UN Guiding Principles at 10: Permeating Narratives or Yet Another Silo?

Abstract

The endorsement of the United Nations Guiding Principles on Business and Human Rights (UNGPs) triggered a remarkable process accelerating the recognition of human rights responsibilities for corporations in law and governance. Perhaps even more important is the emergence of an authoritative narrative on business and human rights (BHR), which arguably has the potential to overcome the often-fragmented approach to global issues. This article discusses the degree to which the BHR narrative has been able to penetrate competing powerful narratives that shape societal and regulatory responses. To what extent is the need to address the responsibility and accountability of corporations for human rights violations acknowledged? This is an especially pertinent question where it concerns imminent major global challenges such as climate change, which poses one of the greatest threats to human rights. Two major milestones of the last decade in the area of (environmental) sustainability are analysed: the Paris Climate Agreement and the Sustainable Development Goals. What role does the BHR narrative play in this context?

I. Introduction

The endorsement of the United Nations Guiding Principles on Business and Human Rights (UNGPs) ¹ by the Human Rights Council ten years ago has propelled the development of ‘the business and human rights (BHR) movement’. The roots of the idea that corporations hold responsibilities for adverse human rights impacts stretch further back, though. Tragic, high profile examples of corporate misconduct such as the Bhopal disaster in 1984 or the Ogoni Nine executions in 1995 fuelled the quest for corporate accountability for human rights abuse. Subsequent development in law, regulation and governance was nevertheless relatively minor in light of the challenge of closing the governance gap, the gap between the influence of corporations and the ability to regulate. The adoption of the UNGPs in 2011 is considered a game-changer. The UNGPs have accelerated developments in law and governance recognizing human rights responsibilities for corporations in an unprecedented manner. Norms in the UNGPs, such as human rights due diligence (HRDD), have found their way into regulation at the national, regional and international levels. For example, at the national level, an increasing number of countries have adopted National Action Plans on Business and Human Rights articulating how they will implement the UNGPs. ² Moreover, the UNGPs point the direction of future travel towards an increasing role for national law in this field, as can be witnessed by the growing body of laws on mandatory HRDD or elements thereof, such as disclosure and reporting. ³ Moreover, there has been considerable uptake of the UNGPs at the regional level. ⁴ For example, the European Union (EU) is working on legislation to make human rights and environmental due diligence in international supply chains mandatory for EU enterprises. ⁵ At the international level, the UNGPs have found uptake in several international guidelines ⁶ and there is the continuing work towards a BHR treaty. ⁷

These developments are quite remarkable in light of the relatively short time that has passed since the adoption of the UNGPs. Yet, at the same time, it is easy to overstate the impact of the UNGPs. It has been pointed out that awareness of the UNGPs beyond the ‘business and human rights-bubble’ of consultants and academics working in this field, is quite low or uneven. ⁸ The spill-over from soft law instruments into hard law is an embryonic development. Many developments are either small scale, in their infancy or, as some human rights advocates argue, have yielded disappointing results from the perspective of holding corporations accountable for human rights violations and providing victims with access to an effective remedy.

Perhaps more important than the at times slow or uneven developments in law and regulation is the fact that the UNGPs provide a ‘lingua franca’, a common language embraced by both private and state actors enabling a dialogue on BHR. Arguably, as suggested by Rees, with the adoption of the UNGPs, BHR has moved from a ‘language’ and has emerged as a ‘narrative’. ⁹ This narrative offers ‘an organizing and explanatory or justificatory framework for [subsequent] initiatives’. ¹⁰ According to Rees, the UNGPs provide ‘normative legitimacy’, and the narrative drives ‘convergence and coherence’ creating much greater momentum behind changes in business practice.’ ¹¹ The term ‘narrative’ means different things in different disciplines. According to the Cambridge Dictionary, a ‘narrative’ is a particular way of explaining or understanding events. ¹² Like Rees, this article applies this understanding of the term narrative. It is used to refer to the degree to which the UNGPs (or elements thereof) are applied in subsequent developments that can potentially accelerate change. Narratives can influence, shape and validate societal developments. ¹³ Despite the apparent global acceptance of the UNGPs as a normative reference point on acceptable corporate behaviour, the crucial question remains whether they are able to sufficiently permeate the critical discussions addressing the global challenges of our time. Certain contemporary challenges, such as climate change, pose such a threat to human rights, in fact an existential threat to humankind, that urgent action is needed. It is vital that a responsible role for corporations and their impact on human rights are not overlooked.

