A Gordian knot - the proposed business and human rights treaty

Nicole Bigby, Berwin Leighton Paisner LLP

Gordian_Knot_sculpture_by_Gidon_Graetz_in_Tel_Aviv

This blog is part of the debate blog series on the proposed treaty and its complementarity with the UN Guiding Principles. We believe that an inclusive and open debate is crucial to make sure these initiatives deliver for everyone, and that the business & human rights movement continues its "unity in diversity".

On 29 September 2017 the Chairperson-Rapporteur of the Open-Ended Intergovernmental Working Group (OEIWG) published the elements for a draft legally binding instrument on transnational corporations and other business enterprises with respect to human rights.

The OEIWG and its mandate was established in June 2014 with the adoption of resolution 26/9 by the Human Rights Council to elaborate such an instrument and its first two sessions focused on the potential scope, nature, and form of the proposed treaty. The elements for a draft legally binding instrument will form the basis for substantive negotiations for the session commencing on 23 October 2017.

Some key features of the OEIGW’s intentions concerning important issues of structure, scope, purpose, content, legal liability, jurisdiction and approach, more generally, have now been clarified and indicate the breadth and complexity of the proposed undertaking.

As many commentators have already stated, the importance of undertaking this process and for negotiations to be held in a transparent and inclusive manner cannot be understated. It also raises a direct challenge to a classical approach of State-to-State negotiations because the involvement of relevant stakeholders in the negotiations for a treaty in this area is clearly linked to the credibility of the outcome.  If such challenges (which contributed to the impasse which was reached with the Transnational Norms on the Responsibilities of Transnational Corporations (TNCs) and Other Business Enterprises (OBEs) with Regard to Human Rights and were successfully navigated through the process adopted to draft the UN Guiding Principles on Business and Human Rights (UNGPs)) are to be overcome, a more creative approach and working methodology will need to be developed.  This will be critical in light of the proposed scope, general obligations and concepts of legal liability which are envisaged to form part of the negotiations for a draft instrument and its elaboration process.

I have touched on some of the key features and issues below.

Form, purpose and scope

Section 1.3 refers to the purpose of the treaty being “to create an international legally binding framework that aims to guarantee the respect, promotion and protection of human rights against violations or abuses resulting from the activities of TNCs and OBEs” (page 3). It is not yet clear whether the reference to “framework” is to a framework convention, similar to those agreed in the past in other fields, such as environmental law and accordingly, whether other options, such as a protocol to an existing instrument are being contemplated.  Based on the description of the scope and general obligations in sections 2 and 3, respectively, it could be inferred that the OEIWG is proposing the negotiation of a separate, stand-alone treaty, rather than either of these options or that the initial treaty would form an agreement on basic principles with the detail of specific obligations to be left to subsequent protocols. These issues will need to be clarified as part of the third and subsequent sessions and present their own diplomatic, elaboration and implementation challenges.

The comprehensive scope and ambition of the proposed undertaking, particularly in light of the proposed breadth of the content and obligations (sections 2 and 3) and preventive measures, legal liability and jurisdiction concepts (sections 4 - 6), is a signal of the OEIWG’s clear intent. However, it must also recognise the significant diplomatic challenges associated with seeking to address all of these issues (in conjunction with the detailed and complex issues set out in sections 6 - 9) within a single instrument (assuming this is their intention).

There may be legitimate concerns if the treaty were to be limited to concepts based on the gravity or severity of human rights abuses and, specifically in the context of liability under international criminal law, that it would exclude the majority of human rights abuses in which businesses may be implicated. However, this is an example of where a specific focus on a particular human rights risk could feasibly be contemplated and as a result, may be a logical starting point if a framework convention approach is ultimately favoured. These concerns could potentially be navigated if a focus on specific issues is undertaken within the context of a broader commitment framework and roadmap for progressively addressing other key issues of human rights risk and accountability.

Based on historic experience, in particular in the context of the Transnational Norms, there are material international law and diplomatic challenges associated with re-enlivening an approach and negotiating framework which seeks material transposition of States’ obligations under international human rights law to business (as envisaged in section 3.2 and 5).  If such a profound shift in international law is to be contemplated, it will be critical that it is articulated as part of a broader contextual roadmap and understanding of its implications. Such an approach may seek to progressively identify key governance gaps in the international human rights legal system and how they could be addressed and, as a result, lay the foundations for a constructive engagement with the range of stakeholders whose support will be required to develop and support it.  Absent such an approach (or other engagement process), there is a distinct risk of potentially jeopardising the improved trust, dialogue and opportunity for creative collaboration, which following the endorsement of the UNGPs, has resulted in multi-stakeholder and other legal and governance initiatives that have delivered meaningful improvements in the management of human rights risks arising from the activities of business.

It is also important to recognise and accept that such progress is not a complete answer to many existing complex problems or impunity, nor to diminish the significant and urgent on-going work that is required by all States (particularly in the area of National Action Plans) and business to address them.

Relationship with the UN Guiding Principles on Business and Human Rights

There is a significant risk of an unhelpful tension emerging between the objectives of the process of elaboration and the ultimate scope and content of the proposed binding instrument and the UNGPs. As a result, it is critical to ensure that the treaty-making process remains aligned and complementary to the progress made under an instrument that has been previously endorsed by the Human Rights Council and achieved multi-stakeholder consensus across many of the key issues which the treaty seeks to address.

The proposed treaty is also just one of a number of current initiatives contributing to the development of a polycentric legal and governance ecosystem which seeks to regulate, in a broad sense, corporate engagement, conduct and accountability in the area of business and human rights, such as the initiatives of States in enacting domestic regulation.  All of these initiatives should remain a priority, particularly as many stem from and operate in governance, collaboration and dialogue spaces that any successful treaty (or other regulatory mechanisms) will need to leverage.

The Alexandrian solution to untying a Gordian knot – to slice through it with perhaps creative, decisive and unilateral action rather than patiently seeking to loosen all of the elaborate, tightly entangled knots – may seem superficially attractive. There are opportunities for bold and creative treaty solutions in this area, particularly if the focus of such work is to address specific and critical governance gaps and is undertaken as part of a more holistic understanding and assessment of how it contributes to an interdisciplinary “smart mix” of legal and governance approaches, action and dialogue.  However, the experience of the UNGPs has demonstrated that both – reframing the question and approach and, the value of patient, broad based research and stakeholder consultation –­ loosened the knots enough that they were able to be re-forged to support a new complementary interdependent system which has become the global authoritative standard.

Let’s hope that this experience stands us in valuable stead for the road ahead and continues to inform a constructive and inclusive understanding, assessment and dialogue about choices and trade-offs that will be necessary and ultimately, must be made to best serve the protection of human rights of those who need it most.

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Nicole Bigby is a partner at Berwin Leighton Paisner LLP (UK).