackle the “unimaginable scale of online abuse”. Some of these crimes might never have been imagined only a few years ago, such as the malicious use of intimate photographs or the way that social media and messaging services can be used to groom children, leading to abuse.

This at a time when the UK is also discussing one of the most fundamental pieces of legislation in recent years, in the form of the Investigatory Powers Bill. Protecting both security and privacy, on the one hand, or child rights, on the other, is highly complex but an essential reflection of the age in which we live. Child rights themselves include freedom of expression and the right to participate in society – so we cannot disconnect our children from the world of ICT, nor would any of us want to. It is often said that children don’t care about privacy, because they seem so comfortable with sharing the minute details of their lives online. But as a society, it is our responsibility to instill the value of privacy in our children, and educate them about internet safety and etiquette. Privacy matters.

Child rights, like digital rights, need to reflect the full breadth of human rights and so I will talk a little about this wider approach: how the ICT sector and human rights fit together when we approach complex dilemmas.

As Hilary Clinton – then US Secretary of State said at the Freedom Online Coalition in The Hague in 2011 – the Internet is not just a human rights issue, it is a ‘new frontier’ in the whole human rights discussion. If ICT had been around in 1948, Eleanor Roosevelt might have needed to include it in the Universal Declaration for Human Rights.

In strictly human rights terms, the upside of mobile is huge, from freedom of expression, to the right to information, education, health or employment – ICT can be and is a enabler of rights. But more than this, mobile devices can be a life-saver – helping to protect the right to life itself: they can record information of abuses perpetrated by others – they are a vital tool for human rights defenders.

But there are challenges that needs to be carefully managed – every industry, every field of life, has its risks, its potential negative impacts that need to prevented or mitigated, and when abuses happen, they need to remedied. This is true of child rights as it is any other area of human rights – in fact is especially the case given the vulnerability of children and the over-arching duty to protect them.

The work of my own organization, the Institute for Human Rights and Business, has I believed over several years helped the ICT sectors develop its human rights voice on a number of key dilemmas though our “Digital Dangers” programme – and a shout out to my colleague Lucy Purdon who leads this work. We are not a consultancy – we take no money from business for specific projects unless they are multi-stakeholder leadership platforms. Therefore we believe what we say when we talk about these dilemmas and I think others listen carefully.

I think we were the only election monitors in history to be embedded in a private company when Lucy was within Safaricom during the 2013 Kenyan Presidential elections. The 2007 Presidential elections had seen bulk SMS being used as a key tool for those inciting hatred and violence across the country – as a result of which over one thousand died, and 600,000 people were displaced: including children and their parents. The key dilemma for Safaricom during the 2013 Presidential elections was how to mitigate the risks of their bulk SMS platform being used to incite violence, and how to act without infringing other rights such as privacy and freedom of expression. How does a company make such decisions in real time? The second in the Digital Dangers series saw Lucy embedded with Ericsson in Stockholm during 2014, perhaps a safer human rights environment, but the dilemmas are no less stark. The study explored some of the challenges network vendors face in respecting human rights when their technology is misused by third parties, in particular regarding interception of communications, and the due diligence processes that could be put in place to reduce the possibility of misuse.

A third report was with Telenor in Pakistan in 2015 on the issue of the human rights impacts of mobile and internet network shut-downs, exploring the role of the company, the responsibility to mitigate the impact on the population and efforts to improve government transparency and accountability.

As more and more people become connected to and rely on mobile and internet services, and telecommunications become an indispensible cornerstone of the economy, government ordered network shutdowns become increasingly disruptive, even endangering the right to life which the government is likely trying to protect

This is all tricky stuff – but this is the reality of business and human rights. The UN Guiding Principles on Business and Human Rights and other related standards give us an invaluable conceptual framework but the application can be tricky when you have competing interests, competing human rights, and competing demands even from the same government. We live in a post-Edward Snowden revelations era when none of us can be naïve about such things.

Our children are growing up in the Age of Big Data – the first time in human history where their opinions and behavior are recorded by public and private actors not just for their own lifetimes, but potentially for the lives of their children and their children’s children. Profiles will be created and decisions made about our children’s future that they may never know or have control over.

The Internet of Things connects many household objects to the internet- including baby monitors and children’s toys. Already there are concerns about the security of these devices, which if hacked could allow strangers into our children’s bedrooms and playrooms.

We are at the beginning of the Big Data revolution – an exciting time and there is no doubt that Big Data has many upsides and benefit. But in order to fully realize this potential, now is the time for asking difficult questions and embed protections from the start- a much better strategy than trying to retro-fit protections, or having to correct a damaging and costly mistake later.

As our children grow, what are the long-term consequences of decisions we make now to meet short-term legitimate security or commercial needs? How many of us, or our children, understand the meaning of the consent box that is so easily ticked before downloading the latest app? Does consent actually mean anything when it is more tacit than active, when it is not informed? This is why our next Digital Dangers initiative is to launch a multi-stakeholder platform on a rights-based approach to the management and use of Big Data across the ICT sector and a range of other industries.

I am proud, as a member of the UK Foreign Secretary’s Human Rights Advisory Group and also that this country has finally woken up to terrible things inflicted on many vulnerable children over decades in this country. Criminals – sometimes of celebrity status – have held position of power and influence, within the media, church, sports or elsewhere, to abuse children. We must not let such abuse persist by morphing into new modalities on the internet. If some of our most vulnerable children are also on the borders of society itself – as was the case for hundreds of girls exploited by sex traffickers in cities such as Rochdale – they must not be overlooked by any of us. We must empower children to speak up and speak out, safe in the knowledge we as a society will believe and support them. Modern technology can be a great tool for amplifying voices. Let’s ensure we amplify their voices, and we listen, and we act.

The UN Guiding Principles on Business and Human Rights offers a very good place to start when we consider the human rights due diligence that companies embrace in order to prevent and mitigate risks, as well ensuring full and adequate remedies for all children and their guardians. This is why we are very pleased that UNICEF and GSMA have been so active in this area, from benchmark and training to your current work on the UNICEF Child Rights Self Impact Assessment Tool. I am also please that today’s agenda recognizes the complexity of navigating some of the issues where there are clearly competing interests and, sometimes, competing human rights at stake. They are indeed dilemmas.

None of this, of course, takes away for the need for strong and transparent national legislation, whether the issue is national security or the protection of children from on-line sex crimes. Legislation works best if it also aligns with international law as most of the companies in this room are operating over dozens of jurisdictions. But law in this area is highly complex as we have seen with the UK’s Investigatory Powers Bill.

We also know that some governments, in some parts of the world, might be tempted to use a misinterpretation of child protection to create technologies and legal requirements that might be used to suppress other vulnerable groups, such as human rights defenders – including those advocating for child rights. Industry and Government are best served if they sit with UN agencies, civil society and communities in an ongoing process to understand this complexity. Human rights due diligence, whether it be legally enforceable or under the leadership of the industry itself, will work best when it tackles what are the most salient risks and in ways that avoid unintended consequences. As we know from the current standoff between Apple and the FBI in relation to unlocking an iPhone – solving one problem can create another.

I very much look forward to our discussions here today and to learning more about the important work UNICEF, GSMA and its member companies are undertaking.

How to stop bad things happening

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The importance of non-financial due diligence (its more interesting than it sounds)

We should no longer wait for people to fall off ladders – or to be killed in factory fires – before setting clear codes of behaviour, including steps to prevent the bad thing happening in the first place. Any business that does not take such steps might be found to be negligent or reckless – a criminal offence in some cases. So it is with all other business and human rights issues. Whether we support internationally binding treaties to hold businesses to account, or market-based incentives, or a mix of the two – the due diligence question is central to any discussions on accountability.

This commentary is based on conference I co-moderated in Copenhagen on 25 November with over 100 representatives from government, business, civil society and trade unions. I am grateful for the permission of the Mediation and Complaints-Handling Institution for Responsible Business Conduct (the Danish “National Contact Point”) for letting me reproduce parts of my report here. The full report is available on their website.

