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17 Oct 2016

Marta Herrera & Ciara Dowd, Business & Human Rights Resource Centre

Different routes, common destination: Positions on the proposed binding treaty

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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'.

Business & Human Rights is increasingly a burning topic and the various proposals of a binding treaty have not been exempt from criticism.  Our “Debate the Treaty” blog series has been a forum where experts and stakeholders debate and distil some important point of views around this topic.

Some question the need of a treaty since the UN Guiding Principles have only been around for five years, not long enough to have had the opportunity to be effective.  Advocates of this approach hold that the business & human rights community should therefore focus its efforts on promoting the Guiding Principles at national and regional levels before dividing energy on competing instruments.  On the other hand, there are those that envision the proposed treaty and the Guiding Principles as complementary.  Our director, Phil Bloomer, articulated that advocates of the Guiding Principles and the treaty will “gain more by seeking an appropriate scale of complementarity and collaboration, than by competing and seeking to undermine the other.”  In his contribution, Jernej Letnar Černič (Graduate School of Government and European Studies, Slovenia) also highlights that having a plurality of initiatives enhances victims’ access to remedy.

Concerning participation in the drafting process of the treaty, Ben Leather, from the International Service for Human Rights, emphasises in his blog that it is essential that human rights defenders’ voices are included.  The UN Special Rapporteur on the rights to freedom of peaceful assembly and association, Maina Kiai, explains that it is important that the drafting process is considerate of and meaningful to the lives of victims of corporate abuses.  

Linda Kromjong, of the International Organisation of Employers, notes in her piece a need for businesses to be included and consulted in the UN Intergovernmental Working Group meetings, otherwise the process will be perceived as biased.  Many contributors hold a different opinion, and warn of the risks of including business in the drafting process.  Activist Bobby Ramakant comments that the process “need[s] strong measures in place to check industry interference right from the very beginning.”  Tchenna Maso, of the Movement of People Affected by Dams, highlights in her blog that involving companies in the drafting will “give rise to a dangerous inversion of the human rights perspective.”  Kate Lappin (Asia Pacific Forum on Women, Law and Development) attributes the failure of previous attempts at creating a binding mechanism to corporate participation in formulating the instruments.

There has been a key topic on this forum surrounding what entities are covered by the proposed treaty.  The question of whether the treaty will apply to just transnational companies or also to national companies has seemingly been the source of disagreement between States, and responsible for the subsequent non-involvement of some of them, such as the EU and the US where a lot of big multinationals are headquartered.  Our contributors, who represent a spectrum of civil society and business interests, agreed that all businesses should be covered by the proposed treaty.  Tom Mackall of Sodexo, says that limiting access to remedies for victims depending upon what type of business is culpable is “bad logic and bad policy” and would leave victims without access to remedy.

Should the treaty oblige States to create human rights laws applying to businesses, or should the treaty have direct obligations on corporations for their behaviour?  Linda Kromjong stands for the State being responsible for creating robust protection mechanisms in its domestic laws as the most effective way to encourage respect for human rights and to enhance remedies.  Likewise, Gabriela Quijano envisions the treaty as an opportunity to force States to pass legislation to place parent companies under an express duty of care, and to reverse the burden of proof.  Nicolás Carrillo-Santarelli (La Sabana University, Colombia), on the other hand, argues that the treaty should impose direct obligations on corporations.  Dr Nadia Bernaz, of Middlesex University, advocates for a “middle-of-the-road solution” whereby the treaty would provide for international corporate criminal liability for international crimes, but for lesser abuse, direct obligations on States only.

Regarding what human rights should be covered, there was initially some differing ideas.  Professor Ruggie has defended elsewhere that if the treaty is to impose direct human rights obligations onto corporations, then only human rights violations amounting to international crimes against humanity should be covered.  He says that this would have the effect of raising State and business awareness of more general business and human rights issues.

Professor Surya Deva explains that although limiting the scope to gross human rights abuses may be more feasible, such a narrow scope will not be able to capture the majority of human rights violations, and therefore all human rights should be covered.  There now seems to be a general consensus that all human rights should be covered.  

As the Intergovernmental Working Group prepares to begin its second session, it is becoming increasingly important for stakeholders to engage with, challenge and learn from one another.  Contributors to this blog series may show some disagreement, but the diversity of the business & human rights movement is its strength.  The variety of positions in this debate are all complimentary efforts towards the same goal: ensuring corporate accountability and access to remedy for victims and communities.