II. The Flawed Ukrainian Business and Human Rights Chapter

The inclusion of a BHR Chapter in the Ukrainian Human Rights Strategy seemed like a decisive step forward. However, upon a closer look, it contains major internal incoherencies, as its strategic goals, objectives, expected outcomes and indicators hardly align with the problem to be solved.

The first strategic goal states that businesses ought to ‘apply a human rights-based approach while conducting business activity’.Footnote ¹¹ Notably, it refers to a human rights-based approach (HRBA), that is, ‘[a] conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights’.Footnote ¹² As observed, although an HRBA is mainly applied as a methodological framework to development assistance by the UN and other organizations, human rights-based terminology has entered the language of more significant business undertakings, as a result of the UN Global Compact and the UNGPs.Footnote ¹³ Nevertheless, an HRBA is a broad conceptual/methodological framework that is not specifically designed for businesses. Instead, the ‘Protect, Respect and Remedy’ Framework underpinning the UNGPs, and the following soft and hard law instruments provide more suitable and adequate reference points for businesses.

Therefore, it is unclear, especially considering further references to the UNGPs, why the BHR Chapter refers to the HRBA and the meaning assigned within the BHR context. It is problematic to draw a correlation between the first strategic goal and the elements of other chapters. This is compounded by the fact that another strategic goal (access to remedy), several objectives (capacity-building, awareness-raising) and respective expected outcomes may fall within that broad scope of HRBA.

In addition, under the HRBA’s non-discrimination principles, vulnerable groups should be protected against discrimination,Footnote ¹⁴ while the UNGPs should be implemented non-discriminately.Footnote ¹⁵ Despite both frameworks envisioning the inclusion of (all) vulnerable groups, as many as four out of seven key indicators within the BHR Chapter specifically address persons with disabilities. Moreover, the nature of these indicators (social security, employment, access to transportation) makes their link to the strategic goal on the HRBA, as well as to the objective on UNGPs implementation, rather vague. Instead, they align more closely with the Human Rights Strategy’s chapter on discrimination, namely its objective to ensure access to transport and work for persons with disabilities, among other things.Footnote ¹⁶

The second strategic goal set by the BHR Chapter states that ‘victims of business-related human rights violations have access to effective remedy’.Footnote ¹⁷ Ironically, it virtually does not address the problem to be solved, which are ‘instances of human rights violations by businesses (in particular, in areas of labour relations, personal data protection, consumer protection, and environmental protection)’.Footnote ¹⁸ Instead, it aims at achieving access to effective remedy, i.e., something that should go after such violations. Needless to say, both the prevention of violations and access to justice should have been covered by this strategic goal. This discrepancy is particularly noticeable in light of the first objective – the UNGPs and the Council of Europe Recommendation CM/Rec(2016)3 on Human Rights and Business (CoE Recommendation) implementation – as preventing business-related human rights violations is one of the underlying principles of both of these instruments. Had prevention been included, it would have addressed the missing link to the problem identified in the BHR Chapter.

Although the second strategic goal has a correlative expected outcome (‘access to judicial and non-judicial remedies for human rights violations that occur while conducting business activity is provided’),Footnote ¹⁹ the seemingly correlative key indicator for it (‘number of complaints to the state authorities on business-related human rights violations’)Footnote ²⁰ is inadequate. The number of complaints may not reflect the number of actual violations as not every violation is followed by a complaint. For example, a company may settle an issue with a victim early precisely to prevent her from filing a complaint with the respective state authority. Furthermore, the 2020 National Human Rights Survey showed that 40 per cent of Ukrainians have not tried to protect their violated rights to begin with.Footnote ²¹

Finally, one more objective of the BHR Chapter that is worth noting aims ‘to strengthen the capacity of state and local authorities to implement the UNGPs [CoE Recommendation]’.Footnote ²² Conspicuously, none of the expected outcomes or key indicators respond directly to this objective. At the same time, without reaching this objective, the BHR agenda in Ukraine is doomed to remain purely academic. To succeed, the BHR agenda must also become government-led.