1.  Overview

Non-financial due diligence is now a critical element of the major international mechanisms developed by governments to provide greater incentives and requirements for business to act responsibly. The 2011 United Nations Guiding Principles on Business and Human Rights (UNGPs) define such due diligence as:

An on-going risk management process that a reasonable and prudent company needs to follow in order to identify, prevent, mitigate and account for how it addresses its adverse human rights impacts. It includes four key steps: assessing actual and potential human rights impacts; integrating and acting on the findings; tracking responses; and communicating about how impacts are addressed.”

The OECD takes a similar approach but spans issues beyond human rights alone. In relation to supply chains, the OECD defines due diligence as:

“A comprehensive, proactive process to identify the actual and potential negative social, environmental and economic impacts of an organizations decisions and activities, with the aim of avoiding and mitigating those impacts.”

So, it is clear that non-financial due diligence is, firstly, about understanding various types of risk and potential adverse impacts and then, secondly, developing systems of prevention and mitigation to eliminate or reduce them to acceptable levels. In addition, due diligence is also related to remedy. The ‘National Contact Point’ (NCP) system of the OECD is one of the state-based non-legal remedies that attempts to mediate grievances concerning international companies and due diligence is a central aspect in many of these cases.

Due diligence is fundamental in two ways:

  • First, when harm has occurred, it needs to be established whether the business had undertaken adequate due diligence in light of the context and the salient non-financial issues it was facing?
  • Second, even if a harm has not occurred, is the business undertaking adequate due diligence when there is a real risk of a harm occurring?

Although most human rights issues, for example, have yet to be codified in the way health and safety law has, the principle is the same: those responsible should not wait for the harm to occur if a business is behaving without due care and attention. The UN Guiding Principles on Business and Human Rights, upon which the revised 2011 OECD Guidelines on Multinational Enterprises are in part based, call this “knowing and showing”. And so the critical questions are: “How much knowledge is enough?” and “How transparent should a business be about having such knowledge?”

Although due diligence is not a new concept (financial due diligence has existed for generations, and anti-bribery measures have developed over the past generation), its application to social issues (i.e. human rights) is relatively new and also requires a fresh approach. National Contact Points sit at the fulcrum of a fine balance: ignore the non-financial due diligence undertaken by companies that still make mistakes then there is little incentive to undertake the due diligence in the first place; but, on the other hand, to overly reward a business for its due diligence when a harm has occurred is to undermine accountability. Getting this balance right – setting an expectation for ‘reasonable’ due diligence – is precisely where many NCPs find themselves today.

It is therefore not surprising then that due diligence is the fastest growing area of OECD NCP cases. Whilst only a minority of cases get beyond the initial assessment phase overall, due diligence related cases are more successfully resolved than others. There are also a number of trends showing that now a wide range of business relationships are being presented to NCPs for consideration well beyond direct investments: from supply chain to financing to other types of specialist services.

2.  Background to the OECD Guidelines and the NCP system

The OECD Guidelines on Responsible Business Conduct is the most comprehensive, government-backed, international corporate responsibility instrument. They place a legal obligation on the 46 adhering Governments (34 OECD member states, and 12 non-OECD states) to:

  • Promote the use the Guidelines as an essential component of open trade and investment policies;
  • Establish National Contact Points to further the effectiveness of the Guidelines.

The revised Guidelines themselves cover a broad-range of corporate responsibility issues, in other words: Disclosure; Human Rights; Employment and Industrial Relations; Environment; Bribery, Bribe Solicitations, Extortion; Consumer interests; Science and Technology; Competition and Taxation. Since 2001, 256 complaints have been filed by NGOs and individuals, and a further 175 have been filed by Trade Unions. Of the NGOs cases: due diligence has figured highly in a significant percentage of them: 65 cases have been due diligence specific, 124 have related to business relationships (71% of which have related to due diligence) and 186 have related to human rights (of which 98% have related, at least in part, to due diligence).

The new version of the Guidelines were adopted by the 2011 OECD Ministerial Council Meeting and the then US Secretary of State, Ms. Hillary Clinton, remarked:

“If you look at these guidelines, they will be helping us determine how supply chains can be changed so that it can begin to prevent and eliminate abuses and violence. We’re going to look at new strategies that will seek to make our case to companies that due diligence, while not always easy, is absolutely essential.”

In the case of Supply Chain Due Diligence, the OECD has developed a five-step approach for how businesses should conduct due diligence:

Step 1 – Establish strong management systems: Policy, internal capacity, supplier engagement, internal controls over supply chain

Step 2 – Identify, assess and prioritise risks in the enterprise supply chain: map supply chain, prioritize based on severity of harm (sector, counterparty, and site for high-risk issues), use existing networks

Step 3 – Manage risks in the supply chain: inform senior management, fix internal systems, build leverage, use existing supply chain networks, workers reps, non-traditional partnerships, build capacity

Step 4 – Verify supply chain due diligence: where relevance, monitor, audit assurance, etc.

Step 5 – Communicate and report on supply chain due diligence: with due regard for commercial confidentiality and competitive concerns.

A number of observations can be made about how due diligence should be understood in relation to these Steps:

  • First, the nature & extent of due diligence depends on the size, context and severity of the impact. This is highly context specific but having said this, there need to be comparatives – so NCPs need to look for benchmarks for what could reasonably be expected of a company in such a context in due diligence terms. Sometimes law itself codifies the due diligence requirement, other times it might be multi-stakeholder approaches, guidance published by authoritative bodies (such as the EU, OECD or UN), other NCP cases, export credit requirements and so on. Obviously, the due diligence expectation is heightened in countries of particular human rights concern, or where the business sector itself is hazardous. Whilst the due diligence expectation on small companies might be less generally, this will not always be the case. For example, the law does not exempt small companies from being racist or sexist in their recruitment practices, and so it is on issues such as fundamental health, safety and discrimination issues. It is also the case that small companies in some business sectors can have a very high human rights impact (such as internet applications that impinge on the right to privacy or freedom of expression, or private security firms, for example).
  • Second, prioritizing of risks by business is acceptable and in fact essential, as due diligence costs time and money – but the prioritization must be based on the risks to rights-holders and not to the business itself. In the UNGPs, this is what is meant by “saliency” – the issues that are most relevant to the potential risks and negative impacts faced by rights-holders. This is a human-centric approach, which might be different from classic materiality tests required by existing national law. Whilst no issue or human right should be dismissed a priori, business can focus in on salient issues for most of their due diligence. What is important is that rights-holders and other stake-holders are involved in the verification of what these salient issues are, and that the process is reviewed periodically, as the nature of a business, or its external operating environment, is subject to change.
  • Third, there is no ‘zero tolerance’ requirement – it is about working with suppliers, and other business partners, in order to best prevent and mitigate risks. If a supplier, customer, contractor or other business partner is found to be impacting negatively on human rights, or operating below reasonable due diligence standards itself, then the company in question should engage in remedial activities – the scale and urgency of which are determined by the risks posed by the other business. Businesses should never be in a position where they are causing or contributing to the abuse of human rights, or impacting negatively on other requirements of the OECD Guidelines.
  • Fourth, it is not just ‘one layer deep’ – depending on the severity of the impact, due diligence might need to extend multiple steps down a supply chain. Just as the size of the company is in itself no exemption from due diligence, nor is the position of a supplier within a complex supply chain. Companies might expect first tier suppliers to take full responsibility for the second tier and so on, but in reality it is about the severity of the impacts themselves and the nature of the relationship along the value chain. For example, it might be, for commodities with extremely high human rights impact, that it does not matter if the brand at the end of the chain is ten or twelve steps removed – it is still expected to prevent and mitigate the risk.
  • Finally, business must use its own leverage and build additional leverage by working with others wherever possible, including with competitors. The greater part of non-financial due diligence should be a “pre-competitive” issue as leverage is greater when industries come together, sometimes also with other stakeholders, to act. Companies are required to “know and show” and therefore some level of transparency is necessary – whether this be full public disclosure, or sometimes sharing within multi-stakeholder contexts in ways that are clearly not violating anti-trust requirements.