It is against this background that this article discusses the degree to which the UNGPs, and the BHR narrative that has emerged, have been able to penetrate competing powerful narratives. The previous decade saw not only the emergence of the BHR narrative but also the further development of other, influential narratives that speak to certain constituencies on various issues of global concern such as inequality, sustainability or the environment. Such narratives carry ‘increasing influence in policy-making and standard-setting’ ¹⁴ yet seem to develop largely in isolation and compete for attention of policymakers. The normative success of the UNGPs depends on the extent to which they succeed in permeating other influential narratives, aligning different policy areas that are currently often addressed in isolation. As will be discussed, Rees (and others) argue that the BHR narrative has ‘tremendous strength’ to permeate, strengthen and enrich other powerful narratives. ¹⁵ The focus of this article is on the narrative of (environmental) sustainability.

After discussing what is meant by the BHR narrative, the fragmented approach towards issues of global concern and the potential role of the BHR narrative is addressed in section II. The article then turns to the issue of climate change and sustainable development and the accompanying narratives that have further developed in the previous decade in this area in parallel to the BHR narrative. The impact of corporations on human rights in the context of climate change and sustainability requires attention. The aim of this article is to see whether traces of the BHR narrative can be found in these competing narratives. ¹⁶ This is done by exploring two major instruments adopted in the previous decade that have given further profile to the narrative of (environmental) sustainability. In section III, the 2015 Paris Agreement under the United Nations Framework Convention on Climate Change (Paris Climate Agreement) ¹⁷ and the role of the BHR narrative is addressed. Section IV turns to the 2030 Agenda that launched the Sustainable Development Goals (SDGs). The question is addressed what role the BHR narrative plays in the SDGs. The analysis reveals little evidence that states have taken the BHR narrative on corporate responsibility and accountability as normative guidance in drawing up these documents. It is concluded that despite the apparent success of the UNGPs, old habits die hard and there is a risk of perpetuating old narratives when it comes to the role of BHR.

II. The Business and Human Rights Narrative in a Fragmented Landscape

With the adoption of the UNGPs, the ‘decade of BHR’ has accelerated and gained sharp profile. ¹⁸ Several features set BHR apart from other approaches to the responsibility of corporations such as corporate social responsibility (CSR). ¹⁹ Importantly, BHR shifts the discourse away from corporate philanthropy – the positive contribution that corporations can make to people’s lives – to mitigating, preventing and remediating adverse human rights impacts of corporate activities. Corporate responsibility and accountability are thus at the core of BHR. A distinguishing feature of BHR is the development of standards, such as the UNGPs. ²⁰ The UNGPs, and elements thereof, have gained traction and arguably we are seeing the emergence of a BHR regulatory regime, although the process is slow and uneven. However, perhaps more important is the narrative that has emerged and grown since the adoption of the UNGPs and its potential to influence different narratives and approaches to global problems. The tendency to address such issues in isolation, with little to no interaction between regimes and policy areas, is well known. This problem of fragmentation of normative and institutional activity is mostly discussed from the perspective of international law. ²¹ It has been suggested that the design and language of the UNGPs have the potential to break down silos and fragmented responses. ²² Ruggie points out that the idea behind the UNGPs rests on ‘the distributed network approach’ rather than relying exclusively on top-down UN processes. This, according to Ruggie, is an important explanation of the success of the UNGPs as it has ‘triggered a process of “norm-cascading” well beyond their institutional sphere of origin’. ²³ The driving assumption behind the UNGPs is that compliance results primarily from persuasion, socialization and ultimately internalization rather than through coercion through law. ²⁴ These processes are intimately linked with language. The process towards the UNGPs created a shared narrative across different communities, neutralizing a lot of dissent and critique, which paralysed previous initiatives. The choice of language has contributed to the diplomatic success of the UNGPs. ²⁵ The use of (elements of) the BHR narrative across domains may be seen as a reflection of the degree of socialization and internalization, which ultimately may help guide policy responses towards a universalistic notion of BHR.

