Puvan Selvanathan at Press Conference on Business and Human Rights on December 4, 2012. Source: http://bit.ly/1KfAlOj

Puvan Selvanathan questions whether we can expect businesses to respect human rights when states are not living up to their duty to protect human rights

This blog was co-authored by Judy Beals, the Director of the Private Sector Department at Oxfam America.

A bomb exploded in the business and human rights world in December with the resignation of Puvan Selvanathan, independent expert for the UN Working Group on Business and Human Rights. The announcement has left much of the community shell-shocked since, primarily due to the scathing letter of resignation he wrote and released publicly in conjunction with his departure. His letter reprimanded the United Nations and its member states, pointing to serious flaws in the Working Group’s mandate around three primary issues:

1. Member states set a bad example for business on human rights.
2. Business is profit oriented and must adhere to laws, but not norms.
3. The UN is bipolar in dealing with human rights and businesses.

Member states set a bad example for business on human rights.

Selvanathan questions whether we can expect businesses to respect human rights when states are not living up to their duty to protect human rights. Business and states are deeply intertwined, particularly in countries where corruption thrives. Business interests dominate the halls of the US Capitol, and the reality of corporate capture is even more pronounced in less developed countries where government officials are also beneficiaries of government concessions. So yes, member states must live up to their duty to protect but citizens must demand their rights be protected and hold corporations and governments accountable. While it is true that the fox may be guarding the hen house, people power will eventually be the best offense for governments and businesses to be corralled into respecting and protecting human rights. History shows this to be true – most notably with the civil rights and anti-apartheid movements.

Business is profit-oriented and must adhere to laws, but not norms.

Like it or not, business is a profit-oriented endeavor and while legal compliance is the raison d’être for company general counsels, it is not as if human rights aren’t codified. While being free from forced labor is a human right, it is also against the law in most countries and yet we know it exists. Businesses are able to get around laws too when they’re not enforced.  States are weak and corporate capture is rigging the rules to prevent market forces from dictating the real cost of doing business. The United Nations Guiding Principles on Business and Human Rights (UNGPs) will not solve all these problems (Selvanathan is right about that), but they do offer another opportunity to get companies to engage communities, to understand what is happening in their supply chains, and to instill the notion that businesses have a role in remedying negative impacts of their work. It has only been five years since the UNGP’s were endorsed, and in that time more and more governments are beginning to expect businesses to disclose information and do more thorough due diligence then previously. The UK modern slavery act and the California Transparency in Supply Chains Act are good recent examples.  All that said, guidelines and norms, or “soft laws”, are not a silver bullet but they do pave the way to the development and enforcement of laws – and that is what we should expect when it comes to human rights and the private sector. At the same time, we must continue to insist that laws incentivize companies to incorporate the real cost of doing business which includes providing living incomes and wages to those producing raw materials and products and providing services. It also means that resources that companies use, including carbon, land and water need to be taken into account when it comes to calculating market prices. Companies should see this as creating a playing field and member states have to legislate accordingly.

The UN is bipolar in dealing with human rights and businesses.

Puvan notes his frustration in his letter that the UN’s Office of the High Commissioner on Human Rights (OHCHR) and the UN Global Compact do not deal with the private sector in the same way.  The Global Compact tries to work with business to improve human rights practices, while OHCHR takes a more heavy-handed approach. But we don’t see a problem with this. At Oxfam, we consistently employ both sticks and carrots when working with or against companies and we believe this to be an effective approach. After all, not all companies are the same. There are many that strive to create positive outcomes for communities they work in and want to ensure that their business is not contributing to human rights violations. At the same time, there will always be bad actors, and bad actions even by good actors. Different situations require different approaches, so Oxfam uses various tools to achieve the goals of pro-poor development and human rights. Sometimes we campaign, sometimes we engage, and sometimes we partner with companies. It isn’t unreasonable to expect the UN to employ different approaches as well; to champion the good actors and have others  learn from them (as the UN Global Compact has done), and wield a stick, when appropriate, for bad actors.

It took guts for Selvanathan to call out the inconsistencies he witnessed during his time as an independent Special Rapporteur for the UN. His letter should serve as a wake-call to those of us in the business and human rights community to step up our fight – pressing for more transparency and accountability, demanding more effective grievance mechanisms, advancing hard law as well as soft law solutions, and expecting UN mechanisms that will drive human rights accountability into the very heart of the SDGs.

For Oxfam, that means continuing to offer pragmatic solutions that provide communities with the opportunity to assert their rights when it comes to corporate abuses, like our Getting it Right tool, our Behind the Brands campaign and our Community Consent Index.  We’ll offer carrots to those that lead and sticks for those that fall behind. We’ll call on governments to protect citizens and to regulate private sector practices. And we’ll continue to place our bets on the unstoppable force that matters most: citizens and communities raising their voices and demanding their fundamental human rights.