3.  Some of the challenges

One business reflection was that human rights language can be too abstract and the use of the term ‘due diligence’ can also be ambiguous. It is often not tangible enough for the business manager not educated in human rights, and therefore mapping human rights onto management language was seen to be essential. One example is the language of risks. Many in business will assume that “risk” means “enterprise risk” and not “the human risk to individual people”. It is also not always useful to frame human rights risks as reputational risks – as sometimes they are not, or the reputational risk is too small to maintain the attention of senior business managers. Another perspective was that there is now serious legal risk for those businesses failing to undertake due diligence on issues relating to human trafficking or forced labour, for example, and the withdrawal of ‘social licence’ by communities or customers can hit the bottom line of many major companies.

It is clear from the discussion that non-financial due diligence, particularly that not codified in law, can be hard to quantify in a company. It is hard to put a value on prevention, on the valued added of measures that to ensure that something does not happen. The cost to a company due to industrial action, or a community blocking access roads to a mine for example, can be calculated, but it is much harder to set against this the value of mitigations that have reduced the likelihood of negative impacts on rights holders. This suggests that a “cost-driven” business case for non-financial due diligence can be the wrong way to look at it, as it will almost always be impossible to measure the effectiveness of due diligence in such a way. Due diligence might be an issue of legal compliance, or a compliance with internal codes but the business case beyond this is better set in “social licence” terms – that it maintains long-term relationships between a company’s activity and the society in which it operates. In other words, the business case for non-financial due diligence needs to be made in societal terms – the loss of trust and legitimacy that will be made if it is not employed, as well as the reputational and legal consequences of acting in a reckless or irresponsible manner.

Several at the event reflected that the full array of incentives needed for the level playing field are not yet in place, and that some companies will continue to ignore requirements that are not legally binding. Due diligence regulation is emerging in relation to particular issues (such as corruption, conflict minerals, human trafficking or high risk countries) but NCPs themselves should operate as if the knowledge requirement is clear and well stated. In other words, the threshold for “known” and “should have known” should be regarded as being equal. Wilful ignorance should never be a defence when it comes to not carrying out adequate levels of due diligence.

 4.  Lessons learned

NCPs seem to have a relatively high number of cases on due diligence for what is a relatively new issue. This is particularly complex in relation to supply chain management and contractual partners. One of the main problems is to identify and get closer to understanding of when a company is directly linked to what goes on in its supply chain. Given the company needs to focus of the scale of the abuse, and its relationship to it, sometimes it means attempting to manage issues that are twelve layers down the supply chain.

A key reason for the rejection of many cases by NCPs is insufficient documentation to demonstrate the direct linkage to the company. However, paperwork should not become the standard here – cases should focus less on whether the company had the knowledge or not and more on whether the company should have had it within that specific (high risk) context. Then it is up to the company to demonstrate whether or not its own due diligence procedures were adequate for the challenges its affected stakeholders faced.

There are a number of external benchmarks that NCPs can use when assessing whether a company had done enough due diligence:

  • The law. Direct legal liability is beyond the jurisdiction of NCPs, but other laws – particularly those that mandate disclosure – increasingly incentivise due diligence. Sometimes governments have issued specific due diligence guidance relating to this legislation that represents a clear benchmark.
  • Other due diligence requirements from government. Increasingly Export Credit Agencies (ECAs) are employing non-financial due diligence which might well inform similar contexts to the company in question, or possibly the company itself has already undergone due diligence by an ECA. Similarly, a number of governments are developing their own due diligence requirements for public procurement which might well be relevant (sometimes this relates to specific issues such as human trafficking or forced labour).
  • Multi-stakeholder initiatives and approaches can also set pre-competitive due diligence requirements that represent a relevant benchmark for NCPs to refer to, even if the company in question is not a member. The Bangladesh Accord, below, is an example of this.
  • Publicly available specific due diligence guidance developed by authoritative international bodies might be relevant, such as that produced by the OECD (e.g. Textiles, Finance, Conflict Minerals), European Union (e.g. ICT, Oil and Gas, Recruitment Agencies), and national governments (e.g. the UK government’s guidance on Cyber Security companies), National Human Rights Institutions or Multi-government-backed regional centres (e.g. the Sector-Wide Impact Assessments in Myanmar on Oil and Gas, Tourism and ICT).

5. Conclusion

The OECD Guidelines and UNGPs have become the building blocks for much international thinking on responsible business conduct through other bodies such as the EU, ISO, ILO, G7 and now even a number of global sports federations. But the whole “Protect, Respect, Remedy” project of recent years will only be successful if “knowing and showing” becomes commonplace, in other words expectations of knowledge of non-financial risks and impacts become clearer and that not knowing ceases to be a defence (the gap between “known” and “should have known” disappears). This is a fundamental shift from thinking of many corporate lawyers for decades, when it has been assumed that knowledge over non-financial risks, particularly those that sit outside the direct control of the company, is not in the interest of senior managers. Over the past five years, governments have started to send the opposite message – that they expect businesses to actively seek such knowledge and act on it.

Therefore, more work on non-financial due diligence is essential, and NCPs have a significant role to play – not least because their statements do not just set retrospective expectations on individual companies, but begin to set expectations for other companies in similar contexts.

The question: “how much due diligence is required?” can only be fully answered in relation to the specific context of the specific business relationship or investment. NCPs and other decision-makers will be looking to benchmarks from other similar contexts. Given that there are an increasingly number of publicly available resources from credible sources (i.e. from government-backed organizations with multi-stakeholder involvement) relating to specific high-risk markets, products/services or high-impact issues, these need to be mapped and fully available to all NCPs. So the answer to the due diligence question will always be different for each company in each context, but comparisons will be made between contexts also. Non-financial due diligence is becoming a pre-competitive issue for all businesses and there is now a business case to sit down with governments, competitors and other stakeholders to agree what represents adequate due diligence looks like before complaints arise.

The 2015 Nobel Peace Prize: A triumph for the multi-stakeholder approach

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Yesterday in Oslo, the Nobel Committee announced the winner of the 2015 Nobel Peace Prize – the “National Dialogue Quartet” of Tunisia. This sends a powerful message to us all.

This year’s winners of the Nobel Peace Prize – to be honoured in Oslo on 10 December – are not well known, outside of Tunisia that is. Last year’s winners – Malala Yousafzai and Kailash Satyarthi were less surprising: Malala’s win was much anticipated and Kailash’s longstanding work on child labour well known. Previous winners, such as the European Union, Barack Obama. Al Gore or Martti Ahtisaari, need little introduction. Some of names rumoured for the 2015 prize had included Angela Merkel, Pope Francis, Edward Snowden or the organization Médecins Sans Frontières – all would have been worthy winners.

The Nobel Committee put a lot of thought into their decision. It does not just honour the outstanding work of individual(s) or organization(s) but also sends a message about where they think the world is going and essential components for maintaining peace, developing democracy and respecting human rights. The decision to give the 2015 Prize to Tunisian organizations will have been much debated and well thought through. It does indeed make a lot of sense.

Some have hailed the victory of the “National Dialogue Quartet” as a recognition of the bravery of those who fought the Arab Spring and Tunisia which started the wave of popular uprising and arguably has managed the process best (when compared with Egypt, Libya or Syria few would argue this point). Explicitly, the Nobel Committee recognises the Quartet’s “contribution to the building of a pluralistic democracy in Tunisia in the wake of the Jasmine Revolution of 2011”. In particular, it is because the main business, trade union, legal and civil society umbrellas of the country have stood together and were key in safeguarding the democratization process as well as the development of a “vibrant civil society with demands for the respect for basic human rights”. Critical has been the Quartet’s ability to mediate complex dilemmas from the time of the revolution to democratic elections last year. This, despite the attack on tourists by jihadists on two occasions, the second earlier this year in Sousse resulted in the death of 38 people.

