Ever since business became part of the global human rights agenda in the 1970s, the question has never been if corporate activity should be controlled, but rather how and to what extent. The international approach for the past 40 years has been to incentivise businesses to incorporate human rights standards into their operations rather than demanding compliance, a process that culminated with the UN Guiding Principles on business and human rights (UNGPs) in June 2011.
The UNGPs: a not so landmark moment?
The UNGPs provide actionable tools for governments and companies to use in order to prevent, address and remedy human rights abuses committed in business operations. working group was also established in the same UN resolution approving the UNGPs, to oversee and encourage their dissemination and correct implementation, share best practices from around the world, and engage in dialogue and cooperation between civil society, companies and member states.
Hailed at the time as a watershed moment, it is evident that the unchanging voluntary nature of compliance has meant limited adoption and therefore hindered the development of an “international legally binding instrument” to regulate transnational corporate activity.
The fact that to date only 10 countries have incorporated the UNGPs within National Action Plans (NAP) (UK, Netherlands, Italy, Denmark, Spain, Finland, Lithuania, Sweden, Norway and Colombia) show that states remain unwilling to challenge an increasingly autonomic and powerful global private sector. There is also the other consideration that many are seduced by the allure of investing in natural resource rich and weak democracies.
Growing demand for justice
In a society where the richest 1% have more than the rest of the world combined, the development of international treaty on business and human rights is essential for fighting the entrenched system of power and privilege that has enabled inequality to grow to such an extent. Whilst progress has been slow in the 5 years since the adoption of the UNGPs, the awareness of the global social responsibility of businesses has been growing, something that was firmly cemented in Goal 17 of the Sustainable Development Goals established last year.
Exposés like Wikileaks, the Panama Papers and increasing stories of corporate malpractice, like the recent revelations of child labour being used in the production of mica paint widely used by car companies like BMV and Vauxhall, has certainly reawakened civil societies anger – as seen by the global Occupy movement – and prompted a perceptible shift away from the UNGPs “soft-law” approach.
Lessons from Colombia
Colombia, as a natural-resource rich country with an active armed conflict (albeit on pause) currently in the midst of peace negotiations, and a poor human rights record, is surprisingly one of 10 countries to have set out a national action plan. It is the culmination of many years of dialogue between the state, civil society, activists and businesses (more recently) as well as the mounting international pressure for states to do more about growing corporate autonomy.
The plan is centered fundamentally on the duty of the Colombian state to protect its citizen’s human rights. Within that it outlines businesses’ social responsibility, the importance of inter-institutional collaboration, judicial and non-judicial mechanisms for access to remedy for victims of corporate human rights abuses. Whilst it addresses all 3 key pillars of the UNGPs (protect, respect, remedy) with clear goals for implementation and a 3-year deadline to have it in full effect, there is a clear omission in the form of corporate accountability.
It is clear why this is: the extractives sector is the key driver of economic growth for the country, but is also where most of the abuses take place. Recent reports highlight land rights disputes with indigenous or afro-Colombian communities, human trafficking in illegal gold mining, and allegations of labour abuses from pacific oil exploration. Any kind of accountability mechanisms that make international companies legally culpable for their actions would discourage foreign investment across all sectors. This is the situation that many resource-rich, low-middle income countries in the global south face and is something that can only be remedied by a more universal, non-selective approach.
As the case of Colombia highlights, the allures of trade and investment prove to be substantial obstacles. The seemingly most insurmountable of these being free trade agreements that undermine international regulatory efforts by affording special privileges to companies. The most worrying example of this can be seen in the ongoing negotiations for the EU-USA TTIP Transatlantic Trade and Investment Partnership (TTIP) which will not only remove trade and regulatory barriers but also eliminate labour rights and environmental regulations. The unsurprising lack of support from the European Union and United States to an internationally binding treaty sets a bad precedent in the UN council, with two of the most high profile member states being unwilling to back a piece of legislation that would end corporate impunity.
The tide is turning, however slowly. 27 countries are currently in the process of developing national action plans, and there is also a growing momentum to tighten states’ extra-territorial obligations through human rights accountability mechanisms.
The forthcoming 2016 UN Forum on Business and Human Rights will provide a rare opportunity for civil society, governments and corporations to come together and discuss ways to embed human rights principles within the global economy and ensure equitable economic growth and prosperity for all. The main challenge ahead, as it has always been, is the international community’s willingness to lend their full support to this agenda in the face of the economic incentives, and not only protect human rights but ensure that companies found guilty of wrongdoing are held legally accountable.
Any international treaty is still a far way off, but with pressure from civil society, NGOs and multi-lateral institutions and co-operation between countries, it is certainly beginning to take shape.