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8 Ene 2021

Professor Surya Deva

A just recovery for whom? And how to achieve it?

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Like building back better, a “just recovery” has become a popular narrative in times of COVID-19. But what does such recovery entail and what would make it just? Moreover, how can a just recovery be achieved from a business and human rights (BHR) perspective?

The idea of “recovery” implies the current global economic order is broken beyond repair. The current order is designed – in a seemingly non-violent fashion – to leave behind a significant number of people even in normal circumstances. It is also geared to cause irreversible damage to the planet in a slow (and at times invisible) manner.

What is “just” could mean different things for different people. In my view, two elements should be central to the post-COVID-19 just recovery. First, the recovery must benefit the most the least advantaged individuals, in line with the Gandhi Talisman. Second, the recovery must break free from the current top-down, investment-driven, ever higher-growth, excessive consumption-oriented, and pollution-causing economic development model. We need to return to an economy that values equally the contribution of non-investors, and facilitates a local, bottom-up, net-zero carbon, minimalist, and sustainable way of living. Only by following such a path, would a just recovery be able to preserve the rights of present and future generations to live on the mother earth and realise their ambitions.

In the 21st century, we have made some gains establishing globally acceptable standards of behaviour in the BHR field such as the UN Guiding Principles on Business and Human Rights (UNGPs) . But are these standards meant to transform the current economic order, or sustain it by making some changes without disrupting various power structures of injustice?

While the pandemic might have destroyed the livelihood of hundreds of million people and/or thrown them in extreme poverty, some businesses have continued to gain despite, or due to, COVID-19. While supply chain workers struggle daily for survival, most businesses are continuing with their leisurely “human rights journey”. While claiming to practice responsible business conduct, enterprises continue to sell harmful products and indulge in land grabbing. Corporations also continue to avoid paying taxes and employ various strategies to avoid responsibility for human rights abuses.

Due to deep state-business nexus and pervasive corporate capture, states often remain mute spectators to business-related poverty, inequality, gender-based violence, surveillance, exploitation of migrant workers, creation of gig economy, killing of human rights defenders, environmental pollution, and climate crisis

At the same time, states continue to pursue the “development first, human rights later” strategy and label communities protesting development projects anti-development or anti-national. Due to deep state-business nexus and pervasive corporate capture, states often remain mute spectators to business-related poverty, inequality, gender-based violence, surveillance, exploitation of migrant workers, creation of gig economy, killing of human rights defenders, environmental pollution, and climate crisis. Moreover, cash-strapped UN agencies are increasingly flirting with businesses to forge unprincipled partnerships.

A real just recovery would require developing regulatory tools and strategies capable of confronting the root causes of some of these systemic challenges.

Beyond the current economic model A just recovery is hardly possible within the current economic model in which a few privileged people (mostly men) decide to displace thousands of indigenous peoples on the name of development, or where chief executive officers of large corporations make 320 times more than a typical worker. Creating a new model which offers equal opportunities to all and leaves no one behind requires more than reimagining capitalism. We need to turn “back to bikes” rather than promoting battery-powered cars.

Beyond profit Despite all the balancing rhetoric, profit is triumphing over people and the planet. Putting people and the planet first would require reorienting the very purpose of a corporation in society in a much more fundamental manner than attempted in the Business Roundtable’s 2019 statement which does not even mention the term “human rights” or “climate change”.

Beyond human rights law Human rights law alone will not suffice to ensure businesses respect human rights. For example, both corporate law and international investment law require transformative reforms to inject human rights in the DNA of corporations.

Beyond begging Human rights are not optional for states or businesses. Rightsholders must be able to demand and enforce their rights in case of violations, rather than being at the mercy of cooperation by businesses. We should therefore reinstate “rights” within BHR.

Beyond consultations The impact assessment consultations invariably end up becoming a tick-box exercise or a legitimacy tool for decisions. What is needed is effective participation of rightsholders and their representative organisations (including trade unions) in decision-making processes at all stages.

Beyond processes We are currently putting excessive trust in processes over tangible outcomes. The current obsession with (mandatory) human rights due diligence, or the focus on effectiveness of remedy mechanisms rather than on effective remedies illustrates this well. However, as outcomes are equally important for rights and rightsholders, businesses should have an obligation of result too.

Beyond respect All businesses should respect human rights as a starting point. However, as the COVID-19 pandemic has shown, merely respecting human rights will not suffice. Businesses should also protect and fulfil human rights, otherwise rights, and even the Sustainable Development Goals, will not be realised fully.

Beyond the UNGPs The UNGPs are here to stay, so must be implemented in good faith. At the same time, the UNGPs must not be used to prevent or slow down the legalisation of human rights obligations of business. Nor should they be invoked to freeze the evolution of BHR standards.

In short, the global community would need to work together to go beyond the present and create a just world order which secures all human rights for everyone. An opportunity to do so will soon arise as leaders from across the world assemble in May 2021 in Singapore for the World Economic Forum’s special annual meeting to explore solutions to world’s most pressing challenges. A small practical suggestion: rather than putting up these leaders in swanky hotels, expose them to “experiential learning” by requiring them to spend one week in dormitories of migrant workers. That may perhaps force them to act with a sense of urgency to work towards a real just recovery.

Surya Deva is an Associate Professor at the School of Law of City University of Hong Kong, the current Vice Chair of the UN Working Group on Business and Human Rights, and a founding Editor-in-Chief of Business and Human Rights Journal. The views expressed here are personal opinion of the author.