Shift outlines elements of a "smart mix" of measures on business & human rights
Rachel Davis, current Co-founder and Managing Director of Shift, was "a senior legal advisor to former UN Special Representative John Ruggie during his mandate" and "played a key role in the drafting process of the UN Guiding Principles on Bussiness and Human Rights". In a statement and interview "she reflects on the relevance of mandatory measures in the State Duty to Protect and the growing debate around comprehensive mandatory human rights due diligence legislation", seven years into the UNGPs implementation.
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Interview: Shift's Rachel Davis emphasises that voluntary measures are only one part of a "smart mix"
"Beyond Voluntary: What it Means for States to Play an Active Role in Fostering Business Respect for Human Rights", February 2019
"The UNGPs always envisaged that mandatory measures by states – at both the national and international levels – would be part of their implementation... Yet we often hear the term "smart mix" being used to really just mean voluntary measures. That's a misreading of what the UNGPs say...A smart mix is exactly that – the right combination of mandatory, voluntary, national and international measures that is needed to effectively foster business respect for human rights in a particular context. At the national level, that is going to look different in different countries, depending on what currently exists, how effective it is in practice, and what can be done to address the gaps...Legislative and regulatory regimes need to allow companies the space to show that they genuinely tried to use leverage creatively to address a situation...Authoritatively calling out what meaningful compliance looks like, and what is merely superficial, is an important element in making such legislation effective in practice...This whole area concerning legislation as a part of a smart mix is one we’re going to be doing a lot more thinking about at Shift as the examples of mandatory human rights due diligence proliferate – and we look forward to sharing our thinking widely over the coming year."
"Fulfilling the State Duty to Protect: A Statement on the Role of Mandatory Measures in a “Smart Mix”, 20 Feb 2019
There is a growing number of national and international debates around mandatory measures to ensure business respect for human rights, and specifically a) a binding international instrument on business and human rights and b) national legislation on mandatory human rights due diligence. In these debates, the UN Guiding Principles' expectation of a "smart mix" of implementation measures is often cited. As a contribution to these discussions, Shift has developed the following statement on the role of mandatory measures in a "smart mix"...
A truly "smart mix" means looking at all four aspects (national, international, mandatory and voluntary), not just the one or two that are most convenient or already in place. It follows, therefore, that the state duty to protect necessarily involves legislative and regulatory measures at the national level, and the supportive infrastructure (such as enforcement, incentives and guidance) needed to make them meaningful in practice. Without these, the UNGPs will never fulfill their true potential. The UNGPs also clearly contemplate mandatory international measures as a natural part of this "smart mix"...While the UNGPs do not demand that states adopt legislation requiring companies to carry out mandatory human rights due diligence (HRDD), clearly such legislation is entirely in line with the UNGPs.
Practical reasons to consider mandatory human rights due diligence can include:
• The powerful effect it can have in driving top-level attention to human rights in companies, as well as engaging functions across the business;
• Leveling the playing field across companies and sectors, including through engagement with business partners in a company’s value chain;
• Obliging companies to consider the interests of stakeholders other than shareholders;
• Incentivizing collaborative approaches to address systemic human rights risks; and
• Enabling (where civil liability is included) a clear cause of action for individuals who are harmed to pursue remedy.