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16 Nov 2015

Jernej Letnar Černič, Assistant Professor of Law, Graduate School of Government and European Studies, Brdo pri Kranju, Slovenia

Business & Human Rights: How should we move forward?

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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'.

Corporations directly affect the day-to-day level of respect and protection of human rights.  On one hand, corporations create jobs, tax revenues and economic growth, while, on the other, some of them can be criticised for their lack of respect for human rights.  The dilemma that arises is this: how should corporations most effectively respect human rights without compromising their primary business objectives?  This question is connected with the equally important question of whether and where victims can seek corporate accountability for human rights abuses.

There have been many recent developments in the field of business and human rights, including: the continued promotion and implementation of the Guiding Principles at state level; debates on the proposed treaty on business and human rights, and; the potential establishment of the arbitration tribunal on business and human rights, among others.  Given the diversity in initiatives, it is not surprising that the closing session of the 2014 UN Business and Human Rights Forum ended in conflicting views on how to move forward in the field of business and human rights.  Which approach should be pursued: binding or non–binding?  Should stakeholders persevere with the implementation of the UN Guiding Principles for Business and Human Rights or direct their energy to towards preparations of a new UN Human Rights Treaty, or start totally new initiatives?  It seems that the question at the core of the debates over binding or non-binding, or treaty or no treaty approaches, is that of how to bring effective remedies closer to victims of alleged human rights abuses.  The UN Guiding Principles on Business and Human Rights and the proposed treaty on business and human rights each have advantages and disadvantages, even though their proponents prefer to highlight only the weaknesses of the opposing initiative.  Nonetheless, it is necessary to continue with a plurality of initiatives in order to enhance victims’ access to remedies and to teach corporations how to pursue effective due diligence in order to prevent potential human rights abuses.  

Despite slow progress in the global business environment, the majority of corporations now recognise that they have a role to play in guaranteeing human rights in their area of activity.  Such a development has not occurred overnight and would not have taken place if it had not been for various efforts of international civil society in seeking to enhance corporate accountability and improving the positions of victims.  Those efforts later resulted in the adoption of several international, mostly soft law, documents.  All initiatives offer a way to move forward, however some have been more dedicated than others when it comes to enhancing victims rights’ and ensuring corporate accountability.  For instance, the proposed UN Treaty on Business and Human Rights would represent a small step in the right direction, however it is doubtful if it would certainly mean the end of such initiatives.  In fact, a treaty would, at best, only recognise that corporations have binding human rights obligations; it would not be able to immediately enhance access to justice for victims of alleged human rights abuses.  Any treaty would therefore represent only the first step in the quest to improve the rights of victims of corporate abuses, and would have to be followed by further steps towards bringing justice closer to victims.  A UN Treaty on Business and Human Rights would be most beneficial if it created incentives for states to adopt binding statutes that would require corporations to take preventive measures, ensure liability of parent companies for the actions and omissions of their subsidiaries, and increase civil and criminal liability for corporations.

One may point to concerns that recent initiatives in business and human rights undermine each other as they follow different objectives and employ different means in their attempts to meet such objectives.  Even though such initiatives may be scattered around different areas of human rights, they all appear to improve the current state of affairs by making companies more responsible for human rights by taking preventive measures and improving victims’ access to justice if abuses do occur.  Not all of them have the same objectives; the UN Guiding Principles are more geared towards business sectors, whereas the impetus for a binding treaty comes more from civil society sectors and victims’ organisations, but also from countries such as Ecuador, South Africa and others.  Moreover, all the different initiatives take divergent paths to achieve their goals and may even turn out to be contradictory in assessing situations and offering remedies.  However, this pluralistic debate and collection of diverse initiatives enriches the field of human rights and business by developing the notions of corporate accountability and the rights of victims in a multiple forums.

All the initiatives in business and human rights are worth considering and taking up.  However, it is erroneous and dangerous to concentrate only on one.  Business must respect, protect and implement human rights.  At the same time, victims of alleged human rights abuses need to be provided with access to justice and the enforcement of corporate accountability by an independent and impartial tribunal or similar forum.  All participants in the debate on business and human rights must respect a pluralistic approach that does not exclude any proposal or initiative.  After all, changes are particularly needed on the ground in local environments.  States need to ensure that individuals have real access to effective judicial protection and that corporations will effectively respect and promote human rights wherever they operate.  It seems that all approaches are gearing towards a stronger national and international framework for regulating the activities of corporate actors.  Initiatives for binding standards on business and human rights reinforce and complement voluntary approaches.  Corporations should be aware of, not only legal, but also moral and ethical obligations to effectively address victims’ concerns.  Victims have to continue to raise their voice and stand up for their rights.  Individuals should reasonably expect that states, corporations and other non-state actors observe human rights.