Presentation of the Report on Forum on Business and Human Rights
7 July 2021
47th Session of the Human Rights Council, 21 June-15 July 2021
ITEM 5- Human Rights Bodies and Mechanisms
By: Buba Ceesay/ GICJ
At the 47th session of the Human Rights Council, the Working Group on the issue of human rights and transnational corporations and other business enterprises presented its report on the 9th Forum on business held between 16 to 18 November 2020 under the theme “Preventing business-related human rights abuses: the key to a sustainable future for people and planet”. The report highlighted the sessions of the forums and the issues considered by the forum. The chair of the working group presented the report to the council. He gives an overview of the forum’s sessions and the participants.
The presentation of the Chair highlighted the issues considered by the forum which includes the question of steps states and businesses should take to prevent and address business-related human rights abuses and their activities across the value-chain in line with the guiding principles, how states, businesses and investors should respond to COVID 19 pandemic in human rights friendly manner and helping a resilient recovery, the connection between human rights and climate crisis and the business and human rights, the role of national human rights institutions, and human rights defenders, the connection between business and human rights agenda and the anti-corruption agenda.
The chair pointed out other considerations of the forum, which include, the access to remedy to victims of business-related human rights, racism and xenophobia in business, accountability for business-related human rights abuses and how the guiding principle could be used to avert negative human rights impacts. He shows that the forum also serves as a platform for the exchange of best practices amongst states.
Geneva International Centre for Justice, embrace the forum's considerations and how states, businesses and investor community should respond to COVID 19 pandemic calls for more action to ensure preventing and addressing human rights abuses.
The Human Rights Council (HRC) by its resolution 17/4, pertaining to human rights and transnational corporations and other business enterprises, established the Forum on Business and Human Rights for the purpose of discussing the trends and challenges faced in the implementation of the United Nations Guiding Principles on Business and Human Rights (UNGPs) and for the promotion of dialogue and cooperation on issues linked to business and human rights, including challenges faced in particular sectors or operational environments, or in relation to specific rights or groups; and to identify good practices. The Forum performs its tasks under the guidance of the Working Group on the issue of human rights and transnational corporations and other business enterprises.
The forum has been conducted since 2012 under the auspices of United Nations High Commissioner for Human Rights (OHCHR) and the HRC in its resolution 44/15 at the 44th session in June 2020 session decided to extend the guidance mandate of the Working Group of the forum and prepare its annual meetings. The council invited the Working Group to submit its report on the proceedings and thematic recommendations of the Forum for the consideration of the Council.
A virtual forum was organized from 16 to 18 of November 2020 under the guidance and chairpersonship of the Working Group. The theme of the forum was “Preventing business-related human rights abuses: the key to a sustainable future for people and the planet”. Pursuant to resolution 44/15, the Working Group presents its reports to the council. In line with the President’s statement PRST OS/14/1, issued at the organizational session held on 7 December 2020 that no general debates will be held during the Council’s June session. Therefore, general debate on the report of the working has been differ to the 48th session.
This discussion report will summarize the report of the Working Group and highlight the presentation of the report which took place on 7 July 2021 at the 47th session HRC.
Summary of the Report of the Working Group
The report of the Working Group (WG) is based on the forum organized by the Office of the United Nations High Commissioner for Human Rights (OHCHR) under the guideship of the WG. The forum included 2 plenary sessions and 26 parallel sessions organized by the Working Group, OHCHR and external partners. It brought together different stakeholders under the theme ``Preventing business-related human rights abuses: the key to a sustainable future for people and planet”. The report shows that the forum held the following discussions and considered the following issues.
Policy Coherence at International Level
The WG reported that a panel session on global governance and policy coherence at the international level was held with the goal of reinforcing the call on governments and businesses to implement their human rights obligations and responsibilities in the COVID 19 crisis and beyond. The WG reported that the panel highlighted the challenges faced due to COVID 19 and noted the moves by companies beyond policy commitment but stressed the existence of gaps between business aspirations and true business action on human rights. The panel called for the adaptation of a smart mix of voluntary and mandatory policy and regulatory measures at both national and international levels to ensure responsible and resilient recovery.
European Union and Governments
The panel discussion was followed by the panel of senior representatives of regional organizations and of Governments from different regions (Costa Rica, Germany, Japan, the Netherlands, Qatar, Ukraine and the European Union). This panel was convened to share experience and lessons learned from the respective efforts on the implementation of the Guiding Principles, including in the context of COVID 19 and recovery measures.
The report highlighted that the Commissioner for Justice of the European Union, Didier Reynders, indicated people without safety nets in the informal sector are hardly hit by the pandemic. The commissioner highlighted that the EU has adopted rights of victim strategy with an international dimension in 2020 and would adopt a proposal that will introduce mandatory due diligence across the EU in 2021 to ensure businesses put in place processes of identifying, mitigating, environmental, social and human rights risk in their supply chain.
