 So welcome and welcome back to all of you to here to our training session in the Santa Alma Museum I also want to extend a warm welcome to all of those who are following us online. I know it's Friday afternoon and we had already very long and intense discussions over the last one and a half days So I hope you're not too tired But I'm very confident that the topic we're discussing now the role of civil society in the promotion of human rights in business And especially the two speakers we have here. We easily attract your attention and My name is Katarina Heisler. I'm a researcher at the Ludwig Wartsman Institute of Human Rights in Vienna and next to me are Mary Lynn Crooser the director of the core coalition and On the other side Patricia Feeney who is the director of rights and accountability and development So we have for this panel about one hour one hour and a half and we will first hear the perspective from our two experts and in between and Afterwards, you're very much encouraged to ask questions and of course speakers can also ask the other one And so we hope to have a very interesting discussion And without further ado I want to introduce you to Mary Lynn Crooser who has been a director of course since 2012 Prior to joining core Mary Lynn led the British Refugee Council's parliamentary work for two years and from 2005 to 2009 Mary Lynn worked for Oxfam where she was part of the international team The coordinate the successful campaign for the global arms trade treaty So please Mary Lynn the floor is yours Thank you very much and Excuse me. Thank you to the project for the invitation to come and speak to you this afternoon I'm going to talk about the UK national action plan on business and human rights I'll just briefly introduce you first to my organization Then we'll talk about What happened in the UK around the development of the action plan how we and other civil society Organizations participated in that What's happened since the action plan was published and what we've learned from the process So core stands for the corporate responsibility coalition and it's the UK civil society network on corporate accountability it's a coalition of Development human rights and environmental NGOs and we also have some trade union members and They all either work on directly themselves or they have an interest in international corporate accountability So how UK businesses have an impact on people and the planet beyond the UK our priorities are corporate governance in particular transparency and access to justice for people who have been adversely affected by UK corporate activity We work very closely with the European coalition on corporate accountability Which is the European coalition for corporate justice and also with the international corporate accountability round table in the US and with them we've produced reports on access to remedy and More recently some work assessing national action plans produced to date So to turn them to the UK national action plan on business and human rights as People have discussed and you're all aware the UN guiding principles on business and human rights were endorsed by governments at the UN Human Rights Council in 2011 in June and in November 2011 the UK Prime Minister announced that the United Kingdom would implement the guiding principles and would develop an action plan The UK was the first country to develop a national action plan There are now several others from the Netherlands, Denmark and Finland and plans are in development in Spain. The draft is available Germany they're just beginning the process and also an island among a number of other countries the US have started the process as well So it's kind of growing body of documents these action plans So the UK plan the development began in early 2012 and it was led by the foreign and Commonwealth office So it very much had an overseas perspective from the beginning There was no baseline assessment so there was no assessment of how Companies were having impacts what those impacts were What the regulatory framework was was it adequate? Was it inadequate? Where were their gaps as far as we were aware there was no process like that What happened was a series of workshops with business and civil society which included NGOs and trade unions did not include People from countries where UK businesses have a major presence So people you know on the ground were not Consulted although organizations working with those people were And there was very limited involvement of NGOs who might have concerns about Domestic human rights impacts for instance perhaps people who are working with Refugees or people seeking asylum Immigration detention is something that is provided by private firms in the UK Accommodation services for Refugees and people seeking asylum is also provided by private operators But to my knowledge Those groups and other groups like that were not involved in the process So these workshops happened there was quite open discussion, you know a number of issues were put on the table I think there was a high level of expectation about what the plan would deliver and about what it could include Initial drafts of the plan were then shared with a Small group of organizations and there was some chance to comment But there was not a wider follow-up consultation So, you know, there was kind of these one-off workshops. Everyone got to say their piece. I think people were Quite hopeful that something useful would come out and then that was it really until the plan was published So the plan appeared in September 2014 it was launched a high-level event at the Institute of Directors by the Foreign Secretary and the Business Secretary The plan is if you haven't read it it is it is available. It's quite short There's not not a great deal of detail in there. It's framed very much from the business case so The perspective emphasises that respect for human rights can bring business benefits, which is fine but I don't think anyone would have a problem with that but For us as civil society organizations, that is not the primary Purpose of a national action plan on business human rights. It's not to make a business case It's to set out what the state will do to ensure that human rights are protected In the context of business activities, so I think that framing was not very helpful The plan follows the three pillar structure of the UNGPs The state duty to protect human rights, the business responsibility to respect human rights and access to remedy So I'll just take you through Just just key points from the detail. So pillar one The plan mainly lists actions that had already been taken Before it was produced So it lists a number of legal instruments that had been amended or created relating to bribery, labour standards, transparency and then a longer list of voluntary initiatives that the UK had endorsed or promoted at the international level So the new action plans In pillar one, which is the state duty to protect human rights are also primarily voluntary approaches As you perhaps know, the UN Guiding Principles emphasise the need for the smart mix between voluntary and regulatory approaches For us the idea of the smart mix seems to have been somewhat forgotten about and we just go for the voluntary However, there are three significant commitments in the first section of the