The Voluntary Principles at 20: A Founder’s Reflections
Two decades is a long time in this fast-forward world of accelerated change and intensified expectations for the business and human rights world, especially for the flagship multi-stakeholder initiatives (MSIs) that have done so much to define the field even as they loom less large across the landscape than they once did. The 20th anniversary of the Voluntary Principles on Security and Human Rights is a significant milestone for noting its achievements and challenges, just as the 5th and 10th anniversaries prompted this founder to offer more prescriptive assessments than this reflective appreciation of the Initiative’s durability and efficacy.
The Voluntary Principles have attracted justified criticism over the years. The plenary process was beset by crisis, even paralysis, between 2007-09 over participation criteria. It then suffered a blow to its credibility in 2013 when two especially visible NGO participants departed over transparency and accountability concerns. But the Initiative has survived, even thrived, now counting 10 governments, 32 companies, and 14 NGOs among its official members plus nine observers—as well as many other governments, companies and NGOs unofficially involved at the country level. Plus its initial focus on three countries—Nigeria, Indonesia, and Colombia—has long since widened to encompass varying degrees of implementation in at least two or even closer to three dozen countries around the world.
It is time to acknowledge—and probably appreciate more than has been the case—at least three fundamental achievements that can be credited to the VPs. The first two achievements have proven to be innovative and influential cornerstones of the contemporary business and human rights architecture, while the third achievement is less tangible and measurable but just as powerful and admirable.
First, two major governments succeeded in using their convening authority to bring together two sets of conflicting actors at the time—extractives companies and human rights NGOs—to identify common interests, forge consensus, and make commitments around a critical set of corporate responsibility and human rights issues in ways that also informed the development of other major MSIs.
The use of government convening authority for this purpose was nearly but not entirely unprecedented; the U.S. Government convened discussions that created the Apparel Industry Partnership in 1996 and then launched the Fair Labor Association in 1999 as a multi-stakeholder initiative. But the relationship of extractive companies to the misconduct of military and police as well as private guards in conflict zones was an especially tough nut to crack, given the security and national sovereignty issues at stake with host country governments. There also appeared to be little chance of a legally binding legislative or regulatory approach that could be imposed by the companies’ home country governments. Yet BP and Shell had begun to focus on human rights issues related to security forces in conflict zones—and both Human Rights Watch and Amnesty International had begun to work on the same issues and to engage those two companies. Then the U.S. Department of State decided to use its convening authority (along with the UK Foreign and Commonwealth Office) because it saw an opportunity to create a global corporate responsibility standard that would address foreign policy objectives, national security interests, and human rights challenges at the same time. The breakthrough was for the companies and NGOs to accept each other’s fundamental bottom line interests: the NGOs accepted the companies’ need for security arrangements to protect operations and personnel; the companies accepted the NGOs’ insistence on human rights safeguards to guide their relationships with public and private security forces alike and in turn to protect local communities in proximity to their operations. That mutual recognition of these respective interests—so evident in retrospect but dramatic at the time—crystallized because it represented a practical, operational solution to a defined set of problems.
The VPs represented an imperfect and incomplete solution—voluntary not mandatory principles drafted and negotiated in less than one year and launched without an agreed governance and accountability framework to take forward what began as an experimental multi-stakeholder dialogue. But the solution was nonetheless creative and constructive. Moreover, the VPs set the stage for two other flagship MSIs. The Extractive Industry Transparency Initiative (EITI) was proposed by the UK government in 2002 and launched in 2006 to address resource governance and corruption in the same industry with many of the same companies and governments. The Global Network Initiative (GNI) was launched in 2008 in the technology sector but with parallels to the VPs with a similar focus on diminishing potential corporate complicity in human rights abuses by host country governments (in the case of GNI, with a specific focus on government censorship and surveillance demands that compromised freedom of expression and the right to privacy for users of the companies’ products and services). EITI and GNI are close cousins if not siblings of the VPs, with common co-founders across their families. And of course the International Code of Conduct Association (ICoCA), the MSI formed in 2013 partly as a U.S. Government initiative to ensure that private security providers respect human rights and humanitarian law, became the most closely related family member of all.
