38/49 Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises on the sixth session of the Forum on Business and Human Rights
Document Type: Final Report
Date: 2018 Apr
Session: 38th Regular Session (2018 Jun)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, Item5: Human rights bodies and mechanisms
GE.18-06406(E)
Human Rights Council Thirty-eighth session
18 June–6 July 2018
Agenda items 3 and 5
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Human rights bodies and mechanisms
Report of the Working Group on the issue of human rights and transnational corporations and other business enterprises on the sixth session of the Forum on Business and Human Rights
Note by the Secretariat
The present report, prepared in accordance with Human Rights Council resolutions
17/4 and 35/7, describes the proceedings and thematic recommendations of the sixth
session of the Forum on Business and Human Rights, held from 27 to 29 November 2017.
It should be read together with the Forum programme, session concept notes, statements,
and session web recordings, which are available on the Forum website.1
1 www.ohchr.org/2017ForumBHR.
United Nations A/HRC/38/49
Contents
Page
I. Introduction ................................................................................................................................... 3
II. Key messages from the opening plenary session .......................................................................... 4
III. Realizing access to effective remedy ............................................................................................ 5
A. Exploring elements of effective remedy: perspectives of affected stakeholders .................. 5
B. National action plans and the third pillar .............................................................................. 6
C. Judicial remedy ..................................................................................................................... 6
D. Strengthening State-based non-judicial remedy.................................................................... 8
E. Making operational-level grievance mechanisms work ........................................................ 10
F. Policy coherence ................................................................................................................... 11
G. Strengthening the third pillar in multi-stakeholder initiatives and platforms ....................... 13
H. Innovations in dispute resolution and leverage of third parties ............................................ 14
IV. Action on all three pillars .............................................................................................................. 15
A. State action ........................................................................................................................... 15
B. Corporate respect for human rights in practice ..................................................................... 15
C. Human rights defenders, civic freedoms and the role of business ........................................ 18
D. Corporate respect for human rights and the Sustainable Development Goals ...................... 19
E. Gender lens ........................................................................................................................... 19
V. Closing plenary and general recommendations ............................................................................. 20
I. Introduction
1. Since its first session in 2012, the Forum on Business and Human Rights has
become the world’s biggest event on business and human rights. It was established by the
Human Rights Council in its resolution 17/4, in which the Council also endorsed the
Guiding Principles on Business and Human Rights: implementing the United Nations
“Protect, Respect and Remedy” Framework (A/HRC/17/31, annex). The mandate of the
Forum is to discuss trends and challenges in the implementation of the Guiding Principles,
to promote dialogue and cooperation on issues linked to business and human rights,
including challenges faced in particular sectors, operational environments or in relation to
specific rights or groups, and to identify good practices.
2. The Forum is organized by the Office of the United Nations High Commissioner for
Human Rights (OHCHR) and guided and chaired by the Working Group on the issue of
human rights and transnational corporations and other business enterprises. The present
report was prepared by the Working Group in accordance with Human Rights Council
resolution 35/7, in which the Council invited the Working Group to submit a report on the
proceedings and thematic recommendations of the Forum to the Council for its
consideration. In the present report, the Working Group provides an overview of key
observations and messages emerging from the Forum.
3. The programme for the 2017 Forum included two plenary sessions and more than 80
parallel sessions, the latter organized by the Working Group, OHCHR and external
organizations on the basis of extensive consultations and some 130 submitted session
proposals.
4. Under the theme of “Realizing access to effective remedy”, participants in the
Forum examined gaps and shortcomings in current efforts, and emerging good practices
and innovations to ensure access to effective remedy. Multi-stakeholder discussions
covered the full range of mechanisms envisaged under the third pillar of the Guiding
Principles: State-based judicial mechanisms, State-based non-judicial grievance
mechanisms, and non-State-based grievance mechanisms.
5. The Forum programme included a number of sessions dedicated to specific issues,
trends and challenges in implementing all three pillars of the Guiding Principles. In
addition to the dialogue held at the Forum, the Working Group facilitated a blog series to
inform Forum discussions.2
6. The Forum was attended by more than 2,500 participants from 130 States, from a
wide range of categories (see table below).
Category of participating stakeholders (%) Total
Academic 14
Private sector (business enterprises, business/industry associations, consultancies,
law firms, investors) 26
Civil society organizations, affected stakeholders, trade unions and indigenous
peoples’ groups 35
Multi-stakeholder initiatives 3
National human rights institutions 2
Member or Observer States 10
United Nations/intergovernmental organizations 7
Other 2
7. Participation has increased significantly since the first Forum in 2012, when around
1,000 people registered. Private sector representation has also witnessed steady growth.
Some 55 per cent of registered participants were women.
2 See http://blog.journals.cambridge.org/tag/wgbizhrs/.
II. Key messages from the opening plenary session
8. The Forum was opened by OHCHR and the Working Group. In their opening
remarks, they underlined the fact that the growing interest in the Forum reflected the
importance of the business and human rights agenda. They reiterated the importance of the
theme of the 2017 Forum, noting that, while the first and second pillars of the Guiding
Principles had received considerable attention since 2011, progress on pillar three —
realizing access to remedy for victims of business-related human rights impacts — had
been lagging.
9. Discussions were set in the broader context of the seventieth anniversary of the
Universal Declaration of Human Rights, and the overarching vision of realizing dignity for
all humanity. Standing up for human rights and making progress on realizing access to
remedy for those adversely affected by business activity would make a real difference in
advancing towards this vision.
10. The Working Group highlighted the progress made in stated commitments to
translate the Guiding Principles into action: examples of national action plans and corporate
policy commitments across regions; promising regulatory developments, such as the French
“duty of vigilance” law; the recognition by Group of 20 (G-20) leaders of the importance of
the Guiding Principles for sustainable supply chains; and the broad support from all
stakeholder groups for the theme of “access to remedy” of the 2017 Forum, showing that
dialogue on business and human rights had matured.
11. As part of its efforts to focus more attention on access to remedy, the Working
Group had dedicated its latest report to the General Assembly to the issue of access to
remedy (A/72/162). Its overall recommendation was that States should establish effective
remedial mechanisms, both judicial and non-judicial, and address barriers in their access to
those mechanisms; rights holders should be at the heart of the remedy process, and due
attention paid to the diverse experiences of rights holders, including the central importance
of adopting a gender lens; freedom of fear from victimization and attacks on human rights
defenders should be addressed; and remediation efforts should be effective in both process
and outcome.
12. The subsequent keynote plenary panel featured a group of prominent women leaders
from different backgrounds. They addressed the topic of access to remedy further, and also
an array of key issues confronting the global business and human rights agenda:
(a) The need for States and businesses to demonstrate stronger leadership.
Examples of State leadership included recent efforts in Indonesia to protect human rights
and to fight forced labour and trafficking in the fisheries sector, and regulatory
developments, such as the Modern Slavery Act in the United Kingdom of Great Britain and
Northern Ireland, and the “duty of vigilance” law in France, which had contributed to
greater corporate attention to the expectation that companies exercise human rights due
diligence. At the same time, regulations are only as good as their implementation.