In parallel to the emergence of the BHR narrative, other existing and new narratives compete for influence. The question is whether the BHR narrative, especially its emphasis on the responsibility and accountability for adverse human rights impacts, in fact is permeating other competing influential narratives that shape societal and regulatory responses. Or does the BHR movement run the risk of heading towards becoming too much ‘a world of its own’, a too isolated narrative resulting in yet another silo in law, regulation and governance with too little interaction with crucial other regimes?

The decade that saw the adoption of the UNGPs also witnessed two other, interwoven narratives gaining further profile with the adoption of two global instruments. ²⁶ In 2015, 196 states adopted the latest global instrument aimed at combating the existential threat of climate change: the Paris Climate Agreement. In the same year, ‘Transforming our World: The 2030 Agenda for Sustainable Development’ with the 17 SDGs was adopted. ²⁷ The 2030 Agenda is a call to action for the international community to advance peace and prosperity for people and the planet. The SDGs aim to end poverty, which must go hand in hand with strategies that improve health and education, reduce inequality, and spur economic growth – all while tackling climate change and working to preserve oceans and forests. The narratives surrounding climate change and sustainable development have proven influential, gaining traction in the international community of states, international organizations and the private sector. The question further explored below is to what extent a responsible role of corporations in light of adverse impact on human rights, the core of the BHR narrative, plays a role in these two major milestones of the (environmental) sustainability narrative: the Paris Climate Agreement and the SDGs.

III. The Paris Climate Agreement and the Business and Human Rights Narrative

To address the imminent dire implications of climate change for people and the planet, an elaborate legal regime has evolved. Central to this is the 1992 UN Framework Convention on Climate Change, followed by the Kyoto Protocol in 1997. The most recent global effort is the 2015 Paris Agreement, which creates an international legal regime to be implemented from 2020 onwards, with the goal of progressively reducing greenhouse gas emissions and enhancing the capacity of economies and communities to adapt to climate impacts.

Before analysing the role of the BHR narrative in the Paris Climate Agreement, the link between climate change and human rights more generally and, subsequently, the role of corporations and the UNGPs are briefly addressed.

It is clear that the consequences of climate change, such as severe weather events, floods, droughts, and food and water scarcity, are already negatively affecting the present generation and will continue to impact on the rights of future generations. Moreover, the necessary mitigation and adaptation measures can also have an adverse impact on human rights. ²⁸ While the impact of climate change on human rights is increasingly clear, a human rights law approach to climate change is not that straightforward. Certain characteristics of human rights law such as its state-centric focus, the continuing controversy of the extraterritorial reach of state duties and the micro-approach in the context of systemic processes and issues of causation present challenges to a human rights approach to climate change. Notwithstanding the complexities, it is clear that climate change is a human rights issue and over the past few decades, a human rights approach has slowly been included in the climate change regime. The preamble of the Paris Climate Agreement calls on parties to respect, promote and consider their human rights obligations when taking climate action. ²⁹ The reference ended up in rather soft language in the preamble, but this development is significant nonetheless. The explicit reference to human rights makes the Paris Climate Agreement the first global environmental agreement confirming the international community’s recognition that human rights obligations apply in the context of climate change. ³⁰

The Paris Climate Agreement stresses the intrinsic relationship that climate change actions, responses and impacts have with sustainable development for all in an unequal world and the eradication of poverty. ³¹ The Agreement also points out the importance of protecting people and vulnerable groups in the context of adaptation measures. As pointed out by Duyck, such ‘references provide an opportunity to implement the Paris Agreement while taking into account other rights-related objectives defined by the international community such as those related to 2030 Agenda and the SDGs’. ³²

