Anna Triponel | 3 February 2020
Yes, it is. While we often say that respecting human rights is a journey, and that each company will have its own unique path depending on its human rights risk profile, it is possible for a company to develop a ‘bad’ human rights policy commitment.
I’ve worked on too many policy commitments to count. But more importantly, I’ve worked with companies on the embedding of their rights-respecting culture – after or in parallel to the development of their policy commitments. There are some distinct features of ‘bad’, and ‘good’, human rights policy commitments. A ‘bad’ policy commitment is ineffective or, worse, sets a company back; while a ‘good’ policy commitment propels a business to developing or consolidating a strong culture based on respect and dignity for employees and others connected to its business. (If you’re short on time, you can scroll directly to the nine tips for effective human rights policy commitments here.)
First, what is a human rights policy commitment, and why would a company develop one?
This commitment sets the foundation for a company’s rights-respecting culture. It demonstrates that the highest levels of the company wish to drive respect for human rights into the core values and culture of the business. Just as a company may have a health and safety policy, or a commitment to conduct business ethically, it would have a policy commitment to respect human rights. While some companies had them before the UN Guiding Principles on Business and Human Rights of 2011 (the UNGPs), they really took off following this time since the UNGPs ask every company to develop one.
The form doesn’t actually matter — this commitment to human rights respect could be included in a Code of Conduct; integrated into a company’s responsible business, health and safety, or other type of policy commitment; or stand as a separate statement. The choice will depend on what the company already has in place and what’s viewed as the most appropriate to drive this the most effectively. What does matter is its contents and how it was developed.
How can a human rights policy commitment be bad, and why?
Let me explain why:
|A bad human right policy…||Why is this?|
|… is developed quickly, with no input from those who will be asked to apply it (e.g. in response to an investor question, a business partner questionnaire or an external benchmark)||The wording contained in the policy matters. So that it can resonate with those who will be asked to apply it, effective policies are developed in collaboration with (some of) those who will play a role in its implementation – including because their day-to-day actions may inadvertently impact human rights. The best policies are those who have also been tested prior to approval with a range of external stakeholders who have insights into the human rights implications of the business and the perspectives of those who could be impacted the most severely|
|… does not state where the policy emanates from||A policy commitment is intended to convey the tone from the top – which starts with a commitment made at the top levels (e.g. CEO, Chairman)|
|… does not specifically include the company’s commitment to respect human rights||A statement which references a company’s commitment to promote human rights, without referencing its responsibility to respect human rights, or that discusses the company’s corporate social responsibility (CSR) projects or programmes that support the UN Sustainable Development Goals (SDGs), without clarifying that respect is the baseline, demonstrate that the company is confused about what is expected under soft law|
|… does not specifically include the company’s commitment to respect internationally recognised human rights||The term ‘internationally recognised human rights’ is a defined term under soft law. Referencing it shows a company understands the scope of its responsibility. Even better, the company can include the definition directly in its statement and can consider whether there are additional standards that may apply by virtue of its business. (See the definition below for your convenience)|
|… does not specifically include the company’s commitment to respect all internationally recognised human rights||Research we conducted during John Ruggie’s mandate that fed into the development of the UNGPs found that any and all of the human rights contained in this list could be impacted by business. Narrowing the commitment would lead to blindspots within the company’s commitment|
|… does not translate what ‘human rights’ mean for the business||It is commonly unclear what ‘human rights’ actually means, which makes it particularly difficult to know what is expected. An increasing number of company policies ‘translate’ what human rights mean for their business. For a telecommunications company, this could mean paying particular attention to the freedom of expression and the right to privacy of end-users, for a mining company this could mean focusing on the right to an adequate standard of living of neighbouring communities, while apparel companies may focus more on discrimination, child labour and modern slavery in their supply chains. What matters is that the company has used the concept of ‘salience’ to determine which human rights it chooses to reference in its policy. (Again, further defined below). Policies of other private sector actors (investors, law firms) don’t tend to go into this level of detail, but tend to acknowledge that they prioritise their actions based on the severity of impact to people|
|… does not state what the commitment to respect human rights means in practice for the company||Committing to ‘respect human rights’ now has a certain definition under soft law, and therefore this wording includes by integration the expected actions and behaviours that are described in soft law. At the same time, since the policy is intended to raise awareness of the company’s staff and business partners of the company’s expectation, it can be helpful for the policy to describes in practice what ‘respect for human rights’ means, including spelling out the necessary components of human rights due diligence and committing to remedy. (See the definitions below for further information on this).|
|… does not clearly set out the company’s expectations of how the company’s staff should act||The behaviours, actions and omissions of the company’s own employees will make or break the policy commitment. Conveying clearly what is expected will increase the company’s ability to indeed respect human rights|
|… does not clearly set out the company’s expectations of how the company’s business partners and other parties directly linked to its operations, products or services should act||It can feel overwhelming, but indeed a company’s responsibility under soft law extends to its business partners throughout its value chain – including those several tiers removed. This is where the prioritisation of human rights issues to focus on (using salience) helps. Setting the expectation of business partners here helps the company as it seeks to embed rights-respecting cultures in its business partners (e.g. because its contracts and trainings can reference back to the policy). The policy may even call out some business partners that the company sees as particularly important for its commitment, because these are the partners that are more likely than others to severely impact people|
