The Movement and the IGWiG

One year ago, a remarkable diplomatic consensus that had lasted the better part of a decade was seemingly shattered when the Human Rights Council passed two separate resolutions on business and human rights: one was focused on the continued work of implementing the Guiding Principles on Business and Human Rights (GPs) while the other established an Open Ended Intergovernmental Working Group (OEIWG) ‘to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’.

At the time, I warned activists that the immediate risk of a treaty process was not so much a diversion from the GPs, or even a treaty (that will be many years in coming and will require reconstructing the diplomatic consensus). Rather, the greatest risk lay in the effects of a treaty process on civil society attempts to hold business accountable for human rights abuse. My fear was that a protracted treaty process would sink civil society energies into the swamp of member state negotiation of a treaty text in Geneva, diverting those energies from their proper target: pressing governments to take action to prevent and remedy human rights violations by business.

One year on, I am happy to report that I was wrong (at least about the diversionary effect of a treaty process). While there have been set backs, it is hard to deny that a mobilization is underway. In fact, there is a lot happening, from a growing list of national action plans, to legislative attempts to regulate due diligence. Labour is increasingly aware of the ways that the business and human rights agenda adds value to the core struggles on the shop floor. Some businesses are adapting to the due diligence standard of the GPs and participating in constructing reporting frameworks that implement this standard. At the same time, multistakeholder initiatives are responding to specific events such as Rana Plaza, but also developing the long-term frameworks, not least the assessment and  benchmarking metrics that will be necessary for all of us to know whether or not the BHR agenda is having a constructive impact on business behaviour (there is precious little data out there at the moment).

Although this may look scattershot in fact it contains the elements of coherence. Prompted by civil society and business, governments are increasingly seeking to get their domestic houses in order. State practice is mixed but the agenda has been set: governments must identify the ways in which the state interacts with business, whether as regulators, owners or investors, and as consumers (government procurement), and put in place the right mix of law and policy to prevent and remedy human rights abuse by business.

This is not to suggest that the battle has been won, nor does it suggest that human rights violations by business are in decline. But it does suggest that the people are determined to get on with things. As Phil Bloomer, Director of the Business and Human Rights Resource Centre, observed earlier this year “the treaty vote had acted as a political spur … rather than creating a ‘legal chill’.”   

I think Phil is correct: not only is there nothing stopping all of these initiatives moving forward, but many in business, government and civil society have understood that by acting now they are laying the foundations for multilateral action at the global level.  Far from being a diversion, the call for a treaty has been a catalyst.

The treaty call in 2013-2014 marked the shift of the business and human rights from an ‘issue’ into a ‘movement’. For this, we have social movement activists to thank. Social movements from the global South are claiming for themselves a far more important voice in a space that has traditionally been dominated by groups and experts from the North. While it is true that the trigger for this shift has been the call for a treaty, many years of expanded global networking – not least by ESCR-net, ICAR, ECCJ, CIDSE and a long list of others national coalitions - has been vital in opening up to those who’ve long been active on the ground.

The influx from the South is globalizing the business and human rights (BHR) policy space and clarifying how political it really is. This may sound like an odd statement. It is hard to imagine a more politically contentious issue than regulating global capitalism. But the BHR space has traditionally been one characterised by human rights technocracy. In the drive for diplomatic consensus on a framework at the Human Rights Council, an apolitical, technocratic human rights approach was a huge advantage for John Ruggie and his team. But now, as all stakeholders get down to the business of implementation, and in an increasingly polarised world characterised by debt crises, climate crises, migration crises, land grabs, and precarious work, the usefulness of human rights technocracy may be limited.

It was the challenge of politics which was the reason of my warning to activists last year about a treaty process. On that score, my concerns remain: the movement will have to figure out how to navigate on the margins of these very political, central issues of global economic governance. In the coming years, the BHR movement will either find its political feet or fade back into irrelevance. This is not a choice between technocracy and politics but in how the two fit together.

The immediate challenge facing this new movement is to forge a progressive position on the treaty, or more accurately on the work of the OEIGW (or ‘IGWiG’, as it is increasingly being called). Given the ongoing work already underway outside Geneva, and the problem of impunity which so many advocates are concerned with, the most obvious place for the movement to start would be to press the members of the IGWiG to focus on remedy, in particular remedies provided by states. That should be the first demand of the IGWiG by the movement: focus on the treaty process on remedy, the third pillar of the GPs.

Doing so would have several advantages. It would start the work of the IGWiG at the practical end of the stick, where the question is what rights require what kinds of remedies. By focusing on designing a particular mix of remedies that correspond to particular sets of human rights protections, the IGWiG would be building on the path forged by labour, environmental and consumer law: in most countries, there is a mix of administrative, civil or criminal remedies available to respond to the severity of violations in each area. This would enable the IGWiG to take into account the full range of human rights and to focus on harmonizing state practice to design a system of remedies, with remedy options appropriate for particular kinds of human rights abuse. This would also enable the IGWiG to take into account diversity across legal traditions and the options available in the regional human rights institutions That focus could also discuss in what cases such remedies could exercise extra-territorial jurisdiction and the basis in law for holding individuals or legal entities liable for different abuses.

The advantage of a focus on remedy is that it addresses directly the central governance gap which so many advocates and policy makers have identified as fundamental: impunity of businesses for human rights abuse. That problem arises in part from the failure of national and international governance to match the expansion in the multinational nature of business. That is something which the IGWiG, as a body of the international human rights system, should respond to. But it should not do so at the expense of success already achieved. A focus on remedy would enable the IGWiG to avoid a renegotiation at the treaty table the first two pillars of the GPs. That is vital if we are to avoid killing the momentum which seems to be taking hold on business practice, based on pillar two, and the ongoing processes at the national level under pillar one.

Of course, there are lots of reasons to be skeptical about the idea of forging a common movement ‘ask’ directed at the IGWiG. But that is not reason enough not to try: over the past twelve months, civil society dialogue has managed to move most of the major NGOs to a position which recognises the need to address a treaty to all business entities, not just multinationals. That had been left unclear by last year’s resolution and the clear preference of the resolution’s sponsors for targeting MNCs and giving their own businesses a pass. That was untenable – victims require remedy regardless of the national or legal status of the perpetrator – and dialogue helped move the movement position to reflect that principle.  

Is it impossible to imagine an open dialogue within the movement over the coming year towards common positions on remedy? I don’t think so. But it will take finding common ground around which to gather the movement in responding to the work of the IGWiG. Most of the movement has already decided that they will not put their work on hold or wait to see what will happen in Geneva; rather, whatever happens in Geneva will have to prove its worth to their agenda, namely preventing and remedying human rights abuses where they happen. That’s an important principle around which to consolidate. Not only does it respond directly to the needs of those most vulnerable to human rights abuse by business, but it puts the movement’s political priorities where they should belong: on protecting people, rather than reinventing human rights norms.