plan So the first was to review the degree to which the activities of UK state-owned controlled or supported enterprises are executed with respect for human rights and make recommendations to ensure compliance with the GPs The second commitment relates to investment agreements So it says that the government will ensure that agreements facilitating investment overseas by UK or EU companies incorporate the business responsibility to respect human rights and do not undermine the host country's ability to meet its international human rights obligations or to impose the same environmental and social regulation on foreign investors as it does on domestic firms And the third commitment instruct embassies and high commissions to support human rights defenders working on issues related to business and human rights Um I'll come to I'll come to the implementation in a moment I'm not going to deal with pillar two pillar two relates to the business responsibility to respect human rights So it's it's largely again As you would expect deals with voluntary approaches, which is which is fine. Those approaches can have value um, but solely they are not sufficient In delivering on the state duty to protect human rights. So Uh, the remedy section in the plan is very short. It's just one page and a half All it really says is we will review The provision of access to remedy in the UK That's essentially it and Trisha is going to say more about access to remedy. So I'll I'll leave that Just turning then to Implementation of the plan. So the plan came out with fairly big fanfare Uh, so what happened since then? It's important to understand the context in the UK, so Like everyone else we have felt the fire of the financial crisis and the Government response to that has been that Uh, we must pursue business led growth That is what will according to our government deliver economic recovery And to facilitate that growth Regulations must be Removed where they are holding business back So a very Powerful and consistent deregulation Narrative developed. So regulation is red tape It places hurdles in the way of doing business. It's not helpful and it must be got rid of so that's that's the You know, that's the context in which this plan was implemented. So immediately from the beginning It's it's not particularly auspicious um I think that made it very difficult for the people charged with producing the plan and the officials who hold this agenda To secure buying from other government departments and you can really see that and we have seen that In our engagement with officials. So although there is a cross departmental steering group The people involved were fairly They weren't high level And there's been very limited involvement from other departments who were key to The uk's implementation of the guiding principles. So the department for international development The ministry of justice the home office. They have Pretty much been absent from some of the debates the department for business more recently have been a little more engaged But we haven't seen the policy coherence That again is emphasized in the guiding principles In the plan there is no timetable for implementation. There are very few Specific goals. So I picked a few highlights out But there's nothing in there saying how you know, it's very much. Well, this is what we'll do But beyond that, there's no detail on how we intend to do it There were no there was no named department that had responsibility and Where we are now is Very little has actually happened except for government claiming After the event That certain things that they've done Are all part of the business and human rights agenda. So For instance, we've had the Passage through a u level of the of the director for non financial reporting Which will require companies to report on social human rights and environmental impacts We already had a provision like that in uk law But the eu directive will extend that to large company supply chains Now the uk government since that past has said Ah, here is an example of an action that we have taken on business and human rights Despite the fact that they oppose that Absolutely throughout the negotiations. So it's very nice that they're now claiming it and embracing it But really, you know, it's uh, it's stretching it You know stretching the business and human rights elastic as far as it will go So for civil society in the uk and to share the learning with People here as you perhaps engage with the development of the spanish action plan I think we should have tried from the beginning to Engage with more than the lead department on the plan. So, you know, the foreign office was leading the work We engaged with them But we I think should have scrutinized other departments at that stage and said to them How are you involved in the development of this plan? Do you have a departmental position? How will you take forward some of the actions? Um, I think perhaps we should have tried to do a little bit more to set the agenda Um, but then the you know, the process was quite new. It was it was unfamiliar There is a review of the plan which will begin this year and we're preparing to engage with that And there are also now a number of assessments of the uk plan and the other existing national action plans that have been completed So there's already a greater level of scrutiny Both about the process of preparing the plan and the type of content that it should include And finally, we have an election in the uk in may It's completely open. No one really knows what way it will go But we are obviously hoping that it will deliver a more helpful context for work on business and human rights Thank you very much Insightful very lively presentation Uh, I will now hand over to patricia fene Patricia is the executive director of rights and accountability and development and oxford based nto Uh, in addition to that patricia has been a member of the steering board for the uk's national contact point for the ocd guidelines for multinational enterprises And she's also a member of the board of the association of the international code of contact for private security service providers She's also the author of numerous reports and publications and including accountability aid And Well, thanks very much and and thank you to the organizers for What is the debate de nos jours? It really is. Um, I think where Attention is most focused and um one of the areas that most cries out for Development and creative thinking some of which we've already heard from previous speakers um I want to discuss a non judicial Mechanisms grievance mechanisms some of which again, we've already heard a bit about from previous speakers Um, and I'll focus mainly on the corporate level grievance mechanisms Which have been very much pushed and promoted through National action plans and the un guiding principles And I see it as part of the draft spanish one of the recommendations for the draft spanish national action plan Medida 36 um I would just say Hold hold your horses a bit on that one. I'll I'll give my presentation and then we can discuss I'll I will because I've been very heavily involved Since the And uh In the year 2000 the revision of the OECD guidelines for multinational enterprises And since that time, you know have participated in presenting Complaints to various