So congratulations to the Tunisian General Labour Union (Union Générale Tunisienne du Travail), the Tunisian Confederation of Industry, Trade and Handicrafts (Union Tunisienne de l’Industrie, du Commerce et de l’Artisanat), Tunisian Human Rights League (La Ligue Tunisienne pour la Défense des Droits de l’Homme) and the Tunisian Order of Lawyers (Ordre National des Avocats de Tunisie). And congratulations to what this represents – that multi-stakeholder approaches can really deliver results even in the most pressing of circumstances. It is a reminder that the social contract in most of our societies is no longer an issue for governments alone, as my hero Thomas Paine once said (in 1777) ”Those who expect to reap the blessings of freedom, must undergo the fatigues of supporting it.”

This is unlikely to be the last time that the Nobel Committee recognises the role of non-state actors as key defenders of peace and democracy. In fact, the social licence of all actors is becoming a material concern for us all. As with the recognition of Kailash Satyarthi last year – the world is changing – business can have an increasing impact – for better and for worse. Last month, world leaders called on business to provide $1-4 trillion of annual investment needed to reach the 2015-30 Sustainable Development Goals. The 2014 and 2015 decisions of the Nobel Committee reminds us that the accountability of non-state actors, as well as that of government itself, is a complex issue and that each must hold the other to account; and that both most be accountable to society itself.

What will the Pope say at the UN tomorrow?

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Pope Francis is not the first Pope to visit the United Nations Headquarters in New York, but its significance at a time of growing international tensions should not be underestimated. He is likely to cover key issues such as peace, climate change, human rights, human trafficking, poverty and inequality – but some of the more sensitive issues will be left for another day. 

The first thing to note (as that is will be visible to all those waiting to cheer him) will be the flying of the yellow and white flag of the Holy See. What’s the issue, you might ask, as it is prominent on any Catholic Church anywhere in the world? But the UN would never fly the flag of another religious organisation (or football team for that matter). It is because the Holy See has been part of the UN system since 1964 with its own special status – that of a permanent observer. Those of us used to attending human rights and other meetings within the UN system are used to the active, and often very constructive, involvement of the Holy See. However, since 2012 it has been a club of two – Palestine now also has the same status. Next week, the Palestinian flag will certainly be raised when President Abbas arrives for the United Nations General Assembly and therefore, as a matter of protocol, so should the Papal flag tomorrow.

But what will Pope Francis actually say? He will make some US Republicans (and some member states of the UN for that matter) uncomfortable by being very clear that climate change is one of the world’s greatest challenges and that governments, businesses and consumers are all directly responsible for much of it. More than this, even if he does not use the words “climate justice” this will certainly be the approach he will take. Why is it that it is some of the world’s very poorest people (in low lying countries or dependent on stressed environments) are already the greatest victims of climate change when they are the least responsible for it? Recently a coalition of NGOs petitioned to the Philippines Human Rights Commission that the greatest carbon contributors of recent decades (i.e. some of the world’s largest energy, mining and other companies) should be held accountable for their impacts on communities there (even though many of those companies have no direct connection to the country). Pope Francis will not take such an adversarial approach, but he will challenge all the member states of the UN to work together for a strong commitment at the Paris Climate Summit (COP 21) in December and for governments and businesses still in denial to end any pretence that they have no problem to answer. He might note the growing number of companies that have now embraced the climate change debate (although the beatification of the Blessed Paul Polman or Saint Al Gore might be a while yet! – this is a joke by the way).

Poverty and the 2015-30 UN Sustainable Development Goals (SDGs) will be an essential part of the speech. This is a Pope that has taken the name of St Francis of Assisi and lives his life very modestly, by all accounts, and therefore practices what he preaches in relation to inequality. The UN Secretary General’s motif that the SDGs will “leave no one behind” will be something that the Pope will take at face value. And if you read the SDGs you will see that there is no lack of ambition, not least the $1 trillion needed from the private sector annually by 2020 – the governance of which is vague at best.

Human trafficking is also likely to figure as well as the desperate plight of refugees in the Middle East, crossing the Mediterranean and in Southeast Asia. He might raise the issue of religious freedom within this context (given the atrocities committed by ISIS in relation to Christians, Shia Muslims and other minorities). Europe’s response to the refugee crisis has not been its finest moment, and Pope Francis will not demur from inferring this. The exploitation of migrants and other vulnerable workers has long been a concern of the Vatican and he might subtly push for full ratification of the 2014 Forced Labour Protocol of the International Labour Organization (a UN agency) that updates the original 1930 Convention. An old problem that has not gone away, rather it is re-emerging in some global supply chains.

And yes, the Pope is bound to invoke the concept of “Dignity” (I will jump into the Hudson if he does not). Dignity is now deeply lodged within Catholic teaching as well as sitting right there in Article 1 of the UN’s 1948 Universal Declaration of Human Rights. The Pope’s view of dignity is that it is an inalienable core within every human – something that can never be stripped away but must be respected. In this way he aligns very much with the Post-World War Two human rights consensus, the thinking of philosophers such as Immanuel Kant or speeches by Chancellor Merkel of Germany for that matter. He is on safe ground within the United Nations to do so, but it does then raise the issue of two things that are unlikely to be unsaid in his speech tomorrow.

First, the Catholic/Kantian view of human dignity is not the only interpretation of the concept. When the US Supreme Court ruled earlier this year on the issue of Same-Sex Marriages it was not this definition of dignity that prevailed. Rather it was the idea that dignity is also about “freedom and liberty” and the right of free choice (very much part of the American dream). This then leads to the view that the right of free choice should sometimes be central (i.e. anyone should be able to marry in the eyes of the State, or God for that matter) and that the rights of mother (free choice) must sometimes trump the innate dignity of the unborn child. I cannot see the Pope entering into these choppy waters – LGBTI rights, contraception and abortion – other than very obliquely. These after all are very complex issues, too often polarized by the media and populist politicians (some of which have made it to Heads of State).

Finally, the question that some of ministers and ambassadors in the room might be thinking, is what about the internal behavior of the Catholic Church itself. Now that the United Nations has developed “soft law” norms for businesses, and other non-state actors, when we will see religious organizations of all stripes according to universal human rights (i.e. secular) values in their own operations. The Holy See has ratified most UN Human Rights Conventions. This Pope is perhaps the most progressive in a long while on this issue, but I will be back in the Hudson again if he touches any of this.

I am not a Catholic but I remain a great fan of the current Pope.

Business and human rights – do we have the right incentives?

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My keynote speech to the 2015 Australian Dialogue on Business and Human Rights, 19 August 2015, Sydney (reproduced here by kind permission of www.ihrb.org)

“Business and human rights – do we have the right incentives?”

I would like to thank the Australian Human Rights Commission and the UN Global Compact Network Australia for inviting me to join you today. It’s my first time visiting Sydney and I’m delighted to have the opportunity to share a few thoughts on the business and human rights agenda. I do so from my position at the Institute for Human Rights and Business. We’re a global “a think and do tank” with regional centres in Myanmar, Kenya and Colombia as well as a consortium in China. Our thematic research and policy activities focus on the connections between private sector activity and human rights across four global flows of workers, finance, commodities and information.

We should take a moment at the start to reflect on how far the business and human rights agenda has moved in recent years. You will recall that in 2011, the Australian Government supported the UN Human Rights Council resolution that unanimously endorsed the Guiding Principles on Business and Human Rights, the final outcome of John Ruggie’s six-year mandate as the UN Secretary-General’s Special Representative on Business and Human Rights. This was a historic achievement, not only in reaffirming states’ duties to protect their citizens against human rights abuses in which business is implicated, but also in establishing for the first time that business itself has its own responsibility to respect these same rights. The Guiding Principles make clear that the corporate responsibility to respect human rights must be backed up with concrete action through ongoing due diligence processes. The GPs stress as well that both governments and businesses need to provide effective remedies for victims when abuses do occur.

