Published 1 year ago.
About a 6 minute read.
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For most readers, bribery or corruption aren’t part of your everyday experience — though they should be part of due diligence processes on your business partners and supply chain. However, the danger that one department says one
thing and another does something different and inconsistent is clear in every company.
There was a time when companies were lambasted for wielding their power to
obstruct outcomes at international summits on social and environmental goals;
now, if businesses don’t turn up in these arenas, they are castigated for lack
However, one of the most interesting discussions at this year’s UN Forum on
Business and Human
was on the UN report — produced in October and debated here in Geneva for the
first time — on rules in corporate political
against what has been called “corporate capture.”
Beyond that dramatic title lies the charge that some businesses exercise undue
influence in their lobbying, political donations, interference in judicial or
legislative systems, or in manipulating scientific evidence and even public
consultation — in a way that is incompatible with their human rights
The Forum heard testimony of examples from the Global South. The
Philippines’ national human rights institution reported that companies were
undertaking activities in contravention of commitments to combat climate change,
it was said.
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Emilie Pradichit from the
Manushya Foundation alleged that Thailand’s electricity company had
deliberately misrepresented its own public relations as providing community
consent for a new coal-fired power station — which she called “fake
In apt wordplay at a Forum where there is much talk about governmental National
Action Plans to implement business and human rights, Pradijit said: “NAPS will
never control corporate capture — governments are napping when they should be
Former Attorney General of Guatemala, Claudia
Paz, described how the
country’s Commission against Impunity had discovered what she said were
“illegal corporate pay-offs to key politicians, subsequently paid back in the
award of future public works.” The practice was said to extend to paying judges
to avoid corruption cases — a finding endorsed in the US Supreme Court, she
said. Paz told how she was one of 30 judges and magistrates driven out of the
country, threatened because they refused to accept the payments.
The issue has impacted companies in developed countries, too — according to
corporate lawyer Suzanne
Spears from US firm,
Praxus LLP. She referred to prosecutions against US consultancies thought to
be implicated in what is widely acknowledged corporate capture in the South
African government and against UK consultancies said to have breached
democratic norms in seeking concessions for international mining companies in
Zambia and in the Democratic Republic of Congo.
Matthias Thorns, Deputy
Secretary-General at the International Organisation of Employers (IOE),
put up a steadfast defence of companies in the face of the UN report’s findings.
Pointing out that rules for responsible lobbying had been drawn up by the UN
Global Compact in 2005 and in the
Organisation for Economic Cooperation and
last year, he appealed for the UN to build on the existing rules rather than
“reinvent the wheel.”
Referring to acceptance of the legitimate role for companies to pursue policies
to combat hunger, poverty and climate change, he said activists had actively
demanded for business to speak out on political issues — including on visas to
enable entry to the United States, on abortion
and in favour of LGBTQ+
The IOE, like other employers’ federations, accepted its responsibility to raise
awareness of human rights issues with members, to organise peer learning and to
provide a ‘safe space’ where companies can address difficult issues, he added.
Companies fully support the need for independent judiciaries; policies for good
corporate governance and transparency, and to combat corruption and the right of
civil society to criticise business.
However, Thorns criticised some aspects of the report, suggesting that the right
for companies to lobby could not exist only where there is agreement with civil
society positions. He even suggested that the report might impinge on the right
of free expression for companies themselves.
Spears disagreed with this claim, arguing that the right to free expression
could not be used by companies “as a shield to hide the deleterious effects of
She emphasised that “the report doesn’t call for a ban on lobbying,
electioneering or ask companies to stay silent. Instead, it seeks to ensure that
when they do so, there must be no willful obfuscation that their products or
services may cause harm in violation of their human rights obligations or
undertake activities which obstruct public policies in favour of human rights.”
Spears called on governments to use due diligence and conflict-of-interest laws
to regulate companies’ lobbying and political activities. Lawsuits that seek to
silence victims, whistleblowers and human rights defenders — the infamous
Strategic Lawsuits Against Public
Participation — should be outlawed, she
“Corporate capture is the most extreme form of corruption,” Spears argued.
Public policy was represented by Chief of Staff to the European Union Ombudsman,
Aidan O’Sullivan, who
described how corporate activity that extended to capture had been addressed in
the EU. He cited how the Ombudsman had rejected sustainability impact
assessments for trade agreements as insufficient on human rights grounds; had
insisted on a change to the EU’s financial regulation when a major financial
player had been selected to help prepare EU banking rules, despite conflict of
interest; and an official finding that Europe’s provision of surveillance
equipment to help control migration movements in African countries had failed to
give due consideration to its human rights
O’Sullivan suggested more work needed to be done to avoid the ‘revolving door’
between senior public officials working in companies they had regulated; the
Ombudsman’s failure to require communications between the President of the
European Commission and the Chief Executive of a major pharmaceutical company to
be published; and the need for the EU to develop its own ‘complaints portal,’ to
enable better access on grievances.
One final area where there was common agreement in the debate was in the need to
‘join the dots.’
“I’ve met company sustainability officers who say they want to do human rights
due diligence, but say Government Relations doesn’t like it and Legal won’t let
them do it,” Chair of the UN Working Group Fernanda
Hopenhaym told the
Forum, with firsthand experience as advisor to the Corporate Capture
Project run by the NGO coalition, ESCR-Net.
The IOE’s Thorns agreed that sometimes these different functions within the
company don’t even talk to each other.
For most readers of this article, overt issues of bribery or corruption will be
a long way away from your everyday experience — although not so far away that
they should not be part of due diligence processes on your business partners and
supply chain. However, the danger that one part of the company says one thing
and another part does something different and inconsistent is clear in every
The recommendations for responsible lobbying and political activity in the UN
report will be subject to further consultation externally; perhaps this can also
be an opportunity internal to companies: to consult whether on human rights — in
the words of this series — they really do ‘walk the talk.’
Published Dec 1, 2022 1pm EST / 10am PST / 6pm GMT / 7pm CET
Richard Howitt is a strategic adviser on Corporate Responsibility and Sustainability, Business and Human Rights. He is also a Board member, lecturer at Audencia Business School and host of the Frank Bold ‘Frankly Speaking’ responsible business podcast. Richard was Member of the European Parliament responsible for the EU’s first rules on corporate sustainability reporting and subsequently Chief Executive Officer of the International Integrated Reporting Council.