Tag Archives: United Nations

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.

What more can be done about human trafficking: a lot more

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This is my speech to the Thirteenth United Nations Congress on Crime Prevention and Criminal Justice, Doha, Qatar, 14 April 2015

(reproduced with kind permission of the Institute for Human Rights and Business)

Global supply chains are powerful. They are fundamental to the global economy. If we accept that there is about $60 trillion in the global economy, then according to UNCTAD, about $6 trillion of this (i.e. 10%) is in intermediate products – i.e. goods that require a global brand or other buyer before being sold on the open market. South-South trade is growing significantly, but South-North supply chains are still twice as dominant in financial terms. They are also an increasingly important part of the global labour market with hundreds of millions of workers directly or indirectly involved. Tens of millions of these workers are low-skilled migrants – either within their own country or across international borders – and many of these workers can be vulnerable to exploitation through debt bondage, fraud, withholding of ID documents, non-payment of wages, and a host of other abuses.

Business has a critical role to play in the fight against smuggling of migrants, forced labour and trafficking of workers into the formal economy. According to the ILO, there are nearly 21 million people in forced labour around the world at any given time, over 14 million of these in activities such as agriculture, construction, domestic work and manufacturing. Forced labour and slavery are crimes punishable under international law, as we know. The growing concern over the rise in numbers of people being trafficked not only for sexual exploitation but also for labour exploitation led the international community to adopt in 2000 the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children. The Protocol supplements the UN Convention against Transnational Organised Crime, and came into force in December 2003.

While states clearly have the legal duty to protect citizens and prosecute those involved in exploitation and trafficking, I want to turn our attention here to the role of the private sector in this area. What are the responsibilities of companies to respect human rights and combat forced labour and trafficking within their areas of operation and influence? To what extent can companies be deemed to be complicit in smuggling of migrants or trafficking offenses within their supply chains when they may well be unaware of these activities?

In 2011, the UN Human Rights Council took an important step forward in clarifying corporate human rights responsibilities when it unanimously endorsed the UN Guiding Principles on Business and Human Rights, the final product of Professor John Ruggie’s six-year mandate as the UN Secretary-General’s Special Representative on Business and Human Rights. Many of you will be familiar with its 3-pillar architecture, of the State duty to Protect, the Corporate Responsibility to Respect all human rights and the need to ensure Access to Remedy for victims of corporate related rights abuses.

With regard to migrant workers, and the risks of human trafficking, companies have a responsibility under the Guiding Principles to undertake ongoing due diligence to ensure the risks of exploitation are minimized and access to grievance mechanisms and remedy are in place. This is a huge challenge in the globalized economy. From the raw cotton in the fields of Uzbekistan supplying garment factories in Bangladesh to the mines in DRC producing coltan for mobile phones assembled in Malaysia, or the Thai fishing boats producing prawns for sandwiches consumed in London, supply chains are often complex and distant. Due diligence is required not only in the sourcing of commodities and components, but also in the sourcing of labour. Do apparel retailers know how the Bangladeshi workers in the factories they source from in Jordan or elsewhere were recruited? Do global hotel chains know how many of the South Asian construction workers building their hotels in Dubai or in other cities around the world are working as bonded labour due to the levels of debt accrued by recruitment fees charged by labour brokers?

For the last 20 years we have seen companies attempt to undertake due diligence and provide remedy at a distance through social auditing. This reliance on audits, often sub-contracted, has done little to enhance protection for workers or prevent forced labour and trafficking. A new approach by business is needed with an emphasis on responsible recruitment of migrant workers to combat the risk of bonded and forced labour and trafficking.

My colleagues and I at the Institute for Human Rights and Business has been working with a range of partners, including the ILO and the Office of the High Commissioner for Human Rights, to focus on the role of third-party labour providers present in many global supply chains. These labour providers can pose a significant risk to worker welfare and possible exploitation due to a range of all too common practices including excessive fees charged to workers, the retention of ID documents, and the lack of transparency around contracts. We are working to promote ethical recruitment whereby companies require their suppliers to use registered labour brokers only and to pay the recruitment costs instead of the workers paying those fees and thereby accruing onerous levels of debt.