In the years since their endorsement, the focus has rightly been on implementing the GPs in different contexts. This has included efforts by global institutions like the UN and OECD as well as regional bodies such as the European Union, African Union and ASEAN. It has also involved sector-specific initiatives by a range of industry groups and national action plan processes and other initiatives including dialogues like this one.

Four years later, business and human rights is slowly becoming a bigger part of the international policy agenda. We can see this in a number of contexts, but let me point to just a few examples over recent months. The families of the 1,100 victims of the Rana Plaza factory collapse two years ago in Bangladesh have finally received compensation owed them, thanks to the personal intervention of Chancellor Merkel of Germany whose leadership was also critical in the recent G7 statement on responsible business and supply chains. That statement included explicit references to the UN Guiding Principles and the OECD Guidelines on Multinational Enterprises. The International Labour Organization has made responsible business supply chains its focus for 2016. Even sporting bodies such as FIFA have come out with new human rights commitments.

At national level the debate has moved forward as well. For example, the China overseas mining guidelines, launched at the end of 2014, are more explicit in human rights terms than most OECD equivalents although it remains an open question how far China might move on such issues during its chairing of the G20 next year. The Asian Infrastructure Investment Bank has received a good deal of discussion although it is too soon to predict where it will emerge on standard setting. Here in Australia, it is encouraging that more and more companies are developing their own human rights policies and domestic and international supply chain issues have particularly been in the spotlight. An increasing number of companies are joining international multi-stakeholder initiatives like the Voluntary Principles on Security and Human Rights.

It is notable too that Australia is one of the first countries where the concept of “social license to operate” arose, largely in the mining sector. The subject of “The Social License” is one I was foolhardy enough to write a book about last year. My aim was to point out that social license is an increasingly material concept that no longer just relates to mining activities, but to the activities of all businesses and – if we think in social contract terms – to government and civil society as well.

There is nothing new about the idea of social license but it is re-emerging today as a way of expressing new forms of social relationships between non-state actors principally. Don’t take my word for it. Just read the recent Mansion House speech given by the Governor of the Bank of England, Mark Carney – a Canadian – in which he uses the term five times in relation to the need to reform financial markets. Carney is making our work much easier – he is connecting the dots and beginning to create space for much greater financial incentives for businesses that do the right thing. I should also add that Mark Carney chairs the G20 Finance Committee.

I think we would all agree that communities expect more of businesses today, indeed, society expects more. The idea that shareholders are the beginning and the end for incentivizing publicly listed companies is an increasingly redundant concept, as is the notion that shareholders do not see longer-term value in minimizing risk by acting responsibly. Some contend the short-term concept of shareholder value is actually destroying business. For me, the concept of “stakeholder” does not cut it as a replacement however. The people upon which businesses have their greatest impacts – workers, communities, consumers – they are not merely stakeholders. They are “rights-holders” to whom businesses have clear responsibilities as set out in the UN GPs.

What then is the nature of the social contract between business and the rights-holders upon which they have the most significant impacts? This is the fundamental social license question in my mind. And there will be big advantages for those businesses that can figure it out. Investors are important stakeholders for most companies, but if business can build greater trust, consent and legitimacy with all those whose rights they may affect – positively and negatively – then the rewards will be far greater still.

So there is much happening – perhaps more than at any time in the past 15-20 years when I first worked on these issues for Anita Roddick at The Body Shop. But will business and human rights ever become a truly mainstream issue in the way that discussions about health and safety, climate change or anti-corruption have? I think it might, but for that to happen we need to be honest about the real incentives and disincentives at play, and how we might scale up from where we are today. Let me turn briefly now to five business and human rights trends that in my view are key to determining how this agenda will unfold over the coming years.

(1) Aligning government policies and opening pre-competitive space for business to act responsibly

First to the role of government – fundamental in human rights terms and also as the first pillar of the UN’s “Protect, Respect, Remedy” framework – that is, the state duty to protect human rights. There are currently 19 governments that have undertaken or are undertaking National Action Plans on Business and Human Rights. These are no longer restricted to European Union member states, as the list now also includes countries such as the US, Colombia, Chile, Mexico, Mozambique and Kenya. These processes vary significantly in their ambition and scope. But what they have in common is a focus on implementation of the UN Guiding Principles including the need for policy coherence across government departments and also making business and human rights a permanent area of policy. They also, in my opinion, perform a deeper function – which is important to how seriously business can and should take this whole agenda: that of where the line can be drawn between competitive and pre-competitive action.

One example is the issue of Corporate Social Responsibility or CSR. CSR has many definitions around the world. Sometimes when I am teaching I challenge students to marry up national CSR definitions of G20 countries with their owners. CSR is generally seen as a competitive space – part of the way businesses can compete against each other through reputational benefits or in substantive terms (particularly when we consider climate change adaptations, or micro-finance for example). But does business and human rights fit here? Well yes to some extent above the baseline of the corporate responsibility to respect human rights (that is, beyond the minimum requirement that businesses “do no harm”) and into activities aimed at supporting human rights – in other words – voluntary positive actions that advance and promote rights. In GPs terms, the corporate responsibility to respect is now an international norm of expected conduct and therefore should be understood as a pre-competitive issue for all businesses. Does business understand this? Some do. Do governments communicate this clearly? Not many.

So National Action Plans, and with them government policies relating to trade, development, investment, public procurement and different aspects of law are very important tools in signaling and creating pre-competitive space in which businesses can work together, with government and other stakeholders to find the best ways of responding to human rights dilemmas. The process of drafting these plans too can be helpful in and of itself to build networks and partnerships between different stakeholder groups.

Through its participation in the Voluntary Principles on Security and Human Rights, Australia is no stranger to multi-stakeholder dialogue in this area and the benefits of collaboration for government policy coherence, clarification for business and other stakeholders of government expectations and support for companies trying to do the right thing. I understand Australia does not yet have a national action plan though progress is being made in specific areas. I hope we can discuss today whether a more holistic approach through a national action plan type vehicle would help in further supporting all stakeholders in this area. And in particular, whether you think a National Action Plan on business and human rights for Australia could help signal other national priorities, at home and overseas, where business, governments, trade unions and civil society can and should collaborate for better human rights outcomes.

(2) Implementing the UN Sustainable Development Goals (SDGs)

The Sustainable Development Goals to be signed off at the UN in New York next month represent the pathway forward for us all over the next 15 years on some of the world’s most pressing developmental and environmental concerns. The role of business has been factored in much more than for the Millennium Development Goals in 2000. Arguably many of the SDGs are unachievable without active business engagement. Take for example SDG 8 to “Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all”. There are very few economies where work can be provided for the majority without a vibrant and competitive private sector. But how will this be done? Full employment for all by 2030 is one heck of a goal in its own right. Ensuring these jobs meet the ILO’s definition of decent work is even more ambitious. It is interesting how far debates on living wages have progressed over recent years in many parts of the world. Yes, it took the factory collapse in Rana Plaza for the Bangladeshi minimum wage to be increased by 60% and many would argue it is still far below what a decent wage should be. But interesting also that the right of centre new British Government also committed itself to a living wage a few weeks ago.

But decent work is about more than wages. It is also about the fundamental rights of workers themselves, to organize, assemble, bargain collectively and so on and also in a wider human rights context where trade unionists and human rights defenders are not at risk, and where the families of workers can live with dignity. Perhaps the most widespread of business and human rights issues around the world is the use of third party labour providers – labour agencies have become a powerful adaptation to the flexible nature of global labour markets. Most of these agencies do a good job, but there is the unregulated bottom end of the market, which relies on coercion, exploitation and – at times – forced labour and human trafficking.

Whether it be berry pickers in Scandinavia, fruit and vegetable pickers in Florida, farm workers in the UK (or Australia), Burmese fisherman in Thailand, Serbian construction workers in Russia, internal migrants in China, domestic workers going to the Gulf – the issues are remarkably the same. Anyone with a global supply chain should know these issues – and recent legislation in the USA and UK require full disclosure for business on this issue. I understand recent legislative changes create obligations on business here regarding the worst forms of labour exploitation and also that the Attorney-General’s department is convening an expert group to look at other policy responses including disclosure.