Before discussing if and to what extent the UNGPs are taken into account in the Paris Climate Agreement, the role of corporations in the context of climate change requires some further exploration. Corporations are critical actors in addressing climate change. On the one hand, corporate activities drive climate change. Just 100 businesses (known as ‘carbon majors’) are responsible for 71 per cent of industrial greenhouse gas emissions since 1988. ³³ In addition, other corporate activity such as deforestation or mining contributes to climate change that in turn can generate negative human rights impacts. Moreover, the need to address the threat of climate change has created new business opportunities for innovative industries, which are less carbon intensive and crucial to reach the goals set. The booming renewable energy industry has faced increasing scrutiny for lack of respect for human rights. It is feared that the rush towards a net zero carbon future will come at the expense of the vulnerable. A recent report shows the impact of the renewable industries on, among others, land rights, right to health and indigenous rights. ³⁴ As pointed out in this report, it is crucial that states set out clearly the expectation that these corporations will live up to the responsibility to respect human rights as laid down in the UNGPs.

The UNGPs do not explicitly address climate change but clearly are relevant to climate mitigation efforts on the part of states, businesses and other stakeholders. ³⁵ According to the Office of the High Commissioner of Human Rights (OHCHR), human rights obligations of states in the context of climate change also involve the obligation to regulate business activities, implying that states must ‘take adequate measures to protect all persons from human rights harms caused by business activities and, where such harms do occur, ensure effective remedies’. ³⁶ Thus, as part of Pillar I duty under the UNGPs, states would be expected to take a range of effective measures to protect against business-related climate change within their territory and/or jurisdiction. In addition to the obligations of states to prevent harm when taking climate action, the private sector responsibility to respect human rights under the UNGPs also applies in the context of climate change and sustainable development. There is growing recognition that climate change-related human rights impacts are a necessary dimension of the HRDD processes that businesses are required to put in place in order to fulfil their responsibility to respect. ³⁷

In sum, states and corporations bear human rights duties and responsibilities respectively in the context of climate change in accordance with the UNGPs. This, however, is not reflected in the Paris Climate Agreement. The Agreement includes a reference to human rights in general, but no reference is made to the responsibilities of business for human rights or the UNGPs. ³⁸ The perspective towards the private sector is one of partnership. Commitment of the private sector is critical for mobilizing the vast financial resources and providing the technological innovations needed to meet the goals set. ³⁹ However, as discussed above, corporate involvement in mitigation and adaption measures to address climate change can have an adverse impact on human rights. The responsibility of corporations for such impact is not addressed. The emphasis on the voluntary role of private sector actors has raised serious concerns among civil society groups. ⁴⁰ Concerns were expressed that certain projects and initiatives with notorious environmental and human rights records are not scrutinized. As aptly put by Duyck:

the necessity to act in order to reduce the causes and effects of climate change does not justify that response measures violate or threaten to violate the rights of the most vulnerable. As a consequence, policy choices regarding mitigation options must take into consideration adverse social impacts, such as threats to food security and the risk of land grabs. ⁴¹

Duyck recommends that ‘emerging efforts to incentivise and recognise voluntary actions by corporate actors should build on internationally agreed standards regarding the responsibility of the private sector for the protection of human rights’. ⁴² This, however, has not been the case. The Paris Climate Agreement does not refer to the UNGPs and it is therefore not surprising that the BHR narrative in subsequent practice since the adoption of the Paris Agreement seems largely absent.

At the same time, the Paris Climate Agreement has found quite some traction with the business community. Leading up to the adoption of the Agreement, coalitions of business and investors have pledged to reduce their carbon footprint and accelerate the transition to a low carbon economy. ⁴³ There has been a proliferation of voluntary and collaborative initiatives of various non-governmental actors, including business, aimed at helping achieve the goals of the Paris Climate Agreement. In 2016, at the 22nd session of the Conference of the Parties (COP 22), the so-called ‘Marrakesh Partnership for Global Climate Action’ was launched with the aim to formalize and further structure the many actions of non-governmental actors and linking these to other international agendas, in particular the SDGs. ⁴⁴ The Marrakesh Partnership does not address ‘the importance of promoting the accountability of the participating actors with regards to human rights. Both the criteria included for the selection of projects and initiatives focus only on climate benefits and on transparency regarding these climate-related outcomes’. ⁴⁵