ncps not just The national contact points the ncps in my own country But in various jurisdictions maybe about 14 just to sort of partly to test it Um, uh, and so and I was one of the founders of the network OECD watch which Continues to do great work in in comparing and contrasting The activities of national contact points So ray it has been working in this area since about 1998 We seek redress for victims of corporate related abuse and that may take the form of trying You know criminal cases toward actions Administrative actions using the stock market regulatory frameworks As well as the soft law mechanisms such as the OECD guidelines And we've found it amazingly difficult to get very far in any of these avenues, although As as catterine reminded us, you know, it's push it all of these actions are pushing forward the debate So we've been involved in looking at the arms for minerals or Military support for mineral swap that was a feature of the Conflict in the democratic republic of the Congo Um, and that left a legacy of unexplained Ownership of of lucrative copper and cobalt and coltan mines, which eventually led for uh, a re Negotiation of of many mining contracts in the Congo, but it was a very unsatisfactory process We've looked at the weak oversight and the um The comparative ease for companies are with Assets either and no assets or assets of very dubious provenance And with um unclear beneficial owners to be able to list Or in London, which is you know financial capital, which you think would have quite strict rules And looking at the conflict of interest between those who sponsor these companies onto the market Um And the fact that they're they also benefit from the company is um And and have an interest and and that conflict is is one of the problems of the oversight issue And as I said earlier when I intervened we've been involved in the responsible mineral supply chain So Just you probably all know about the OECD guidelines dispute resolution mechanism Very low threshold for presenting claims. You don't have to be an affected party So in many ways, it's very attractive for NGOs with limited means to sort of Call their government's attention to a problem and seek that kind of help that they are obliged and supposed to provide Uh, and it's been a pretty uphill struggle With one or two exceptions probably the leading national contact point for, you know, well-reasoned Balanced Outcomes because all you get is is a statement, but of course we know that even that can be very powerful in the commercial context Is the Norwegian national contact point The uk was doing quite well until a few years ago But now I think it sort of slipped. We had a change of team and I think this whole idea of Of not undermining the competitive advantage of your own Companies is is pulling, you know, you have that Pullback factor as well as the push factor. Um, and so it's never sort of a done deal Uh, I'm don't think there've been that many cases in Spain I think there's maybe been one or two union cases brought to the Spanish national contact point But Spanish NGOs on the whole don't seem to have Been inspired to try I mean to to make this mechanism work and maybe that's an area for span for spain and spanish groups to sort of explore more Um, because even when you fail the idea is you fail better next time and hope to make progress in that way Uh, john raggi was quite uh outspoken about the limited Impact of national contact points and as catterine was saying, you know Their lack of expertise in how to handle a complaint their lack of training and skills as mediators And yet the main focus is on mediation Their lack because they're often officials in the investment part of the finance ministries They know they don't know the right areas of international law So the issues that we were discussing in the previous session, you know, what kind of Expertise do you need for these kinds of complex cases that? Are emerging through globalization So since 2001 we've had about 200 NGO complaints filed across a number of National contact points and there've been about 160 trade union cases which we've been able to document um, and only about a third of them have Reached a kind of some sort of outcome maybe a mediated solution of sorts Um, or a final statement where there's been some sort of rep rep remand is the most you can hope for Um, or recommendation Um So it's not exactly the floodgates that ruggy was always warning us about once we moved into this area um And the common faults here as I said and the perception at least of the pro-business bias And I think in some countries where the national contact point just refuses to register complaints Let alone actually examine them. Uh, there are many examples of that Uh, and I think what you need if you're only going to have a statement Um that has a power. We know it's it's not a judgment Then they need to be grounded They need to be reasoned there the evidence does need to be assessed and very few national contact points at the moment Including our own are are producing Final statements of of any use or quality And then I think the costs although it's nothing compared to real law The costs are not negligible in pursuing a drawn-out mediation So with the the guiding principles we Obviously that it's produced a lot of clarity and it's given Away forward from a kind of a stalemate that we had with the The un norms But I think it has our concern is that it has Rather ushered in a managerial response to corporate related human rights violations And in the worst instances it's being reduced to a communication issue How do you manage the problem rather than how do you tackle a violation? Have it acknowledged and and ensure that you have some deterrent so it doesn't Happen again as well as getting a remedy and we don't have all those components in in place Um I would think that um If you don't properly identify What the abuse is? And have some authoritative Judicial body for authoritative ombudsman figure Assertaining exactly who our which entity is responsible for these quite complex In most cases human rights abuses That often involve the public law enforcement office officials of Countries like Congo or Tanzania and yet the degree or otherwise of complicity Of of the companies that keep using these same Gun happy public forces to guard their minds or their oil installations or whatever Can we just sort of accept that that's Okay that they can go on doing it and wash their hands Of any responsibility And NGO reports and others keep presenting this problem into the realm of public domain And answer comes there none and um, you know, I think that that is the problem that you know So and what is happening is that it's being pushed back down into this I uh mechanism the idea of the mediation between consenting parties where you have a dispute That can be resolved at that kind of Level between the community often the community has no access to independent legal advice They may have they're lucky a local NGO, but they may not be the most sophisticated Well-informed operators and they have limitations And you've got the whole power of the corporate entity Bearing down on on on that and And so it's kind of a very good option for powerful companies It's a much less positive outcome For the communities, but I think more important for shaping