The Zero Draft of the Proposed Business and Human Rights Treaty, Part I: The Beginning of an End?

Surya Deva, Associate Professor, School of Law, City University of Hong Kong

This blog is part of the Reflections on the Zero Draft blog series on the proposed binding treaty on business and human rights. We present this series as part of our work to highlight key developments and opportunities for change, with the aim of empowering advocates in civil society, governments and businesses with the evidence and guidance to help define their position and engagement in the treaty process. We believe this initiative is complementary to the implementation of the UN Guiding Principles, and that an inclusive and open debate is crucial to ensure these initiatives deliver for everyone, and that the business & human rights movement continues its 'unity in diversity'.

In September 2013, when Ecuador expressed its intent to initiate a process to negotiate a legally binding international instrument, not many in the business and human rights (BHR) field would have thought that there would be a draft of the proposed instrument in less than five years. If the unanimous endorsement of the Guiding Principles on Business and Human Rights (GPs) by the UN Human Rights Council was hailed as “the end of the beginning”, the release of the zero draft by the Chairperson of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (OEIGWG) could be regarded as “the beginning of an end”. It is the end which requires and enforces compliance with human rights norms as a pre-condition for doing business. Respecting human rights must neither be discretionary for business nor should it be dependent on the so-called business case.

There is legitimate scepticism about the value of human rights treaties generally. In the specific BHR context, doubts are also expressed about the political feasibility of negotiating a treaty. These debates are likely to continue and remain unresolved. However, as long as we have a system of international human rights treaties, we are well past the time to ask whether we need a BHR treaty.

Not only is a BHR treaty needed, it is doable at this point of time in history. As compared to previous two attempts (i.e., the Code of 1990 and the Norms of 2003), the current treaty process has a better chance of success for several reasons. First, the current treaty process has a “springboard” of the GPs. The broad consensus around the GPs means that there is no going back for states from doing everything that is needed to ensure that businesses actually respect human rights, not merely claim to be doing so. Second, an unprecedented civil society mobilisation has not only put pressure on states to walk the talk on human rights but also operated as a bulwark against corporate capture of the process. Third, states have started to face the brunt of corporate misdeeds – from tax evasion to interference in democratic processes, triggering internal conflicts, and claiming millions of dollars in investment arbitration awards. Fourth, there is a growing realisation that neither voluntary initiatives alone nor measures merely at national level will ever be adequate to regulate effectively the conduct of today’s businesses.

Despite these positive factors, the resistance to binding rules remains at all levels. Creative diplomacy and innovative drafting could, however, help in navigating through this resistance at the international level and bring us closer to the end which has proved to be elusive so far. And the zero draft provides a “concrete” reference point for further discussion and refinement of the provisions of a BHR treaty. Any meaningful analysis of the zero draft should be informed by two broad considerations: (i) the role of a BHR treaty, and (ii) the key objectives that such a treaty ought to achieve.

Regarding the role of the proposed treaty, there should not be any illusion that it would fix all the existing regulatory gaps or end completely the current state of corporate impunity. This treaty would be only an additional regulatory tool to ensure that businesses comply with human rights norms. As businesses are complex regulatory targets, multiple regulatory tools should be employed in tandem to achieve some level of regulatory efficacy. Neither existing regulatory initiatives nor the proposed BHR treaty should be taken as the last word on the subject: additional regulatory initiatives, including treaties, might be needed in the future to deal effectively with ever-growing threats to human rights from the state-business nexus.

As I have argued elsewhere, the proposed BHR treaty should try to achieve several objectives. I will outline below four such objectives and will then assess, in Part II of this blog, how far the zero draft is geared towards achieving these objectives. First, the treaty should nudge states to act collectively and thus lay out a blueprint for a “global action plan” in the BHR field. The collective action could, for example, entail making human rights due diligence mandatory, creating economic incentives for responsible companies, and establishing a mechanism to facilitate international cooperation and mutual assistance among states.

Second, the treaty should address the existing asymmetry between the rights and obligations of businesses, which is exacerbated by international investment agreements (IIAs). Addressing this asymmetry would require recognising legally enforceable human rights obligations of companies, protecting human rights defenders from persecution by both states and businesses, and managing the adverse human rights impacts of IIAs.

Third, the proposed BHR treaty should respond to governance gaps in “hard cases”: where there is no clear business case for human rights and the concerned state is unwilling or incapable to perform its duty to protect against human rights abuses by private actors. Various tools can be used to achieve this objective, e.g. institutionalising the role of civil society organisations in corporate accountability, harnessing extraterritorial modes of regulation, and creating international complaint mechanisms.

Fourth, the treaty should require states to remove the well-documented barriers that victims face in accessing effective remedies and in turn hold companies accountable for human rights abuses. Removing these barriers would require extensive legal reforms, strengthening international cooperation amongst states, invoking the full range of remedial mechanisms, recognising the importance of preventive, redressive and deterrent remedies, and providing special support to vulnerable or marginalised groups affected by business activities.

To what extent the zero draft meets these four objectives will be examined in Part II of this blog.