Report: Expert meeting on business and human rights, 29 January 2018
Summary:
The EEAS convened an expert group meeting on 29 January 2018 with the
participation of EU Member States' experts from capitals and permanent
representations (CZ, NL, HU, SI, DE, ES, IR, GR, DK, AT, SE, LT, UK, FI) and COM
colleagues (DG GROW, TRADE, JUST, DEVCO, EMPL, SL) to brainstorm on
strategic approaches to business and human rights. The meeting touched upon two
building blocks – implementation of the UN Guiding Principles (exchange of best
practises regarding development and implementation of National Action Plans, co-
operation with civil society and business; concept of the due diligence, possibility of
an overarching EU Action Plan on Business and Human Rights) and the way forward
in multilateral fora. Participation of two renowned experts – Ms Rachel Davis,
Managing Director of Shift and former advisor of UN SRSG Prof John Ruggie, and
Prof Doug Cassel, Professor of Law at University of Notre Dame – enriched the
discussion.
Detail:
- EU Member States highly appreciated exchange of views on the preparation and
implementation of the NAPs (experience of Germany on introducing the monitoring
mechanism, lessons learned by NL as regards co-operation and involvement of other
line Ministries and the need for a long term vision). DE, NL, SE and FR asked for a
mapping to be carried out at the EU level to identify existing practises regarding
NAPs , BE suggested to a develop a toolkit containing lessons learned which could
potentially encourage remaining EU Member States to develop their NAPs.
- Member States again raised the question of an EU Action Plan on BHR. They
clearly showed their interest for an action at the EU level, and the need to develop a
vision (BE), however highlighted that the potential Action Plan on BHR should not
become aim of itself (i.e. only ever a commitment with no date for delivery), but rather
contain sharing of best practises in various strands (such as due diligence,
responsible business conduct) and sectoral initiatives (eg garment industry). MS
were also interested to learn more on the progress of the Action Plan on Corporate
Social Responsibility. DG GROW highlighted that a lot has been done by the EU and
EU MS on the implementation of the UNGPs, and there is a need for better
communication on the work to date. They considered the Corporate Social
Responsibility, Business and Human Rights files more through the prism of
Sustainable Development Goals and referred to developments ongoing with regard
to the multi-stakeholder platform and a possible Working Group on CSR. DG GROW
also supported the idea of a toolkit to be developed at the EU level.
- Rachel Davis stressed in her presentation the need to go beyond the "false
dichotomy" between the UN Guiding Principles and further legal developments as the
UN Guiding Principles do foresee the need for regulation, and envisage a smart mix
of voluntary and mandatory measures. Referring to the "Recommendations" paper
produced by UNSRSG Ruggie at the end of his mandate [circulated to participants
before the meeting] including the need for further legalization at the international
level, she highlighted the need to address the existing protection gap which leads to
the lack of clarity about both the normative and enforcement standards that apply
where business causes or contributes to serious human rights harms particularly in
areas of heightened risk where victims lack access to local remedy. Prof. Ruggie also
pointed to the possibility of drafting a new international legal instrument, possibly with
the UN Convention against Corruption as a model. She highlighted that her work in
NGO Shift and regular contacts with businesses indicate that leading companies are
ready to accept the inevitability of the legalisation, and having clarity on the
applicable standards is only in their interests. She referred to the proposal by the
International Organisation of Employers, supported by Shift and others, for a Wilton
Park on how to better shape the emergence of different laws on human rights due
diligence. Rachel Davis stressed her readiness to further co-operate and continue
exchanging as the EU leadership is needed on the issue of further legalisation.
Based on its own experience (e.g. EU Directive on disclosure), the EU could consider
offering a different proposal in the international arena to avoid being boxed in the
perception that it does not want legalization. Regarding the 2030 Agenda, Rachel
Davis called for respect for human rights to be transformative in the way business
companies are approached to implement the SDGs.
- Prof Cassel recalled that the push for a treaty is driven by the fact that victims often
lack access to remedy in a situation where European and other companies have
probably not done enough for prevention, notably in sectors such as textile,
extractive and agriculture. There is also a business case for a treaty which would
allow harmonization and standardization. Unfortunately, the treaty process was
hijacked with a political and ideological agenda – supported by States known for their
poor human rights records - with the EU in a disadvantageous position as it did not
come first. Prof. Cassel referred to his 2015 "White paper" [circulated to participants
before the meeting] outlined possible options of a legally binding instrument, ranging
from a traditional treaty to be adopted and implemented by the Governments with
reporting requirements to the possibility of an international court. The scope should
apply to all companies and could include elements where the EU has made a
substantial progress, for example, jurisdiction (Brussels Regulation). Certain
important elements within the UNGPs/pillar three (access to remedy) needs to be
addressed, including disclosure of information, liability of parent company for failing
to exercise due diligence over enterprise (with a line to be drawn as a parent
company cannot be responsible for everything in the supply chain), international co-
operation and mutual legal assistance, as well as legal aid and funding for victims.
Developing only a "precision tool" would not guarantee the full protection of victims.
Current IGWG process is leading nowhere, as the Chair failed to consult relevant
stakeholders, and the current format of discussions web streamed on UN TV is
unheard of. However, according to the Professor Cassel, the EU could impact the
current process by expanding it through a wide range of consultations, including
business, CSOs, states (including Ecuador), victim groups and ensuring broad
exchange on the content and process (the EU should not be in the lead, however
could co-sponsor the process). It is also very important to send positive messages
that the EU is willing to engage towards a sensible treaty on Business and Human
Rights building on its own legislation e.g. EU Directive on disclosure. This provides a
leadership opportunity for the EU in the world at large. EU's withdrawing from the
process, with other countries silent in the room, would only harm victims at the global
level. Conversely, the current process risks wasting time whereas victims want relief.
- EU Member States expressed their willingness to continue discussions on the EU's
position regarding further legalization, with the possible update of the recent non-
paper as a starting point to feed into the development of an EU position, with one EU
MS raising the question of the cost/benefit of continued engagement in the current
process. The issue of submission "elements for a draft legally binding instrument"
was also touched upon, where the EEAS recalled that the EU has already shared its
views during the 3rd session of the IGWG and therefore, in this context, there is no
need for EU/EUMS to submit further comments by the deadline of February 2018.
- In conclusion, EU Member States found the expert meeting to be very useful and
asked for meetings to be continued in this format, also discussing different thematic
topics in the area of business and human rights.
Next steps:
- Further discussion with COM services in the framework of upcoming ISG on Human
Rights: 15 February;
- A dedicated ISG on Business and Human Rights with Commission services: early
March 2018;
- Debriefing/further brainstorming with NGOs: March 2018;
- Next expert meeting on BHR, possibly dedicated to a specific topic: spring 2018.