and helping us go forward In this debate about You know, I'm picking which any kind of legal system has to do You know, what are the responsibilities? Where do you draw the line? Where what do we mean can? Where where is requisitioning company? Equipment the use of planes Drivers vehicles All those that logistical kind of help. Where do you draw the line? And we haven't really had That properly analysed, you know through these Mechanisms at all and we won't of course either through the tort law cases because most of them as the recent African mining gold case in Tanzania showed We it's an out-of-court settlement. So there's a kind of blanket over it now Why I'm concerned about company level grievance mechanisms. Do any really have two main Examples of company Operational level grievance mechanisms both really from the same Canadian parent company barric gold The first one was in Papua New Guinea at the Paul Garamine Which had had a history of Violence is sprawling minds that you know where people had been sort of Going on site collecting minerals You know having clashes with security force ending up, you know with deaths Women being raped on a fairly routine basis And for years sort of blanket denial by by the company the joint venture And Eventually barric in 2010 joined the voluntary principles A multi stakeholder initiative and started a try and improve its Well, I think it's human rights performance and the perception of its human rights performance And so it set up a grievance a remedy program. They called it to deal with outstanding Human rights abuses claims Against their security guards and that they the idea of bringing claims involving the Papua New Guinea Police was left to one side. So this was a kind of no fault Way of dealing with these Cases that that wouldn't go away. And so again, you had very Very low entry threshold into the mechanism you have But there wasn't really independent Legal advice and the crucial thing with this remedy and the one in Tanzania is that In order to participate in the program you have to sign a legal waiver Waving your rights to bring any future Claim in any jurisdiction against barric or any entity related to barric in the future And so because of the lack of transparency and oversight There was no means of assessing whether the The Recompense actually was appropriate to the harm that these individuals had suffered And of course on the other side you could say well because there hasn't been a You know the criminal process and we haven't had to establish to a criminal degree That harm actually occurred in that way. It's a kind of quid pro quo, but it's incredibly Unsatisfactory And it's quite clear that in some cases The amount of compensation That has been offered To some of these victims is is not appropriate is not adequate for the long-term harms The case in Tanzania, I think is even more Troublesome It's similar here. It's a this is a leaflet that African barric gold Assured as was widely posted up All over the villages surrounding the mine The North Mara mine in Tanzania, which is near the Kenyan border And the lady is saying Hey, I've got a problem and he says no, you haven't just go along to The complaints office and they'll see you right and it's all very jolly And she ends up with what looks like an envelope with a check in it or something like that And anyway, we spent June and July trudging around all these villages in Tanzania No, and we took this leaflet with us nobody in Tanzania these villages had even seen it not even the the people in the mine Had ever seen it. We went to talk to The the mine officials while we were there and they looked somewhat embarrassed So, you know, it you know, maybe it's being distributed now, but it was very much You know rear guard defense. They were kind of getting bad publicity They introduced this program very hastily It didn't have some of the safeguards that the The operation had in Papua New Guinea The only advice that the people who were coming into the program got was from a former Tanzanian high court judge who who was supposed to explain to the individuals What was in the documents they were signing because many of them obviously are literate The initial wave of people who were signed on Had to sign documents that were only in English. So there was sort of double barrier And they didn't know some of them many of them were deliberately targeted, we believe Because they were claimants in the lawsuit in the UK So it was quite a cynical Exercise to try and Undermine the case in in the UK. So the UK laws Lawsuit started in March 2013 With about 33 potential claimants They notified African Barrett Ford This process started and by the time they actually filed the complaint That the number of claimants had dropped to 13 And then they'd been whittled down even more over the course of the year So that finally There was an out-of-court settlement announced just a week or so where we had nine claimants left And yet the number of people who've had Life-changing really terrible injuries They've been fatalities Or in a kind of loss of limbs Kind of legs blown off Because they they go into the mine And try and pick up waste rock the more adventurous use sort of get into the pit And the external security is the Tanzanian police, but it's not the ordinary police. It's a special riot sort of With a riot brigade which has you know, sort of special powers and they're armed with these machine guns and they're sort of, you know They're just sort of like Taking, you know, like clean pigeon shooting So it is and at the same time they're involved in Including and letting The miners in you know, bribe a bit and they get they get 10 minutes in the area and then they have to go And then they start firing if the supervisors come So how can you say that a situation that's been going on like that For five or six years Is in any way Suitable for this kind of mechanism Although that it should be an excuse For a company a major and publicly listed company to say it's nothing to do with us We don't control the the the public police, you know And I mean even Worse in some ways, given what Mara It's just been saying, you know for the British government to be saying, oh, we're going to Give a talk on the voluntary principles To the Tanzanian authorities and get them to join the voluntary principles You kind of get these parallel systems So we already have international law. We already have treaty parties So why do we want this lesser thing that's private? I mean the voluntary principles have existed for 20 years or more. They still haven't set up a complaints mechanism They publish nothing About you know How much violence has diminished or increased So we only have their word for it that think that they're contributing to improving standards Because it's totally opaque And that's why most of the leading human rights NGOs are just not participating in it. So, um, I think I'll probably end there, but I think we We seem to be moving away from publicly, you know from public law from publicly accountable mechanisms from determination of of human rights handing it over to I I think illegitimate private Schemes that have no accountability and you know, so it's not that there isn't a role for that But we have to be very careful. What kinds of complaints and issues are suitable for a company