Implementing the UNGPs in Eastern Europe: Is Ukraine the Example to Follow?
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In Eastern European countries, the level of UNGPs implementation remains extremely low. Among non-EU members, only Georgia adopted a business and human rights (BHR) chapter, in 2018. It is not a stand-alone National Action Plan (NAP). Rather, it is incorporated within its broader human rights NAP (https://globalnaps.org/country/georgia/). While three years later experts remain skeptical about Georgia’s progress, the very existence of this chapter shows that BHR issues are on the public agenda in Georgia.
This month (March 2021), Ukraine repeated the experience of Georgia: a BHR Chapter was adopted as part of the National Human Rights Strategy (https://www.president.gov.ua/documents/1192021-37537).
Pre-BHR period in Ukraine
In December 2014, the Ukrainian translation of the UNGPs was presented by the Ministry of foreign affairs of Ukraine. After that, it looked like the document was forgotten by everyone: no public mention, no statement, no action followed both from the state, business or civil society. This can be explained by the fact that the country had other vital concerns. After the revolutionary events of 2013-2014 and the start of the armed conflict in the East of Ukraine, priorities shifted significantly. But this explanation only partially holds. One can also argue that in situations of instability and high risks to human rights, the state obligation to protect and the corporate responsibility to respect human rights actually become more relevant.
In 2017, during the first Kharkiv Legal Forum, a BHR discussion was conducted. This academic event was open to all interested stakeholders, but no state organ, and no business participated. However, during the second Kharkiv Forum in 2018, a Panel discussion on BHR in Ukraine brought together representatives from the Ministry of Justice (MoJ), the Ombudsperson’s Secretariat, the OECD National Contact Point, and the Governmental Commissioner for Gender Equality (http://bhr.in.ua/business-and-human-rights-implementing-ungps-in-ukraine/).
This is my own subjective opinion, which I understand might be perceived as biased, but I believe it is highly important for Ukrainian decision-makers to hear what international organizations and experts in this area have to say. It is crucial to take into account the experience of others, including Western European countries. This is not to say that such experience and opinions are to be received uncritically. However, it is clear that at the second Forum in 2018 the opening greetings from a UN Working group on business and human rights member (Anita Ramasastry), the expert opinion from the Danish Institute for Human Rights (Dirk Hoffmann), and the presentations of the Polish (Beata Faracik), Czech Republic (Jitka Brodska and Alla Tymofeeva) and Lithuanian (Lyra Jakulevičienė) experiences played a decisive role.
In January 2019, the MoJ initiated implementation of the UNGPs in Ukraine (https://minjust.gov.ua/m/informatsiya-schodo-rezultativ-provedennya-natsionalnogo-otsinyuvannya-bazovih-pokaznikiv-u-sferi-biznesu-ta-prav-lyudini-v-ukraini).
UNGPs implementation: initial steps
At the beginning of 2019, the National baseline assessment (NBA) on BHR in Ukraine was initiated by the MoJ. It was conducted by Yaroslav Mudryi National Law University (I was the author with the expert support of my colleagues) in cooperation with the Danish Institute for Human Rights (https://minjust.gov.ua/files/general/2019/07/10/20190710170813-19.pdf).
The NBA was published and presented in June 2019. The idea of the MoJ was that it should serve as a basis and starting point for developing a stand alone NAP on BHR. But after early parliamentary elections in July 2019, the government was dissolved and a new one was formed. Until March 2020, the fate of the BHR NAP remained extremely unclear. In March 2020, the new MoJ’s team announced that an updated National Human Rights Strategy would be developed. It called experts and CSOs to make proposals on how the Strategy should be updated. One of the proposals that was supported by the Ombudsperson’s office and a number of CSOs was to have the BHR chapter.
After several virtual open discussions, the draft was prepared. The MoJ was open to accepting and processing as many proposals, remarks and comments as possible. As a result, in November 2020, the updated National Human Rights Strategy that includes the BHR chapter was ready to be approved and signed by the President of Ukraine. Thus, the whole process of working on the text took about 8 months. Too fast? Maybe.
Then there were 4 months of waiting. Nobody knew exactly when the President would sign the Strategy, or if he would sign it at all. The expectation was compounded by the fact that the New Economic Strategy of Ukraine initiated by the President of Ukraine and presented in January 2021 provides for a ban of any new requirements and restrictions for business. These are red flags. “Business deregulation and removal of any barriers for doing business” are called as key priorities. The Economic Strategy does not contain any reference to human rights.
On March 24, the National Human Rights Strategy was signed. It does include a BHR Chapter. However, a feeling of policy incoherence lingers on.
What’s next?
The National Human Rights Strategy is a very broad document. The BHR chapter (2 pages) names only:
- General strategic goals: business operations should be based on a human rights approach; effective remedies should be guaranteed for victims of business violations); and
- Key tasks, namely to implement the UNGPs; to strengthen the capacity of public authorities and local governments to implement the UNGPs in Ukraine; to raise awareness of business entities and their associations, trade unions and other civil society institutions on the UNGPs; to promote the renewal of corporate policies (in particular on labor relations, environmental protection, corporate social responsibility, personal data protection, consumer protection, anticorruption, combating trafficking in human beings, etc.) to ensure compliance with the UNGPs and other international human rights instruments; to provide access to judicial and non-judicial remedies.
Now the Ukrainian government should adopt an action plan for the implementation of the National human rights strategy (the draft of the Plan was developed simultaneously with the Strategy in the same manner). An action plan is more detailed – it names specific actions to be taken, responsible actors and timelines.
Lessons learned
So, I hope that the case of Ukraine will be an example to follow for those countries from the region that initiate the UNGPs implementation. We need more countries to adopt NAPs on BHR. But in this process, the lessons already learned by Ukraine should be taken into account:
- Be persistent. Someone (from civil society, academia, business) has to be very persistent in their intentions. It is pointless to wait for the government to take the initiative.
- Appeal to experiences of other countries, to the opinions of international organizations, to the expectations of partner states and investors. Unfortunately, often these arguments are more effective for decision-makers than society’s expectations. But this can be used as an advantage.
- Implementation’s processes can occur too quickly, to the detriment of the standards of inclusiveness and the depth of the analysis of the problems. This haste is one of the consequences of political instability. Changing the composition of the government can put any initiated process on a long pause.
- Be prepared to see some policy incoherence. The concept of business and human rights is considered mostly as a significant obstacle to economic development. Therefore, the main questions to be answered are: will the UNGPs implementation lead to a slowdown in economic development? Will it create additional barriers to business?
My name is Nadia Bernaz and I am Associate Professor of Law and Governance at Wageningen University in the Netherlands.
My main area of research is business and human rights. I look at how corporations and businesspeople can be held accountable for their human rights impact through international, domestic and transnational processes.