Examples of corporate leadership included steps taken towards greater transparency in
supply chains, including by taking advantage of technological solutions to gather more
intelligence about risks and impacts, adopting business models that embed respect for
human rights in policies and procedures, and collaborating with civil society organizations
to strengthen both preventive measures and accountability;
(b) The connection between corporate respect for human rights and inequality.
Growing inequality is at the origin of human rights violations and abuse, and the erosion of
democracy; improving conditions for workers at the bottom of the supply chain, with
special attention to the situation of women, temporary workers and migrants, is critical;
(c) Responsible tax practice. One key concern is that corporate “tax dodging”
had a negative impact on the ability of Governments to realize economic and social rights
(including the funding of schools and health services), with a disproportionate negative
effect on the poorest and most vulnerable in society. Companies should align behind
responsible tax practices as a critical component of efforts contributing to the achievement
of sustainable development for all;
(d) The increase in attacks on those who speak up against corporate impact on
human rights and shrinking civic space. As an increasing number of States were
introducing restrictions on civic space, in 2016 the number of attacks against and killings of
human rights defenders speaking up against business-related impacts continued to rise. Two
opposing trends were highlighted: on the one hand, there were more examples of positive
engagement by business to stand up for civic freedoms or in defence of individuals; on the
other, collusion between abusive government actors and business interests remained a
major challenge. There was also often a lack of coherence between corporate commitments
on social issues and their lobbying efforts, which may undermine human rights protection.
With regard to Governments, it was recommended that they include protection of human
rights and environmental defenders in their national action plans on business and human
rights, and take concrete steps to address the problem of criminalization and other forms of
retaliation targeting defenders. Business actors should on their side not use criminal and
defamation laws and avoid strategic lawsuits against public participation (“SLAPPs”) to
silence people who raise concerns about adverse effects of business activities. A human
rights defender speaking in the panel gave a simple yet powerful piece of advice to
business: listen to those who raise concerns about human rights risks and impacts. One of
the best ways to understand the situation on the ground — and be in a position to address
risks proactively — is to talk to civil society, workers and local community representatives,
and to listen to critical voices;
(e) New approaches to empower communities and workers. Experience
suggested that community-based human rights due diligence approaches enable
communities to do their own human rights impact assessments, which helped to address
power imbalances and to strengthen meaningful dialogue. This was also an important factor
for the effective operation of local grievance mechanisms. Empowering women — both at
the workplace and in the community — was identified as a key issue;
(f) Actions needed to make progress on access to remedy. It was noted that
government leadership is essential, reinforced by a stronger push and pressure from the
United Nations and civil society. The need to end the criminalization of worker
representatives and human rights defenders was reiterated, and seen as a key factor in
making progress in realizing access to remedy for victims. With regard to the role of
business, when people are adversely affected by business operations, remediation should be
based on meaningful engagement with the stakeholders affected and be in line with best
international practice.
III. Realizing access to effective remedy
A. Exploring elements of effective remedy: perspectives of affected
stakeholders
13. Participants in the Forum explored elements of effective remedy from the
perspective of an affected stakeholder. Victims and their representatives from different
regions shared experiences from the ground. Accounts were given by a wide range of
stakeholders, including community representatives, migrant workers, indigenous peoples,
human rights defenders and organizations working with children.
14. Discussions included case studies from Australia (with regard to Manus Island),
Bangladesh, Brazil, Chile, Colombia, the Democratic Republic of the Congo, India, the
Occupied Palestinian Territory and Zimbabwe, involving companies from Australia,
Bangladesh, Belgium, Brazil, Canada, China, India, the Netherlands, the Republic of Korea
and Switzerland. One general message was that the third pillar had generally been
overlooked and that initiatives by States, businesses and civil society to address negative
effects had fallen short, and effective oversight was lacking.
15. One overall observation made by the Working Group and other stakeholders was
that, for remedy to be effective and meaningful for victims, both the process and the
outcome should take the perspectives of victims into account. Another resounding message
was that all companies should meet their responsibility to provide for or contribute
meaningfully to effective remedy, in accordance with the Guiding Principles, when they
cause or contribute to human rights abuse.
16. The issue of power imbalances was a recurring theme. Lack of information and
resources, and barriers caused by travelling distances and linguistic and cultural differences
tended to limit the capacity of victims to engage in effective dialogue. The need for open
dialogue between the parties and the independence of the process were highlighted as basic
requirements for meaningful engagement with victims.
17. Against the background of power imbalances, one idea proposed by the Working
Group and discussed at the Forum was a pro bono network of lawyers, aimed at facilitating
greater access to legal support for victims.
B. National action plans and the third pillar
18. Participants in the Forum recalled Human Rights Council resolution 26/22, in which
the Council encouraged all States to take steps to implement the Guiding Principles,
including to develop national action plans on business and human rights or other
frameworks, and to submit annual reports on the implementation of their commitments.
Participants highlighted the recent progress made in this area, while a number of States —
Belgium, Brazil, Chile, Colombia, Czechia, France, Germany, Greece, Italy, Japan,
Mexico, the Netherlands, Norway, Poland, Slovenia, Spain, Switzerland and Thailand —
provided an update on their national action plans and other relevant initiatives. 3 The
Working Group was encouraged by the increase in the number of States that had either
developed or committed to developing a national action plan, and also by the commitment
made by the G-20 leaders in 2017 to work towards developing such plans.4
19. According to the Working Group, given the open-ended and evolving character of
the process involved, national action plans had to be updated regularly. It highlighted also
the need for an open and inclusive process involving all stakeholders (including victims and
their representatives, labour unions and human rights defenders), and for national baseline
assessments to ensure that national action plans were tailored to address the most pressing
business-related human rights challenges in a given context.
20. The Working Group, business associations and civil society speakers pointed out
that existing national action plans were limited in terms of action to improve access to
remedy. Both existing and forthcoming plans therefore had to address substantial gaps and
comprise more specific, measurable, achievable and time-bound actions and objectives, and
effective follow-up systems.
C. Judicial remedy
21. Access to judicial remedies was the backbone of the third pillar of the Guiding
Principles. A central question for Forum discussions was how to increase the effectiveness
of domestic public law regimes, with guidance by OHCHR (see A/HRC/32/19 and Add.1)
and the Working Group (see A/72/162) providing a central reference. Participants
highlighted the fact that companies are rarely subject to law enforcement with regard to
administrative liability or other sanctions, the result of a number of challenges, such as lack
of enforcement and weak domestic public law regimes. Discussions on domestic public law
regimes focused on how to ensure effective deterrence and effective remedy, and how
States could approach legal liability, and also on a range of well-known barriers to access to
justice, many of which are linked to broader challenges to the rule of law. Key points
included the following:
3 See www.ohchr.org/EN/Issues/Business/Forum/Pages/2017Statements.aspx.
4 Council of the European Union, G20 Leaders’ Declaration: “Shaping an interconnected world”, 8
July 2017.