The flaws of the BHR Chapter are not an isolated phenomenon, but also encompass a weakly designed Action Plan, as the next section will show.

III. ‘Empty’ Action Plan on Business and Human Rights

The Presidential Decree of March 2021 obliged the Government inter alia ‘to develop, involving representatives of public authorities, local governments, civil society institutions, leading national researchers and international experts, and approve within three months an action plan for the implementation of the [Human Rights Strategy]’.Footnote ²³

In fact, the drafting of the Action Plan preceded the adoption of the Human Rights Strategy and took place in late 2020, as announced by the Ukrainian Ombudsperson’s representative at the 1st Regional BHR Forum in Eastern Europe and Central Asia.Footnote ²⁴ Notably, the drafting process involved online consultations with experts, civil society, and business representatives,Footnote ²⁵ which resulted, as reported, in more than 50 proposed actions on BHR.Footnote ²⁶

In early January 2021, the Ukrainian Ministry of Justice (MoJ) published the draft Action Plan for public consultations, which featured four actions:

1. (1) Conducting a study on the best practices of implementation of the UNGPs, the Ten Principles of the UN Global Compact, and the CoE Recommendation;

2. (2) Consulting with business representatives and state authorities on the aforementioned implementation;

3. (3) Developing guidance for businesses to ensure the compliance of internal strategies, policies and operations with international human rights standards including the above;

4. (4) Preparing a draft law on introducing economic incentives for business entities that implement and ensure that human rights standards are upheld while conducting business.Footnote ²⁷

After the Human Rights Strategy was adopted in March, the original draft Action Plan was updated accordingly and, as of late May 2021, included two proposed actions on BHR: a study on best practices and preparing a draft law on introducing economic incentives for responsible business. It is worth emphasizing that the updated draft was not published for public consultations.Footnote ²⁸

The Action Plan for implementing the Human Rights Strategy was approved by the Ukrainian Government in June 2021,Footnote ²⁹ complying with the time frame set by the President. However, it did not meet his requirement of developing the plan through a multi-stakeholder process. More significantly, the approved Action Plan featured just one proposed action on BHR: the aforementioned study on best practices. This was due to the MoJ’s rejection of over 50 actions proposed by the expert community and business. The ‘surviving’ three actions were then reduced into only one action from the previous drafts. The study on best practices can contribute to raising awareness on BHRFootnote ³⁰ but cannot by itself bring about change in corporate conduct. For that, wide stakeholder engagement, guidance for business (on BHR in times of war and post-war context in particular) and economic stimuli for responsible business as well as a specific legislative framework, such as mandatory human rights due diligence, are needed. If implemented, the original draft Action Plan with four proposed actions covering some of these critical elements could have made a long-awaited breakthrough.

During the V Kharkiv International Legal Forum in September 2021, the Deputy Minister of Justice of Ukraine, when responding to my question, explained why the Action Plan only includes one proposed action on BHR. According to her, due to the lack of funding, the MoJ needed to be realistic about the actions that should be implemented under such an Action Plan. She emphasized that developing a state policy on business and entrepreneurship does not fall within the scope of the MoJ’s responsibilities; however, the state policy on human rights does. The MoJ has to deal with a long list of human rights issues, not just those related to business, and therefore the Deputy Minister suggested that a governmental institution should be designated with responsibility for the implementation of the UNGPs, including the development of a standalone NAP.Footnote ³¹ In the meantime, the MoJ chose to prescribe a single BHR action in the Action Plan, which can realistically be implemented. As such, the BHR developments in Ukraine leave much to be desired.

IV. Lessons Learned and a Way Forward

Over the course of approximately five years, the BHR agenda in Ukraine has evolved from discussions in academic circles to a state policy. The response of the Deputy Minister of Justice on why the Action Plan falls short of including all the proposed actions, invites the opportunity to draw several lessons learned.