In 2011, we launched the ‘Dhaka Principles for Migration with Dignity’, with the support of leading global companies and the ITUC. The Dhaka Principles for Migration with Dignity rest on two foundational principles:

First, that all workers are treated equally and without discrimination.

Migrant workers should be treated no less favourably than other workers performing the same or similar work. Moreover, migrant workers should be protected from any discrimination that would constitute a violation of human rights.

Second, that all workers enjoy the protection of employment law.

Migrant workers should have a legally recognised employment relationship with an identifiable and legitimate employer in the country where the work is performed. 

Following these broad statements, the Dhaka Principles are made up 10 implementation steps that can relate to any global supply chain and minimize the risk of trafficking and forced labour from occurring. Allow me to briefly explain these steps, as each are of critical importance and part of a growing international consensus on what is needed to wipe out human trafficking and migrant smuggling:

  1. No fees are charged to workers

The employer should bear the full costs of recruitment and placement. Migrant workers should not be charged any fees for recruitment or placement.

  1. All worker contracts are clear and transparent

Migrant workers should be provided with written contracts in a language each worker understands, with all terms and conditions explained clearly, and the worker’s assent obtained without coercion.

  1. Policies and procedures are inclusive

Migrant workers’ rights should be explicitly referred to in employer and migrant recruiter public human rights policy statements, relevant operational policies and procedures addressing human rights responsibilities.

  1. No workers’ passports or identity documents are retained

Migrant workers should have free and complete access to their own passport, identity documents, and residency papers, and enjoy freedom of movement.

  1. Wages are paid regularly, directly and on time

Migrant workers should be paid what they are due on time, regularly and directly.

  1. The right to worker representation is respected

Migrant workers should have the same rights to join and form trade unions and to bargain collectively as other workers. Let me say a few additional words on this point as they too often are left unspoken.

The biggest single factor in preventing forced labour and trafficking in supply chains is the active presence of trade unions. Where trade unions are able to operate effectively, incidents of modern slavery are demonstrably reduced. Increasingly, enlightened businesses are realizing that far from being something to be feared, trade unions are a key way of ensuring decent workplace standards and protection against exploitation and abuse.

And not just in relation to forced labour and trafficking. The positive role played by the Industriall union in the Bangladesh Accord, after the Rana Plaza tragedy just two years ago is an example of how working partnerships between the brands and trade unions can offer credible solutions to systemic problems. In fact it is the only credible solution. Business has nothing to fear from strong modern trade unions and a great deal to gain. The role of trade unions in helping ensure slavery- free workplaces will become increasingly significant as business realizes it is better to address systemic challenges within their operations than simply continue to face problem after problem in their supply chains. Collective agreements across entire sectors are key to transforming workplace standards, avoiding business risk and helping to deliver respect for rights including human rights.

  1. Working conditions are safe and decent

Migrant workers should enjoy safe and decent conditions of work, free from harassment, any form of intimidation or inhuman treatment. They should receive adequate health and safety provision and training in relevant languages.

  1. Living conditions are safe and decent

Migrant workers should enjoy safe and hygienic living conditions, and safe transport between the workplace and their accommodation. Migrant workers should not be denied freedom of movement, or confined to their living quarters.

  1. Access to remedy is provided

Migrant workers should have access to judicial remedy and to credible grievance mechanisms, without fear of recrimination or dismissal. Beyond the moral reasoning of offering protection for those working within a country or migrating to work, there are also sound economic reasons for governments to do so. We hear much of how laws and regulations strangle and stifle the dynamism of business. The suggestion is often made that if only law-makers would step aside, business and markets would establish themselves to overcome problems and design effective solutions. The experience of IHRB and the many businesses we speak with tells a very different story. If there is one thing that all business wants, and we hear this constantly, it is stability. A set of clearly defined stable conditions that enable them to compete fairly within the law.