(a) Although most States have legal systems capable of handling corporate
wrongdoing, there are many different approaches to these issues, such as attribution of
criminal liability; lack of enforcement is a major issue;
(b) Corporate complicity is a key concept for the attribution of liability; most
States that recognize corporate liability also recognize corporate complicity;
(c) Legal regimes relevant to business respect for human rights are generally not
framed in human rights terms, resulting in problems such as outcomes, where the only
applicable sanctions (such as a fine) might not be commensurate with the severity of the
abuse or the harm caused;
(d) Resources available to prosecutors are limited (often accompanied by a lack
of political will) to pursue companies or company representatives involved in alleged
human rights abuses, and resources are even more limited when the harm has been inflicted
in other jurisdictions.
22. Participants in the Forum examined how to overcome challenges and increase
accountability for cross-border corporate human rights crimes by examining the life cycle
of a criminal prosecution. Discussions highlighted recent work and initiatives to address
existing accountability gaps, in particular:
(a) The Corporate Crimes Principles,5 which build on the experiences of legal
practitioners and prosecutors in combating corporate crimes actively;
(b) The study of the Working Group on best practices of cross-border
cooperation between law enforcement agencies on business-related human rights cases
(A/HRC/35/33), which confirmed that there was not a lot of practice in prosecuting such
cases. The Working Group found, however, that in areas such as environmental protection,
anti-corruption and anti-trafficking, there was good practice on which to build. In addition
to formal mechanisms, it highlighted the importance of informal networks and cooperation,
such as joint investigation teams. With political will, such practices could be replicated for
business-related human rights cases.
23. Participants highlighted the key role of civil society organizations, including with
reference to the recognition by the International Criminal Court that civil society plays an
important part in collecting evidence, and the role of investigative journalism in exposing
offshore tax avoidance schemes, money laundering and bribes (such as the investigations
on the Panama Papers and the Paradise Papers by the International Consortium of
Investigative Journalists). At the same time, both non-governmental organizations and
prosecutors cautioned that evidence collected by the organizations had to follow the
principle of due process and principles of justice; otherwise, prosecutors may not be able to
rely on them.
24. The safety and protection of whistle-blowers and civil society representatives was
another main concern, as underlined by the recent deaths of investigative journalists,
representatives of non-governmental organizations, United Nations field workers and
human rights defenders. Prosecutors participating in the discussions stressed that
collaboration with whistle-blowers and civil society actors had to be based on the protection
of anonymity and safety. From the perspective of judges, it was noted that, often, the
problem that courts face is not the lack of evidence, but rather the lack of the conceptual
framework in which the evidence is considered, particularly the challenge of piercing the
corporate veil. In this regard, participants noted that the concept of “corporate identity” had
been introduced to promote risk-taking and economic development, not to act as a shield
from accountability or liability. Judges therefore have to have the courage to apply
responsibility right up to the head organization. With regard to existing legal and practice
limitations in the application of extraterritorial jurisdiction by the judiciary, public opinion
could bring about rapid change, as witnessed in the areas of anti-bribery/anti-corruption and
anti-trafficking.
5 See www.commercecrimehumanrights.org.
25. During the discussions held on an international legally binding instrument,
participants referred to the draft “elements” issued in 2017 to serve as a basis for
negotiations among States. The substantive points suggested for a treaty to bridge existing
gaps included:
• Civil liability in home countries of transnational corporations
• Barriers to justice related to the forum non conveniens legal doctrine
• Reversing the burden of proof in favour of victims
• Legal requirements for companies to exercise human rights due diligence in
accordance with the Guiding Principles
• Barriers to class actions
• Uneven compensation standards (and consequently potentially skewed incentives for
transnational corporations) across regions
• Legal assistance to victims
26. A range of different views on whether an international instrument would be the best
way forward in closing the current accountability and remedy gaps was represented.
27. With regard to legal developments relating to access to remedy in cases involving
transnational corporations, Forum participants highlighted developments in some
jurisdictions, such as in English law regarding parent company liability, where this
principle had been invoked in a handful of cases in order to frame access to remedy. Claims
had been brought against parent companies domiciled in the United Kingdom of Great
Britain and Northern Ireland, where jurisdiction depended on whether duty of care of a
parent company in relation to actions of a subsidiary could be imposed. One question
discussed was whether corporate reporting on human rights risks could increase exposure to
the risk of litigation or actually demonstrate that due diligence had been exercised.
28. Another example centred on laws in North America, which could provide — though
not in a straightforward manner — avenues for remedy, all of which predated the Guiding
Principles. In the United States of America, in addition to the Alien Tort Statute, the
extraterritorial reach of which was limited by the Supreme Court in 2013 (in Kiobel v.
Royal Dutch Petroleum), other avenues included the Trafficking Victims Protection
Reauthorization Act (civil and criminal liability in trafficking and forced labour) and the
Global Magnitsky Act (sanctions against human rights abusers in other countries). In
Canada, a number of cases had been brought against Canadian mining companies relating
to human rights abuses committed in third countries, some of which were moving to trial as
tort cases. Historically, such cases were rejected on grounds of forum non conveniens, but
the judicial interpretation was changing.
29. It was suggested that regulations such as the Modern Slavery Act in the United
Kingdom, the draft anti-slavery act in Australia and the non-financial reporting directive of
the European Union did not by themselves improve access to remedy, as this was not their
purpose. They did, however, play an important preventive role by promoting more effective
risk management through human rights due diligence.
D. Strengthening State-based non-judicial remedy
30. Participants discussed the policy implications of findings made in a discussion paper
prepared in the context of the OHCHR Accountability and Remedy Project II, 6 which
focused on improving the effectiveness of State-based non-judicial mechanisms.
31. It was generally agreed that State-based non-judicial mechanisms provided specific
benefits, such as a reduction in certain financial barriers prevalent in legal proceedings, and
greater accessibility and faster resolution. It was also suggested, however, that despite these
6 See www.ohchr.org/EN/Issues/Business/Pages/ARP_II.aspx.
advantages, positive examples were actually scarce, and that these mechanisms could lead
to ineffective results owing to the lack of sanctioning power. It was noted that:
(a) The most successful State-based non-judicial mechanisms tended to be those
that were highly specialized; this could lead, however, to a fragmentation of remedies in
complex cases;
(b) Only a fraction of non-judicial mechanisms had extraterritorial reach, and had
a weak level of enforceability;
(c) Most State-based non-judicial mechanisms also had a mandate focusing on
the prevention of adverse effects, which might make them less effective as tools for
accountability.
32. One observation made on recent trends was that several States had committed to
review how State-based non-judicial grievance mechanisms work in relation to business-
related human rights impacts in general, and to strengthen the national contact point system
of the Organization for Economic Cooperation and Development (OECD) in particular.
33. In several sessions, participants addressed the national contact point system and its
peer review process. It was a common understanding that, despite the need for further
action, national contact points are potentially an important avenue for access to remedy in
many situations (that is, when there is a link to countries adhering to the OECD Guidelines
for Multinational Enterprises). One of the challenges highlighted was the lack of awareness
about national contact points among affected stakeholders (communities, non-governmental
organizations, workers and unions) and business. It was suggested that the contact points
could complement judicial mechanisms by providing advantages, such as greater
accessibility, faster processes and lower costs; a dialogue-oriented system, fostering
mediation if the parties agree; and quasi jurisprudence, at least in some countries (such as
France).