Thus, in the context of the Paris Climate Agreement, there is no recognition of the need to ensure that corporations, which are incentivized through the international climate narrative, respect human rights standards in this process. The UNGPs, being the most authoritative statement on the responsibilities of corporations for human rights, ‘could provide a useful tool to develop more stringent selection’. ⁴⁶ State reporting also does not reflect acknowledgement of the importance of corporate responsibility for human rights in this context. States are under the legal obligation to prepare, communicate and maintain the so-called Nationally Determined Contributions (NDCs) on the basis of successive five-year cycles. The importance of including the need for corporate respect for human rights in climate action in the NDCs has been pointed out. ⁴⁷ However, reference to BHR in the NDCs seems to be absent. ⁴⁸ In sum, the role envisioned for the private sector in the Paris Climate Agreement and subsequent documents and processes is one of partnership. The focus is on a voluntary contribution to achieving the aims of the Agreement bypassing any mention of the need to ensure a responsible and accountable role for corporations for adverse human rights impact in the context of climate change. The BHR narrative hardly seems to play a role so far.

IV. The Sustainable Development Goals and the Business and Human Rights Narrative ⁴⁹

The last BHR decade saw the adoption of another influential global instrument. In 2015, the United Nations General Assembly adopted the 2030 Agenda for Sustainable Development. ⁵⁰ Building on the Millennium Development Goals (MDGs), the 2030 Agenda sets new goals aimed at mobilizing efforts to end all forms of poverty, fight inequalities and tackle climate change. The 2030 Agenda contains 17 SDGs and 169 targets. Moreover, a global indicator framework containing 230 indicators has been developed to measure progress. Compared with the preceding MDGs, the SDGs are more elaborate, addressing a wider scope of global challenges including climate change, and apply universally.

The 2030 Agenda and the SDGs have proven to be a successful narrative capturing the attention of many international organizations, states and other actors, including the human rights community. Arguably, the development of an extensive institutional apparatus to measure progress, adds to the appeal of the SDGs. The Global Compact, the UN’s call for companies to align their operations with universal human rights, labour, environment and anti-corruption, offers an example of the appeal and influence of the SDG narrative. On the website and in the UN Global Compact’s strategy for 2021–2023, the SDGs take centre stage. ⁵¹ This raises the question to what extent this includes the BHR focus on responsibility for adverse human rights impact. In other words, what role does the BHR narrative play in the SDGs? To analyse this, first a brief discussion of the role of human rights in the SDGs in general is required before turning to the BHR dimension.

The goals set by the UN 2030 Agenda are ambitious and promise to ‘leave no one behind’. There is quite some overlap between the aims of 2030 Agenda and human rights in this overall promise, in the references to human rights in the Agenda and in many of the targets that implicitly reflect human rights language. ⁵² The goals themselves, however, do not explicitly refer to human rights. In fact, notwithstanding that there seems more convergence between human rights and sustainable development when compared with the MDGs, the connection between human rights and the SDGs is not that straightforward and requires critical assessment. ⁵³ Despite general references to human rights, the language in 2030 Agenda and the SDGs is largely non-committal and avoids recognition of responsibility and accountability for human rights. ⁵⁴ An important feature of the SDGs is that these goals explicitly recognize business as a key partner in realizing sustainable development. ⁵⁵ Involvement of the private sector is especially deemed crucial for raising the massive financial resources necessary to meet the goals set. ⁵⁶ Moreover, the SDGs foresee an important role for business in the areas of innovation and job creation. The role envisioned for business is most explicit under SDG 17 ‘Partnerships for the Goals’.

Thus, the 2030 Agenda and the SDGs recognize the private sector as a partner in achieving sustainable development, continuing an earlier development towards public–private partnership in the field of sustainable development. ⁵⁷ This raises the question if, or to what degree, the SDGs pay attention to the accountability dimension of involving corporations in reaching the SDGs. It is argued that tensions exist when turning to corporations to achieve the SDGs without acknowledging their possible complicity in creating some of the problems of sustainable development. ⁵⁸ To what extent is the negative impact that corporations can have on individuals and communities acknowledged in the SDGs?