level Operation what kinds of issues could go towards the ncps and and use the mediation and hopefully You know better informed than we've got at the moment And what sort of cases might go to the kind of arbitration that we heard from? Um, but I think at the moment there's a downward pressure, you know to turn everything into a sort of tussle between NGOs and the community is on one side and companies on the other and the Governments withdrawing. Okay. Thank you Thanks also to you, Patricia for your very interesting presentation And now I want to give the floor to you. There are any questions to one of our speakers? Not yet so we'll start The last thing you said about handing chest is over to To sort of private institutions Deciding actually themselves in a way that's how they are handling it or not handling it and the clause you talked before About in in Papua New Guinea that they actually had to to sign a clause where they For all the future things that might happen. They would exclude going to the courts This is I think something like this These are the main problems we have to face because it's um It really contradicts the way of how we see the state and how we see justice If you decide yourselves That for a certain issue you are going to contract with somebody else um You exclude justice. This is a way in Which really goes against the idea of of state and public judicial order And then the other hand you have this conflicting interest that you have in for intra business Relations you have for where long over this tradition of arbitration And where you it is accepted that you could do this And in my opinion, this is really something which has to be made clear Uh, and this is something I mean We in our research probably make that clear But it is something which states have to make clear and it is dirty to To draw this line until which point you can decide to handle something outside courts So this can be maybe for minor things for Contract all disputes, but there has to be a line where you say no This is something where at least you have to address the court and then maybe within the court you have to It there there will be a possibility to handle it via mediation or whatever, but This is in my opinion something where the state has a clear role in also um taking its own role seriously to to um Yeah to handle justice and its territory And maybe beyond No, I think it's quite Troubling and I think you know the way that this came into the um the idea of operational grievance mechanisms was pushed into the um the final penultimate versions of of the guiding principles with before they'd even done, you know these Five pilots hadn't even finished and these pilots were quite, you know, they were selected Um by the ruggy team Um, they're they didn't involve, you know discussions with the victims. It was only uh, or NGOs or unions, as far as I can see it was very much sort of top down Um, uh, and yet on this very flimsy basis But using this idea of it's a pragmatic approach. Um, this is being rolled out um Not only in the guiding principles but through the national action plans And and very heavily promoted and yet without these sort of You know these safeguards about well, it's suitable for this kind of level and not for that And I've just stepped down from the board of the international code of conduct for private military security companies because You know, I mean again, you might think well for certain kinds of problems That company level grievance mechanism might be okay, but they pushed it into that as well And I think all of us, I mean, you know, think of misal square Think of, you know, they're going around these guys going around armed and then they're supposed to be only in defensive Situations, but there's a thin line between defensive and offensive And then we're going to say it's that they should be the ones setting up a mechanism to deal I mean, it's just so fantastical and ridiculous that I think all of us as the human rights community You know need to stand up and tell governments wait a minute. That's way too far or much too fast Let's let's get it working because whenever it was presented by john naggy in the you know discussions It was all you know, we need this to stop small problems escalating into human rights abuses Which nobody disagrees with, you know, so Who we said it's you know about running over a chicken and and you could quickly deal with that instead of letting these grievances build up But this is way beyond that and here we have, you know, rape. I mean these are international Well, these are certainly crimes and some of them may arguably Um, you know reach the level of international crimes thinking of some of the cases in the congo So it's totally a no-no area and we do need I think You know much more attention focused on it and and a break put on this While allowing, you know, some of the innovative ideas to go forward that, you know, in a more limited sphere Yeah, just briefly to add. I mean trisha brought it out in her presentation, but In your remarks You referred to it What we're seeing is that, you know, a privatization Of standards and here at a privatization of justice, which is Very deeply disturbing when you consider the seriousness of the violations and you know, as we've discussed, it's just It's completely inappropriate I mean for us, there's the question of what is in that situation Where you have a uk headquartered company And these incidents are happening and in at one of their sites What should the uk regulatory response be? What is the appropriate regulatory response? And the response of the uk government to this Case has been Minimal, I mean it has been or will have a word with the Tanzanian government about the voluntary principles Really as far as as far as we're aware You know nothing further now just to give a an example. I was reading yesterday about A flood that had occurred a few years ago at a Welsh mine Where four people were killed for four workers Now as a response to that there was an investigation a health and safety investigation and then there was a criminal prosecution Now in the end the criminal prosecution Didn't result in a guilty verdict, but still there was a judicial process. It was investigated It was looked into and you know, really We need to get to a point where there's a much greater clarification of the standards of conduct To which uk companies should adhere overseas and then what is the role of the uk government in making sure that companies are behaving appropriately and then for us this case is just a Such a powerful example of why access to justice in the uk is so vital So that you know as Tricia said there were some there were claims, but in a situation where A state actor in this case the Tanzanian police is involved in the violation Even if people were able to take a case to court in Tanzania Which is extremely difficult for various different reasons be it a lack of access to lawyers or You know the very slow pace of the judicial process or the costs Even if they were able to do that You know in this instance where it's the police involved How is there any kind of independence and that's why We need to have access to remedy in the home state of the company concerned and you know, this is An example of all these things coming together Um, and you know and and it's still