Article, Global

UNGPs: a decade of incoherent action


Business-related human rights violations are frequent occurrences. Yet there is an international framework designed to provide solutions. This month marks the 10th anniversary of the adoption of the UN Guiding Principles on Business and Human Rights.

Laurent Matile
Laurent Matile

Expert on Enterprises and Development

UNGPs: a decade of incoherent action

© Nic Bothma / EPA

Major international brands are implicated in forced labour at factories associated with Uighur internment camps in Xinjiang; there are commercial links between Western companies and the conglomerates controlled by the military junta in Myanmar. Corporate accountability is currently a hot-button issue, both in Switzerland and beyond.

Under its mandate to promote the UNGPs, the United Nations Working Group on Business and Human Rights has initiated a project to design the path for a new "decade of action" (UNGPs 10+). The aims are to take stock of accomplishments to date, assess existing gaps and challenges and, above all, formulate a vision and a roadmap for the broader and more extensive implementation of the UNGPs by 2030. The project is supported notably by the German Government and by the Swiss Federal Department of Foreign Affairs (FDFA).

In the words of Anita Ramasastry, Chairperson of the aforementioned Working Group, “this 10-year anniversary must represent a real inflection point for the future we want. We are facing climate and environmental crises combined with other major global challenges such as shrinking civic space, populism, corruption, conflicts and fragility, as well as the still unknown human consequences of technological disruption”. The social and economic crisis spawned by Covid 19 has laid bare and amplified gross existing inequalities and structural discrimination. The 17 Sustainable Development Goals (SDGs) emphasise that responsible businesses are a part of the solution. The three pillars of the UNGPs lay out what is needed in practice: States must protect human rights, companies have a responsibility to respect human rights and victims must have access to effective remedy.

The UNGPs have so far helped to bring about substantial progress, but much more remains to be done in order to achieve their own vision of "tangible results for affected individuals and communities, thereby also contributing to a socially sustainable globalisation."

On the positive side, the UNGPs provide a globally agreed standard and baseline for what governments and businesses need to do to embed respect for human rights in a business context – something which did not exist before 2011. One of the most telling examples is the key UNGPs concept of corporate human rights due diligence. It is now at the centre of regulatory developments in Europe, with increasing backing from business and investors.

At the same time, prevention remains inconsistent, relatively few governments are taking action beyond lip service to the UNGPs, and access to remedy for business-related harms is a major and urgent challenge

Challenges and gaps of the UNGPs: viewpoints from Africa

Among the gaps and key challenges underlined by the African Coalition for Corporate Accountability (ACCA) in its submission to the Working Group is the on-binding character of the UNGPs: "The fact that no specific legal consequences are attached to the violation of UNGPs, especially for companies, is undoubtedly one reason for their failure to be effective in Africa.”

Another major challenge is the inadequacy of the existing legal framework, in particular as regards land ownership rights. Most commercial activities in Africa in fact require and depend on the acquisition of large areas of land to the detriment of local communities. The way land is held presents an array of obstacles for communities seeking access to remedy when land is taken or harmed due to international investment and development projects.

According to the ACCA, the third major challenge is the failure of the third pillar concerning access to remedy. In Africa, the communities and individuals whose rights are affected by business-related activities have faced major challenges in accessing timely and effective remedies. There is "a wide range of options for remedies but not enough actual remedy." Moreover, the power of enterprises and the absence of the rule of law represent an enormous challenge. There is an increasing corporate capture of state institutions that has led to corporate impunity in Africa. There is shrinking space for most human rights defenders on the continent to operate. Speaking up about human rights and environmental abuses from business activities in Africa is more dangerous.

It is therefore critical that extraterritorial obligations of States over transnational corporations be strengthened in policy and legal frameworks to ensure effective access to remedy measures beyond national remedial mechanisms. In other words, countries that are host to the corporate head offices and/or decision-making centres of enterprises should adopt binding legislation designed to avert human rights abuses and ensure access to remedy.

Ten years of procrastination by Switzerland

It is interesting to read in Switzerland's submission of January 2021 to the UNGP 10+ project that the medium and long term objective should be to achieve balanced international regulations; the submission further states that this could take the form of an international reference framework based on the Guiding Principles of both the UN and the OECD, as well as the OECD Guidelines on Due Diligence, on which basis each State could develop a suitable national legal framework relating to the observance of human rights by enterprises. The convoluted language is striking. But let us move on from words to deeds!

It is recalled, besides, that in late 2016 the Federal Council had adopted only a national action plan relating to business and human rights, and it was hardly consistent with the Federal Council’s position and action plan on corporate responsibility towards society and the environment, dated April 2015. Sharply criticised by the NGOs as “lacking action and ambition", these two documents were revised in January 2020 and now cover the period 2020-2023. Moreover, the Federal Council had initially opposed the Responsible Business Initiative without putting forward a counterproposal; it then changed its mind and in a tactical move submitted a hybrid text to Parliament after all, one that did no more than incorporate elements of legislation already in force in the EU and the Netherlands in order to sow confusion in the minds of the public in connection with the vote of 29 November last. Alliance Sud will be closely monitoring the implementation of the watered-down counterproposal – set to take effect in January 2022 – and will continue to advocate that Switzerland should adopt substantive and binding legislation in order to ensure full respect for human rights and the environment by business, as well as access to remedy.

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