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10 Nov 2015

Harriet E. Berg, Minister Counsellor, Norwegian mission to the UN and other international organisations in Geneva

The perfect, the good and unclear conflict lines

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This blog is part of the debate blog series on the proposed treaty and its complementarity with the UN Guiding Principles. We believe that an inclusive and open debate is crucial to make sure these initiatives deliver for everyone, and that the business & human rights movement continues its "unity in diversity".

 In October, Norway joined the group of states with a National Action Plan for implementation of the UN Guiding Principles for Business and Human Rights (UNGPs). Another 20 states or so, in all regions of the world, are in the process of developing one. Surveys show increasing numbers of companies putting thought and resources into understanding the implications of the corporate responsibility to respect human rights for their business, and developing innovative practices to manage human rights risks.

While the challenges related to business and human rights continue to be significant, it would be wrong to deduce that the UN Guiding Principles have not had an impact. Many will probably want to characterize the UNGPs as “good” but not “perfect.” I agree that we all – states as well as business enterprises - need to do much more to prevent and address abuses of human rights linked to business activities. Governments must step up national efforts and send clear and coherent signals to business through effective regulation, policies and incentives. States must speed up international efforts to fill gaps in global governance and frameworks, including in the financial field. We also need to do more to address the patchy, unpredictable, often ineffective system of domestic law remedies, which hampers access to remedies for victims of human rights abuses today.

The scale and complexity of the challenge of business and human rights and the often demanding processes involved with making necessary changes in policy and practice, makes it tempting to look for seemingly more “perfect” solutions, like an international treaty. We are not excluding that a well-defined international instrument could be necessary to address specific challenges. But what we need most urgently is political will to take immediate and effective national action and reform in legislation and policies. We already know what needs to happen for human rights to be better protected and respected in the context of business activities. Existing treaties and the UN Guiding Principles provide a clear set of standards of obligations and responsibilities. Closing the implementation gap between such standards and decisions adopted by the Human Rights Council and other UN bodies and the reality on the ground should be our primary focus, also when addressing corporate related human rights abuse.

What we need most urgently is political will to take immediate and effective national action and reform in legislation and policies

The OHCHR Accountability and Remedy Project is an important concrete example of how to move forward. It aims to provide concrete guidance to states on how to better implement their existing legal duties to provide effective remedy for victims of corporate related human rights abuse and to enhance accountability for those who have committed harm.

The OHCHR project will provide recommendations to the Human Rights Council in 2016, based on extensive consultations and evidence received from over 60 jurisdictions. There are already some interesting early findings. We can for instance learn from the fairly widespread use of strict liability in relation to labour rights and environmental protection. Human rights due diligence is a potential area for improvement. Some new and interesting ways of attributing fault to corporations are also emerging. The project can be a solid base for concrete action, both at national and international level.

There is also a need to strengthen the protection of human rights defenders working to realise economic, social and cultural rights. This is a key issue in the resolution Norway recently presented to the UN General Assembly “on the role of human rights defenders and the need for their protection.” The draft resolution is a strong defence for the important work of human rights defenders, including in environmental and land issues. It underlines the responsibility of states, but it also addresses the responsibility of business enterprises to avoid interfering with such activities and to have meaningful consultations with defenders and other stakeholders.

I am very encouraged by the call from previous bloggers in this series to avoid a simple, exclusionary approach to fight corporate related human rights abuses. This call is important to end attempts we have seen in some UN fora the last year to delete references to the UN Guiding Principles. The fact is that the UNGP is the authoritative consensus platform, endorsed by all states and stakeholders and under implementation today. The UNGPs is the best platform we have so far for getting to action.

The fact is that the UNGP is the authoritative consensus platform, endorsed by all states and stakeholders and under implementation today. The UNGPs is the best platform we have so far for getting to action

Experience in this field shows that while we might feel we are in a hurry to achieve “the perfect”, we will not get very far without bringing the main players onboard. The widespread support for the UNGPs by business was a result of an inclusive, fact-based process, comprehensive enough to bring all stakeholders onboard. “Perfect” does not necessarily provide legitimate and workable solutions. Maybe “good” is more effective at this point of time?

I would also like to underline that the main conflict line in the discussion regarding business and human rights is not between those arguing for the “the perfect” and those defending “the good” solution. The main conflict is rather between states establishing clear rules and incentives for business to operate with respect for human rights, and those that in practice show little political will in this regard.

Human rights defenders, victims of corporate related human rights abuses and other civil society actors have a vital and constructive role to play in promoting corporate respect for human rights. No matter where we stand in the discussion regarding the treaty, we need these strong voices to encourage and support concrete and immediate action on the ground, at national and international level, by all States, businesses and the UN.