it's still going on. That's the that's the very shocking thing It's been going on for several years and it's still going on now Any comments now Philip, please. Yeah, I just Wanted to add something to what Tricia was saying and that's that Jen Ragi was speaking at the the sub human rights subcommittee at the european parliament this november Last november last year and obviously it does not have any official function now. So he is he does not enjoy the authority he He had before But he actually reflected on non judicial mechanisms because he was he was Challenged on what is going on in this in this case that that uh, well In the case in Papua New Guinea And he basically said what what you have said And he acknowledged that the united nations guiding principles actually having a gap in that respect that they fail That they failed to actually clarify this and that uh, he was very surprised in a way how this is being used so I think What we can take from that is Uh, it's actually a clear message to the governments that this is something what could be addressed through the process of developing these national action plans at the very least the the The the member states of the european union that are tasked with the development of these plans could Express their opinion on the appropriateness of these mechanisms In a in a way that that you have you have you have suggested. So if the outcomes of this of this discussion will Be submitted to the spanish government for example or to the eu that is supposed to prepare its priorities and coordinate the work on on on this Uh, this is this is this is a point which I would put in I think you were first Ah, sorry Well, it was just to say it's ironic though because john ragi after Leaving has become a special advisor to barric gold And has been very heavily linked to the design and implementation of the remedy program in paul garras. So But it's great. He said that Hi, um, I'm sorry, but I prefer to ask in spanish. It's better for the question The rwanda Dos cosas la primera cuando hablamos del impacto que puede en la sociedad civil En los negocios y las empresas en las organizaciones internacionales Cuando nosotros sabemos que esas empresas están trabajando en rwanda gracias a las embajadas Son las en primer lugar son las embajadas las que les abren las puertas y las que crean un puente con el ministerio Para que puedan intervenir en esos estados y son los que hacen todo Un gran trabajo vamos a hacer así para que puedan firmar un trabajo un protocolo de de acción en ese país Lo digo por ejemplo reales cuando están en rwanda por ejemplo La embajada holandesa tenía una parte comercial en la que abría la puerta esas embajadas A que si estadas en rwanda para poder trabajar en el cong y los habían perfectamente entonces hablamos de De la relación entre empresas pero hablamos de la relación Con gobiernos o que son los gobiernos que tienen que hacer cuando muchas veces los dos van juntos Eso por un lado Una segunda cuestión que usted además ha mencionado muy bien el ejemplo del coltán Es que conocemos perfectamente dos informes del panel de expertos de naciones unidos sobre las empresas Que han estado favoreciendo ese del tráfico del coltán y que han muchas de ellas participado activamente en la extracción Pero una trasformación En la venta, en la distribución, etcétera, etcétera Sabemos la lista de esas empresas No ha habido una sola que ha ido delante de unos tribunales Como ven ustedes también que ese tipo de cuestiones pueden ser Ser tenías en cuenta si llevadas a tribunales cuando queremos que la sociedad civil es la que tiene que hacer algo en este sentido Y por último, querría decir, no he visto casos fundamentados a nivel jurídico No conozco jurisprudencia En la que se haya utilizado como base la violación de los derechos sociales, económicos o culturales Para, por ejemplo, poder denunciar tanto a empresas como a gobiernos En este caso, dictatoriales, que a través de la corrupción que están haciendo desde una manera u otra Tienen un impacto en la muerte de sus ciudadanos Les pongo el ejemplo donde he trabajado Guinea-Avisado No hay dinero para salud, no hay hospitales, muere gente por cólera, por malaria Para mí, el Estado sería responsable de las empresas que la acompañan también Y sin embargo, no veo denuncias a nivel, sea de la sociedad civil, sea de Estados Basadas en esta tipificación Veo muchas denuncias, crimenes contra la humanidad, de genocidio, etc En la Corte Plan Internacional, pero no los veo, basados en este tipo de tipificaciones Que también podrían ser utilizadas contra las empresas privadas Me gustaría un poco, y luego, por último, en referencia, la primera intervención que ha hecho es Cuando hablamos de sociedad civil y el impacto que pueden tener Consideramos también el impacto positivo entre comidas que pueden tener ya de por sí Las acciones de la sociedad civil, si consideramos sociedad civil a Greenpeace Ornistía Internacional, por ejemplo Oh, do you want me to, and if you add, if I left anything up No, I think the first question was, but so that the embassy stair also facilitated The access for businesses, and so it's also kind of a complicity And for the second question There was several UN expert panels that reported during the wars in the Congo That involved Rwanda and other countries And very much showing the links, the commercial interests and the use of coltan And the smuggling of coltan And the fact that it ended up being used by our major industries Abroad, Apple, Boeing, you name it And we had the UN listing in a very controversial report In its final report on the Congo in 2002 It was supposed to be its final report Where it listed all those 85 multinational companies, banks, everything And showing it wasn't just these few rogue or dodgy Rwandans or Congolese Involved in this trade But the whole financial and economic system was profiting From the misery of the people in these war torn countries And yet, as our friend was saying, no, but not a single company was brought to book for it And in fact, on the contrary, everything was done to sort of lock away the reports Not have any discussion, not have a final resolution Not condemn anyone And it was through that, because of that process The panel was vilified They were sent to go back and re-interview the companies Then they brought out the second final report a few months later Where the number of companies, European and US North American companies involved Got whittled down from 85 to about 10 And even then, when we tried to file complaints against those companies Using the only thing that the panel had been able to find In the international terrain on corporate behavior And the OECD guidelines Country after country tried to block the complaints The US and so on You think that that was such a dramatic situation And it cried out for a few exemplary You can't catch everything But if you'd had one or two exemplary punishments or investigations It would have sent such a clear message But this sort of was allowed to continue And then the last point he was making was on Using the economic, social and cultural rights convention And showing how the corruption, the failure to pay taxes Has a direct impact on poverty and deaths in developing countries And what we've seen now with the banks scandal, HSBC But we think there are a lot more