This week, Moira Thompson Oliver (Senior Counsel) and Rosie Duthie (Associate) from our Sustainability team attended the 12th UN Forum on Business and Human Rights (the “Forum”) at the Palais des Nations in Geneva, Switzerland. In this article, they share their reflections on the Forum and what it means for business and human rights (“BHR”) in 2024.
The Forum and the UN Guiding Principles on Business and Human Rights (“UNGPs”)
The UN Human Rights Council (“HRC”) established the Forum in 2011 as a global platform for stakeholders to discuss trends and challenges in the implementation of the UNGPs. That same year, the HRC endorsed the UNGPs, which have become the authoritative global standard for businesses’ role in preventing and addressing adverse human rights impacts. Since then, the Forum has brought together delegates from business, government, international organisations, civil society organisations, stakeholder communities and academia to discuss progress and challenges in implementing the UNGPs, and BHR more broadly.
Our key takeaways from the Forum
The Forum was a great opportunity to discuss cutting-edge human rights issues for businesses and to understand the perspectives of delegates from a broad range of sectors. We heard from lawmakers about the direction of travel for regulation; from business leaders how they have navigated and met BHR challenges; and from indigenous peoples’ representatives about the need to meaningfully engage their communities in business decision-making.
Moira was returning to the Forum for the first time since the covid-19 pandemic, while Rosie was attending the Forum for the first time. We summarise our reflections on the key issues and next steps from the conference below.
1. Issues at the forefront of developments in BHR
Of all the issues central to BHR, climate may have been the one mentioned most often throughout the sessions. Discussions at the Forum made it clear that climate change poses a substantial threat to human rights and that businesses’ response to climate change and human rights must be integrated. Despite widespread understanding of the acute risk climate change poses to business, there is still some distance to go in harmonising standards to guide businesses in addressing their climate impacts. The distance to understanding the consequential social impacts is even larger. Understanding climate and social impacts together will help business address their overall sustainability impacts, but doing so requires a step change in methodology. For example, human rights impact assessments tend to focus on the short and medium term, whereas climate assessments need to rely on scientific data projected over a much longer period.
As appreciated this week at COP 28 in the form of landmark investments into the loss and damage fund, it is often the world’s most vulnerable communities that are hit first and hardest by climate change. Moreover, the green transition and related investments can have adverse human rights impacts. For example, mining for minerals required for batteries, solar panels and wind turbines, can impact local communities, workers and indigenous populations. Whether this impact is positive or negative will depend on how businesses engage with stakeholders and conduct themselves with regards to human rights.
This year’s Forum reaffirmed the importance attached by many to the green transition needing to be a just transition, and the increasing levels of scrutiny on businesses in relation to human rights impacts in their value chains. Similarly, stakeholders are increasingly focusing on whether divestment from projects and sectors, for example fossil fuel plants, is carried out in a way that respects the rights of workers and local communities.
B. Artificial intelligence (“AI”)
At the launch of the UN B-Tech papers on the human rights dimensions of generative AI, the panel acknowledged the challenges of addressing the human rights risks rising from the use of AI. There are particularly acute concerns about AI being used to moderate content on social media platforms, most notably in conflict or election scenarios where there have been examples of AI being deployed to manipulate public debate. This, compounded by the challenge posed by technology developing faster than proposed new regulations, poses a problem for businesses at the cutting edge of AI development, and those looking to integrate it into their practices.
Some large tech companies have forged ahead and set their own internal standards. Those companies with developed processes for managing the human rights risks of AI should be used as examples of how to implement comprehensive, cross-business frameworks and processes. Such best practice must, however, be supported by consistent, binding national and international laws and standards, aligned with the UNGPs to provide certainty and a level-playing field for responsible businesses.
Additionally, there is a risk of focussing exclusively on a small number of large tech companies when discussing AI. The value chains of AI, from development through to use, are long, and so for AI to be developed and used responsibly, there is a role for a large number of businesses. It is important that regulation is widely applicable to companies developing and using AI in a range of ways. Moreover, public procurement can play an important role in setting expected human rights standards.
C. A human-centred approach
A consistent theme of the Forum was the importance of putting affected persons at the centre of decision-making, with a strong focus at the Forum this year on vulnerable groups. Indigenous peoples were represented by community leaders and members on many panels and in contributions from the floor during Forum sessions. There were sessions focussing on gender and migrant workers’ rights.
