Statement by the UN Working Group on Business and Human Rights

The global pandemic and the economic crisis inevitably following in its wake have become an unprecedented test for governments and businesses not to lower human rights standards. It is more vital than ever for governments and business alike to take a sustainable people-centred path while fighting Covid-19 and trying to keep economies afloat. It will be equally critical to do so once the pandemic passes, rather than cutting corners in the name of economic growth. Major global challenges wait around the corner; not least the double threats of climate change and increasing inequalities.

The human rights and economic consequences of the pandemic have demonstrated the dire need for better safeguards, especially for vulnerable workers in both developed and developing economies across sectors, but also for consumers and all members of society. The economic crisis is also starkly putting on display and amplifying existing and growing inequalities. If left unaddressed, they present a fundamental challenge to human dignity and sustainable development.

It should have been obvious, but it appears to have been a revelation to many: the workers who sew our masks in factories, who staff essential services and transport, and who farm the land, or care for the sick, amidst the crisis, are essential to our survival. Yet, they are often the ones most vulnerable and at-risk to human rights abuses – often on temporary or abusive contracts, with low wages and few or no safety nets, and exposed to health and safety risks.

The UN Guiding Principles on Business and Human Rights – which the UN Working Group on Business and Human Rights is mandated by the UN Human Rights Council to promote – that provide the globally recognized and authoritative framework for State duties and business responsibilities in preventing and addressing adverse business-related human rights impacts apply also in the current context.

The three pillars of the Guiding Principles – “Protect, Respect and Remedy” – that set out how governments and business should put people at the centre of how business is done, have again become all too relevant. It is critical that they are not put aside now. The responses to the pandemic and the economic impact must not result in lower standards – or even be used as a pretext by governments and business actors to circumvent international human rights commitments. A key issue, as we have seen from recent developments, is to be on the alert to growing risks to civic freedoms and human rights defenders.

The role of States in ensuring responsible business conduct during the crisis and the recovery

The first pillar – the State duty to protect human rights – is built on the fundamental obligation of governments to protect rights-holders, which applies both under normal circumstances and at times of crisis.

Just as States must act resolutely to confront the pandemic, they must also deal as decisively with the economic shocks that are having detrimental impacts on people around the world, both now and for the foreseeable future – with lockdowns affecting some 2.7 billion workers worldwide, as estimated by ILO, and the global economy facing the worst recession since the 1930s’ Great Depression, according to IMF.

Inevitably, it is the poorest and most vulnerable in society who will bear the brunt and have the least resilience to such economic shocks. A critical task for governments is to provide adequate safety nets for workers laid off or losing jobs, in line with ILO standards and guidance. Governments must pay special attention to individuals and groups that are particularly vulnerable: in developing and emerging economies, the workers – and their families – in informal sectors, or those at the “frontline” of global supply chains that are being hit hard as orders are cancelled, or at risks of exploitation as production requirements increase exceeding companies’ capacity; and in developed economies, those with no or little social protection, such as workers in the “gig” economy as well as women and migrant workers.

The crisis has starkly highlighted how vital these workers are to our current response and to our future. They are on the frontlines – from producing masks and picking up trash, to delivering supplies to our doorsteps. As governments are scrambling to extend a financial lifeline to struggling businesses, they should also remember the need to build and protect resilience for workers and to ensure that they put human rights at the centre of responses. Saving businesses is, of course, essential to save the livelihoods of their workers and the families depending on them (which for some small and medium enterprises may be the one and same thing). Responses need to be designed with impacts to people in mind.

The Working Group considers that any financial support or bailouts to businesses should come with a clear requirement to commit to complying with standards for responsible business conduct, notably respect for human rights and dignity of people – ensuring that workers are not put at health and safety risk, are allowed sick leave with pay, and not exploited with the justification of crisis and emergency. While masks may be disposable, workers are not.

The UN Guiding Principles call for policy coherence. Among other things, this requires State-owned enterprises to lead by example in treating people with respect and dignity and requiring the same for business partners; and for public procurement to integrate human rights due diligence. As governments procure large amounts of medical and protective equipment, they should be doing so by choosing businesses that respect worker rights and are not benefitting from the use of forced or child labour in their supply chains.

This is a time to recognize and reward those businesses that are committed to sustainable and responsible practice.

Importantly, States also need to coordinate and work together through multi-lateral institutions and effective collaboration – both on public health measures and to put the global economy back in order on a sustainable path.

Business respect for human rights is mission critical during the crisis and for a resilient recovery

The second pillar of the Guiding Principles – the business responsibility to respect human rights – applies regardless of how governments are meeting their obligations and applies in all contexts. As the crisis puts enormous strain on numerous businesses across sectors, and many are faced with very tough business decisions, now is a time to show what commitments to responsible business conduct mean in practice.