  1. Freedom to change employment is respected, and safe, timely return is guaranteed

Migrant workers should be guaranteed provision for return home on contract completion and in exceptional situations. They should not, however, be prevented from seeking or changing employment in the host country on completion of first contract or after two years, whichever is less.

The good news is that a small but growing number of leading global companies have introduced a policy of ‘no worker fees’, such as Apple, HP and Coca-Cola. Others include policies on non-retention of worker passports. With bold corporate leadership this can become the industry norm. Coupled with strong legislation and enforcement by governments requiring companies to use registered labour brokers, these would be very significant steps to reducing the risk of forced labour and trafficking.

Governments are taking steps to require companies to report on how they are addressing the risk of forced labour and trafficking in their supply chains. In the US, the California Transparency in Supply Chains Act of 2012 and the UK’s very recently passed Modern Slavery Act are two such examples, and are being welcomed by responsible companies as a means of leveling the playing field and mitigating risk across industries.

The British Retail consortium and a collection of leading UK Businesses, including a number of leading supermarkets and retailers, made a submission to the UK government regarding the Modern Slavery Bill as it passed through Parliament. In it they stated:

“ we would like to see a clause in the Bill that calls for transparency in supply chains. We believe that smart legislation that requires all companies to be transparent about the steps they are taking to address modern slavery and child labour in their supply chain can help drive stronger and broader efforts to end exploitation and abuse of workers…”

They go on to say:

“ We know we can and must continue to do more to prevent modern slavery and the media and the public demand that we do this. But we can do so more effectively where clear, well designed regulation …. is in place.”

The strength of effective state legislation and enforcement to protect human rights, along with the collective actions and human rights leadership of responsible companies and adequate access to remedy, are all essential elements in tackling the rising tide of trafficking that we are seeing in so many industries and countries today. We at the Institute for Human Rights and Business stand ready to work with all of you who are committed to combating human trafficking and protecting the rights of all migrant workers around the world.

Thank you.

Remember, remember, the tenth of December…

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What should business do about shrinking civil society space?

Every year, on 10 December, the Institute for Human Rights and Business publishes its “Top Ten” issues to watch in the coming year. This year the plight of civil society and human rights defenders made the list, we cite examples from Africa, Australasia, Asia and Europe. But why?

It is undeniable that the space for civil society to play its independent role in defending the rights of citizens, and in particular the most marginalised, is shrinking in many parts of the world.  But why should businesses care? Human rights defenders around the world, who we remember today on International Human Rights Day, are a thorn in the side to governments and sometimes to businesses as well. Can a case really be made for businesses to defend the rights of  human rights defenders who might challenge the very governments with whom the companies wish to conduct their business? It might be #HumanRightsDay – a time for hope – but surely this is beyond the bounds of even idealistic wishful thinking?

Today, a range of civil society organisations were invited to join diplomats at the Foreign and Commonwealth Office in London to celebrate International Human Rights Day. Similar events were taking place in many other countries around the world, sometimes involving governments, sometimes not. This is not to give the UK Government a clean bill of health, questions were asked about the UK’s role in rendition relating to the victims of torture, following yesterday’s US Senate report on the CIA post 9/11, as well as why the European Convention of Human Rights has such a bad reputation in the eyes of some leading British politicians. But it remains the truth that the people who asked these questions today will not be fearing a knock on the door in the middle of the night for daring to do so. This cannot be said for an increasing number of countries. Marginalisation, violence and torture, or just the fear of them, can have a freezing effect on future dissent and freedom of expression. The important role of protecting privacy within this regard has already been made in an earlier commentary.