34. One case study where the outcome had been deemed successful by stakeholders
featured during Forum discussions. It had been filed in 2015 with the national contact point
in the Netherlands by 168 factory workers previously employed by the Congolese
subsidiary of the Heineken company, Bralima, for violations of labour rights during the
civil war in eastern Democratic Republic of the Congo, from 1999 to 2002. Success factors
included:
• No statute of limitations
• Acknowledgement that remedy was the reason behind the national contact point
system
• Clear incentives for companies to participate constructively
• Accessibility maximized by conducting local fact-finding and mediation, translating
documents, and covering complainants’ travel costs
• In the Netherlands, national contact point operated transparently and did not apply
overly strict confidentiality restrictions; media attention also helped the case
35. In discussions on the ongoing peer review process of national contact points, all
stakeholders — the national contact point under review, peer reviewers, civil society
organizations, trade unions and business organizations — highlighted the advantages of the
process. The process offered an opportunity for raising awareness and deepening
understanding of the functioning of national contact points, and for sharing learning and
improving accountability. The peer review process concerning the national contact point in
Belgium was identified by non-governmental organizations as a good example of
transparency on how recommendations were being addressed. Challenges nonetheless
remained, such as in the assessment of its impact, and the lack of clarity with regard to how
external inputs are considered in the review process. Non-governmental organizations
found that the results in terms of facilitating access to remedy had not been taken properly
into consideration.
36. National human rights institutions were another important group of actors in the area
of State-based non-judicial remedy and business and human rights. With more than 40
national institutions from all regions attending and two dedicated sessions on their role, the
Forum was able to shed light on their contribution to access to remedy, in particular
through their own complaint-handling, mediation and investigative functions.
37. One key recommendation for improving the effectiveness of national human rights
institutions, and for improving broader coherence in this area, was the call for closer
collaboration among stakeholders to enhance positive results, greater capacity-building
efforts (including through closer engagement with the OECD system), and more peer-to-
peer reviews to share experiences. Another recommendation was the need to equip national
institutions with a mandate to receive or investigate business-related human rights
complaints, and to ensure their independence and that they are allocated sufficient
resources.
E. Making operational-level grievance mechanisms work
38. Forum discussions on how to make operational-level grievance mechanisms work in
practice were grounded in the effectiveness criteria for non-judicial mechanisms, set out in
Principle 31 of the Guiding Principles. An overall point was that such mechanisms had to
be part of a larger “ecosystem” of preventative and remedial mechanisms, including
company frameworks. A key challenge that was repeatedly raised was the asymmetries of
power in situations characterized by lack of or weak governance.
39. Attention was drawn to a review of international and national surveys by the
International Commission of Jurists showing that only a small percentage of companies had
some kind of operational grievance mechanism. The amount of guidance from industry
level in certain sectors was, however, increasing. The Commission was currently exploring
how to improve the effectiveness of operational-level mechanisms against the criteria set
out in the Guiding Principles, with a focus on what the scope of such mechanisms can and
should be, and on ways to address asymmetries in power, and interfacing with other types
of grievance mechanisms.
40. With regard to successful worker-oriented approaches, the Fair Food Program
initiated by the Coalition of Immokalee Workers, representing agricultural workers in the
United States of America, was highlighted.7 According to the experience gained under the
initiative, to be effective, complaint resolution systems should be worker-initiated, based on
the protection of workers, accessible, trusted, competent and timely.
41. Companies and industry associations in different sectors (including agriculture,
apparel, consumer goods, electronics, mining, and oil and gas) that had set up or piloted
operational-level grievance mechanisms found that:
(a) Mechanisms should be part of a human rights due diligence approach,
providing useful early warning, which helped companies to assess risks to people;
(b) Tracking effectiveness and monitoring processes is critical;
(c) Technology solutions can help to improve access to remedy for grievances in
supply chains;
(d) Brands should play a role in creating trust and transparency with suppliers, to
help them to understand why a grievance mechanism is important;
(e) Exercising effective leverage in support of better access to remedy, including
the use of contracts, should be further explored;
(f) Operational-level mechanisms cannot and should not deal with criminal
investigations, although companies should support and collaborate with the relevant judicial
mechanism, including by facilitating the gathering of evidence;
(g) With regard to worker engagement, third-party grievance mechanisms can be
a relief valve if trust is low or absent, although social dialogue is preferable;
7 See www.fairfoodprogram.org.
(h) There is no “one-size-fits-all” solution, and mechanisms oriented to local
communities should take their perspectives into account; what works at the operational
level in a formal, organized environment does not necessarily work in a supply chain;
(i) The legitimacy of a mechanism is directly related to how it was designed and
who is involved. Government engagement is important to ensure connection with local
governance and an interface with other grievance mechanisms. Engagement with local
industry associations is also important.
42. Further points relating to the role of Governments were drawn from the example of
the approach taken by Canada to mining companies operating abroad. One important aspect
was the issue of leverage. A lesson from the Canadian context was that the Government
may recommend sanctions if a company fails to engage when human rights complaints
arise. This can include the withdrawal of economic support and trade advocacy support,
which may be a significant factor for keeping companies at the table.
43. Participants also addressed the role of trade unions and access to remedy for women
in supply chains. Key points included the following:
(a) As underlined in the Guiding Principles, operational-level grievance
mechanisms should not be used to undermine the role of legitimate trade unions in
addressing labour-related disputes;
(b) Where trade unions are present, worker empowerment is heightened and
social dialogue more effective;
(c) In certain sectors (such as fisheries and shipping), workers have extremely
limited access to grievance mechanisms;
(d) As demonstrated by a case study of the horticulture sectors in Kenya and
Uganda, the introduction of collective bargaining, new grievance mechanisms and women’s
committees helps to reduce the incidence of sexual harassment. Lessons learned from this
context showed that the introduction of a company policy of zero-tolerance for sexual
harassment and soft skill training to empower women workers contributed further to lower
incidences of sexual harassment.
F. Policy coherence
44. Policy coherence at various levels is a recurring theme in Forum discussions. At the
Forum in 2017, the issue was addressed both at the global governance level and in relation
to State-level implementation, with a focus on the third pillar.
1. Access to remedy in global governance frameworks: recent developments and
innovations
45. Discussions on supporting access to remedy in accordance with the Guiding
Principles in global governance frameworks focused on, inter alia, developments in the
OECD system, in the light of the incorporation of key components of the Guiding
Principles into the OECD Guidelines for Multinational Enterprises. The performance of
OECD national contact points was a key issue. Participants noted that 50 per cent of
complaints handled by the contact points related to human rights. The challenges faced
included the fact that two adhering States did not yet have a national contact point, while
the contact points in 10 other States did not function. On the positive side, OECD ministers
had made a commitment to improve contact points, all of which were expected to be up and
running by 2021. This commitment had also been expressed in recent declarations of the
Group of Seven and the Group of 20.
46. Civil society representatives highlighted the fact that remedy remained rare, even
though it was the main reason for establishing national contact points. According to a
review conducted by non-governmental organizations, remedy is available in only about 15
per cent of cases. A key recommendation was for national contact points to take into
account the asymmetry of power between transnational corporations and affected
stakeholders.
