Following a long, and at times difficult, period of consultation and development, the United Nations Secretary General's Special Representative on the issue of human rights and transnational corporations and other business enterprises, Professor John Ruggie, has produced his final report on Guiding Principles for Business and Human Rights. This is a significant landmark and should cause all businesses whose activities have a real or potential impact on human rights to sit up and take notice.
Professor Ruggie started his work in 2005 and put forward his draft "Protect, Respect and Remedy" framework in 2008; which was unanimously accepted by the UN Human Rights Council and has been adopted by a range of public and private actors since. Three main principles:
- Protect - the State duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation, and adjudication
- Respect - the corporate responsibility to respect human rights, which means to act with due diligence to avoid infringing the rights of others and to address adverse impacts that occur; and
- Remedy - both State and business responsibility to provide greater access by victims to effective remedy, both judicial and non-judicial.
A key point to make about the Framework is that it does not establish any new legal obligations on companies or States - an issue that has given rise to some conflict with parts of civil society. The core rights which are being supported through the framework are those found in a range of international instruments, from the International Bill of Rights, through to the ILO core labour standards. What the Guiding Principles seek to do is to provide guidance on how respective parties should operationalise the Protect, Respect and Remedy framework.
The framework is, however, already having an impact on the revision of a number of important standards, including the IFC Performance Standards, the forthcoming revisions to OECD Guidelines for Multinational Enterprises and ISO26000. The latter standard, an important step forward in attempts to try and codify the broad range of sustainability standards which have emerged over the last decade, in a number of instances almost copies out the Protect, Respect and Remedy framework and its implementing steps.
While many of the scenarios the Ruggie team have been addressing relate to the direct impact on human rights of a business's own operations, for example security operations around mines, it is important to note that the framework refers explicitly to supply chains. The Guiding Principles give a range of broad suggestions for the steps which forward-thinking companies can carry out in relation to their human rights footprint. Those who think that there is nothing to be learned from the Framework in relation to labour rights and supply chains are likely to be very wrong.
A core subset of the Guiding Principles relates to the establishment and implementation of due diligence processes. For the supply chain environment, this probably implies regularly reviewing major risks through information sources and stakeholder engagement and not solely relying on audits. Indeed, there are a whole range questions about the future development of workplace auditing - some of which have been expressed by other bloggers on this site - it is certainly the case that audits can be better used to contribute to the due diligence and impact assessment process anticipated in the Guiding Principles. However, many would agree that there could be many more steps taken to improve risk assessment, including better country-level information sources, and better intelligence-led targeting of resources and response. This is only if we restrict ourselves to the labour-related human rights issues, if we start to move to gender, health, water, education and the like there are is room for much wider developments.
A core part of the proposals and the principles relate to the development of non-judicial mechanisms to seek to resolve grievances. This is an area in relation to which there is certainly a lot of work to be done. The Guiding Principles reinforce the importance of State-based and other mechanisms, such as those contained in collective agreements, but specifically states that industry, multi stakeholder and other collaborative groups should ‘ensure that effective grievance mechanisms are available'.
The principles underpinning an effective grievance mechanism are that it should be: legitimate; accessible; predictable; equitable; transparent; rights-compatible; a source of continuous learning; based on engagement and dialogue. In her analysis of a range of initiatives and their grievance mechanisms, Harvard's Caroline Rees, a key member of Professor Ruggie's team, eloquently sets out a critique of the different models currently adopted and shows up a range of shortcomings. Based on her analysis, organisations like ETI, with its ‘closed' member-to-member mechanism, currently falls some degree short of the expectations in the Guiding Principles. Others, such as that developed by the Fair Labor Association and the UK National Contact Point on the OECD guidelines go a long way to meeting the standards and the recently launched grievance mechanism for the London 2012 Olympic Games, which was developed by Ergon, has been specifically based on the Principles and wide stakeholder consultation.
What is certainly the case is that many organisations will seek to carry out gap analyses against the Guiding Principles in the coming months and years, either driven directly by reference to the Principles or indirectly by reference to standards like ISO26000 and the IFC Performance Standards. It will certainly be interesting to see the degree to which the Principles - which are already having influence in extractive industries, oil and gas and other high cost, high impact projects - start to influence the world of sustainable supply chains, where a particular model of audit-led compliance focussed on labour issues has dominated for the last decade. There is a good chance that it will contribute to more transparent systems with a greater emphasis on problem solving and dialogue, than investigation and compliance.