It is clear that SDG 8 will not be reached if we don’t understand how domestic labour markets respond to international pressures and global supply chains, not least through labour migration. It is also the case that economic growth no longer creates the same number of jobs and technology is intervening – therefore entrepreneurs are essential, in particular those that create local sustainable jobs within communities. We should also recognise that human rights are central to many more of the SDGs – ending poverty and hunger, addressing inequality, ensuring healthy lives, inclusive education, gender equality, access to water, sanitation, energy, making cities safe, peace and good governance. Human rights sit at the heart of these, and there are significant opportunities for businesses that contribute. Next month we at IHRB will be releasing our own take on the business role in fostering sustainable development and encouraging implementation of the SDGs as part of our ongoing State of Play report series. These reports look at how the business and human rights agenda is influencing different issues of policy and practice and we look forward to engaging on the important links between responsible business, sustainable development and respect for human rights.

(3) Shaping real market incentives for greater transparency

The UN Guiding Principles – in elaborating the second pillar of the “Protect, Respect, Remedy” framework – the corporate responsibility to respect human rights – ask companies to “know and show” in relation to their most salient human rights impacts. The question always comes then – well how much knowledge of potential adverse impacts should my company actively acquire? Gaining knowledge of human rights risks clearly takes time, resources and might embody short-term risk for the business. Likewise, just how transparent are companies expected to be about such information? On some issues, governments are starting to introduce much needed regulation, which moves us towards a more level playing field. For example, the due diligence guidance in the US and elsewhere on conflict minerals, the US reporting requirements on Myanmar, that in the UK and US on trafficking and forced labour in global supply chains, the recently agreed EU reporting requirement for the largest 6,000 companies and due diligence legislation currently being debated in the French Parliament all suggest new state action in this area. Added to this, the important work and public statements of National Contact Points within the OECD system. All of these examples suggest we are slowly getting to greater clarity on “knowing and showing”.

One important development in this area is the UN Guiding Principles Reporting Framework providing guidance to companies on how to report their salient human rights risks in line with the GPs. You will see a growing number of companies follow the lead of Unilever and Ericsson both of which are using this new reporting tool. Another important initiative we are involved in is developing a Corporate Human Rights Benchmark, eventually for the top 500 globally listed companies, which will rank companies not just on intent but also actual human rights performance. More locally, our Myanmar Centre for Responsible Business now ranks the 100 largest Myanmar companies on basic human rights practices and other criteria – an important tool for international companies seeking responsible local partners.

So slowly, and sometimes on the back of the anti-corruption movement, we are seeing the case for greater human rights transparency being made and won, partly on high impact human rights issues such as trafficking, forced labour or conflict and partly in the context of high human rights risk countries such as Myanmar. Let’s see what gets developed for the rush of international investment into Iran that we expect to see over the years ahead, and to a smaller extent in Cuba. My own organisation, through the Corporate Human Rights Benchmark project and other tools, believes this greater transparency should lead to firmer penalties for abusers but also greater rewards for companies trying to do the right thing, and sometimes succeeding. We hope the ranking of corporate human rights performance will start to move investors and eventually consumer behavior. We think governments, including the Government of Australia, might find such disclosure and comparison important in terms of its own public procurement decisions.

(4) “Striving for excellence” – Mega-Sporting Events and human rights

There is no better metaphor for human rights than sport. When sport has gotten behind particular human rights issues – be it the Para-Olympics, kicking racism out of football or gender equality in events – the results have been significant. Without equality of treatment on the field, sports do not work. This same understanding is now beginning to affect the way we think about sports off the field as well, in particular in relation to the tendering, delivery and legacy of Mega-Sporting Events. If you think about it, the 7-9 year life cycle of such an event is the microcosm for just about every business and human rights issue, from land acquisition and resettlement, to construction and infrastructure, security, supply chain to freedom of expression in relation to the event itself.

One of Australia’s next major international sporting events is the Commonwealth Games on the Gold Coast in 2018 and it is the Commonwealth Games Federation, more than any other international sports bodies, that has led the way on committing itself to human rights due diligence as we saw in Glasgow 2014. So we have high expectations for the Gold Coast and then for Durban in 2022.

We expect that by the end of 2015, many of the world’s major sporting bodies – including the International Olympic Committee and FIFA, will join the Commonwealth Games Federation in making human rights statements. Major sponsors and broadcast companies will need to do the same. We have a golden opportunity but only if we can show tangible results. This means more transparent and accountable processes in how Mega-Sporting Events are bid for and awarded, and events that deliver real value to the communities and societies in which they are hosted. There is much that needs to be done in relation to Qatar 2022 and Russia 2018 to rehabilitate the world’s trust in FIFA. You will all be aware of the significant human rights concerns that have surrounded both events. Similarly, the learning between London 2012 and then on to Rio 2016 and Tokyo 2020 has been stronger within the Olympic tradition but human rights concerns have all too easily been relegated to a less prominent position. For example, the role of an independent oversight committee, so important in London 2012, has not been replicated in Rio and has not yet been confirmed for Tokyo. We also hope the Gold Coast Games in Australia will be one that many learn from including in human rights terms. Many of you in this room can help whether in the capacity of sponsors, investors, suppliers or civil society members encouraging greater accountability.

(5) Tracking the potential for new developments in international law

A final trend worth watching concerns UN discussions on the potential for a new international legal instrument on business and human rights. A range of governments led by Ecuador and South Africa met last month in Geneva to begin consideration of this question. Key so called “home country” governments including Australia, the US and the EU declined to participate, suggesting significant hurdles to implementation of any eventual outcome of this process.

The evidence suggests there might well be a need for binding international rules in this area. We are all aware of cases when businesses have operated with a sense of impunity, taking advantage of different legal jurisdictions to try and lessen the risk of being sued for alleged human rights abuses. This would be one driver for new international law – to try and control some of the perceived governance gaps associated with global business activity, in particular when operating in weaker jurisdictions. But this is not the same as a Treaty focused on what are already international crimes (the very worst forms of human rights violation), which is different again than focusing on the most widespread of negative impacts relating to business activity.

Until there is agreement on the governance gaps that need to be addressed at international level, it is hard to be specific about what the scope of a new instrument should be in terms of the type of company, range of human rights or even the category of law it targets. In our submission on the new UN process, we reiterated our support for binding rules that might really reduce human rights related harm. Of much greater concern to me, however, is how the focus on a proposed Treaty distracts from much more immediate legal opportunities. For example, how many civil society organisations are pressing for the effective ratification and implementation of the 2014 ILO Forced Labour Protocol, which looks to business to undertake human rights due diligence relating to forced labour, human trafficking and modern day slavery. Where do countries currently stand on the ratification of this historic protocol? What forms of human rights due diligence could help businesses comply with the Protocol through their global operations and supply chains?

All of these debates matter because ongoing global attention concerning business and human rights issues can drive momentum for policy and regulatory changes at home. So I would encourage you to get involved in increasingly public consultations around these issues to ensure your views are heard.

Conclusion

I conclude by saying how much I welcome this opportunity for us all to take stock of what is happening here in Australia on the business and human rights front, and in relation to developments in other countries as well. I am particularly interested to hear from you about domestic business and human rights related issues including what I understand to be important work around indigenous reconciliation as well as issues concerning migrant workers. I hope we can also share ideas about what is working well and what more the Government of Australia, business, civil society, investors and trade unions can actually do to harness national opportunities for better human rights outcomes while engaging effectively in different partnerships aimed at creating real and lasting change.

Thank you again for the invitation to join you today. I look forward to our conversation.

The social responsibility of Theme Parks

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There is a historic opportunity that Theme Park owners have yet to embrace. With nearly a billion visits annually worldwide, they could reshape the way we all think about businesses and their supply chains.

