What options do governments have to protect human rights from businesses?

25 Jun 2019

By Private: Sebastian Smart

Following a recent visit to Silicon Valley, the UN High Commissioner for Human Rights, Michelle Bachelet made a call to adopt a “smart mix” of measures to regulate new technologies

The term “smart mix” comes from the UN Guiding Principles, which encourages states to combine the “national and international, mandatory and voluntary, to foster business respect for human rights”.

Unfortunately, this isn’t currently happening. In the words of the Working Group on the issue of human rights and transnational corporations and other business enterprises (Working Group),  governments are “not fulfilling this duty—either failing to pass legislation that meets international human rights and labour standards, passing legislation that is inconsistent or failing to enforce legislation that would protect workers and affected communities”. 

What’s the reason for this failure? One likely factor is that governments don’t know, or only incompletely understand, the range of options available to them in creating this “smart mix”—as well as the specific advantages and limitations each possesses. To quote the Working Group again: “[the] lack of policy coherence in government practice is part of the overall picture, and governments are not leading by example in their own roles as economic actors”.

As a starting point to address this problem, the text below sets out the four categories of measures governments can take to protect human rights from business impacts; along with some concluding thoughts and links to resources on effective implementation.

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THE MENU OF OPTIONS

1) International voluntary measures: 

There are a range of international voluntary measures that can support governments in protecting human rights from business-related impacts. The Working Group has made a range of recommendations for governments on this point—ranging from the implementation of rights-respecting public procurement measures, to the dissemination of the UN Global Compact and the Organization for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises. 

Governments can also engage with regional processes, most of which have now made explicit calls to implement the UNGPs: 

Several forums where governments can engage have also developed guidance or work specifically addressing the intersection of the digital environment and business and human rights—notably the Freedom Online Coalition and the International Telecommunication Union (ITU), which has developed (among other things) a set of UNGP-based guidelines for industry on protecting children online.

 

2) International mandatory measures:

The UNGPs clearly envisage mandatory international measures as a natural part of this “smart mix”. At present, however, no such measures exist to sign up to; even if, as we’ve explored in recent blogs, discussions on a new binding treaty on business and human rights are currently underway. 

The ratification of such a treaty could still be some years away, though. So what can governments do in the meantime at the international level? 

One important thing to remember is that the international human rights framework already sets out obligations which states are bound to respect. This means that by becoming a party to any international treaty, states will automatically assume obligations and duties under international law to respect, protect and fulfil human rights. Treaty bodies usually refer to the duty to protect against abuse by third parties, including private and state-owned business enterprises (see Working Group, par. 30), meaning the state could be held responsible for not taking all reasonable steps to prevent, mitigate and remediate the abuse.

 

3) National voluntary measures:

In recent years, one way governments have been implementing the duties enshrined in the UNGPs is through National Action Plans on Business and Human Rights (NAPs)—a mechanism by which governments commit to take action to ensure businesses in their country respect human rights.

While promising in the abstract, the NAPs that have so far been implemented have proven something of a mixed bag—especially when it comes to the tech sector, where they have been criticised for offering nothing but vague aspirations. If NAPs are to realise their potential, governments must ensure that they are developed in an open, inclusive and transparent way, and are based on a comprehensive analysis of the national context and its specific needs (some recommendations on this point here).

Two other (relatively easy) voluntary measures that governments can also undertake at the national level:

  1. Establish voluntary due diligence within state-owned enterprises (SOE). Guiding Principle 4 of the UNGPs already clarifies that states are expected to “take additional steps to protect against human rights abuses by business enterprises that are owned or controlled by the state”. According to the Working Group, governments must ‘define the criteria under which they will require state-owned enterprises to conduct human rights due diligence, such as the size of the enterprise, the type of enterprise and its operations, the political and human rights context and the industry sector in which it operates’.
  2. Develop public procurement guidance. Governments purchase vast quantities of services and products from private businesses. Establishing robust procurement policies based on the UNGPs can create powerful positive incentives for businesses to respect human rights. In Chile, for example, the government procurement agency ChileCompra now bans companies from doing business with government entities if they found to be engaged in anti-union practices, and a bank of good practice from around the world is starting to emerge

 

4) National mandatory measures:

While the UNGPs do not demand that states adopt legislation requiring companies to carry out mandatory human rights due diligence (HRDD), passing mandatory BHR legislation is entirely in line with the UNGPs. There are a series of countries that have done so. France, the Netherlands and the European Union have passed mandatory due diligence legislation, while others, such as Switzerland and Germany, are in advanced stages of passing legislation. These legal developments have been characterised as “the beginning of a paradigm shift” which may eventually serve to give the UNGPs a mandatory framework. You can find a map of relevant mandatory measures in the BHR field here.

There are many reasons to pass mandatory HRDD—such as making companies pay attention to human rights, obliging companies to consider the interests of different stakeholders, or providing clear routes to remedy for individuals harmed by the activities of businesses.

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We’ve gone through a menu of options for governments who want to protect human rights. But knowing the menu isn’t alone sufficient to create a “smart mix” of measures.  

Before undertaking any policy decision, governments first need to understand the local context and identify the key issues that they want to address. The National Baseline toolkit developed by the Danish Institute for Human Rights (DIHR) is a good starting point for this; and GPD is currently working with the DIHR to build an evolution of this toolkit that is specifically tailored to the tech sector. 

Once that’s been decided, how should governments go about building their “smart mix”?

In a sense, the starting point is a simple and accessible one: any regulatory policies should be based on and aligned with the international human rights framework (including the UNGPs). Numerous tools and resources are now available—so governments can no longer cite a lack of them as an excuse for inaction.