47. In their discussions, participants highlighted the revision completed by the
International Labour Organization (ILO) in 2017 of the Tripartite Declaration of Principles
concerning Multinational Enterprises and Social Policy, to align it with the Sustainable
Development Goals and the three pillars of the Guiding Principles. With regard to the third
pillar, one key issue was the obligation of Governments to ensure that workers have access
to remedy for human rights abuses involving transnational corporations. The role of trade
unions in human rights due diligence processes was highlighted, as was the need for access
to remedy to be tackled systematically, not only in a voluntary way.
48. A recurring topic at the Forum is the functioning of independent accountability
mechanisms of international financial institutions. A critical point made at the Forum in
2017 was the importance of the independence of such mechanisms to allow them to address
effectively any grievances raised by communities affected by projects funded by
international financial institutions. Transparency, trust-building and awareness-raising with
regard to accountability mechanisms and capacity-building to empower communities in
their access to them were considered key success factors. One remaining challenge was the
lack of coherence between international financial institutions and associated accountability
mechanisms, which are often more in tune with realities on the ground.
2. Implications of the international investment regime
49. More than 3,000 international investment agreements regulated foreign direct
investments, including provisions for arbitration or dispute settlement between
Governments and private investors. While the international investment regime offers
protection for investors, however, access to remedy for affected stakeholders is elusive.
During discussions, Forum participants highlighted areas in need of reform, aimed at, for
example, safeguarding the right to regulate, reforming investment dispute settlement and
ensuring responsible investment. The need for a better understanding of the impact that
investment agreements have on human rights was noted.
3. The “State-business nexus” and access to the remedy pillar
50. Participants in the Forum addressed the role of the State as an economic actor, and
the integration of human rights in the management of export processing zones and export
credit agencies.
51. Export processing zones are essentially State-owned enterprises with their own legal
infrastructure. In a study on 120 export processing zones, the United Nations Conference on
Trade and Development had found that, in such zones, “red tape” was typically eliminated
and, in some cases, labour inspections and the implementation of environmental standards
were more effective. This showed that the integration of standards to manage risks to
workers and communities was possible in export processing zones, even though huge
differences existed.
52. Some export credit agencies had begun to integrate the Guiding Principles into their
due diligence processes, such as those in the Netherlands and Norway. Experience had
shown that the integration of the Guiding Principles could improve the focus on disclosure
and effective stakeholder engagement in projects supported by export credit agencies. One
issue that still required more attention, however, concerned financial institutions beyond
export credit agencies: how to effectively exercise leverage to support access to remedy
when the financial institution is linked to — but not causing or contributing to — human
rights harm.
G. Strengthening the third pillar in multi-stakeholder initiatives and
platforms
53. Multi-stakeholder initiatives are generally perceived to hold a lot of potential for
improving the protection of human rights in business activities and supply chains, even
though there is also broad agreement that most of them have not met their potential, in
particular when addressing the third pillar of the Guiding Principles. Participants noted that
few multi-stakeholder initiatives had grievance systems in place (one figure suggested that
only 40 per cent did), and that international human rights standards in general were not
systematically integrated. Examples of multi-stakeholder initiatives currently grappling
with how to improve access to remedy included the Fair Labor Association, the Fair Wear
Foundation, the Global Network Initiative, Guías Colombia (focusing on business and
human rights in Colombia) and the International Code of Conduct for Private Security
Service Providers’ Association.
54. Participants in the Forum also examined the role of multi-stakeholder engagement
and dialogue at the local level, and its role in strengthening access to remedy for affected
stakeholders. One example was from the establishment of an independent problem-solving
service for communities affected by mining operations in South Africa. In their discussions,
participants indicated that independent mechanisms to resolve problems and grievance
mechanisms could be hugely valuable in contexts where there is a significant trust deficit
between companies and communities. Company-led grievance mechanisms were often
underutilized or not designed with the needs of the community in mind. Legal mechanisms
were often out of the reach of poor communities and may not be suited to smaller
grievances. Independent mechanisms could play a complementary role in such contexts.
Participants highlighted several critical success factors, including the levelling of unequal
power dynamics; the need to focus on process as much as outcome; the use of facilitated
dialogue; and the need for mechanisms to be truly independent and credible.
55. A case study of the Thilawa Special Economic Zone in Myanmar saw a range of
stakeholders share their experiences of addressing grievances. The discussions held on
multi-stakeholder engagement generally highlighted the role that the Forum on Business
and Human Rights itself could play in this context. Participants noted that the Forum,
focusing on different industrial sectors and country contexts, presented a unique
opportunity for people from around the world to come together and learn from each other’s
work. As an example, important connections had been made between stakeholders in South
Africa and the Coalition of Immokalee Workers based in the United States of America with
regard to their experience with the Fair Food Program and the complaint resolution system.
Meaningful dialogue between different parties in complex contexts was never easy, but was
still possible when stakeholders were committed to addressing problems together.
56. Another issue concerned ensuring remedies for workers and their families in the
aftermath of accidents in industrial supply chains. Collective action involving local and
global business, unions and the Government was seen as critical for success. The Rana
Plaza compensation agreement had united everybody (local and global stakeholders) in a
single framework for delivering compensation, even though the practical challenges, not
least with fundraising, were considerable. The lesson to be learned was that it would not
have been possible if all actors had not been involved. At the same time, ad hoc solutions to
provide compensation were complex; a better approach would be to have effective systems
of social security in place; workers and non-governmental organizations stressed, however,
that against a background of limited State capacity to enforce relevant laws in many
jurisdictions, such ad hoc measures to compensate victims were necessary. Participants also
stressed that all efforts should be based on relevant ILO standards, and that multi-
stakeholder efforts should take into account the concerns of all workers, not only those in
export-oriented enterprises.
57. The role of business and industry associations was also addressed. One key point
was that no company alone can plug current remediation gaps, including those that exist
across global supply chains. Joint industry action can support better human rights due
diligence and capacity-building, and strengthen leverage with regard to competitors,
suppliers and Governments. Joint action to enhance access of people to remedy for adverse
impacts should be seen as a “pre-competitive” issue.
H. Innovations in dispute resolution and leverage of third parties
58. The Forum agenda included discussions on innovative and collaborative approaches,
and the role of third parties in a position to shape corporate practice. One discussion
focused on gaps in access to remedy that could be addressed through “Hague style”
innovations involving a smart collaborative mix of various approaches to dialogue,
mediation and arbitration. This included the creation of an access to remedy fund aimed at
strengthening the institutions and processes for ensuring access to justice for victims of
human rights abuse in which business enterprises played a role. The aim would be to solicit
funds from private entities and individuals to support specific projects designed to remove
institutional barriers to remedy and to strengthen dispute resolution processes. Another
proposal was the creation of a business and human rights arbitration panel available either
to victims of human rights violations who wish to bring claims against businesses, or to
resolve disputes involving human rights-related claims between commercial parties (for
example, where a supplier fails to comply with certain contractually imposed human rights
obligations).
59. Another discussion centred on the role of effective mediation in more effectively
addressing community grievances with regard to business-related human rights impacts,
and consequently contributing to sustainable development for the community. The main
lessons learned described by independent accountability mechanisms, non-governmental
organizations and business enterprises included the need for capacity-building on all sides;
the need for joint fact-finding or external expertise trusted by both sides; clear ground rules
accepted by both sides; the identification of legitimate representatives of victims; the
proactive inclusion of women from affected communities (if they are not included at the
table); recognition by business enterprises that conflict is not in their interest, and that their
relationship with a community should be seen through a long-term lens; and the
effectiveness of operational-level grievance mechanisms in addressing grievances early and
before they escalate.