An analysis of the 2030 Agenda shows that very little attention is given to the BHR narrative. ⁵⁹ The UNGPs are referred to only once in the 2030 Agenda, in paragraph 67 where it is stated that:

Private business activity, investment and innovation are major drivers of productivity, inclusive economic growth and job creation. […] We call on all businesses to apply their creativity and innovation to solving sustainable development challenges. We will foster a dynamic and well-functioning business sector, while protecting labour rights and environmental and health standards in accordance with relevant international standards and agreements and other on-going initiatives in this regard, such as the Guiding Principles on Business and Human Rights. ⁶⁰

Scattered across the various targets there is some more implicit reference to a responsible role for business, albeit couched in terms such as ‘ensuring sustainable consumption and production patterns’ ⁶¹ or encouraging companies to adopt sustainable practice and integrating this sustainability information into reporting cycles. ⁶² Notably, in SDG 17 on Partnerships for the Goals and the accompanying targets, there is no reference to the responsibility of corporations or any other BHR language. Instead of referring to concepts of the BHR narrative, the 2030 Agenda and the SDGs include vague terminology where there is little common understanding of its meaning. An analysis of subsequent state reporting reveals very little evidence of the process of ‘norm cascading’. ⁶³ Only a handful of European countries show a limited degree of internalization of the BHR narrative by explicitly including BHR language in their Voluntary National Reports submitted in the context of the Follow-up and Review Procedure. Most reports mention the more vague and broader notion of CSR instead of referring to the BHR narrative. Most national reports make no mention of the responsibilities of corporations in the context of the SDGs. The lack of attention for the BHR narrative in the context of their involvement in achieving the SDGs has not gone unnoticed and has given rise to concern within civil society ⁶⁴ and various UN human rights bodies. ⁶⁵

V. Conclusion

The endorsement of the UNGPs in 2011 triggered a process through which, in a relatively short period, a BHR narrative has emerged with corporate responsibility and accountability for adverse human rights impacts at its core. Acclaimed as the authoritative normative reference point for responsible corporate behaviour, the UNGPs have been embraced by many. The success of the UNGPs lies in a process of ‘norm-cascading’, influencing other powerful narratives that ultimately help shape policy responses. Arguably, the design and language of the UNGPs hold promise to penetrate the notoriously fragmented regulatory and policy responses to global problems and the incoherence that arises from such a siloed approach. Corporate (ir)responsible behaviour plays a significant role in many of the challenges faced today. In the critical area of climate change, this is certainly the case. Yet, the dimension of corporate responsibility and accountability for human rights is largely lost in the (environmental) sustainability narratives. The above brief exploration of the Paris Climate Agreement and the SDGs, two global instruments central to the narrative on (environmental) sustainability, reflect remarkably little uptake of the BHR narrative by states. Despite the central role of business in (the responses to) climate change, the need to address the responsibilities of corporations for adverse impacts on human rights in this context is hardly addressed. It is argued that the degree to which states adopt this narrative can be seen as a reflection of a process of internalization of BHR and the need to hold corporations responsible and accountable for human rights violations.

In general, it should be acknowledged that progress in achieving these outcomes in the BHR field itself remains wanting. Moreover, the fact that these global instruments do not mention corporate accountability for human rights does not mean subsequent practice might not broaden to include this dimension, as recent climate litigation might indicate. ⁶⁶ However, the lack of reference to corporate responsibility and accountability in competing narratives indicates that BHR to date does not seem to function as the guidepost for states on how to involve the private sector in reaching (environmental) sustainability goals in a manner that recognizes their human rights responsibilities. In fact, the analysis in this article reveals the prevalence of perpetuating the CSR narrative of linking responsible business conduct to philanthropy. As Deva has pointed out, despite the continuing and ever more apparent negative impact of corporate conduct on human rights, most businesses are continuing with their leisurely ‘human rights journey’ and states often remain mute on the responsibilities of corporations. ⁶⁷ Moreover, ‘states continue to pursue a “development first, human rights later” strategy and “cash-strapped UN Agencies increasingly flirt with business to forge unprincipled partnerships”’. ⁶⁸ In light of the immense challenges and the need to mobilize vast resources, seeking the partnership of the private sector is a necessity, but this should not come at the expense of the vulnerable whose human rights are negatively affected by corporate activity.