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Ukraine has integrated Business Human Rights in its National Human Rights Strategy, adopted by the President in 2021. But can the National Action Plan to achieve that strategy succeed, given the varied progress seen in human rights observance in business across Ukraine’s regions and communities?
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The United Nations Development Programme (UNDP) has embarked on an analysis of the implementation of the UN Guiding Principles on Business and Human Rights (UNGPs, BHR) in Ukraine to get a sound understanding of adverse business-related human rights impacts
Since conducting a National Baseline Assessment on Business and Human Rights in 2019 in Ukraine, which mainly focused on UNGPs Pillar 1, UNDP has found there is a need to fully understand and document the challenges, barriers and needs – as well as the opportunities – in BHR for both duty bearers (government and businesses) and rights holders.
We thus embarked on the following four assignments:
1. A stakeholder mapping/analysis and lessons learned mapping/analysis
2. A rights holder study
3. A sector/market study
4. An international best practice study on BHR
More specifically, the studies will present overall trends/needs/barriers for duty bearers and rights holders, and provide a deep dive on the ICT, retail and agricultural sectors/markets to understand key constraints – as well as identify the opportunities to adhere to responsible business conduct.
We are also identifying lessons and good and best international practices that may be of particular relevance for Ukraine, whilst also understanding the need to be context specific.
With these qualitative studies, it is our hope that it will inform policies and legislation, as well as help businesses and rights holders, empowering them to advance the BHR agenda, which addresses so many key development problems in Ukraine (e.g. lack of decent and well paid jobs, demographic challenges/out-migration, a massive informal sector, lack of social protection, adverse impact and environmental human rights violations by businesses, etc.) and which has so many obvious benefits for the government, businesses and the citizens of Ukraine (decent jobs, access to financing, inclusive sustainable growth, tax revenues, human rights realisation, and staff retention).
Roadmap
The studies will also help UNDP and its development partners draw up a coherent road map to accelerate this important agenda in Ukraine.
Based on our early observations from the research studies, we see a significant need to raise the awareness of BHR throughout Ukraine.
The understanding of BHR is limited among both rights holders and duty bearers (government, local government and businesses), as well as within oversight institutions and the judiciary.
With regard to human rights empowerment, in Ukraine, UNDP applies a balanced human rights-based approach, and supports both the awareness raising and capacity development of duty bearers and rights holders.
Throughout our project cycles and intervention logic we strive to operationalise a HRBA and ensure the meaningful participation of broad categories of rights holders.
For example, we engage with rights-holders and CSOs representing rights holders throughout Ukraine (e.g. women, young people, the elderly, the rural population etc.) to empower them about their rights so they are able to make their voice heard and participate in and influence policy-making, as well as monitor and stand up for their rights.
Increase in complaints
During the COVID-19 pandemic, we have witnessed an increase in complaints to the Ombudspersons Office about violations of socio-economic rights throughout the region. We have also seen a clear trend of violations of labour rights (the non-payment of salaries is the most frequent violation).
Through impact/outcome studies, we have learned that the digitalisation reform process needs a particular HRBA focus and a strong focus on vulnerable groups – poor people, the elderly, Roma people, etc. – who may not have access to the Internet, digital platforms or social media.
We are also working for the capacity development of duty bearers and oversight institutions, such as the parliament and the Office of the Ombudsperson (throughout the regions) as well as with free legal aid centres. The NHRI and its Regional Coordinators play a key role in fostering dialogue between duty bearers and rights holders.
The role of communities in ensuring human rights in Ukraine is crucial. In the vast majority of cases, both human rights protection and the prevention of human rights violations depend entirely on the local community and local governments.
The decentralization reform that began in Ukraine in 2014 enhances the role of local governments in respecting human rights and involving citizens in oversight mechanisms.
The way forward
To ensure rights holders know about adverse human rights impacts on businesses, tailored awareness raising and meaningful participation involving broad categories of rights holders, including at-risk categories, is essential.
