human rights & business (and a few other things)

Does the world need a business and human rights treaty?

Two weeks ago I had the pleasure to participate in a debate on the much-discussed business and human rights treaty, co-organised by the University of Notre Dame Law School and the Business and Human Rights Resource Centre. I was part of the “sceptic” side along with Chris Esdaile from the law firm Leigh Day, while Professor Chip Pitts (Stanford) and Professor Sheldon Leader (Essex) were supporting the idea of a treaty. I already wrote on the issue in a previous post. The debate and the Q&A session were filmed.

The idea of a binding treaty is clearly appealing to those who dismiss the UN Guiding Principles  (UNGPs) as being just voluntary and of no or limited value value in the real world. But it is also appealing to supporters of the UNGPs (such as me) who view the UNGPs as a formidable tool to induce change. In the history of international human rights law, many binding treaties followed the prior adoption of a non-binding document. For example, the twin 1966 International Covenants on Civil and Political Rights, and Economic, Social and Cultural Rights followed the initially merely declaratory Universal Declaration of Human Rights. Therefore the idea of a treaty should flow almost naturally from the work done by Ruggie and his team. Nevertheless, I am largely against the opening of negotiations for a binding business and human rights treaty at this point. Among many others reasons, let me focus on two.

First, “business and human rights” covers incredibly wide ground. It touches upon various and complex areas of law such as international criminal law, international human rights law, investment law, world trade law, financial law, tort law, contract law, environmental law, tax law, etc. The risk is therefore to adopt a treaty that would fail to recognize this complexity. It would set out principles that could be at odds with established law, hence creating confusion and difficulties of implementation.

Second, and linked to the previous point, comes the question of contents. A conservative (I would say realistic) treaty would follow the classic model: an instrument adopted by states, whereby they bind themselves and commit to introduce changes in their domestic law and practice. Perhaps it would contain a monitoring mechanism similar to those contained in other UN Human Rights treaties, i.e. one based on a periodic reporting process. It could also include a (quasi) judicial mechanism whereby victims of abuse could bring a claim against a given state. I really do not see how claims could be brought directly against corporations using that system. That gap could lead to understandable frustration on the part of victims and NGOs.

Beyond monitoring, I see the issue of the type of rights covered as a major one. To me, a treaty limited to civil and political rights would be extremely disappointing and unfortunately I cannot see western states adhering to a treaty championing economic, social and cultural rights anytime soon. One option would be to not list rights as such but to remain vague and refer to the relatively uncontroversial Universal Declaration of Human Rights. The treaty could then cover drier but fundamental questions such as jurisdiction over abuses committed by subsidiaries or contractors of multinational companies operating in various countries.

Another option would be for the treaty to be only about international crimes over which a solid consensus already exists. Although this is a tremendously important aspect (see below), a new treaty with such a limited scope would cover a minority of the corporate human rights abuses committed around the world. Arguably, this is not the treaty most victims need.

What, then, should we be doing? In my short talk I suggested two routes.

First, despite what I said above, I think the question of corporate involvement in international crimes, although thankfully marginal, is a key one. I therefore called for an amendment to the Rome State establishing the International Criminal Court so as to allow the Court to exercise jurisdiction over corporations. It would be a symbolic move on a relatively non contentious matter. Who could seriously argue that it would be acceptable for a company to engage in genocide? While the question of whether companies have international human rights obligations is still debated, there should be no question that they must refrain from committing violations that amount to international crimes such as genocide, crimes against humanity and war crimes.

Second, and perhaps more importantly, I believe there is still room to manoeuvre within the existing international human rights legal framework. Treaties impose direct obligations on states but many of them also impose obligations to prevent and redress violations committed by third parties such as corporations. Despite a few cases that have reached international courts and bodies (e.g.: Lopez Ostra v Spain; Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v Nigeria), this is a largely under-explored route. I know that a claim was recently brought against Belgium before the European Court of Human Rights for failure to provide a remedy to Burmese victims after Belgian courts dropped a case against Total but I have no further information on this (if you do, please let me know in the comments section). I realize that this case in particular opens the question of the extraterritorial reach of human rights treaties, one that I have already discussed on this blog (here and here) and about which there is little state enthusiasm.

Less controversially, and without going as far as asserting extraterritorial jurisdiction over the worldwide operations of companies domiciled in their territories, I am of the opinion that there is a lot more that states could do to regulate both the domestic and international operations of companies, through the adoption of so-called measures with extraterritorial implications John Ruggie mentioned in his commentary of Guiding Principle 2. I think this is not only in line with existing treaties but also, in some cases, required.

So how about giving that route a chance rather than trying to reinvent the wheel and engage in uncertain, lengthy and costly treaty negotiations?

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