Are Governments Ready to Play Their Role in the Emerging Arena of Business and Human Rights?

The emerging policy and practice arena of “business and human rights” has become a relay race in which states have largely been observers rather than athletes on the track. There have been some notable exceptions, but generally governments have been happy to let business, civil society and trade unions work it out for themselves.

This has reinforced the idea that business and human rights is a purely ‘voluntary’ endeavour and that ‘real’ human rights remain firmly in the government domain. However, there is growing evidence that governments are now picking up the baton and joining in the race.

This week, the 27 member states of the European Union are meeting at a conference in Stockholm under the Swedish Presidency of the European Union. Fundamentally, they will be discussing how to align the business and human rights framework agreed by States within the context of the United Nations, with that of the European Union and other bodies such as the Organization of Economic Co-operation and Development (OECD).

This brings into focus the United Nations framework - “protect, respect, remedy” – devised by Professor John Ruggie, Special Representative of the Secretary-General for Business and Human Rights, and how this might be integrated across the Union. It should be noted that when the business and human rights framework was introduced in 2008 - it was supported by every government on the United Nations Human Rights Council – including the UK, China, India, France, Nigeria, and Russia.

John Ruggie suggests there is a need for both greater horizontal and vertical alignment between states, giving examples of existing ‘policy incoherence’. Within these, there are a number of examples of incoherence in relation to corporate law, reporting requirements, trade, investment and even libel law. Combined, these create an uneven playing field in the arena of business and human rights between the 27 EU member states and beyond.

There is a lack of vertical integration within the member states themselves. Sweden is the only Member State, perhaps with the exception of Denmark, with national legislation that requires vertical integration across national laws and practice in relation to corporate responsibility.

Examples of non‐alignment include: the ways in which bilateral investment treaties and host‐government agreements are negotiated and applied; the absence of references to human rights in most Export Credit Guarantee schemes; or Overseas Development Assistance funding that bypasses the issue completely. Notable exceptions include the strong work of the German, Danish and Swedish Development agencies, not to mention the leading work of those outside the Union such as Norway and Switzerland.

The Stockholm conference gives an indication perhaps that we might see European Governments gearing up for greater involvement in the “operationalization” of business and human rights – both in terms of the state duty to protect human rights as well as promoting the corporate responsibility to respect them. However, we need to look beyond the European Union to get the fuller picture. Here are some quick examples:

Earlier this year, the Economic Community of West African States (ECOWAS) launched a common mining code for business across all of West Africa, which includes the protection of human rights. Ghana already has a business code partly based on human rights.

The Swiss Government has for several years explicitly promoted the issue of business and human rights in its work around the world, including with other non-European governments. Just last week in Delhi, both the Indian Government and the Indian Commission for Human Rights attended an international business-led roundtable on human rights.

Finally, the United States has increasingly incorporated labour rights into bilateral trade treaties over recent years and all eyes are on Mike Posner, the newly appointed Assistant Secretary of State for the Bureau of Democracy, Human Rights and Labour – a well-known figure in the business and human rights field - to see what progress may be made in this field by the Obama administration.

Granted these are small steps in a much longer race. But in a world where many governments still actively abuse fundamental human rights and many companies are complicit in violations, responsible government leadership is imperative.

We await with interest the outcome of the Stockholm conference. To what extent will EU member states step up to the mark, following Sweden’s leadership in strengthening national frameworks for greater respect of human rights by the private sector? There is no excuse for continuing misalignment.