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27 Jul 2015

Phil Bloomer, Business & Human Rights Resource Centre

Negotiating and fighting for a binding treaty on business & human rights

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Originally published in the Guardian

Abraham Lincoln said: “If you are going to fight, don’t let them talk you into negotiating. But, if you are going to negotiate, don’t let them talk you into fighting.” At the close of the first meeting of the working group to negotiate a binding treaty on business and human rights, it feels like both sides of this quote are being heeded by different governments.

The idea of a binding treaty is to add teeth to international law to the UN guiding principles for business and human rights, endorsed by the UN Human Rights Council in June 2011. The guiding principles provide a common reference point in the field, setting out the duty of states to protect, and the responsibilities of companies to respect human rights. However, advocates are concerned about the pace of change since 2011 and call for companies to be obliged, rather than encouraged, to demonstrate due diligence and remedy for human rights abuses in their operations and supply chains.

At the four-day meeting in Geneva earlier this month a few states sought an inclusive and constructive negotiation, led it by the chair from Ecuador, María Fernanda Espinosa. Others, both apparently for and against the treaty, either failed to show up, walked out, or took maximalist positions.

It has to be said that this is not unusual at the start of international negotiations on any treaty. States can spend years in maximalist positions before getting down to any business: witness, tragically, the climate negotiations, which hopefully will bear fruit in Paris this December; or depressingly, the World Trade Organisation’s Doha trade round which has sunk without trace after years of effort. As Doug Cassel, professor at Notre Dame School of Law, has reflected on this first meeting: “Whoever said it would be easy?”.

But the treaty negotiations have certainly left the starting blocks, which is more than many of us expected a year ago. Though it is far from clear that it will cross the finish line, when it will cross the finish line, and in what form that might be.

The good news is that there are emerging some honest brokers – individuals who are prepared to take leadership and use it wisely to bring compromise between warring parties. It is noteworthy that the Ecuador chair, the International Organisation of Employers, the UN High Commission for Human Rights, International Labour Organisation, expert international lawyers like Doug Cassel, Bonita Meyersfeld and Chip Pitts, and civil society leaders all played an active role in finding ways forward. With this diverse and unusual leadership there is hope for sensible outcomes.

But there are also major obstacles. After some early compromise, which was welcome, the EU walked out on the second day as the chair was unable to gain agreement from countries like Pakistan and South Africa to remove a footnote which might limit the treaty to transnational companies, and exclude domestic-only companies.

The EU can argue this is unfair as their own companies of any size have international operations, and might be at an unfair disadvantage, especially in countries with weak governance. But the EU has no reason to be complacent about the behaviour of many of its companies. Many European brands were linked to the Tazreen factory fire and Rana Plaza building collapse that tragically cost the lives of 1,200 workers. In fact, of the 2,500 approaches that Business & Human Rights Resource Centre has made to companies on specific allegations of human rights abuse, almost a third were European-based companies; the vast majority these concerned their conduct abroad. As Chip Pitts noted, let’s hope the EU reverts to its honest-broker role in many previous negotiations, and takes lessons from their self-inflicted wounds resulting from the Grexit debacle.

"When states are this divided and ambivalent, NGO leadership is badly needed."

Professor John Ruggie

Equally, Pakistan and South Africa can argue that domestic companies need only be regulated by domestic law, and don't need international interference. Except when you see the tragic consequences of no binding international standards in those countries. The Karachi factory which set ablaze in 2012, killing 257 people , was owned by a Pakistani company and inspected by a Pakistani company. In South Africa, conditions for workers in the extractives industry can be perilous and striking workers are sometimes met with fierce resistance; we were reminded of how severe this has been last month, when the Farlam commission released its report into the massacre of 44 people during a strike at a mine in 2012.

As Professor John Ruggie, the architect of the UN guiding principles, has highlighted this week, "when states are this divided and ambivalent, NGO leadership is badly needed". Ruggie calls for more realistic leadership from civil society that promotes "workable proposals" that might push states to take on ambitious and feasible legalisation in business and human rights.

Civil society organisations that are leading work on the treaty have gathered support for their statement calling to enhance the international legal framework from more than 300 NGOs worldwide, despite limited resources. To meet Ruggie’s challenge, there is potential to work with respected academics and thinktanks who are already scoping the alternative approaches to a treaty, and helping to define those which have stretch-targets but are also achievable.

Equally, advocates for human rights in business, whether in civil society, companies, government, or academia, must retain unity in diversity, and seek to complement each other rather than compete in the multifarious efforts. This is the only way we, and the vulnerable communities we serve, can make a difference to the human rights of those facing abuse.