60. In another discussion, participants focused on the role of corporate counsel and law
firms, which among other things addressed the role of the “wise counsellor” and the
question of pro bono legal support to victims. With regard to the former issue, participants
emphasized the importance of the Practical Guide on Business and Human Rights for
Business Lawyers of the International Bar Association.8 They noted that corporate lawyers
could and should play a proactive role in advising their corporate clients on human rights
due diligence, which ultimately would be beneficial to corporate governance and lead to
better supply chain and risk management. Bad human rights due diligence and failure to
take a role in addressing legitimate calls for remedy would eventually come back to haunt a
company. The role of a wise legal counsellor would be to put information on human rights
abuse and risks in context. With regard to the importance of strengthening pro bono legal
support to communities, participants noted that there was a great need to address current
inequality of legal arms between communities and transnational corporations. There was
also a need for lawyers who are both independent and competent in business and human
rights-type litigation. Such legal support was scarce, and communities might not have the
resources to engage competent lawyers where they can be found. Forum participants
welcomed an idea proposed by the Working Group of exploring a pro bono network, but
also highlighted a range of practical challenges. One critical point was the need to build
capacity at the local level and to tap into local legal expertise. There was also a need to map
and broaden existing networks of pro bono legal support provided by, for example, existing
human rights clinics, and to facilitate knowledge-sharing.
IV. Action on all three pillars
A. State action
61. The Working Group and other stakeholders acknowledged that legal developments
in several jurisdictions had the potential to create positive change. It was also noted — as
stressed in the Guiding Principles — that States should not assume that businesses
invariably prefer or benefit from State inaction, and that they should consider a smart
8 Available from www.ibanet.org/LPRU/Business-and-Human-Rights-Documents.aspx.
combination of measures, including effective regulation. Several recent regulatory and
policy developments by States beyond national action plans were highlighted:
• Laws with broad human rights due diligence provisions for companies of a certain
size (the “duty of vigilance” law in France)
• Laws geared towards improving transparency with regard to how companies address
specific human rights risks (Modern Slavery Act in the United Kingdom, and
forthcoming modern slavery act in Australia; forthcoming due diligence
requirements with regard to child labour in the Netherlands)
• Policies aimed at addressing the impact on human rights in specific sectors
(ministerial directive on expected conduct of business enterprises in the fisheries
sector with regard to human rights and fighting forced labour and trafficking in
Indonesia)
• Policies to strengthen corporate reporting on social risks and human rights due
diligence in supply chains and foreign direct investments through industry initiatives
(China)
• Facilitating multi-stakeholder sector-based platforms for identifying and addressing
human rights risks (sector agreements in the Netherlands; sector dialogues in
Germany) or issue-specific multi-stakeholder processes (such as human trafficking
and the Bali Process on People Smuggling, Trafficking in Persons and Related
Transnational Crime, co-chaired by Australia and Indonesia)
• Warnings of introduction of mandatory human rights due diligence if companies fail
to take necessary action voluntarily (Germany)
B. Corporate respect for human rights in practice
62. Discussions held during the Forum touched on different aspects of how companies
were implementing the second pillar of the Guiding Principles (the corporate responsibility
to respect) and what was needed to bring about faster change. Participants concluded that:
(a) Effective change is about addressing problems faced, learning from them and
improving for the future;
(b) Business and human rights is an issue that should not be confined to the
sustainability or compliance department, but addressed throughout the organization to
ensure coherence between all business operations;
(c) There is a need for internal training to sensitize the organization;
(d) Suppliers should be closely monitored to ensure that they comply with their
commitments to codes of conduct; mutual, ongoing engagement with suppliers is one
possible way for their successful implementation;
(e) Leadership and company culture are essential in initiating and executing
respect for human rights;
(f) It is a continuous journey of learning, where the connection between business
and human rights needs to be “demystified” and explained in a way that everyone in the
business and value chain can understand.
63. Time was allocated in discussions to reflect on progress made in recent years and to
explore emerging trends and developments. Speakers from different backgrounds
recognized that some progress had been made in, inter alia, regulatory frameworks
(particularly with regard to the issue of modern slavery and to transparency). Major
challenges nonetheless remained in the implementation of the Guiding Principles:
(a) There is still little concrete commitment from businesses to respect human
rights beyond a relatively small group of global corporations;
(b) Even companies that have adopted policy commitments in line with the
Guiding Principles demonstrated gaps in operationalization at the local level;
(c) The complexity of monitoring large supply chains;
(d) Access to effective remedy is still a challenge for most companies;
(e) Human rights issues in the large informal economy that are not covered by
the formal regulations are largely neglected.
64. In order to plug the gaps, participants drew attention to the need for:
• A combination of regulatory tools
• Both binding agreements and more flexible and pragmatic sources of governance
• Clear expectations and continuous scrutiny by Governments requiring all
companies, regardless of their size, to implement the Guiding Principles
• Government guidance and support for small and medium-sized enterprises,
including by means of peer and sectorial platforms
• Consumers and investors to call for systematic changes
• In the case of investors, frameworks that reward companies that address human
rights risks, beyond simply having policies in place
• New technologies and partnerships to address the scope and scale of challenges
• States, as economic actors, to lead by example at a significant scale by integrating
human rights in public procurement and State-owned enterprises (assuming that
there is the political will to do so)
65. Participants noted that benchmarking and ranking initiatives, such as the Corporate
Human Rights Benchmark,9 were considered important forces for driving progress, even
though all initiatives also found that companies scored particularly poorly with regard to
remediation efforts. At the same time, participants noted that the engagement of capital
markets to a much larger extent was needed; if Fortune 500 were placed on a human rights
index, more people and investors would take notice and base their decisions on that
information. Another challenge was how to measure actual impact and company
performance, given that benchmarks tended only to show what companies say they are
doing, not what they do in practice.
66. One key issue for corporate respect of human rights concerned exercising leverage
in business relationships when they are linked to, but not causing or contributing to, human
rights abuse. During one discussion, participants explicitly asked how transnational
corporations could use leverage to advance access to remedy through business
relationships. Reference was also made to the revised ILO Tripartite Declaration of
Principles concerning Multinational Enterprises and Social Policy (see para. 47 above),
which calls upon multinational enterprises to use their leverage to encourage their business
partners to provide effective means of enabling remediation for abuses of internationally
recognized human rights. Participants concluded that:
(a) Collaboration with others (including industry organizations and competitors)
is the most important means for strengthening leverage;
(b) The financial services industry plays an important role: engagement can lead
to better outcomes;
(c) Companies should “translate” from the language of lawyers to terms that are
understood by more people across organizations;
(d) Leverage could be built up-front into contracts, dialogue and training with
suppliers and joint venture partners;
(e) Investments should be made in social dialogue and local solutions.
