The challenge of addressing reality

The fifth edition of the Annual UN Forum on Business and Human Rights ended this Wednesday, in Geneva. Read the article by Conectas on the main topics on the agenda and our contribution to the debate

By Caio Borges and Paulo Lugon*

Brexit in the United Kingdom, Trump in the United States, impeachment in Brazil, the “no” vote on the peace process in Colombia. If in all these places, 2016 was a year marked by unpredictability, there is a place, on the banks of a lake, where things rarely deviate from the script: the Palace of Nations, in Geneva. Here, at the headquarters of the UNHRC (United Nations Human Rights Council), the fifth edition of the Annual UN Forum on Business and Human Rights ended. The Forum is the world’s largest gathering on the topic and was attended by more than 2,000 representatives of governments, companies and civil society.

The 2016 Forum marks five years since the Council’s unanimous endorsement of the Guiding Principles on Business and Human Rights, a set of principles and guidelines that aim to clarify the roles and responsibilities of States and companies on human rights. According to the Secretary-General’s former Special Representative on the topic, Harvard professor John Ruggie, the Guiding Principles combine an interpretation of the body of rules that make up international human rights law and practical guidance for companies to incorporate respect for human rights into their policies and processes.

But the celebrations of the first five years of the Guiding Principles were restrained to say the least. In the city that proclaims to be the “center of global governance”, an air of uncertainty looms over the course of globalization, of which the UN is one of its leading proponents (or its victim?). What’s more, this past year has witnessed extremely serious human rights abuses committed by business enterprises.

Just over 10 days ago, the disaster caused by the collapse of an iron ore waste dam in the state of Minas Gerais completed its first anniversary. The dam was owned by Samarco, a joint venture between Vale and BHP Billiton. To draw the attention of the global community to the tragedy, we created, together with MAB (Movement of People Affected by Dams), a printed handout to distribute during the Forum. A suspicion we had was confirmed: many people had not even heard about the disaster. Others lamented how quickly the story had been dropped by the media around the world.

This year also saw the shocking murder of Berta Cáceres, a Honduran activist who fought for the rights of her community, threatened by the construction of a hydropower dam. This case, while symbolic on account of the consequences – a Dutch bank suspended its financing for the project – is just the tip of the iceberg in an alarming context. According to the British NGO Global Witness, more human rights defenders were murdered in 2015 than in any other year, and Brazil unfortunately leads the ranking.

The anniversary of Brazil’s worst social and environmental disaster and the record violence against human rights and environmental activists cast a shadow over the business and human rights agenda. Are these the signs of a failure of the idea of corporate social responsibility?

Conectas has been present at all five editions of the Forum. We have raised discussions on issues such as access to judicial remedies, the human rights obligations of public and private banks, and the role of UN human rights bodies in effectively implementing the Guiding Principles.

This year, we participated in the session on investment agreements and human rights, which addressed the cases of Brazil and India. In a direct dialogue with a representative of the Ministry of Finance, we tried to demonstrate that, while the Investment Cooperation and Facilitation Agreement created by Brazil strikes a better balance between the rights and duties of investors, it could have contributed more significantly to a reform of the current international legal framework on the protection and promotion of investments.

Although the number of participants has remained relatively constant, attendance at the Forum has been slipping, primarily among NGOs, but also by a number of governments. Part of the reason is because another important process is also occurring in the UN: the negotiation of a legally binding instrument to regulate the activities of companies with respect to human rights. In October, the working group established to elaborate this instrument met for the second time. The approval by the Council of the resolution to begin the process, in 2014, was perhaps one of those moments when the winds in Geneva were blowing in different directions. NGOs from around the world came together to attend the session and show their support for the resolution.

One aspect worthy of praise was the attempt by the organizers to energize the format of the sessions. Any initiative to refresh the bureaucratic and traditional environment of the Palace of Nations is welcome. One good example was the session on the situations in which companies adisengage, i.e., terminate a commercial relationship with partners that violate rights across the production chain. The session had an active moderation and the participants were split up into working groups to discuss specific issues. In another session on the situation of human rights defenders who work with extractive industries in Latin America, a hypothetical case was presented and the audience and panelists could propose possible actions they would take in the real world.

And although the Forum has started to tackle new important topics, such as corruption and human rights, the substance of the discussions has followed the same pattern as previous years: a lot of formality, little reality.

When interviewed for the position of the next UN Secretary-General, Argentina’s foreign affairs minister, Susana Malcorra, said that the UN exists for evolution, not revolution.

But now that five years have passed since the approval of the Guiding Principles, perhaps time has come to review the incrementalist approach that dominates the business and human rights agenda. The victims of the violations cannot wait anymore.. As Laura Cáceres, Berta’s daughter, asked in the closing session, how many more human rights defenders have to be killed and how many more attacks on our environment are needed for governments and businesses to take their human rights obligations seriously?

*Caio Borges, a lawyer from the Business and Human Rights project
Paulo Lugon, representative of Conectas in Geneva