Other representatives have highlighted the effects of the pandemic on the health care system, vulnerable workers, women, the elderly and migrant workers, labour conditions etc. They reaffirm their commitment to the Guiding principles.
The report shows that a multi-stakeholder conversation on the efforts to prevent business-related abuses was convened. The report indicated the stakeholders highlighted the consequences of the pandemic on vulnerable groups and called for a more robust human rights due diligence, accountability and access to remedy via mandatory and optional measures.
Highlights of state actions related to the COVID-19 crisis: how to “build back better?
The report illustrates the different actions taken by states including laws with broad due diligence provision, laws on improving transparency, plans on intruding mandatory due diligence with monitoring mechanism, and publication states actions plans. It was emphasized that both mandatory and options measures at both national and international stages would be better for the implementation of the Guiding principles.
The reported highlights that the forum considered the 2021 legislative proposal of EU and participants expressed their expectations as follows; that the proposal should:
- cover companies and all internationally recognized human rights.
- Apply to all in the supply chain.
- Ensure companies adopt effective operational-level grievance mechanisms, address liability for failure to conduct due diligence and for harm caused.
- Have competent public body monitoring in place.
- Have effective sanctions for violations.
- Have a burden of proof that is in favour of the right holder.
The participant raised concern about the scope of human rights that will be covered.
The report also indicates that the forum considered the second draft of the legally binding instrument on business and human rights under development by the United Nations prepared by the open-ended intergovernmental working group and agreed that the future legally binding instrument should be complemented by the guiding principles. The forum similarly made suggestions including, the need for flexible regulatory regimes to respond to evolving nature of human rights, and support of the legally binding instrument by the guiding principles.
The report further shows that the forum participants agreed that human rights references in international investment agreements should go beyond corporate social responsibilities. However, they differ on the scope of human rights to be integrated.
The report indicates that the forum highlighted the challenges of victims’ access to remedy, including retaliation and intimidation and upon the presentation of different accountability avenues, participants underscored the importance of mixed accountability tools aligned with internationally recognized human rights and involvement of rights holders, who are mostly left out in designing of non-State-based grievance mechanisms making, in stakeholders’ consultations.
The forum stressed the need for multi-stakeholder and social dialogues, business partnerships to address business-related human rights challenges in the context of COVID-19. It was emphasized that moving forward, the mindset needs to change from risk to business to risk to people. A day-to-day human right due diligence framework was suggested as a preventive measure to better-equipped businesses in addressing the risks to people in the time of COVID-19 and future crises.
Issues Considered by the Forum
The report showed that the forum highlighted the challenges that indigenous persons, women, girls, and other vulnerable groups continue to face and emphasized the need for better and wider implementation of the Guiding Principles, including a smart mix of voluntary and mandatory measures, as well as the involvement of indigenous people in decision making.
In the informal sector, the forum indicated the challenges posed to those working in the informal sector, especially women. It called on governments to put in place an enabling legal environment by formalizing the informal economy based on ILO Recommendation 2015 (No. 204).
In reference to racism and xenophobia in business context, WG shows that the participants acknowledged that business traditionally played a role in the construction of race and exploitation of people for profit and expressed that corporate responsibility to respect human rights should go beyond mere statements against racism, it should address race-based discrimination internally as well.
With regards to Climate change and environmental challenges, the WG indicates that the session on climate change was addressed by Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes, who after highlighting how climate change poses an existential risk to human rights, called for informed decision making to shield the environment of further damage. Concerns were raised by participants on legislation enacted in some countries as part of governments’ responses to COVID-19, which had a severe impact on the environment. Participants stressed the need to structure countries’ economies in a more environmentally sustainable manner and embrace the green economy.
On business and human rights in conflict situations, concerns were raised on the challenges like illegal businesses, lack of access to non-state actors and the informal sector. The WG reported that participants agreed on the need to reinforce national human rights institutions and civil society in order to support affected stakeholders and promote accountability.
The WG reported the discussion on business and human rights agenda and the anti-corruption agenda. It shows presentations on accountability mechanisms that could address cases where human rights abuses and corruption were made, and emphasis was made on the need for having active campaigning, strategic litigation and targeted sanctions and enforcement mechanisms.
The report highlights the forum consideration of the role of national human rights institutions in preventing business-related human rights abuses. Examples of how national human rights institutions have been addressing business-related human rights abuses were showcased. These examples range from monitoring labour policies and modern-day slavery involving private companies, adoption of human rights and business implementation plans in public enterprises and state-owned businesses to produce a tricking-down effect on private businesses, monitoring the human rights impact of mining projects in Latin America.