67. During a special session, attention was drawn to experiences of human rights due
diligence in investment and supply chains in China, and lessons were shared on
9 See www.corporatebenchmark.org.
management practices both prior to investments (comprehensive due diligence and
feasibility management, which encompasses social and environmental factors) and during
investment (establishing and improving due diligence mechanisms on the basis of
economic, social and environmental risk assessments).
68. Key initiatives conducted in 2016 and 2017 in which the Guiding Principles were
either referenced or used directly as a framework included:
• A social responsibility management system in the information and communications
technology industry
• The green aviation initiative and networks
• The Responsible Cobalt Initiative
• The Guidance for Sustainable Natural Rubber10
• The revised China Social Compliance 9000 for the textile and apparel industry
69. Another notable initiative that held important lessons for stakeholders with regard to
corporate human rights due diligence was the banking agreement reached in the
Netherlands on international responsible business conduct. This multi-stakeholder initiative
between the banking associations, the Government of the Netherlands, three civil society
organizations and two trade unions included a number of working groups set up to look
after specific aspects of implementation, one of which gave insights to Forum participants
on the issue of enabling remediation. The discussions were relevant beyond the banking
sector, in particular because they sought to clarify the terms in the Guiding Principles of
“cause”, “contribute to” and “directly linked to” and their implications for the responsibility
to provide remedy. Participants noted that there was a common tendency to fixate on “cause
and contribution situations” in which the Guiding Principles clarified that business
enterprises had a responsibility to provide, or contribute directly to, remedy. Less time was
allocated to worrying about what to do in a “linkage situation”, given that, under the
Guiding Principles, businesses do not necessarily have a responsibility to provide remedy,
even though they may choose to do so. It was stressed that this gap missed the fundamental
point in the second pillar of the Guiding Principles, namely, that remedy, and a business’s
role in relation to it, is always relevant. A good practice would be considering how to
exercise leverage to ensure accountability for any harm caused and how it could be
addressed. This would also be an effective way to prevent future harm. Another insight
emerging from this discussion was that, although approaches to grievance mechanisms
might vary across sectors, even enterprises that often find that their link to human rights
risks is primarily through business relationships (as characteristic for many actors in the
banking sector) ought to think about such mechanisms. A message that held relevance
beyond the banking sector was the need to go beyond simply asking “do you have a
grievance mechanism?”. More thoughtful and effective approaches were needed.
C. Human rights defenders, civic freedoms and the role of business
70. Trends with regard to persons who speak up against business-related human rights
impacts worldwide and the need to ensure better protection of human rights defenders have
become a standing item on the agenda of the Forum. Discussions on human rights
defenders have also helped feed into the ongoing efforts of the Working Group to develop
guidance on this issue.11 In 2017, participants in the Forum reiterated that human rights
defenders were instrumental in identifying actual and potential business-related human
rights impacts — which is also a first step towards securing effective remedy. By doing so,
defenders also provided access to information about risks and impacts, enabling better
corporate human rights due diligence.
10 See www.cccmc.org.cn/docs/2017-11/20171107204714430892.pdf.
11 See OHCHR, “Human rights defenders and civic space — the business and human rights dimension”,
available from www.ohchr.org/EN/Issues/Business/Pages/HRDefendersCivicSpace.aspx.
71. The main session on human rights defenders was opened with one minute of silence
to honour all defenders killed in the course of their work. Participants received an update on
the work of the Business and Human Rights Resource Centre in tracking cases involving
attacks on human rights defenders working on business and human rights issues, which
showed that more than 800 attacks had been registered since 2015. Land-intensive
industries, such as mining, agriculture and renewables, had witnessed the largest numbers
of incidents. Businesses were implicated in different ways, such as in cases of legal
harassment involving strategic lawsuits against public participation, or failure to address
attacks carried out by government actors and security forces. In other examples, businesses
could use their lobbying power to encourage a Government to introduce restrictions on
advocacy, or to retaliate against people who raise concerns. Protection and accountability
gaps were especially acute in countries where rule of law was weak, but also existed in
jurisdictions where courts could be effective. Participants noted that retaliation against
defenders had a chilling effect, and restricted the ability of defenders to raise early warnings
about business-related impacts. Defenders ended up having to spend their time and limited
resources defending themselves and their institutions. Participants pointed out that
criminalization of defenders in itself should be a crime, and that prevention of attacks was
critical.
72. On a positive note, a growing number of companies and business leaders recognized
that protecting, respecting and supporting human rights defenders and civic freedoms in a
business context were both a responsibility and ultimately good for society and business
itself. Examples of positive actions by companies presented at the Forum included:
• Apparel companies defending union rights
• Companies standing up for lesbian, gay, bi, trans and intersex (LGBTI) persons,
including companies joining the recent OHCHR standards of conduct for business in
tackling discrimination against LGBTI persons12
• Companies addressing xenophobia and anti-migrant narratives
73. Participants in the Forum also heard about efforts of some Governments to more
actively prevent and to address risks to human rights defenders in third countries where
“their” transnational corporations operate, as in the case of the “Voices at risk” policy in
Canada.
74. Key recommendations included the need to ensure that protection of and respect for
rights human rights defenders were integrated in national action plans and human rights due
diligence processes. Going forward, it was crucial to strengthen the role of human rights
defenders in the pursuit of sustainable development and as “justice enablers” in bringing
about access to remedy for victims of corporate-related human rights abuse.
D. Corporate respect for human rights and the Sustainable Development
Goals
75. One objective of the Forum was to contribute to a greater understanding of the
connection between business and human rights and sustainable development. A major
backdrop was provided by the embedding of human rights in the Sustainable Development
Goals, and the significant role that the private sector envisaged to play in realizing them.
While the role of the private sector is crucial, there is a risk of a return to traditional and
partial philanthropic approaches by businesses that fail to take into consideration the social
and environmental impact of a company’s core operations and value chain. Forum speakers
stressed that the greatest contribution that most companies could make to socially
sustainable development (its “people part”) was to embed respect for human rights in all
their activities and value chains. The key references included the recommendations
addressed by the Working Group to States and businesses on integrating the Guiding
12 See www.unfe.org/standards.
Principles into the implementation of the Sustainable Development Goals, 13 and a joint
statement by a group of civil society organizations along the same lines.14
76. Case studies presented to demonstrate the relationship included:
• Efforts by Nestlé, in collaboration with the non-governmental organization Verité, to
address forced labour and human rights abuses in the seafood supply chain, showing
also the direct contribution to Sustainable Development Goal targets (for example,
targets 8.7 and 8.8)
• The multi-stakeholder initiative “Malawi Tea 2020” to ensure a living wage for farm
workers, involving companies in the Ethical Tea Partnership, Oxfam and Malawian
unions and civil society organizations
• Efforts by Chile to integrate human rights requirements in public procurement
processes and the integration of the Sustainable Development Goals in the national
action plan on business and human rights
77. The overall takeaways from the discussions included:
• Company-non-governmental organization partnerships to support the Sustainable
Development Goals should be founded on transparency and a corporate commitment
to respect human rights
• Corporate reporting on contributions made to the Sustainable Development Goals
should include information on how risks to persons are addressed
• The Sustainable Development Goals provided a framework for longer-term and
more holistic perspective for investors, even though it should also integrate human
rights risks and impacts (that is, the “people part”)
E. Gender lens
78. Participants in Forum sessions highlighted the fact that women faced unique
business-related human rights abuses and subsequent barriers to remedy. The sessions
focusing on gender also provided important input to the Working Group and its efforts to
develop guidance for integrating a gender lens into the implementation of the Guiding
Principles. 15 That women not be considered a homogeneous group was continuously
stressed, given that remedies and issues should be addressed taking into account their own
specific context. The Working Group and stakeholders called for proactive measures to be
taken by both Governments and businesses in order to avoid gender-blind practices, at the
risk of reinforcing patriarchal and discriminatory structures if they failed to do so.
