At age ten I was preparing to enter the scary world of senior school, going from my simple mathematics, science and English classes to algebra, physics and chemistry and Latin. Looking back, that moment feels much like the conclusion reached by the UN Working Group on Business and Human Rights in their assessment of the first decade of the UN Guiding Principles on Business and Human Rights (UNGPs). Progress has been made, but now is the time to step up and deal with the difficult challenges.
The Working Group's report is positive noting that "there is no doubt that the Guiding Principles have succeeded in providing a globally agreed-upon standard for what States and businesses need to do to respectively protect and respect the full range of human rights across all business contexts".
They go further, saying that from a business perspective "the transformative concept of an internationally recognized business responsibility to respect human rights has become the authoritative standard that defines responsible business".
Yet the Working Group's report also has an air of those old school reports that read "good work - but still room for improvement". For as much praise as there is in the Working Group's report for the "considerable business uptake" and the gains in speed and coverage of the business and human rights movement, there is a also the stark recognition that adoption of the UNGPs in practice has been "uneven and insufficient in both depth and breadth".
Some of the key findings in relation to challenges to be addressed over the next decade, particularly focused on the corporate responsibility to respect human rights and the non-state aspects of the remedy pillar of the UNGPs, are:
- respect for human rights need to be implemented more broadly across value chains, including among small and medium-sized enterprises;
- there is a disconnect between improvements at policy level and implementing policies and commitments in practice (particularly in relation to businesses' assessment of their business models and their engagement, legal and lobbying activities);
- the level of uptake in the financial sector needs to be increased, with a greater recognition of the link between business and human rights and the current focus on addressing ESG risks and impacts;
- more data is needed on human rights performance, with a focus on outcomes and results rather than inputs, outputs and activities; and
- grievance mechanisms need to work to improve trust and effectiveness (including through work on transparency and monitoring) and more is needed to help build gender-sensitive and culturally-appropriate mechanisms.
All of which might make the hill seem a little like a mountain. Fortunately, the Working Group's report represents the first of two outputs from its mandate to chart the course for the next decade of action on business and human rights. Later this year, the Working Group is to launch a Roadmap for the Next Decade which will set out an implementation strategy with goals and targets for States, business enterprises and associations.
Unlike my time at senior school, the next ten years represents a defining moment for the business and human rights space (as it does with the wider ESG/sustainability agenda). As the Working Group's report notes, some good progress has been made. Now is the time to double-down on those efforts and push forward with the greater integration and implementation of the UNGPs in practice and on the ground.
One recent and one upcoming development may assist with that push.
- The Dutch court's recent judgment in the Shell case in which the court referred to the UNGPs as an authoritative and internationally endorsed soft law instrument suitable for the interpretation of the Dutch unwritten standard of care is part of a wider direction of travel seeing the UNGPs "hardening" beyond their original status as a soft law instrument; and
- The European Commission is expected over the Autumn to publish its proposal in respect of mandatory environmental and human rights due diligence regime, which will likely leverage off and refer to the UNGPs (or similar standards such as the OECD Guidelines) and give practical guidance on how companies should be meeting their responsibility under the UNGPs.
With the Dutch's court judgment likely to be appealed, other claimants possibly attempting to bring claims along similar lines and the European Commission being joined by a number of Member States in looking at due diligence regimes, it will be well worth keeping an eye on this space going forwards.