|… is silent on legal compliance or commits the company to respecting all national laws||While of course companies cannot commit to not respecting national law, companies are now expected to assess whether the laws they follow fall below, or are inconsistent with, human rights (e.g. legalisation of child labour or discrimination). Companies are expected under soft law to “seek ways to honour the principles of internationally recognized human rights when faced with conflicting requirements” in applicable laws, and the policy is a helpful place to make clear companies’ understanding of this expectation|
|… does not build on or trigger internal actions that are necessary to meet the commitment to respect human rights in practice||Embedding is the raison d’être of a policy. A commitment without embedding is simply a piece of paper. Embedding captures the internal changes that are necessary to make this commitment a reality. Governance, accountability and responsibility are key embedding measures which are increasingly detailed in policies. Other embedding measures include training and coaching, incentive structures and contracts. Obviously a company will not be starting from scratch in its human rights-related work so it’s paramount to first understand what processes the company is building on to enable further supporting changes to be made following the approval of the policy. (This is why the first point about the process for development of a policy is so critical)|
|… sits in a silo, without referencing how the policy commitment dovetails with other relevant policies and processes||Since the company will not be starting from scratch, there will already typically be a number of policies in place depending on the company (e.g. a health and safety policy, a security policy for an extractive company, a responsible investing policy for an investor). How this policy dovetails with the company’s broader policies and processes is a critical part of the development process, and is increasingly referenced in policies as well|
|… is opaque as to how individuals who feel that they have been impacted by the business can complain||A company demonstrates that it is meaningfully committed to respecting people if it is able to provide a channel for people to raise their voice if they don’t feel this is the case. Typically, companies provide channels for their employees while stating that they work with their business partners to encourage them to create their own, although we are seeing a growing number of companies extend their grievance mechanisms to a broader range of stakeholders beyond employees|
|… remains an internal document which is not communicated internally or externally||A policy aims to change behaviours of staff, as well as those connected to the business who could negatively infringe upon human rights. A policy will not be able to achieve this if it is not made publicly available and is not communicated internally and externally to all personnel, business partners and other relevant parties|
Let’s flip this – what should I be looking for in a ‘good’ human rights policy?
Most companies note in their policies that they seek to follow the UN Guiding Principles on Business and Human Rights in their human rights work. A company can also include other information, such as further specificity on the categories of stakeholders the company can impact upon through it value chain (e.g. with regard to its supply chain workers, communities and indigenous communities, and customers), information on how it seeks to build and exercise leverage to tackle systemic issues and/or reflections on how it will track its progress.
We are also seeing a number of other developments in the ‘human rights policy commitment field’, including a growing number of companies:
- linking their human rights commitment with their environment and climate-related commitments
- committing to defend human rights defenders who are affected by their business activities and
- making clear when they intend to go beyond respect and how their commitment links to the UN SDGs
To conclude, take a look at your company’s human rights policy statement and ask yourself: what does this statement tell me about my company’s understanding of human rights?
An increasing number of external stakeholders (investors, business partners, civil society, consumers) can tell the difference between a perfect policy, and one that is lived up to in practice. At the end of the day, this is about creating a culture where – when push comes to shove – people come first. So, where do you land? Are you reading a ‘good’ or a ‘bad’ policy?
A few definitions
‘Internationally recognised human rights‘ are defined in the UNGPs as those expressed in:
- the International Bill of Human Rights (consisting of the Universal Declaration of Human Rights and the main instruments through which it has been codified: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights) and
- the principles concerning fundamental rights set out in the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work.
The UNGPs also make clear that “[d]epending on circumstances, business enterprises may need to consider additional standards. For instance, enterprises should respect the human rights of individuals belonging to specific groups or populations that require particular attention, where they may have adverse human rights impacts on them. In this connection, United Nations instruments have elaborated further on the rights of indigenous peoples; women; national or ethnic, religious and linguistic minorities; children; persons with disabilities; and migrant workers and their families. Moreover, in situations of armed conflict enterprises should respect the standards of international humanitarian law.”
‘Salient human rights issues‘ are those human rights at risk of the most severe negative impact through the company’s activities and business relationships. These are the rights that companies are expected to prioritise for action under soft law (and increasingly hard law). There is a specified methodology for identifying a company’s list of salient issues which is further described in the UN Guiding Principles Reporting Framework.
A commitment to ‘respect human rights‘ means that the company commits to:
- avoiding infringing on the human rights of others and to address adverse human rights impacts with which it is involved
- taking different actions, depending on how it is connected to the impact. The company commits to (1) avoid causing or contributing to adverse human rights impacts through its own activities, and address such impacts when they occur and (2) seek to prevent or mitigate adverse human rights impacts that are directly linked to its operations, products or services by its business relationships, even if it has not contributed to those impacts
- putting policies and processes in place to enable it to meet this commitment. In addition to the policy commitment and measures to embed this policy throughout the business, this includes putting in place (1) a human rights due diligence process to identify, prevent, mitigate and account for how the company addresses its impacts on human rights (which includes building and exercising leverage to mitigate impacts) and (2) processes to enable the remediation of adverse human rights impacts the company causes or to which it contributes
- conducting stakeholder engagement with potentially affected groups and other relevant stakeholders to inform its human rights due diligence