My friend Phil Bloomer from the Business and Human Rights Resource Centre asked the question about what the business response should be to this shrinking civil society space. It is an interesting question. Some companies will react that this is a political issue, an issue of civil and political rights and for any government and its citizens to sort out between themselves. Others, who have “gotten” the UN Guiding Principles on Business and Human Rights (UNGPs) might also point out the role of business is to respect human rights – not to protect them. Therefore, some might argue that the rights of human rights defenders can be respected, but if a government or other entity wishes to abuse their freedom of expression or privacy on an issue not related to their core business activity, why is of their concern?

This, however,  would be an incorrect reading of the UNGPs as responsibility needs to be understood in terms of contribution or linkage to a negative impact – businesses can benefit from the status quo in countries where human rights defenders, trade unionists and others are routinely rounded up – just by staying quiet.

But we don’t even have to go there. Business logic itself suggests that human rights defenders are of core business concern. The number of companies that now have “stakeholder engagement” programmes is incalculable. But far fewer actually define what they consider a stakeholder to be. Interestingly, many shareholders, for whom the company actually has legal and fiduciary duties, resent the term as it dilutes their primary relationship to the company. This is very understandable. Therefore, I must admit I remain confused as to why so few companies actively use the term “rights-holder” to describe those people upon which their activities might have a direct impact.

Anyhow, if we accept that many companies now feel the need to talk to people (and not just shareholders and regulators) about their activities, then – by definition – they must take an interest in the ability for these people to think, speak and act freely, otherwise what is the point?  I would argue that is implicit in the whole stakeholder concept, in particular if we include rights-holders within it, that business should take an interest in the space allowed to civil society in any given market or production site.

I don’t often single out companies for praise, but I am excited by H&M’s public statements in relation to living wage and collective bargaining: that the only way to obtain meaningful understandings of what a living wage is within a particular context is to allow workers the freedom and security of negotiating one. “Trade Union space” is not often discussed within the same context as “civil society space” but the two are heavily linked. The abuse of rights outside of a workplace will eventually permuate the workplace itself, and vice versa. Arguably, most of the active human rights defenders in the world today, and especially when we consider the role of business, are trade unionists. But there are many other examples, companies have often given safe spaces to those vulnerable to exploitation and even murder, from Oskar Schindler forward, there is nothing new to this. Business leaders have to remain very quiet about what is perhaps the most sensitive of business and human rights issues. Even now we are still learning about the role business leaders played during the last years of apartheid South Africa.

But business can be more transparent about what it is doing proactively to help secure civil society space. The United Nations has itself clarified the essential role of human rights defenders. But in specific business leaders might like to consider steps such as:

  • Being more precise about who really are the affected rights-holders in a given country and to assess their vulnerability. Do nothing that will make them more vulnerable (including identifying them publicly if this is against their wishes) but do what you can to make them less vulnerable. In some contexts formalise your relationship with them if it helps to protect them.
  • Think very carefully about your corporate philanthropy. Whilst giving grants can often strengthen civil society, over dependency, co-option, corruption and discrimination can weaken it.
  • Even casual references to the importance of civil society in business operations can surprise governmental counterparts or the local security services which might make assumptions about what business is expecting. This is perhaps one of greatest public policy contributions of international multi-stakeholder processes such as the Voluntary Principles on Security and Human Rights or the International Code of Conduct for Private Security Providers.
  • Have rapid response procedures to protect known human rights defenders or trade union representatives, which might mean bringing such people under the temporary protection of a company, international organization or a foreign embassy.
  • In conflict areas, use enhanced due diligence to assess the true vulnerability of all individuals and communities, and consult independent experts on the ground such as the International Committee of the Red Cross/ Red Crescent.

In my book, The Social License, I argue that civil society plays an essential role in defending the social contract itself – the ability of society to hold its governments to account. Less civil society means less social license, in definitional terms, as the consent granted to business activities is likely to be tacitly and not actively given. There is much that business could do to defend civil society space – we must first remind business leaders worldwide why it is in their own best interests.