Yesterday, I found myself in one of those very well known theme parks – this one just outside Paris, France. The experience of having a Caribbean dinner, served by a Scottish waiter in an American Theme Park in France was surreal but suspending disbelief is something adults get used to when entering into the magic with their children. But these parks, especially those owned by global entertainment companies, have vast supply chains and spend a lot of time and resources managing them.  In between the sassy princesses, intergalactic heroes and charming pirates there is a conversation with park goers that never seems to happen. Where did all the stuff come from, who made it and how was it made?  Yes, I know these places are about entertainment and escapism – which I love – but it is also big business, and one with huge potential leverage it is not using.

Those of us that work on issues of business and human rights know that the own-fashioned way of working on social standards in supply chains (i.e. the audit led approach driven by the brand) is limited in its effectiveness as well as being very expensive. Following agreement at the United Nations, OECD, European Union and elsewhere, we are now all looking for approaches that look at real impact and preventing abuses occurring in the first place (as well as effective remedies when they do) – not just chasing for evidence of non-compliance to codes of conduct. After the Rana Plaza factory collapse two years ago, which killed over 1,100 workers producing garments for many western companies, some theme park owners proudly announced that they were not sourcing from Bangladesh anyhow.

Not sourcing from particular countries, particularly those as poor as Bangladesh, does not seem to be what the largely female workforce really wants, at least that is my experience when I visit many of these places. Many women rely on such jobs to escape rural poverty and male domination and can really benefit from the opportunities that such investments bring – they just don’t want to be killed or exploited when doing it. Their own stories are sometimes no less heroic than those the themes parks themselves celebrate in the films upon which many of the attractions are based. The same is equally true of China, Ethiopia or Vietnam – wherever the supply chain is rooted. In the case of the Theme Park I was at yesterday, it was very much China when my family surveyed the labels on the cuddly toy and dolls (what kind of a fun dad am I?).

Companies also complain that when they do engage in undertaking systematic human rights due diligence, they are not often rewarded by their investors, customers or NGOs for doing so. And if something does go wrong – and bad things will always still sometimes happen even to good companies – there is little safe haven or reward given in the court of public opinion as a result of all the preventative steps taken. It is very tempting, and cost effective, for NGOs to beat up on a well-known brand for its slip up rather than the company no one has heard of, and over which the consumer has little influence or interest. And what about the general public itself? They are many years behind in their awareness of what responsible business means, and they have little credible or accessible information about which companies to trust and which to avoid.

So if the status quo does not suit companies that claim to be serious about business and human rights, why not work together to move the whole discussion  up to the next level and end such perverse incentives which means that leaders are penalised more than companies that creep under the radar and do nothing. That means educating investors and consumers in how the industry works and the real choices that are being made to maximise the benefit for poor communities whilst reducing the chance of human rights abuse. It means empowering the public – the people of the world (i.e. us all) – to take up some of the responsibility ourselves and make better choices on how we reward companies with our wallets. Including which Theme Parks we take our children to and the stories about the world we tell them.

According to industry statistics, Theme Parks receive a global total of nearly a billion visitors each year! I know it’s incredible. Now, acknowledging that a fair percentage of these are repeat visitors and that the majority of the world’s population cannot reach or afford to go, and there are many who would not want to in any case, it is still an incredible slice of the global population (currently at 7.2 billion). So, together with the global sports and media industries, entertainment is one of those that really does touch billions of lives. If we want to engage the global public in human rights awareness, there are few better opportunities.

My guess is that many reading this will think that it is I who am trapped in a fairy story and not the Theme Park owners. And yes, there are many ways that public education could be done badly. But these companies employ some of the world’s best creative talent – I am sure they could make it compelling. How about a small section of the park, perhaps near the exit, where the ‘heroes of the supply chain’ could be celebrated in a very interactive way – and the stories of business and consumer responsibility effectively told at a very human level. And, yes, the dignity and rights of the workers in the theme parks themselves would require full attention.

There are not yet enough commercial and political incentives for governments and business to really get beyond a lot of the rhetoric of recent years. If done well, this could begin to grow the pool of informed consumers who begin to ask the right questions of businesses.

Is any Theme Park owner brave enough to take this challenge – perhaps redirecting a little of the many hundreds of millions of dollars spent on auditors and compliance to something that will really make a lasting difference for generations to come? I am not saying that such leadership would be easy. It is a radical proposition that would need an enlightened CEO and Board willing to stick its neck out for the sake of the whole sector and with a wider social purpose. Many would criticise and wait for the first fall from grace to show the double-standards of corporate spin and PR compared with reality. And it would take impartial oversight to maintain credibility.

But isn’t leadership and risk-taking what Theme Parks are all about?

“Beyond Governments” – Do transparency initiatives work?

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My review of “Beyond Governments: Making Collective Governance Work” by Eddie Rich and Jonas Moberg (2015)

“Beyond Governments” is a rare thing – a book written on collective governance by practitioners who are still in the midst of practicing the art. In some ways, it is an autobiography of the Extractive Industries Transparency Initiative (EITI) by two of its leading protagonists, and given the endorsements at the start of the book, it is very much an authorized one. The fact that the EITI’s final chapters have yet to be written makes the book more compelling and timely – there is a lot to learn for anyone engaged in collective governance initiatives. This is very timely as we approach the launch of the 2015-30 UN Sustainable Development Goals with governments, business and civil society far from agreeing how they should cooperate in their governance.

As a reader, I found myself banging the table in violent agreement on some of the early key points: that collective governance is irresistible and that accountability has to be a three-way process between governments, business and civil society. There is some openness on the real motivations behind why some governments, businesses and civil society join such initiatives – the fear of ‘resource nationalism’ being high amongst these. My favorite is Chapter 4: “Build Trust through Building Momentum: Just Get on with It” should be on T-shirts and handed out to all collective governance entrepreneurs. There are some real gems here that often never see the light of day in more politically correct writing: voting represents weakness not strength, the voluntary/mandatory divide is a major distraction and that power imbalances need to be accepted. Essentially forward momentum is gold dust for collective governance work, endless years of discussing governance whilst not rolling up collective sleeves to work together on the ground (which has blighted some other multi-stakeholder initiatives) results in few benefits for rights-holders and communities.

Another stand out for me is Chapter 8 on Sunset Clauses – there should be no in-built assumption that new models of collective governance should be permanent. Rich and Moberg are very open about the degree of experimentation that is going on and some of the dangers of co-option or decline, as well as the vigor of having time-bound objectives. “Initiatives need to dismantle themselves or reinvent themselves” – a key point that so many other others have overlooked. Planning for redundancy used to be the mantra of the voluntary sector, before NGOs became part of the status quo, and it is a good default for collective governance initiatives. They might become the “new norm” but we, and especially they, must not assume that they will.

The book raises many questions but cannot fully answer all (because each would need a book in their own right). Firstly, I wonder how much collective governance is an art and how much it is a science. The book gives ample bullet points for those hungry to learn. These are good. But some of the dark arts of collective governance, and the authors are clearly practitioners, are harder to describe in text boxes. John Ruggie, another who practices and analyses in real time (although in his case he is a thinker turned practitioner – the reverse direction), often quotes Bismarck when asked how he achieved what he did with the MDGs, UN Global Compact or the UN Guiding Principles on Business and Human Rights: “If you like the sausage don’t ask how it is made”. There must be a lot the authors had to leave out.

I also wonder if the “Beyond Governments” title is the right one. The content of the book does not suggest this: rather it is more “Helping National Governments and Other Actors to Do Their Jobs Better in a Complex Globalizing World” – but this is a less catchy title. Any sense of moving beyond governments will raise the hackles of many said governments, as well as many in civil society (who are oxymoronic on this point – governments are the main abusers of human rights yet UN Conventions further legitimize them); some of whom are also closing down space for civil society and in particular those that might receive international funding – an important component of how EITI works. Similarly, I wonder if EITI is really an alternative to regulation (as suggested in Recommendation 9). The Dodd Frank Act in the USA would not suggest that initiatives such as EITI delay binding laws, but rather they might make such legislation effective when it comes.

