On 21 June the Human Rights Council (the Council) held an interactive dialogue with the newly established Working Group on the issue of human rights and transnational corporations and other enterprises. This Working Group replaced the mandate of the Special Rapporteur on business and human rights, with the goal of putting into effect the Guiding Principles on Business and Human Rights that had been developed by the former Special Rapporteur, John Ruggie.

On 21 June the Human Rights Council (the Council) held an interactive dialogue with the newly established Working Group on the issue of human rights and transnational corporations and other enterprises. This Working Group replaced the mandate of the Special Rapporteur on business and human rights, with the goal of putting into effect the Guiding Principles on Business and Human Rights that had been developed by the former Special Rapporteur, John Ruggie. While the dialogue was held in a positive athmosphere, it also exposed continuing differences on the scope and utility of the Guiding Principles, given their non-binding nature and known substantive gaps. 

Ms Margaret Jungk, rapporteur of the Working Group, opened the session by mentioning the Human Rights Council’s historic decision to endorse the Guiding Principles. This, she said established for the first time an ‘authoritative global standard’ to address the negative impacts on human rights of business activities. The next step was for awareness raising of the Guiding Principles and for States and businesses alike to effectively implement. Ms Jungk introduced the three work streams that will guide the Working Group in this effort, namely dissemination of the Guiding Principles, ensuring impact through implementation, and promoting and strengthening global governance structures. She emphasised the duty of States as well as businesses to respect and protect human rights while noting that all actors needed to ensure effective access to remedies when breaches occur. This strategy enjoyed general support from the States that spoke.

Ms Jungk’s mention of possible country visits was notably welcomed by Australia as a means to ground the Working Group’s work in real-life complexities on the ground, to speak directly with those responsible for implementation, and to make constructive recommendations. Ghana stated that it was important for the Working Group to undertake country visits to assess the different capacities each has for implementing the Guiding Principles.

This issue of capacity was raised by several other States. India expressed its concern that those businesses that did not live up to the Guiding Principles would be blacklisted. It worried that this would reflect a lack of capacity on the part of businesses in developing countries and the general lack of a ‘level playing field’ in the global corporate world, rather than any ill will. It called on the Working Group to take capacity and cultural context into account when assessing implementation. In a similar vein, the Russian Federation stated that while the Guiding Principles are universal in their application, the methods for their implementation may vary depending on the capacity of each country.

Spain joined Norway in calling for clear communication between States and the Working Group, and a constant elaboration by the Working Group of practical tools to address challenges which vary from country to country and from sector to sector. Following up on this point, the European Union (EU) wished for further elaboration of the implementation phase as well as an indication of priorities and timelines for the tasks ahead. India, Sweden, and Spain, and requested exchange of best practices as a tool for implementation, with India stating that the Working Group should ensure that it does not become a catalyst for 'naming and shaming' States and corporations.

Norway made the crucial point about the need for incentives for enterprises to integrate the Guiding Principles into their own work, an argument echoed by the Russian Federation which called for the dissemination aspect of the strategy to be complemented by a strategy to increase the interest of corporations in human rights, thereby stimulating demand.

Many States (Pakistan (on behalf of the OIC), Argentina, Australia, Sweden, and the United States, along with the International Commission of Jurists (ICJ)) welcomed the Working Group’s consultative approach, with Argentina, Australia, the UK, and the ICJ noting the particularly important role of civil society. However, the ICJ questioned the success of that approach, saying that those directly affected by business practices have been virtually excluded. To this end it suggested that future consultations be held in places where representatives of these groups could participate, and that a voluntary fund be established to encourage and facilitate that participation. In a somewhat contradictory statement, Ms Jungk mentioned in her closing remarks that the issue of the victims’ voices was one that the Working Group had struggled with, and that in the end it had been recognised as an issue that cuts across all the planned work streams, as a result of which it is not explicitly mentioned in the strategy. Australia called for the Working Group to also consult with small and medium enterprises (SMEs). The Forum on Business and Human Rights, which will be held from 4-5 December 2012 under the guidance of the Working Group, is another opportunity for broad consultations between all stakeholders, and civil society is strongly encouraged to continue their engagement with the Working Group by participating in this Forum. However, given the skepticism among parts of civil society on the limited scope of the Forum's work, it may be difficult to attract sustained attention to the Forum.

Paraguay and the Russian Federation drew attention to vulnerable groups with the Russian Federation requesting the Working Group to ensure that the Guiding Principles are disseminated amongst these groups, to inform them about their rights. UNICEF highlighted its Children's Rights and Business Principles, which seek to fill gaps in existing standards in relation to the impact of business and children.

With regard to next steps, the UK stated that it was important not to upset the integrity and balance achieved by Mr Ruggie in the Guiding Principles, and described the ultimate goal of the process as being to transform the Principles into action. Other States saw the Principle as a starting point from which a further process can be developed (for example, Cuba, Egypt). Egypt stated that the Working Group should seek to identify protection gaps so that issues not covered by the Guiding Principles could be addressed, giving as an example the activities of the pharmaceutical industry in the acquiring and merging with enterprises in developing countries, which impacts upon the production of generic drugs. The ICJ too said that the implementation of the Principles should not foreclose any further development, including further enhancement of standards, pointing out that Mr Ruggie himself had described the Principles as a platform on which cumulative progress can be built. It expressed concern with the description by some, including the Working Group, of the Principles as the 'authoritative basis' for understanding the duties and obligations of States and businesses, noting that it is not a legally binding document. Of particular concern was the lack of sufficient judicial remedies provided by the Principles, further underscoring the need for substantive development of the normative basis. Ms Jungk, responding in her closing remarks, said the Working Group's intention was to begin the process of implementation and on that basis to identify gaps and shortcomings in the process on a factual basis. She did not talk about plans to identify gaps in the Principles themselves.

Ms Jungk concluded by setting out three objectives that the Working Group wanted to see States achieve, first, identify areas in country which are most affected by the activities of businesses and build action plans on the basis of the knowledge obtained; second, the development of a team within governments that can drive the work of implementing the Guiding Principles across all ministries and departments; and third, direct engagement from States with the Working Group to get advice and assistance.