private banks Probably done exactly the same Why isn't civil society using that mechanism more? So I won't keep talking because maybe Marilyn and some others want to speak I just have a very brief comment on the first question you have Because it also, before you mentioned it in the UK action plan There's something like the embassies should Or the UK High Commissioner should support human rights defenders In that country's campaigning for business and human rights And in this moment, yeah, but embassies also have another function They have the function to facilitate access for the businesses of their countries And this could be, and this could quickly go into a conflict of interest For human rights defenders campaigning against the UK-based company Then the embassies kind of fit in between And I don't want to make a guess for what they would decide Then whether to defend the human rights defenders or their own companies So just this quick comment Anybody else? I think you wanted to comment, right? I wanted to comment on a kind of gloomy picture that we got this afternoon I was hoping that civil society had actually gathered more strength and momentum In getting things done in a better way If people like you, Patricia, are stepping down from organizations This may mean a lot in terms of the capabilities of those two antagonistic groups To speak together and to get to a point where there are actually positive things going on So I was actually very concerned that, you know, that would be for you The only way to keep your own, I don't know, whatever self-esteem Was to step down from this organization that you mentioned The other thing that I wanted to ask you is You spoke at some point in your presentation about illegitimate bodies And I was kind of... I was kind of... I'm not sure I would find the right word Probably shocked by that Because for me, this is exactly the kind of broad statement that may be totally unuseful And I personally am trying to step out from that And try to find ways to actually give back legitimacy to those bodies Because that's the language businesses understand And so, you know, the human rights parties There must be, you know, both parties should come across towards each other But if human rights bodies are not finding a way to start speaking some kind of a common language Then we are going to keep the situation as it is And it is totally unsatisfactory If I hear you correctly, you know, with the examples you have given So I am trying to... And I don't have any solution for time being, of course But could you elaborate on this? Why do you... I mean, do you consider those bodies to be illegitimate per se? Or because the processes in that particular case were not appropriate Because if that's the second possibility, then there is room for improvement So perhaps that's the clarification that I would like to hear from you No, I sometimes tend to get a bit gloomy, but I'm still here and I'm still fighting So I think illegitimate was probably mischosen, misspoken But I think when we're talking about human rights, which has, you know, its own history It's supposed to be victims focused, and it's about sort of redressing power imbalances You know, it's protecting the defenceless against those who exercise power And in the modern world where, you know, financial flows from private sources far outweigh The capacity of most developing countries or many And some developed, I think, Glencore's turnover, you know, dwarfs that of Portugal So we're talking about really big players who can influence For good or ill But I think that what we are concerned about is more and more non-authoritative In terms of human rights bodies Making decisions, say, whether something, in the case, say, of conflict minerals And with the Dodd-Frank Act, which hasn't really got a human rights component It's much more about traceability, making sure the minerals aren't sourced From areas under control of rebels or military And it's less, and it doesn't really address the human rights or the labour conditions In which the minerals are obtained So there's been no improvement in the lives of the artisanal miners Working there, still child labour and so on And when you go to the OECD meetings where this is discussed You have a U.S. Well, they call themselves an NGO, but they're consultancy And actually they're very much an arm of USAID And they are deciding, because they're working with the tin industry And all the reports from the audits, the private auditors who are auditing the system And whether the tagging of the minerals is being done well And if any minerals are being smuggled All of that is quite well covered But when it comes to the fact that every single mine site in the north of Katanga That had been validated as OK for the purposes of Dodd-Frank and the OECD Is full of young children, young pregnant women Digging for minerals in the hot sun In absolutely appalling conditions And then they said, well, this is a very big problem and will take years So why have you validated it then? There's something dishonest, fundamentally dishonest about it So it's more like if it had gone to the Committee on Economic, Social and Cultural Rights Or if it had gone to the Committee on the Rights of the Child They would have had a different view And they might have come out with some better proposal Than what's being offered and provided as a solution So that's what concerns me And then with the privatised mechanism, the multi-stakeholder initiatives Or so-called, very few of them are genuinely multi-stakeholder So the private military companies, the ICOCA, is very new It's the newest one and it's got probably the best laid out code And that's why I thought it was worth working on And my reasons for stepping down aren't, you know, it's partly it's very demanding of one's time But, you know, the industry is just refusing, particularly the UK private security They see it just as a competitive advantage Unfortunately, it's been sold, the business case has been sold, oversold And so to get them in, they've been told, well, if you sign up Oh yeah, we said there'd be oversight but we didn't really mean it And nobody other than this one official will see anything unpleasant about you And there'll be no public... I mean, that's not an oversight mechanism And most European NGOs didn't want to have anything to do with this And you can see why And of course in many European countries, you can't have private security companies So, you know, there's an inbuilt problem for the Europeans So if you can, you know, and the voluntary principles has hardly got any real... They've got a lot of consultants because these mechanisms can't function really So instead of spending money in setting up these parallel and weaker and private systems with no transparency and accountability Why isn't some of the money going into, well, some of the ideas that we've heard today You know, like having funds that, you know, could help victims go to arbitration or, you know, sort of improve the mediation through NCPs whether you use outside mediators or train a group of officials So there are other more useful ways for limited government funds And it's very frustrating to see so much emphasis has gone on training and bringing the companies up to speed And I feel the victims have been left way behind They're still