Second, the Voluntary Principles succeeded in laying the foundation for human rights impact assessments (HRIAs) in particular and human rights due diligence (HRDD) in general, with mandatory HRDD now emerging as one of the most dynamic agendas in the entire business and human right world.
There has been insufficient appreciation of the innovative and influential first substantive section of the VPs focused on Risk Assessment. The participants in the original multi-stakeholder dialogue that created the VPs understood that risk assessment was essential not just to mitigate, but to prevent human rights abuses by security forces working with companies in proximity to conflict zones and local communities. Until the VPs, that linkage between risk assessment and the prevention or at least mitigation of human rights abuses was not well understood, let alone established, either in relation to extractives and conflict zones or more broadly to other emerging business and human rights issues at the time. The risk assessment section of the VPs states clearly that “accurate, effective risk assessments should consider” the identification of security risks (including “political, economic, civil, or social factors”); the potential for violence (including its extent, timing and underlying patterns); human rights records (of security forces that may have been connected to past abuses or allegations); the rule of law (to ensure accountability for abuses); conflict analysis (including causes of conflict and relationships among different actors); and equipment transfers (that could lead to human rights abuses). Risk assessment became a cornerstone of VPs implementation—and then of operational practice across the business and human rights world especially over the last decade.
In late 2001, less than a full year after the VPs’ launch, BP commissioned the first-ever explicit, comprehensive HRIA known to be undertaken by any company in any industry, applied to its then-new Tangguh LNG project in West Papua, Indonesia. Completed in spring 2002 and presented to external stakeholders in early 2003, that HRIA focused on issues related to conflict and security forces, indigenous communities and land rights, plus regional governance, civil society, and corruption. UN Special Representative for Business and Human Rights John Ruggie and his team were familiar with both the VPs and the Tangguh HRIA and the utility of HRIAs became a focus of the first mandate that developed the “protect, respect and remedy” framework. Those three pillars in turn became the basis of the UN Guiding Principles on Business and Human Rights that was the culmination of the second mandate in 2011. HRDD became the core of pillar two of the UNGPS—the corporate responsibility to respect human rights—and then the legislative and regulatory crest of the wave of mandatory HRDD that is now sweeping across jurisdictions and industries with wide support from stakeholders and shareholders. The VPs can be credited as the most influential basis of both human rights risk assessment and due diligence prior to their elevation by the UNGPs.
Third, and most significantly, the Voluntary Principles have succeeded in saving lives and protecting rights in countless situations over the years around the world, transcending even the original Initiative’s two other sets of achievements yet at the same time raising questions of credibility and accountability.
Nothing is more important for the VPs than savings lives given its focus on security forces and conflict zones, where the use of force may have life and death consequences for people in local communities as well as company personnel. Even as conflicts of varying intensity persist and human rights risks remain endemic across at least two dozen countries with extractives operations, there appear to have been very few fatal incidents involving VPs companies over the last dozen years—at least since companies became members, even though some had been directly or indirectly complicit in or linked to abuses in prior years. One fatal incident involved a VPs company when three local community protestors opposed to a planned gold mine in Cajamarca, Peru were killed by police in July 2012. Those lives lost will forever be remembered as a tragedy. Yet it appears that since then, fatal incidents involving extractive companies and security forces have been connected almost entirely to smaller companies that are not committed to the VPs, especially to those involved in the still dangerously ungoverned world of artisanal mining. The most direct explanation for why commitment to the VPs saves lives is in the original text: that the type of security forces deployed should be proportional to the threat; and that force should only be used when necessary. Plus they must adhere to the Accountability Framework, including mandatory participation and reporting criteria which in turn are linked to a verification framework. Moreover, VPs companies expend significant annual resources on implementation—some in over half a dozen or more priority countries—especially on training company personnel as well as public and private security. Proving a correlation between VPs participation and greatly diminished (if not entirely eliminated) company complicity in at least fatal human rights abuses linked to security forces relies on such circumstantial and anecdotal evidence. A lawyer would call it a rebuttable presumption—persuasive enough be taken to be true unless proven otherwise—that the VPs have at least saved many lives given their growing use for nearly two decades.
