Andrea Shemberg: A closer look at the UNGPs

In view of “Beyond Good Business” we had the immense pleasure to interview Andrea Shemberg, an international human rights lawyer with more than 12 years of experience in business and human rights. From 2007, Andrea served as Legal Advisor to the UN Secretary-General’s Special Representative John Ruggie (SRSG), advising on a range of international law issues and helping the SRSG’s efforts to realise the UN Guiding Principles for Business and Human Rights, unanimously endorsed by the UN Human Rights Council in June 2011.


In 2007 you served as Legal Advisor to the UN SRSG and helped in the realisation of the UN Guiding Principles for Business and Human Rights. What is your opinion on the UNGP?

I was involved in the development of the UNGPs so others may not see me as an objective observer. But I think no one can deny that the UNGPs provide the most authoritative reference point on business and human rights. They are proving influential in at least three ways: influencing high level policy norms and legislation in the international and domestic contexts; changing business practices; and importantly they are changing the expectations of stakeholders (States, NGOs, investors, consumers, and businesses with respect to their business partners). So, I think the UNGPs, in terms of progress in business and human rights, is the most significant development to date.

Why do you think it would be important to add a gender perspective to the implementation of the UNGP and what are the main problems with a gender-neutral approach to policy making?

The UNGP sets out the responsibilities of companies and States for respecting and protecting human rights in the context of business activities. In the development of the UNGPs one of the big questions was: which human rights are relevant for business? The UNGPs answered this question by saying “all of them”, including non-discrimination. The UNGPs contain everything necessary to insure a gender-perspective implementation. The question is how that implementation is going to take place and how it’s going to work in practice.

The main problem with a gender-neutral approach in policy making is that it doesn’t represent all people because it is never really neutral. It is often a male-centred approach, which means that you are necessarily not representing the life experiences and issues of a non-male perspective. Policy makers will have to make an extra effort to think about a female-gender approach and they will have to understand how policies affect different parts of the society (children, women, girls, boys, men). Only then you can be sure that you are including a gender perspective. It is more simpler said than done. What is needed is more discussion of how different policies and practices affect people differently. The conference that LAMMP is organising is one important contribution to this.

What is your personal experience in regards to the relation between the extraction of natural resources and the violation of human rights, in particular women’s rights?

In my personal experience – which has been mainly with people who are dealing with the negotiations of contracts for extractive projects – not only human rights are one of the further things in the minds of negotiators, but the particular issues that may affect women and girls aren’t anywhere near the radar of discussion. In some countries companies are actually asked to take on community projects that are outright discriminatory, such as building a school in a community where only boys will be allowed to attend.

Many community development agreements are being negotiated around the world, but the real problem is making women part of the conversation, especially when the local culture makes the interaction between women and companies extremely difficult or even prohibited. If it’s not prohibited at the community level it might be prohibited at the family level. What do you do in terms of models of engagement, interaction and communication to actually figure out how to dialogue with women about the issues that concern them? The truth is that there is no universal model, it is very contextual and this is a matter of challenge for global companies that like things to be standardised. But when you are dealing with human beings and cultures in context, nothing can be standard.

While I think that the lack of full participation in engagement between companies and communities is one of the biggest problems, there are also more obvious issues such as security because of the dynamic in many extractive projects to bring a large influx of men into a community. This influx shifts the dynamic of the communities, and it can create security issues for women, it can exacerbate an already discriminatory context, or it can be an incentive to trafficking of sex workers. We have seen these dynamics in communities around the world, in developed and developing countries. Extractive projects offer employment and other benefits to societies, but there are questions about who reaps the immediate benefits. Is the employment mostly male? What benefits do they bring to other parts of the society? What risks do they create? What family or community dynamics do they impact?

In your experience, how can the extraction of natural resources be used to sustain human development, including promoting gender equality and women’s empowerment?

It is very hard to label any extractive project as “all good” or “all bad”. I don’t think there is anything inherent in investing in the extraction of natural resource that prohibits it from being a project that can sustain human development, including promoting gender equality and women’s empowerment. The question is: how do you do that? There is still a lot of learning to be done before we can guarantee that such projects can promote gender equality and women’s empowerment. I think governments and companies are just starting to think about how such projects can sustain human development and promote ideals such as gender equality and women’s empowerment. There used to be an assumption that all investment was good investment. Thankfully there is a shift in this thinking, but there is a long way to go. I think one of the first steps we need is a consensus at the policy level that natural resource projects should promote sustainable development and promote gender equality and women’s empowerment. That consensus does not exist today.

Over the last few years there has been increasing awareness of the persecution of human rights defenders in mining areas worldwide. In your opinion, what role can companies play to promote a constructive dialogue between parties involved?

The persecution of human rights defenders in mining areas is a huge problem for companies who are trying to be responsible. Companies that take the UNGPs seriously are going to be extremely concerned with the persecution of human rights defenders. Violence against human rights defenders is a problem in many geographies, and security forces (private and public) that are protecting mining sites are sometimes involved. One of the things that the Principles for Responsible Contracts (an addendum to the UNGPs) points to, is that State and the companies should talk very clearly about the standards for policing and security around the projects, to ensure they abide by international human rights and humanitarian law standards. This is something that should be discussed at the national and local levels to make it clear that the expectation of the company is that all security services abide by international standards. This is also something that can be written into contracts. Another conversations that should be happening between companies and States regards the criminalisation of activities of human rights defenders. I think that companies have a role to play when they enter a country for a project and should be extremely concerned about the criminalisation of peaceful activities carried out by human rights defenders. This creates risks for companies because they will ultimately be associated with, and may even find themselves in the position of contributing to human rights abuses.

Another important issue is the relationship between the national authorities and the local authorities and the ability of companies to have a constructive dialogue with local authorities, whether or not the government facilitates that relationship. There is a role for companies to play, but also for national authorities to do more at the local level in terms of ensuring that the persecution of human rights defenders does not take place.

 

(Interview by Camilla Capasso)

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