The Dutch Banking Sector Agreement on Human Rights: An Exercise in Regulation, Experimentation or Advocacy?

Abstract

The role of banks in projects which result in adverse human rights impacts has been brought to the fore in recent years. However, there are serious obstacles to regulate the (often extraterritorial) financing activities of banks under national law. The UN Guiding Principles on Business and Human Rights and OECD Guidelines for Multinational Enterprises attempt to respond to this ‘governance gap’, stipulating that all business enterprises have a responsibility to respect human rights. However, banks’ compliance with such standards has been frustrated by a failure to understand how these standards apply to them. In 2016, the Dutch Government collaborated with the Dutch banking sector and civil society to create the Dutch Banking Sector Agreement: a multistakeholder initiative initiated to improve adhering banks’ performance with respect to the UN Guiding Principles on Business and Human Rights and the OECD Guidelines on Multinational Enterprises. This article reviews how the actors involved drafted the Agreement in light of prevalent divergences in understandings over how human rights apply to banks’ financing activities. It then looks to scholarship on transnational private regulation, experimentalism governance, and social constructivism in mapping three roles the Dutch Banking Sector Agreement could play: regulation, experimentation, and advocacy.