But have the VPs also protected rights? Implementation of the VPs has almost certainly protected the right to life in countless circumstances. But it is difficult to gauge the extent to which implementation has contributed to respect for other rights connected with security forces and conflict zones: Indigenous peoples rights; freedom of expression, assembly, and association; women’s rights (especially protection from sexual violence that has occurred horrifically and tragically in proximity to extractives); and the rights of other vulnerable groups. The most obvious category of people who are directly at risk from security forces are human rights defenders—including land and environmental defenders— who have had a history of conflict with extractives companies and especially in recent years with relatively small mining companies. It is encouraging that the Voluntary Principles Initiative is now examining its relationship with such vulnerable groups and considering ways to support human rights defenders who may be at risk in connection with their work to protect local communities near company operations. At the same time, more can be done to protect rights holders and their defenders in consultation with them. While the Initiative has maintained a complaints/grievance mechanism for many years, it could be strengthened by learning from other remedy processes developed (including by VPs companies) in alignment with that critical third pillar of the UNGPs. Widening access to remedy through the VPs would strengthen its ability to protect rights and enhance its credibility with human rights defenders.
Yet for all the progress made over the last several years with public reporting and the verification of implementation, the Voluntary Principles Initiative is still widely perceived to lack sufficient transparency and accountability. At a time when mandatory disclosure of human rights due diligence is gaining such traction and momentum—including with investors—the VPs have a particular challenge to catch up with contemporary standards and expectations, while remaining careful about the disclosure of security-sensitive matters. This perceived transparency and accountability deficit amounts to a credibility gap that obscures the impressive scope of VPs implementation: the many governments, companies and NGOs engaged in the global plenary process; an expanding number of in-country processes anchored by working groups in Peru, Ghana, Nigeria, and Myanmar; plus longstanding efforts in Colombia, Indonesia, and other countries. That credibility gap also obscures the range of tools and resources used especially by companies to support implementation, training, and verification. A comprehensive, independent global analysis of the VP’s actual impact—informed by stakeholder engagement—would be a valuable exercise if its findings and recommendations became the basis for learning and action. Such a process could in turn enhance the transparency, accountability, and credibility of the VPs—along with an assessment of the efficacy of its governance and the sufficiency of its resources.
The VPs are not alone among the flagship MSIs in facing critical scrutiny. Recent conclusions that they are “not fit for purpose” are unreasonable and fail to understand that these MSIs were designed to supplement—not supplant—the role of governments. Corporations must do their part, but so of course must governments. The state duty to protect human rights and the corporate responsibility both need drastic strengthening, as the 10th anniversary of the UNGPs approaches. The VPs should expand the number of government participants and in-country implementation processes, while bringing together local communities and stakeholders more closely together with host country governments and companies. It was moving to see VPs companies and NGOs release a joint statement in July 2020 urging respect for human rights “following weeks of demonstrations around the world condemning police brutality and systemic racism present in public security institutions.” Their voice may not have been widely heard, but this example of solidarity should encourage the VPs to become a multi-stakeholder advocate where it has legitimacy and credibility.
As the Voluntary Principles Initiative moves from its 20th to its 25th anniversary, it must be self-confident enough both to confront its weakness and to consolidate its strengths. This no longer young Initiative still has much to prove—and to improve—if it is to remain vital. But it also has much yet to contribute: above all, lives to save and rights to protect.
Bennett Freeman led the development of the Voluntary Principles on Security and Human Rights in 2000 as U.S. Deputy Assistant Secretary of State for Democracy, Human Rights and Labor.
Interview with Bennett Freeman
In this video interview, Bennett Freeman recalls the events leading to the creation of the Voluntary Principles, the challenges imposed by the implementation of an innovative multi-stakeholder initiative — the first in the extractive sector — and the successes achieved.
20 Years of the Voluntary Principles on Security and Human Rights
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