The importance of centralising communities in decision-making affecting them and respecting their views about business practice and nature was emphasised consistently. Panel members spoke about the importance of recognising intersections and that vulnerable groups – including women, members of the LGBT+ community, people with disabilities, indigenous people, all of whom were represented – are never homogenous. Human rights impacts on individuals will vary and business practices must be assessed and designed accordingly.
In practice, adopting a human-centred approach means adopting the UNGPs' focus on impact and looking to the good examples already set by businesses and governments to engage vulnerable groups and to protect human rights. The renewable energy solutions designed to respect indigenous populations rights in Canada, the US and New Zealand were given as examples for other governments.
Meanwhile, there are good examples of businesses engaging effectively with communities throughout the lifetime of their project or involvement with a community, with positive outcomes for both. Panellists emphasised that engagement is not a one-time exercise: the most effective engagement is conducted early and on an ongoing basis to build and maintain trust. It can also be helpful to consider the role of procedural rights such as access to information, consultation, and participation in decision-making, which can build the foundations for meaningful participation and engagement.
As legislatures worldwide increasingly formalise business’ responsibilities in relation to human rights, the risk assessment of doing business is changing. Increasingly, effective human rights due diligence is an inherent part of doing business internationally. The key for businesses will be to ensure that diligence is managed in a way which is effective, efficient, compliant with the numerous obligations they are subject to, and works across their entire global footprint.
2. Practical steps to implementing the UNGPs
The themes and focus areas of the Forum offered important insights into the direction of travel for legislation and societal expectations on BHR. However, the practical implications of this were less easily identified. The three key actions we heard calls for were:
A. Meaningful Partnerships
Throughout the Forum, there were repeated calls for more and closer partnerships between businesses and their value-chain partners. The key question to be answered is what this looks like for multinationals with thousands of suppliers and complex value chains. Moreover, the challenges for SMEs of compliance with existing and incoming regulations were often presumed to be addressed by reference to support from larger business partners. Again, what form this support takes and how to deliver it has been left to business to solve.
The best methods of partnership will be bespoke to each business and relationship. However, cross-business insights will be crucial, as will the role of legal and other advisors in keeping on top of updates, advising clients on best practice for their sector, and supporting them with the strategy and integrating human rights due diligence and governance into their practices.
B. Action based on diligence
The clear message from the Forum was that we are moving from an age of disclosure to the age of action. This will be no surprise for many businesses already aligning with the UNGPs and closely following developments in the draft EU Corporate Sustainability Due Diligence Directive. However, even after outstanding questions around in-scope companies, directors’ obligations and value chains are resolved, practical questions about implementation will remain.
For many of our clients, we foresee remedies being a key area of upcoming focus. Discussions at the Forum made clear that the expectation will be engagement of impacted persons and communities from design to delivery, in line with the broader human-centred approach.
C. Additions to the “smart mix”
Finally, the famous “smart mix” of measures needed to make progress on human rights includes law-making that is consistent with the UNGP standards and across borders.
As part of that, there were reflections on the ongoing negotiations for an international legally binding treaty to regulate, in international human rights law, the activities of transnational corporations and other business enterprises (the “Treaty”). Members of the Open-ended Intergovernmental Working Group on Transnational Corporations and other Business Enterprises with Respect to Human Rights at the Forum noted:
- increasing numbers of states are engaging in the Treaty’s development, but the number actively engaged at the last session was still only 29. This needs to improve if the Treaty is to provide an international, binding instrument applying to human rights impacts across borders;
- the Treaty must apply to all businesses, in line with the UNGPs and must cover rights including the right to a safe and healthy environment, but there is continued debate on which rights to include; and
- discussions are ongoing about the liability and sanctions regimes, namely inclusion of strict liability and reintroducing the language on penalties from earlier drafts.
The Treaty is another of the many national and international standards that are being developed in this space. While it adds to the substantial horizon scanning task at hand for businesses, its ambition is to formalise and legalise the standards in the UNGPs and complementary OECD and ILO guidance. Therefore, there is hope that it will provide coherence and consistency across borders – a particularly important prospect for multinational businesses.
In the meantime, businesses should engage with their advisors to understand the latest guidance – including the updated OECD Guidelines for Multinational Enterprises on Responsible Business Conduct, which include the lessons learned since endorsement of the UNGPs in 2011 into guidance from governments to multinationals – and to prepare for the increasing number of hard law obligations coming down the track.
Next week, Moira will be attending the Sporting Chance Forum which aims to bring together stakeholders from across the world of sport to discuss sport and human rights and to set the direction for responsible sport.