So business, remember, remember, the tenth of December and in particular lets remember human rights defenders such as Kailash Satyarthi and Malala Yousafzay, winners of this year’s Nobel Prize for Peace.

Gold, Frankincense and Myrrh: Are your gifts conflict free?

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If you are engaged in seasonal gift giving during December, or at any other time of the year for that matter, have you thought about the origin of what lies inside the box? All gift givers might like to tune into this week’s events at the United Nations.

If you are lucky enough to ever receive a diamond (the way Naomi Campbell is reported to have done one night in South Africa in 1997), then there is a chance you will know, or can find out, the mine from which it was dug. “Diamonds are forever”, but perhaps “blood diamonds” are not – given the publicity generated by the film of that name, the International Criminal Court (especially when supermodels testify) and the Kimberley Process between states –which has tried to establish some certification from the mine for larger diamonds at least, albeit a flawed one according to the NGO Global Witness who left the Process in 2011.

However, conflict metals and minerals are a much broader issue than glamorous rocks alone. For most of us, a mobile phone is a much more likely gift: there as many phones as people on the planet now.  Three wise men bearing gifts these days are unlikely to bring Frankincense and Myrrh, but there will be Gold – in their phones that is – together with Aluminium and small amounts of Antimony, Barium, Beryllium, Cobalt, Copper, Chromium, Gallium, Indium, Lead, Manganese, Nickel, Palladium, Platinum, Ruthenium, Rare Earths and Silver. In the case of the Democratic Republic of Congo (DRC), known for its horrendous internal conflicts, it is Tin, Tantalum, Tungsten as well as Gold that are most associated with fuelling the conflict and which are the focus of Section 1502 of the Dodd Frank Act in the USA and now extended internationally through the OECD Due Diligence Guidance. You might like to hope that your electronic gift contains no conflict minerals but how do you know? You might like to ask your high street brands what precisely they are doing about it before making the purchase and hopefully there will be a coherent response. Some niche brands (such as “FairPhone”) make specific guarantees whilst helping to maintain trade with conflict-free miners in the DRC, many steps down the supply chain. For those only interested in the hard stuff, Fairtrade Gold is also available, where miners will receive a minimum price of 95 per cent of the London Bullion Market Association (LBMA) price for their gold.

For those of you who think it is just western governments think about this, think again. Global Witness does not often commend a government but it did on 24 October 2014 when the Chinese Chamber of Commerce of Metals, Minerals and Chemicals Imports and Exports, which is supervised by the Ministry of Commerce, launched its due diligence guidelines for Chinese mining companies operating abroad. These guidelines cover a range of environmental, labour and human rights considerations. This is part of a wider trend towards a stronger focus on companies disclosing payments to host governments in order to fight corruption, as highlighted by the Extractive Industries Transparency Initiative, as well as the reporting criteria of an increasing number of stock exchanges. In Switzerland, one of the leading global hubs in commodity trading, the Government has committed itself to bringing the industry and civil society around a table to agree standards and an implementing mechanism. It is a shame, at least to me, that the recent European Commission proposals stopped short of requiring companies to report on such issues, and that the American Petroleum Institute still fights mandatory disclosure of revenues as set out in Dodd Frank 1504.

On 2 December I have the privilege to moderate a discussion in the United Nations in Geneva (as part of the UN Annual Forum on Business and Human Rights) where representatives of both the US Government and China will elaborate further on their plans, as well as perspectives from key mining countries such as Chile and Myanmar.

There is much moving in the wrong direction in the world at the moment, but for those looking for stars to wish upon, here is one – that governments from all corners of the planet might increasingly cooperate to ensure global supply chains are free of conflict minerals and human rights violations. There are no awards to be given out, the domestic nature of mining in all these and other countries is still far too hazardous and communities all too often adversely impacted upon and inadequately consulted. But if we can all help to make state-state cooperation on such issues more normal, then there is a greater chance that business too will not compete on their social and environmental responsibilities. Conflict-free metals and minerals – what better gift could there be?