79. One issue discussed concerned land-intensive investments and their impact on
women, such as:
• The exclusion of women from negotiations and ownership of land
• Unpaid care and domestic work, compounded by displacement and environmental
damage
• Changing gender relations in communities owing to the influx of migrant workers or
increasing domestic violence
80. Key solutions included the need for companies to involve affected women in the
design and evaluation of mitigation and remediation processes, to address the barriers that
13 OHCHR, “The business and human rights dimension of sustainable development: Embedding
‘Protect, Respect and Remedy’ in SDGs implementation”, information note, 30 June 2017 (available
at www.ohchr.org/Documents/Issues/Business/Session18/InfoNoteWGBHR_
SDGRecommendations.pdf).
14 See https://business-humanrights.org/sites/default/files/documents/SDGs-businesshumanrights-
openletterSept2017.pdf.
15 See OHCHR, “Gender lens to the UNGPs” (available at
www.ohchr.org/EN/Issues/Business/Pages/GenderLens.aspx).
women faced when speaking up and submitting complaints, and to give them access to
adequate and transformative remedies.
V. Closing plenary and general recommendations
81. The overall message in the speeches made by speakers during the closing
plenary was the recognition that many business enterprises had made progress in
implementing the Guiding Principles, even though wider and more comprehensive
action by businesses and Governments was urgent.
82. Participants in the closing session heard commitments from the Government of
Malaysia to develop a national action plan on business and human rights in 2018, and
from the CEO of the bank BNP Paribas to withdraw financing of oil and gas extracted
from tar sands and of tobacco production because of human rights considerations
based on its commitment to the Guiding Principles and other international standards.
The United Nations Global Compact reiterated its commitment to prioritize the
promotion of human rights in its engagement with the business sector through
enhanced learning platforms on how business could meet its responsibility to respect
and by promoting the implementation of the Guiding Principles in business activities
and value chains.
83. Key messages from stakeholders on the way forward included the call made by
the indigenous peoples’ caucus upon States to ensure rapid progress in realizing the
three pillars of protect, respect and remedy, and to integrate the protection of
indigenous peoples in their national action plans; to take steps to address the barriers
to justice and remedy for business-related human rights impacts experienced by
indigenous peoples across the world; and for businesses to step up action both to
prevent impacts on indigenous peoples and to meet their responsibility to remediation
when indigenous peoples are harmed by business operations.
84. Global unions called for collective efforts to scale up awareness and action
beyond policy level on the Guiding Principles. In order to achieve meaningful
implementation of the Guiding Principles from the perspective of workers around the
world, Governments and businesses should address modern slavery and ensure
freedom of association, decent wages and safe workplaces. Global framework
agreements involving unions were an effective tool that should be employed more
widely. All businesses should undertake effective human rights due diligence, while
States should take legal and administrative measures to ensure access to remedy for
workers and create binding legal frameworks.
85. OECD called upon Governments to ensure more effective policy coherence
between human rights obligations and business-oriented policies, and to improve
access to non-judicial remedy by providing adequate resources to allow national
contact points to be effective.
86. The United Nations High Commissioner for Human Rights emphasized the
urgent need to stand up for human rights. He called upon all stakeholders, in
particular States and businesses, to take strong action in combating discrimination,
hate and violence, and encouraged civil society actors to continue to fight for the
rights of people affected by human rights violations and abuse.
87. The Working Group attempted to summarize some of the key messages
emerging from Forum discussions in a “2020 road map”:
(a) Making a commitment to implementing the Guiding Principles is an
initial critical step for States and companies to take. This in itself, however, is not
sufficient. Concrete short- and long-term action must be taken to apply the “Protect,
Respect and Remedy” framework to prevent and address human rights abuse;
(b) All States should develop national action plans by means of inclusive
processes that involve both businesses and civil society and with a focus on the word
“action”; in this regard, the Working Group also noted the need to improve existing
national action plans during the review process, especially in the case of the third
pillar;
(c) When it comes to providing effective remedies to victims of business-
related human rights abuses, the time for talking is over. Existing barriers impeding
access to effective remedies are well known, and States must work together to take
urgent steps to remove them;
(d) Sensitivity should be shown towards the diverse experiences of all rights
holders. No one should be discriminated against or excluded on grounds such as race,
colour, ethnicity, social origin, sex, sexual orientation, religion, language, disability or
migration status;
(e) There must be a change in mindset, from a “race to the bottom” to “a
race to the top” by injecting human rights into the DNA of businesses and of States’
economic policy frameworks. This includes the area of “economic diplomacy” tools.
States should lead from the front in creating a regulatory framework that ensures that
all businesses prevent, mitigate and remedy the adverse impact of their global
footprint on human rights;
(f) States should not see human rights as an avoidable “speed breaker” to
economic development; rather, human rights should be treated as an essential
precondition for sustainable development, in accordance with the pledges that States
made when they adopted the Sustainable Development Goals;
(g) Threats to human rights and environmental sustainability relating to
economic inequalities and climate change should be a matter of urgent concern for
States and businesses alike. Transformative changes are needed to address these
challenges;
(h) Tax evasion or avoidance by business enterprises is another issue that
requires the collective attention of States. It should always be recalled that evading or
avoiding the payment of taxes undermines a State’s ability to mobilize resources to
realize human rights;
(i) Discrimination and sexual violence against women must be addressed by
both States and businesses as a matter of priority;
(j) Individuals and communities, including indigenous peoples, have a right
to speak up when business operations affect them negatively. While the situation on
the ground across the world is deteriorating for defenders, it is nevertheless a positive
sign that more businesses are taking steps to respect defenders and to speak up when
rights of defenders and civic freedoms are under threat (for example, in relation to
LGBTI persons and in countering anti-migration narratives);
(k) Business associations should continue to build the capacity of their
members in conducting meaningful human rights due diligence. They should also
clearly communicate the expectation that any “private” corporate lobbying with
Governments does not undermine their “public” commitment to the Guiding
Principles;
(l) Lawyers too have a vital role in implementing the Guiding Principles:
their professional advice to businesses should not cause or contribute to any adverse
human rights impacts. Lawyers should also take a proactive role in helping affected
individuals and communities to seek access to a full range of effective remedies. The
creation of a global network of pro bono lawyers should be explored;
(m) Emerging good practice approaches for corporate human rights due
diligence should be built upon and scaled up across all regions — the theme of the
report of the Working Group to be submitted to the General Assembly at its seventy-
third session. It will also be a major focus of the Forum on Business and Human
Rights in 2018, to explore what has been working to date and how businesses,
Governments and other stakeholders can plug gaps.