where they were 10 years ago Do you want to comment on that? Yeah, I will briefly Just to answer the question about, are we very gloomy I mean, for me it feels like we're reflecting the reality which is a rather unfortunate reality I was at an event in Oxford and on a panel with someone from a diamond company and I, you know, kind of, you know, gave the presentation and the person from the diamond company talked about what they were doing and someone said, and, you know, I subsequently reflected while, you know, there are still so many problems despite the UNGPs and I said, oh, it seems very polarised and that's because we're still seeing very serious problems NGOs who have experience on the ground are still seeing very serious problems and I think we mustn't allow the UNGPs and frameworks that emerge from the UNGPs to create a means by which irresponsible companies carry on business as usual, wrapped in this kind of cloud of language that sounds very good part of these multi-stakeholder mechanisms or part of a code of conduct that, you know, sound like they're moving things forward when actually nothing is really changing What the GPs have done for us from an advocacy perspective is given us a way in to talk across government and engage with government and say, well, this is what you really should be doing and just one point to mention that hasn't come up I think at all is the vote in the Human Rights Council in June last year in favour of the resolution to create a binding instrument on business and human rights Now, whatever you think about that it's certainly given the interest in the guiding principles and interest in what real implementation might look like it's shaken things up and I was in Geneva when those discussions were going on and state representatives were saying what more can we be doing on remedy what more can we be getting the working group to do we know the forum, the Business and Human Rights Forum hasn't been very effective and how can we address that and it did all of a sudden, I think, make them see that people are serious about addressing the enormous power imbalance between communities and these massive multinational companies that are having adverse impacts on people Now, how that will play out remains to be seen but I think there is a huge interest in seeing where have the principles taken us to where can standards further be elaborated in a way that is helpful and where are there gaps that can be addressed by further developments in international law So, broadly, just to go back to where I started the question about polarisation that vote was something that was presented as this is going to polarise everything and actually it hasn't because there is now a growing consensus that a binding instrument can add and people are thinking about where can it be uniquely useful and that's a very important development Thank you You went to answer, and Dad? No, yes Very quick thought Sorry, I didn't see you before It's okay I'm really happy with the things that Patricia said now because it's put it in the centre of the discussion the effectiveness or no effectiveness of the access to remedy to focus on the victims that is the point because we have been spending a lot of time for decades talking about this and the final goal is obviously prevent the human rights violations and give effective access to remedy to the victims So the point in the question is okay, guiding principles is well, for me it's a good framework, a good reference put in order different concepts and different responsibilities but the point is, obviously, is there there are not many people knowledge who have a nose about that and very, very few try to implement it seriously So the effectiveness right now is very poor and the victims is growing and it's not really effective So the point is, how can we do that? I completely agree with you you described the problems of the National Point of Contacts because I suffer that, exactly the same and I understand that gloomy feeling but I agree with Catherine as well maybe that should be the second reason in that way that doesn't work what should be improved to be more effective and I'm very aligned with your message that they know the illegitimate of the instrument but obviously when we have to face grave human right abuses maybe there are other instruments that are more legal, biting, that should be more effective that the message from my side I think all the remedies, a system obviously if there are positive incentives from the biting instruments will be more effective the voluntary systems as well Thank you One or two more? Can I say something about the project of the convention because I worked on this a little bit? First of all, you have to analyse the votes in June 2014 and to add to a gloomy picture this is an additional big stone in this picture because all of the occidental countries voted against and if you look at the votes who voted for it you have a country like Russia who actually negotiated its vote towards a convention with some very bizarre quid pro quo with Equator and other countries which we should not be very proud of so I think this project of a convention is starting on a very bad foot that's my first remark my second remark which is a bit more hopeful is that in fact I would totally agree with you that that exercise of a convention could indeed make the picture a bit better if we are focusing on what I call procedural issues the missing dots within the picture of international law but my third remark is going back to the gloomy picture because remember to negotiate a convention in the world in which we live it's at least 10 years and then ratification is going to take 50 years so I'm going to be long dead before we see a convention that is in practice and that is not a very happy future I think that's right but I remember when Don Ruggy first started his mandate and that is going back nearly 10 years so he was saying oh well it would take too long to develop a convention it is a process and it's going to whether we're talking just about the GPs and really getting that internalised and finding our way through what's the appropriate forum for this kind of problem and what sort of skills do the people who are facilitating it need that is not a simple process and maybe his magic was making everybody think it was and so this got through but I think the problem with the absence of even the attempt to have a binding treaty has given comfort to companies that don't want to change they profit and they benefit from cutting corners and not worrying about child labour or people dying because they're not paying any taxes and so on or helping corrupt officials siphon off their money through these vehicles in the British Virgin Islands and places like that then their corporate lawyers can come to me and Marilyn and other civil society people nobody agrees that there are any human rights obligations on business and so we do hear this so I think even if there is work beginning on what will be a long process it will start to redress that make it harder for those sorts of companies or those legal representatives of those companies to argue that with as much conviction Mr, anybody who wants to ask a final question or comment if not I would like to thank two of you for your really interesting discussion and to all of you