UNDP’s human rights nationwide perception survey from December 2020[1], indicates that Ukrainians have become more active in defending their rights. But many do not turn to the courts, due to a lack of trust in the judiciary. Thus there is a need to focus more on accountability and access to remedies so that rights holders are able to claim their rights and hold duty bearers (government or businesses) accountable when their rights are violated.
For empowerment to be effective, a balanced HRBA is necessary to involve both duty bearers and rights holders.
Finally, as BHR is multi-disciplinary, it is critical to apply a BHR lens across sectors and policies.
Measuring NAP progress
It is indeed very positive and a sign of political commitment that BHR has for the first time been integrated into the National Human Rights Strategy and its National Action Plan (NAP) adopted in Ukraine in 2021. UNDP contributed greatly to this process with technical advisory inputs.
However, based on our assessment and observations from our research, there is a significant need to strengthen the BHR NAP process and policy coherence at the inter-ministerial level. Moreover, to drive the NAP process forward, and facilitate a multi-stakeholder inclusive process, UNDP strongly recommends that BHR is integrated into the next updated Ukraine-EU Association Agreement and anchored with the Deputy Prime Minister for EU Integration. It also seems particularly relevant to link it with the EU Green Deal. With the upcoming EU Directive on Mandatory Human Rights and Environmental Due Diligence, as well as the increase in EU Member States’ human rights and environmental due diligence regulations, it is of key importance to prioritise BHR and prepare Ukraine for the future. Trade with the EU and its Member States is of significant importance to Ukraine, with approximately 40-45 percent of its total exports going to the EU market.
This indicates a great need for awareness raising and capacity development of stakeholders.
Together, this may spark a much-needed inclusive multi-stakeholder NAP process, which should be active and budgeted, and include all relevant actors – including BHR experts, academia and CSOs.
To ensure accountability and for a NAP on BHR to be effective, we need baselines, targets, measurable indicators and detailed budgeted activities that are monitored and evaluated.
Local context
Moreover, the NAP should be anchored and adapted to the local context. We need to analyse carefully the local context and the potential negative human rights impact caused by businesses, and the opportunities and as well as the barriers to rights holders at the oblast level.
The administrative-territorial structure of Ukraine consists of 24 regions, the cities of Kyiv, Sevastopol and the Autonomous Republic of Crimea , with 1,421 communities in total. Public administration at the oblast level is carried out by local state administrations (at oblast, district, city and city district levels). Local self-government is implemented by local councils: regional (24 councils), district (119), city district in cities (15), city (369), settlement (428), and village (623) councils.
The role of communities in ensuring human rights in Ukraine is crucial: in the vast majority of cases, both human rights protection and the prevention of human rights violations depend entirely on the local community and local governments.
The availability of resources enables communities to independently identify priority projects, and implement programmes to meet the needs of the community, including strengthening the legal capacity and legal protections of community residents.
At the same time, according to the regional human development index compiled by the Ministry of Regional Development, there are significant differences in human development among the regions. According to data for 2018, in nine regions (2017 – 13 regions) the value of the index is lower than the average in Ukraine (Kherson, Zhytomyr, Kirovohrad, Rivne, Chernihiv, Cherkasy, Dnipropetrovsk, Khmelnytsky, and Sumy regions). This indicates there is a need to find specific approaches for each region and community that match the current legal needs of their residents.
Recommendations
UNDP strongly recommends that BHR is integrated into the next updated Ukraine-EU Association Agreement and anchored with the Deputy Prime Minister for EU Integration. It also seems particularly relevant to link it with the EU Green Deal.
Thus, the NAP for the BHR needs to be anchored both nationally and locally. Duty bearers (local government and businesses), rights holders and relevant stakeholders should engage in a dialogue at the local level to identify the most common adverse human rights impacts, and draw up a realistic, locally-led NAP that can be realised progressively, and be monitored and evaluated.
In addition, in Ukraine (as well as in other countries), there may be need for a specific working group on BHR that can monitor and evaluate progress made, ensure accountability and adapt plans to the context when needs arise.
It may also be interesting to explore an international review modality, similar to the UPR process, to enhance accountability.
