For sign-on by 28 September 2023: joint statement to the Ukrainian government, investors, business and partners: Business's participation in the recovery of Ukraine should be responsible.

A human rights based approach is extremely important for rebuilding the country. For its implementation, different stakeholders play critical roles – Ukrainian and foreign businesses, investors, government and CSOs.

In general, we see that corporate responsibility to respect human rights being largely missing from the current conversation about the post-war future of Ukraine, and there is a need to highlight the risks of this situation (Ukrainians not benefitting from/participating in the rebuilding process, the importance of rebuilding with accessibility in mind etc.) and make a human rights approach key framework of the recovery process.

In this regard, the role of business actors should be taken into consideration very precisely. The international community is increasingly setting expectations for responsible business conduct (RBC) through international sustainability initiatives. This includes the UN Sustainable Development Goals (SDGs), the Organisation for Economic Cooperation and Development’s (OECD) Guidelines for Multinational Enterprises, and most importantly the UN Guiding Principles for Business and Human Rights.

In 2011, the United Nations Human Rights Council unanimously endorsed the UN Guiding Principles on Business and Human Rights (UNGPs), a set of guidelines for States and companies to prevent and address human rights abuses committed in business operations. The UNGPs define the duty for the state to protect human rights (Pillar I), the business responsibility to respect human rights (Pillar II) and the need to provide access to remedy and reparations for victims of harm (Pillar III). The UNGPs are widely recognized as the authoritative common framework for BHR, offering clear principles for states and businesses to prevent and address business-related human rights abuse, and ‘have facilitated the socialization of human rights norms among businesses, a prerequisite to ensuring corporate respect as well as corporate accountability for human rights.

In recent years, the European Union has introduced a range of regulatory initiatives which, in different ways, seek to address the impacts that businesses have on the enjoyment of human rights. Key among them are: the European Green Deal, a suite of policy and legislative initiatives announced in 2019 aimed at achieving no net emissions of greenhouse gases by 2050; the 2020 European Pillar of Social Rights and the accompanying action plan; the Corporate Sustainability Reporting Directive, Sustainable Finance Disclosure Regulation, Green Taxonomy, Conflict Minerals Regulation, Timber Regulation, a proposed ban on goods produced with forced labour, proposed regulation on deforestation-free products, General Data Protection Regulation, and the Public Procurement Directive, the proposal of the Corporate Sustainability Due Diligence Directive. On March 10, 2021, the European Parliament adopted a resolution with recommendations to the European Commission regarding the approval of a legislative proposal on mandatory supply chain due diligence (the draft of the Directive was published on February 23, 2022, and voted on by the European Parliament on June 1, 2023).

Importance for Ukraine. Responsible Business Conduct (RBC) principles and standards set out the expectations for how businesses should prevent and address adverse impacts of their operations and supply chains, while also contributing to sustainable development in the countries where they operate. RBC can help inform how companies respond to the war in the immediate and medium-terms – notably by providing a due diligence framework to help them gain visibility over the main human rights and integrity risks present in their supply chains, including those that have emerged or been made worse by the war. Conducting effective supply chain due diligence can help support the resilience of Ukraine’s economy in the short term, and its reconstruction later.

Proposed Action Plan. A universal, one-size-fits-all model of responsible business conduct in times of post-war recovery is not possible. But there is a need for heightened, vulnerability-sensitive human rights due diligence (HRDD) implementation which requires joint efforts of the state, local municipalities, investors, academia, civil society organisations and business actors per se. It requires a nuanced, ongoing approach to understand the rapidly changing context. Companies and investors should build their internal capacities to undertake HRDD and embed human rights throughout their operations to concretize responsible business conduct. This approach should be implemented as cross-cutting component of all governmental recovery actions in Ukraine. Particularly, ensuring competitive access to funding and growing value adding sectors of economy as critical projects in the Recovery plan should be based on the responsible business conduct approach.

For these purposes, following the UNGPs approach to corporate responsibility to respect human rights, the governmental agencies responsible for providing financial funds and other forms of cooperation with private sector within recovery efforts should guide companies for:

-       Express policy commitment:

o  Publicly affirm their support for the democracy, rule of law, fundamental human rights and territorial integrity;

o  Publicly commit to exercise leverage responsibly, both within their value chains (supporting business partners in building human rights capacities) and in governmental relations (ensuring that companies do not lobby for policies that protect their operations while shifting burdens to the most vulnerable), in particular including in the human rights policy a company’s commitment not to influence the political and regulatory sphere in an irresponsible way;

o  Have a responsible exit strategy as part of their human rights policy, based on consultation with workers and external stakeholders, with disengagement as a last resort; Develop and adopt policies on work, family and volunteering balance.

-       Assess human rights impacts, including throughout their value chains, and possible impacts on post-war dynamics:

o  Apply the approach when decisions  are made directly on the spot by the company working in the high-risk situation, at a level that is as close as possible to the rightsholders;

o  Ensure that workforces are formally employed and avoid informal models of employment beyond labour contracts, e.g. classifying a worker as an individual entrepreneur when they perform the functions of an employee;

o  Avoid mass layoffs or suspension of work and delayed pay without legitimate reasons;

o  Identify potential human rights risks associated with specific products or services, inform the customer about these risks, and assist with steps to minimize such risks.

-       Engage stakeholders and ensure access to remedy:

o  Make all possible efforts to engage stakeholders throughout the company’s full value chain, including local communities;

o  Ensure access to remedy, whether through company grievance mechanisms or external mechanisms, and appropriate, secure forms of communications with all stakeholders;

o  Support employees and other stakeholders to submit their reports or claims about the human rights abuses or negative impact caused by the company.

-       Apply vulnerability lenses:

o  Introduce measures to ensure inclusion and safety across vulnerable groups in the workforces, customers, and local communities, and educating employees on how to interact with diverse groups in a rights-respecting manner;

o  Be equipped with the knowledge and practical skills of applying a test on discrimination;

o  Develop programs to prevent harassment and violence, introduce effective mechanisms for submitting anonymous complaints, as well as for response, compensation for damage, and protection of complainants, and provide psychological assistance for victims;

o  Provide reasonable accommodation for the needs of vulnerable groups, e.g. persons with disabilities, particularly in designing safety and business continuity plans during the war.

Investors, transnational companies operating in Ukraine (e.g. through their supply chains), business associations and partners can help to build companies’ capacities on human rights impact assessment, including by raising their awareness of their potential impacts of their policies on their employees’ rights, consumers' rights and local communities.

In case of additional questions, please contact Dr. Olena Uvarova, Head of the International BHR Lab, Yaroslav Mudryi National Law University (Ukraine), Co-President of the Global Business and Human Rights Scholars Association, Researcher in the Law Group, Wageningen University uvarova.info@gmail.com