First, the argument about the necessity to ‘be realistic’ comes from the MoJ’s experience with the 2015–2020 National Human Rights Strategy. In late 2020, human rights experts kept criticizing the MoJ for the strategy’s low performance rate (of about 30 per cent).Footnote ³² As a result, the MoJ decided to keep the 2021 Action Plan shorter to avoid a similar situation. The underlying logic was that the less they promise, the less they may fail. However, this seems problematic when it comes to a state policy on human rights promotion and protection, for which another logic applies: the less they promise, the more they fail. In this case, by minimizing the ambitions of the Action Plan, the MoJ withdrew the excluded BHR issues from the attention of state authorities, as they can only (be asked to) attend to what is required under the law and policy.

Second, the ‘not our responsibility’ argument could have been persuasive had the MoJ not initiated the implementation of the UNGPs in the first place, conducted the 2019 National Baseline Assessment on BHR, and had the very same Deputy Minister of Justice not confirmed during the 2020 UN BHR Forum that a standalone NAP would be developed.Footnote ³³ Although the MoJ may be responsible for the BHR Chapter as a policy, its implementation should involve multiple actors, considering that national strategies are complex by design. Notably, two proposed actions which were eventually cut from earlier Action Plan drafts – including the most ambitious one on preparing a draft law which would introduce economic incentives for the responsible business – clearly specified that the Ministry of Economy was primarily responsible for their implementation, not the MoJ. Similarly, the third proposed action cut from the drafts, as well as the single action ultimately approved, named the Ministry of Economy and the Ombudsperson secondarily responsible for their implementation.

Third, I agree with the Deputy Minister of Justice that a designated body should be responsible for the implementation of the UNGPs, including the development a NAP. In this regard, it should be mentioned that in mid-December 2020, the Ukrainian Ombudsperson inaugurated the Intersectoral BHR Platform, which is tasked with ensuring multi-stakeholder cooperation and promoting the UNGPs’ implementation.Footnote ³⁴ Although the Platform mainly focuses on promotional activities, this kind of multi-stakeholder body can potentially advance BHR development in Ukraine if the political will is there. Another option is to designate a ministry and/or a steering committee to do the job, following the experience of multiple other states. For example, Pakistan’s NAP, developed in a genuine multi-stakeholder process, provides for the establishment of the NAP Secretariat responsible for the coordination of NAP implementation (coordinating relevant entities, strengthening an implementation plan if required, collecting and managing relevant data, promotion, review and evaluation) and a NAP Steering Committee responsible for implementing the proposed actions.Footnote ³⁵

As for the way forward, Russia’s full-scale war of aggression against Ukraine put the BHR agenda under serious threat as the Ukrainian Government justifiably prioritizes national defence and humanitarian matters. Yet, it is crucial to realize that the BHR agenda is even more important in times of war. A brief overview of the existing key guidance on BHR in times of war shows various gaps and shortcomings, in particular due to the realities of inter-state wars, such as, for example, the need to focus not only on responsible exit but also on responsibly remaining in countries where active hostilities take place.Footnote ³⁶ Therefore, it is highly recommended that the future Ukrainian BHR policy includes guidance for businesses on exercising their responsibility to respect human rights in times of war and in post-conflict contexts. Another recommendation for Ukraine, as an EU candidate country, is to align its future BHR policy with the upcoming EU directive on corporate sustainability due diligence.Footnote ³⁷ Finally, in line with Pakistan’s good practice, the Ukrainian Government should design a better BHR policy, as well as an exhaustive NAP that includes a correlative wide-ranging set of proposed actions developed in a multi-stakeholder fashion. This time, crucially, it should be coherent, avoid confusing references, properly incorporate principles of prevention and non-discrimination, elaborate on capacity-building, and clearly define those responsible for implementation, including their roles and functions.