Shaping National and International Regulatory Frameworks to Address Corporate Human Rights Abuses

Based on the Research of Dr Surya DEVA

The research conducted by Dr Surya DEVA about the human rights responsibilities and obligations of corporations has had a significant impact on legal and policy frameworks at both national and international levels. Dr Deva began researching in the area of "business and human rights" in 2000, with a focus on exploring means to hold (transnational) corporations accountable for human rights abuses and strengthening access to remedies for victims. Since joining the CityU School of Law in 2005, he has pursued his research in this field about various regulatory initiatives at both national and international levels.

Dr Deva’s research has enabled him – as a member of the UN Working Group on Business and Human Rights – to drive implementation of the United Nations Guiding Principles on Business and Human Rights (UNGPs) across the Asia-Pacific and globally by providing expert advice to states in developing regulatory frameworks. His report on gender dimensions of the UNGPs has directly influenced policies at national and international levels. At the same time, his academic critique of the UNGPs contributed to building momentum for a legally binding international instrument, the first three drafts of which he has played a key role in shaping.

In June 2011, the UN Human Rights Council unanimously endorsed the UNGPs that elaborate the respective human rights obligations and responsibilities of States and business enterprises. A Working Group of five experts of balanced geographical representation was set up to promote and support implementation of the UNGPs by member states. As a direct result of his acknowledged research expertise in the field of corporate human rights abuses and in-depth knowledge of the UNGPs themselves, Dr Deva was appointed as the Asia-Pacific representative of the UN Working Group in March 2016.

After his appointment to the UN Working Group in 2016, he launched the "Gender Lens to the UNGPs" project in September 2017 to research the impact of business operations on women/girls and provide guidance to states and business in adopting a gender perspective in implementing the UNGPs. Dr Deva conceived the project objectives, designed a methodology and collaborated with several institutions across the world to organise regional consultations. The resulting report was based on feedback received from consultations and an open call for submissions. The findings of this project were used to develop a gender framework and specific gender guidance for each of the 31 Principles of the UNGPs. Dr Deva’s report, which he presented to the UN Human Rights Council in June 2019, was widely welcomed (e.g. DIHR, BSR and ActionAid) and is now being integrated into the work of states, civil society organisations, business associations and international organisations. For example, the gender report has influenced:

• the Guidance Note: How to Adopt a Gender-Inclusive Approach in Dispute Resolution issued by World Bank’s independent accountability mechanism, Compliance Advisor Ombudsman;

• the World Benchmarking Alliance’s Gender Benchmark; and

• other reports of the UN Working Group such as "business, human rights and conflict-affected regions".

Dr Deva’s expertise and technical knowledge about the UNGPs – which he has shared in numerous workshops, national and regional forums, and bilateral meetings with senior politicians and officials, judges and business leaders – has placed him in a position of trust and respect at the highest level to influence law and policy making. He has also used this position to initiate the organisation of the first UN South Asia Forum on Business and Human Rights (March 2019) in partnership with UN Development Programme (UNDP), and the first UN Pacific Forum on Business and Human Rights (December 2020) in collaboration with the Office of the United Nations High Commissioner for Human Rights (OHCHR) Regional Office for the Pacific. These regional forums have facilitated the implementation of the UNGPs in various countries in Asia through peer learning and multi-stakeholder dialogues.

In his personal academic capacity, Dr Deva has analysed and critiqued the UNGPs in terms of their effectiveness and fitness for purpose in the global context. He co-edited Cambridge volume, Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?, identifies gaps and shortcomings in the UNGPs and makes a strong evidence-based case for a legally binding international instrument to complement the UNGPs. This book contributed to the then Ecuadorean Ambassador to the UN in Geneva to invite him to present a paper at a side event to the UN Human Rights Council in March 2014 aimed to generate support for a joint Ecuador-South Africa resolution calling for the creation of a treaty. After the UN Human Rights Council adopted a resolution in June 2014, an Open-Ended Intergovernmental Working Group (OEIGWG) was established to elaborate a legally binding instrument. Dr Deva is one of a very small number of independent experts invited as a panellist to the first five sessions of the OEIGWG advising states about both the scope and the content of the proposed treaty.

Dr Deva’s research has focussed on the possible content of the treaty, providing concrete text and principles that should be considered in the drafting process. In particular, his publications have countered the narrative of the treaty being contradictory to the UNGPs and offered a way forward about two interrelated contentious questions about the treaty’s scope: (i) should the proposed treaty apply to all business enterprises, or should its applicability be limited only to transnational corporations and other business enterprises with a "transnational character"; and (ii) should the proposed treaty cover all international human rights, or only selected gross or serious violations of human rights?

In July 2018, Dr Deva was invited to submit suggestions on the core substantive provisions that should be reflected in the draft of the binding instrument. The impact of his proposal regarding the treaty’s scope can be seen in the Zero Draft of the treaty in: the adoption of a soft hybrid option in the Preamble and Article 3.1; a proposal to cover all internationally recognised human rights in Article 3.2; and the suggestion of a wide definition of businesses with a "transnational character" in Article 4.2 of the Zero Draft. The Zero Draft served as the basis for negotiations during the fourth session of the OEIGWG held in October 2018. Dr Deva has played a key advisory role in drawing up the Revised Draft (July 2019) and the Second Revised Draft (August 2020) of the proposed legally binding international instrument. These two treaty drafts incorporate some of his suggested revisions and the Second Revised Draft is arguably "negotiation-ready" partly because of these improvements inspired by Dr Deva’s work.