Some businesses have a special role in this situation because of the nature of their products or services (notably, capacity to produce life-saving products). However, all companies have a baseline responsibility to prevent and address adverse impacts with which they may be involved, and to treat people with dignity. Human rights due diligence is key to ensuring that any risks to people are identified and mitigated. This includes taking adequate preventive measures to ensure the health and safety of workers. For companies’ own workers it means protecting them from risks when asking them to continue working, and ensuring fundamental guarantees, such as paid sick leave, and providing safety gear and equipment to them.

The Guiding Principles also clarify that the responsibility of businesses extends beyond the business’ own activities, either when contributing to adverse impacts caused by others, or when directly linked to their operations, products or services through adverse impacts caused by business relationships. For example, businesses should assess impacts on workers in their supply chain, going beyond the first tier, and expect the same from their business partners and suppliers. We have seen exemplary business conduct of some companies, taking action to pay workers in sub-contracted companies, or avoiding automatically triggering “force majeure” clauses to cancel payments and orders which would hurt struggling suppliers. We have, however, also seen a lot of bad practice in the crisis.

The type of risks or nature of a business’ role in the crisis will differ across some sectors, but the responsibility to respect applies to all – including those that play a special role in making and delivering life-saving products. To mention but a few illustrative examples, this responsibility also applies to tech companies developing applications to monitor the spread of the virus, who need to address the human rights risks of intrusive data collection and surveillance, including by thinking ahead for when the health crisis is over. To highlight yet another but different example, the financial sector, on its part, will need to address the impact of rigidly enforcing loan or consumer obligations, at a time when this will lead to catastrophic events for millions of people globally.

For businesses, effective human rights due diligence should be conducted to avoid or minimize harm to people in the current context. Prevention is always better than cure – and integration of human rights expertise in crisis management teams will help businesses being better positioned to identify and address risks to people that may not be front and centre among other business functions. It may also help business address future legal risks (because treating people with dignity is the right thing to do).

A key element of due diligence when assessing impacts of business decisions and activities is to involve meaningful consultation with potentially affected groups and other relevant stakeholders. Robust due diligence for assessing risks and impacts on workers, for example, must involve dialogue with unions and worker representatives.

Both during time of crisis and for the recovery, collective action (for example industry collaboration) will be more effective than individual business responses to tackling systemic challenges. Moreover, to ensure legitimacy and effectiveness of the practical guidance and initiatives needed for addressing risks in specific contexts and industries, there needs to be open and transparent multi-stakeholder dialogue and processes.

Enabling access to remedy is not optional

The third pillar of the Guiding Principles – the need for access to remedy for victims of business-related human rights harm – is equally important. Enabling access to effective remedy for rights-holders when abuse has occurred, through both judicial and non-judicial grievance mechanisms, is an integral part of the State’s legal duty to protect human rights. For example, where workers have experienced their rights being abused, they must have access to remedy, including through judicial means. Where a business has caused or contributed to adverse human rights impacts, the Guiding Principles clarify that it should provide for or cooperate in their remediation through legitimate processes. Even for businesses fighting for survival, the responsibility to respect human rights still applies.

Government and businesses alike need to strengthen accountability mechanisms and empower affected rights-holders to come forward to voice their concerns and sound the alarm when abuses occur. As States move their courtrooms online, and shutter government institutions, we need to understand how any change in judicial practices, will impact those who seek remedy and may not have the capability to simply show up to court via the Internet. Enabling access to remedy for wrongdoings and enhancing corporate accountability not only make sense today for a better response to the current crisis – it is also critical to preventing future human rights abuses.

Looking ahead

The pandemic will eventually pass. States and business actors must use this moment to not revert to business as usual, but to forge a new normal based upon the globally agreed standard provided by the Guiding Principles. The recovery period will provide the opportunity to take a more sustainable path forward, by putting people and planet at the centre. Eventually, making real progress in implementing the Guiding Principles will better prepare us for the next crisis, not least when turning our collective attention to the climate crisis and other human rights challenges stemming from injustices and growing inequalities. A recent resolution by the European Parliament recognized this insight, noting that “corporate human rights and environmental due diligence is a necessary condition needed in order to prevent and mitigate future crises and ensure sustainable value chains.”

We would also like to echo the call made by UN Secretary-General Antonio Guterres and the critical importance of a recovery that leads to a better world. We need a coordinated response now – including on the economic front, paying attention to developed and developing economies alike – and to build resilience for the future. We need to realize the Sustainable Development Goals that leave no one behind and realize human rights for all.

The UN Guiding Principles’ three pillars of “Protect, Respect and Remedy” provide a blueprint for the way forward. To get there, we need better collaboration (as we suggest in a joint statement with OECD, ILO and OHCHR) involving all actors, with responsible governments and businesses leading the way.