The UNGPs and the Future of Business and Human Rights Regulation – Interdisciplinary Workshop at Martin Luther University Halle-Wittenberg

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It is a pleasure to welcome Dr René Wolfsteller on Rights as Usual. René holds a PhD in Politics from the University of Glasgow. He is a Lecturer in the Department of Political Science and associated Research Fellow of the Research Cluster “Society and Culture in Motion” at Martin Luther University Halle-Wittenberg, Germany. His research focuses on the institutionalization of international human rights norms, business and human rights, and national human rights institutions. His work has been published in the Journal of Human Rights, the International Journal of Human Rights, and in Leviathan. This post is his.

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On 13 February 2020, I organized an interdisciplinary research workshop at Martin Luther University Halle-Wittenberg (Germany). The workshop brought together leading experts in the field of business and human rights from law, politics, ethics and critical accounting studies, to analyze the conceptual foundations and effectiveness of the transnational regulatory regime that has emerged since the endorsement of the Guiding Principles on Business and Human Rights (UNGPs) by the UN Human Rights Council in 2011.

Funded by the Forum for the Study of the Global Condition and the Research Cluster Society and Culture in Motion, the workshop yielded three key insights.

(1) The governance potential of the emerging business and human rights regime is far from exhausted.  There continues to be an urgent need for internationally coordinated, enforceable standards.

 (2) The normative foundations of this regime need to be developed further, yet without giving business actors the opportunity to dilute the meaning of human rights norms and standards beyond recognition.

(3) Business and human rights research is complex, and this complexity can only be adequately addressed through the combination of different disciplinary perspectives, as exemplified by the thematic variety of the contributions and the insightful comments of participants.

In my welcome address, I pointed to the potential opening of a new window of opportunity in Europe where leading political actors have expressed an interest in strengthening business and human rights regulation and introducing enforceable safeguards against business-related rights abuse.

Before turning to these empirical issues, the workshop began by discussing the normative and theoretical foundations of the emerging business and human rights regime. Yingru Li and John McKernan (University of Glasgow) opened the first panel with a paper criticizing two major shortcomings in the construction of the UN Guiding Principles from the standpoint of moral philosophy. First, they contended that the UNGPs do not sufficiently allow for the active participation of civil society actors in their further development and implementation. Second, the UNGPs miss what the authors identified as the most fundamental point of human rights, that is, their potential to serve as an instrument for emancipatory struggle. Joining the normative debate, Elke Mack (University of Erfurt) argued in her presentation that the moral legitimacy of the global market economy cannot be derived from mere compliance with human rights law alone. In her view, it is necessary also to underpin economic globalisation with the construction of social contracts between corporate and societal actors on a micro-level, in order to ensure a mutual economic and social benefit based on liberal and cosmopolitan values. In the third contribution to the panel, Christian Scheper (@ChrisSchep, University of Duisburg-Essen) highlighted the risk of empowering business enterprises further as an unintended consequence of their increasing regulation. In fact, the stronger regulation of businesses may contribute, according to Scheper, to companies’ increasing epistemic influence and political power over the knowledge production on business behaviour as the regulatory system relies so heavily on corporate self-reporting and self-measurement.

Following this note of caution, the second workshop panel examined the implementation of corporate human rights accountability and due diligence through different state-based mechanisms. Kelly Kollman and Alvise Favotto (University of Glasgow) presented a study of the effects of the UK National Action Plan for Business and Human Rights on corporate human rights accountability of 50 transnational companies based in Britain. Although their analysis of the companies’ CSR reports from 1995 to 2015 and of original interview data revealed a small increase in the engagement with human rights issues, Kollman and Favotto expressed scepticism on whether substantive progress has been made, especially since the companies’ engagement was largely limited to the level of rhetoric and management. In the following presentation, I examined the potential and the challenges of National Human Rights Institutions (NHRIs) to contribute to the promotion and protection of human rights in relation to business actors. Pointing out the divergence between the high expectations put on NHRIs and the structural challenges inhibiting these institutions to engage with business actors effectively, I identified the weak mandate under international law and the lack of adequate powers as the two main factors preventing NHRIs from unfolding their full potential.

In the third panel, the discussion turned to the specifically legal challenges in holding businesses accountable for human rights abuses. Analysing international law and legal doctrine, Markus Krajewski (@KrajewskiMarkus, Friedrich Alexander University Erlangen-Nuremberg) reconstructed a wide-ranging duty of so-called “home states” to protect individuals from human rights abuses by transnationally operating business enterprises based within their jurisdiction. According to Krajewski, this home state duty extends also to the protection of individuals affected by the operation of the parent company in other countries if the rights abuses were foreseeable and preventable. In the following paper presentation, Başak Bağlayan (@basakbc, University of Luxembourg) analyzed the role of National Contact Points (NCPs) in OECD member states in the realisation of the UNGPs’ second pillar by providing access to remedy. While Bağlayan recognised the potential of NCPs, she argued that the diversity of their form, powers, and funding, as well as of the remedial procedures offered by them, made it difficult to consider these institutions per se an effective mechanism for the provision of access to remedy for victims of business-related rights abuse. Almut Schilling-Vacaflor (University of Osnabrück) concluded the law panel with a paper examining the effectiveness of the French vigilance law of 2017 which imposes relatively extensive due diligence duties on transnational firms based in France. With a case study of the activities of the French-based oil and gas company Total in Bolivia, Schilling-Vacaflor showed that in legal practice it is extraordinarily difficult to enforce this supposedly progressive law effectively under the conditions of globalised production processes because of the high burden of proof and unclear jurisdictional competences of national courts.

The final panel was dedicated to a possible future binding treaty on business and human rights which is being negotiated since 2015 by the Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises With Respect to Human Rights (IGWG) in Geneva. Nadia Bernaz (@NadiaBernaz, Wageningen University) set out the advantages and limitations of different conceptions of corporate accountability for human rights to be adopted by a future treaty. Eventually, Bernaz made the case for a progressive model of corporate accountability which would combine the development of existing principles of international law with state-based enforcement mechanisms. Janne Mende (Justus Liebig University Giessen) closed the workshop with an analysis of the struggle over authority in the treaty negotiations of the IGWG. Based on original interview data and documents, Mende argued that contestations over the authority and legitimacy of actors do not necessarily lead to resistance and crises in the negotiation process but can also pave the way for new hybrid solutions, as illustrated by the recent treaty draft from October 2019.