A final thought would be my predicable point on human rights. I guess I see the interrelationship between transparency and human rights to be much closer than the book suggests, or than that Clare Short inferred when Ethiopia joined EITI. The downgrade of Azerbaijan (on Page 60) was a brave move by EITI but the section really still fudges the relationship between freedom of expression, the right to privacy and the right to information (i.e. transparency). This alignment remains a central challenge for EITI moving forward, and is not one that has hindered transparency NGOs such as Global Witness and their recent work with the global Chinese mining sector.

I would like to congratulate Eddie and Jonas on the book and for taking the time to write it. It is a unique book in many ways and there is a reason that EITI is amongst the most successful of all multi-stakeholder initiatives. So read it.

The book is available from   www.greenleaf-publishing.com

* John Morrison is the Executive Director of the Institute for Human Rights and Business and author of “The Social License” (Palgrave MacMillan, 2014). The views expressed here are his own.

 

Why don’t we love the European Convention on Human Rights?

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This is a question to ask anyone on the continent of Europe, from the West Coast of Ireland to the Ural Mountains. The European Convention on Human Rights (ECHR), and its Court in Strasbourg, owes nothing to the European Union for its existence as it was created immediately after the Second World War and has 47 member states, including Russia, Turkey and the Caucuses (in fact every county apart from Belarus). The Council of Europe, which oversees the European Convention and the Court, was inspired by Winston Churchill (the UK’s wartime leader) who believed that political union based on core values was essential to prevent future European wars.

It is therefore perhaps surprising that the 2015 manifesto commitment of the recently elected UK Government is to scrap the UK’s Human Rights Act that incorporates the ECHR into law. The ECHR was very much a Conservative Party creation, drafted under the guidance of David Maxwell-Fyfe in the late 1940s, a politician who was to go on to become the UK’s Lord Chancellor. So why are we here?

Human rights are rarely popular

Human rights are not usually a vote winner, in particular when we consider their legal aspects. Perhaps this is because most legal cases relate to specific (often marginalised) individuals and not the majority. When the majority does benefit through policy changes, such as child protection, gender equality, care of the elderly, personal security, education, health and so on, these are rarely regarded as human rights issues (which in fact they are). In the UK, the debate about the much-cherished National Health Service is rarely framed within the terms of the “right to health” and the UK’s commitments under the United Nations Covenant on Economic, Social and Cultural Rights.

The legal cases that have been taken to the Strasbourg Court have been much more associated with the civil and political rights of individuals including prisoners, asylum-seekers, suspected terrorists and so on. Tabloid newspapers have long had a field day on such issues – resulting in many to comment “what about my human rights?” The fact human rights law defends sometimes unpopular minorities for reasons of legal precedent (they are the “canaries in the coal mine”) is rarely explained to non-lawyers (and I am no lawyer). Given the lack of public awareness, some might argue that a debate about a “British Bill of Rights” in the place of the ECHR might be a good thing – to engage the wider public. However, there are a number of important reasons why this might not be the case.

A British Bill of Rights?

At first glance it sounds rather nice: evoking the 800 years legacy of the Magna Carta and all that. But the debate about what should be in such a Bill of Rights will be fierce and might well surprise some of its supporters. Our commitments to human rights within the United Nations are now far more expansive than under the ECHR – including economic, social and cultural rights and more recently the recognition that business too have a direct responsibility to respect human rights. If all of these human rights are to be strengthened under UK law – fantastic – but is this what the Government wants? Will we be litigating to protect rights within the education system, healthcare, water provision or the indignity of food banks?

The UK is generally serious about its United Nations human rights commitments and its place at the top table in New York and Geneva – in particular its permanent seat on the Security Council. Therefore it would be hard to ignore the full range of internationally recognized human rights if the process is to be reopened? If, however, a British Bill of Rights were to be restricted to civil and political rights only, it is likely to be a near carbon copy of the existing UK human rights legislation unless we were to leave the European Court and the Council of Europe altogether. I believe that leaving the ECHR would have very serious international consequences as set out below.

It is also important to note that Scotland, Wales and Northern Ireland are likely to take a very different view on such a British Bill of Rights. Both Northern Ireland and Scotland have their own Human Rights Commissions aligned to the ECHR – they might want no part of a British Bill of Rights that was not fully aligned to the ECHR (and therefore what is the point of replacing the existing UK Human Rights Act?). Does the government really want to provoke such discord at the very time it is trying to keep the Union together? In many ways what is being proposed is actually an English Bill of Rights and not a British one – suddenly it doesn’t sound so compelling. Should the English have fewer human rights than the Scottish, or vice versa?

Leaving the European Court on Human Rights?

It might well be the case that the problem some British politicians have with the ECHR are not the rights themselves, but the lengthy delays involved in cases and (in the case of the right of prisoners to vote) decisions that offend political sensibilities. Occasionally frustrating government ministers is the job of any human rights court, and what is rarely reported in the UK press is how the European Court offends such sensibilities in Moscow, Budapest or Ankara too. The UK leaving the ECHR would send a very clear message to other politicians in every capital across 47 countries (not all of which have outstanding records on human rights) that the days of accommodating the opinion of a court beyond their borders is over? I feel for the British Ambassador in any of these capitals when he or she has to explain this to local human rights defenders, and I worry very much for all those risking their lives for freedom everywhere as the ECHR is also much admired model for those working to developing the capacity of their regional human rights courts in Africa or the Americas.

Citizens within the UK would also be stripped of their ability to petition beyond this country for justice. If we assume that the legal systems of the UK are flawless then fine, but I have yet to meet a British judge who believes this to be the case. Some countries allow their citizens to petition under United Nations human rights conventions but the UK has signed very few of the optional protocols that allow for this. I have heard nothing to indicate that the UK would allow for this as part of such a British Bill of Rights.

Finally, it is worth adding that although the Council of Europe is nothing directly to do with the European Union (which was set up later has far fewer member states), the EU has endorsed the ECHR and recognizing the ECHR is now essential for all EU members. This includes the work of the EU’s External Action Service around the world as well as the internal role of the Fundamental Rights Agency in Vienna. Any plan to revoke the UK’s recognition of the ECHR would play directly into its forthcoming referendum on EU membership.

Where do we go from here?

As is often said at such moments, no one would choose to start from here. The UK Government is right to demand greater efficiencies and clarity from the Strasbourg Court process – as the Brighton Declaration suggested (during the UK’s turn as Chair of the Council of Europe in 2012).

A public debate on the value of human rights law is also welcome as well as the nature of the UK’s international commitments. The challenge will be that an a priori commitment to revoking the UK Human Rights Act might raise the expectations of those hoping the UK will step away from some of its wider human rights obligations – something no internationally responsible democratic Government is likely to do. The debate about a British Bill of Rights might, therefore, waste a lot of time, energy and money if we end up very much where we started in a couple of years time. Worse than that, unless handled with extreme care, the debate might alienate further democrats and civil society in Northern Ireland, Scotland and Wales – and send a very perverse message to other governments around the world less committed to human rights.

We are where we are, and so we must all hope for some level headed and inclusive discussions that really do put human rights in their full context and what is at stake for both British interests but also human rights defenders worldwide. If the UK (or just England) were to leave the ECHR it might not affect the lives of most British people directly in the short-term unless you are unlucky enough to have your fundamental human rights put at risk over the years ahead. But it would have an immediate impact on this country’s international relations and the wellbeing of vulnerable communities across Europe and around the world, as well as integrity of the component parts of the United Kingdom. I know that Government ministers want what is best for this country and so they need to proceed very carefully now the genie is out of the bottle. This too at a time when the UK Anti-Bribery Act and the UK Modern Day Slavery Act set new benchmarks for how our Government, companies and charities must behave around the world in accordance with international standards.

For those of you reading this commentary outside of the UK, perhaps it resonates with your own national discussions. If not now, it might well over the months ahead as discourse in the UK might embolden those who see little value in Churchill’s legacy and the post war social contract.