The WG reported the role of human rights defenders during the pandemic and their important role in the recovery process. The SP on the situation of human rights defenders highlighted the attacks linked to business activities on human rights defenders and called upon states and businesses to prioritize human rights and human rights defenders in the process of building back. Human rights defenders highlighted that governments measures during the pandemic restrict civil society activities.
The forum showed the vital role technology could play in managing public health. Participants also highlighted the challenges that are posed by technological solutions. The forum called for alignment between the responsibilities of technology companies and the State’s duty to protect against human rights abuses.
Presentation of the Report by the Working Group
Geneva, 7 July 2021, the chair of the Working Group, Mr. Surya Deva presented the report of the WG at the 25th meeting of the 47th session. Mr. Deva stated that the forum is the largest gathering of business and human rights which brings together different parties including the UN bodies, institutions, investors, human rights defenders, civil society organizations, trade unions, national human rights institutions, businesses and the media. He further stated that under the theme of the 9th session, the forum considered what practical steps states and businesses should take to prevent and address business-related human rights abuses and their activities across the supply chain in line with the guiding principles. Furthermore, he indicated that the forum further considered how states, businesses and investor communities should respond to COVID 19 pandemic in a manner that protects and respects human rights and contributes to building back better. The WG chair indicated that the forum also served as a platform to inform the participants of the project of the Working Group to develop a vision and a roadmap for action on business and human rights over the next decade.
He articulated that the forum has acknowledged the damaging consequences of the pandemic that magnify the unprincipled business practices for people in marginalized situations. He further highlighted that the forum has underscored the vital role technology can play in public health but also raised concern over challenges technology presents which needs responsible management.Mr. Deva pointed out that the forum participants came from several countries and from different backgrounds. He indicated the 30 sessions were organized including plenary, thematic sessions and regional dialogue, where different stakeholders shared their experience on how to prevent and address human rights abuses especially during the pandemic with a specific focus on the groups and individuals at heightened risk such as women, children, migrant workers, Indigenous Peoples, human rights defenders and workers in the informal economy. He further highlighted that the thematic issues considered by the forum were the connection between human rights and climate crisis and the business and human rights, the role of national human rights institutions, and human rights defenders, the connection between business and human rights agenda and the anti-corruption agenda. He further stated that the forum provided a platform on how best to prevent and address business-related human rights abuses in conflict affect context, the challenges and the way forward for business in preventing addressing racism, xenophobia and efforts to improve access to effective and gender-responsive remedies to victims of business-related human rights abuses.
Moreover, Mr. Deva pointed out the forum cognizant of how the guiding principle can be instrumental in averting negative human rights impacts and building a more resilient society. On the exchange of positive examples of legislative policy proved to be effective in promoting responsible business conduct, the Chair stated that the participants endorsed the implementation of smart mix measure with the involvement of rights holders. He listed the policy initiatives highlighted by the forum which include, the EU binding due to diligence law, the negotiation of internationally binding instruments on BHR and other initiatives to develop national action plans on BHR.
The Chair also Highlighted that the forum considered the issue of responsibility and accountability for investors, financial institutions and commercial banks. The forum also reflected on how to align international investment agreements and state human rights obligations. He further stated that the forum considered the issue of intimidation and reports on national human rights institutions and human rights defenders were presented by the WG.
In addition, Mr. Deva stated that sessions were conducted on the role of effective corporate accountability in preventing business-related human rights abuses, especially in transnational facets. He pointed out that more than 90% of SDGs are now linked to international human rights and thus it is fundamental for businesses and banks to respect human rights in order to create a sustainable world.
He concludes by reminding delegates of the role of the guiding principles as a guidepost in times of crisis. He noted that the climate crisis, the COVID 19 crisis and the challenge of continued racism and inequality across the world have shown the fragility of systems that do not put people and the planet at the center if the world is to be truly future fit. He stressed that “if the world is to be truly future fit. It needs to keep the focus on human rights going forward.”
Position of Geneva International Centre for Justice
The Geneva International Centre for Justice appreciates the efforts of the Working Group and embraces all the positive results of the 9th Forum on Business and Human as reported by the Working Group. We support the move for both mandatory and voluntary mix measures to address business-related human rights abuses.
We especially welcome the idea of smart mix solutions to address unconscionable business practices affecting vulnerable and marginalized groups and individuals. We endorse the call of the forum on business to put in place measures to prevent and address racism and xenophobia.
We recommend binding international legal instruments on business and human rights which will provide victims of business-related human rights abuses effective and efficient access to remedy.
GICJ calls on other countries to adopt legislation that makes it an obligation for mandatory human rights due diligence. We also call on states that have not adopted national action plans on business and human rights to do so and make such human rights take center stage.
In inclusion, we recommend immediate support to developing countries grappling with the devastating impact of COVID 19 and call for more openness in the distribution of vaccines to disadvantaged communities.