This commentary is part of the Reflections on the Revised Draft Treaty blog series. Our Debate the Treaty Blog highlights a diverse range of voices from across the globe on the proposed legally binding treaty on business and human rights, which we believe is complementary to the implementation of the UN Guiding Principles.

This post is co-published by the Business and Human Rights Journal Blog as part of its symposium on the revised draft of a binding treaty on business and human rights.

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 In the July 2019 revised draft treaty on business and human rights, the Open-ended inter-governmental working group on transnational corporations and other business enterprises with respect to human rights has refined the language, clarified the structure, and further elaborated and rendered the content more consistent with the UN Guiding Principles on Business and Human Rights (UNGPs), as noted in many other commentaries here.  Yet, as the various commentators have also noted, more remains to be done.One significant flaw in the revised treaty is the failure to mention minorities. Provisions that recognize the special attention required for groups of persons facing heightened risks of violations to their human rights from businesses’ activities should include minorities (e.g. 14th preambular paragraph, and Articles 5.3.b and 14.4). This omission is starkly discordant with international human rights law and deviates from the approach of the UNGPs. 

The foundational international human rights treaties, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights, provide for respect for the rights of persons without distinction or discrimination ‘of any kind’ as to, among other grounds, race, colour, language, religion, and national origin (see articles 2.1 and 2.2, respectively).  In addition to the protection against discrimination, “ethnic, religious or linguistic minorities” “in community with the other members of their group,” have the right “to enjoy their own culture, to profess and practice their own religion, or to use their own language” (ICCPR, article 27).

The UNGPs list “national or ethnic, religious and linguistic minorities” as one of the groups of persons that require special attention. They even note that businesses may need to consider United Nations instruments that “have elaborated further on the[ir] rights” (see UNGPs, GP 12, Commentary), which include the 1965 UN Convention on the Elimination of All Forms of Racial Discrimination and the 1992 UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.

Violations of the rights of minorities occur in all regions of the world but have not yet received appropriate attention within the business and human rights field. Some selected examples that highlight significant violations of their rights and the need for minorities to be specifically mentioned as a particular group in the draft treaty include: 

• African Americans in the United States who face increased pollution-related health problems, including cancer risk, due to siting of high polluting facilities close to or in predominantly African-American communities;
• Afro-descendants in Latin America who have suffered economic, social, cultural and environmental impacts as a result of extractive and development projects, the subject of an extensive 2015 report by the Inter-American Commission on Human Rights;
• Ahwazi Arabs in Iran who had their land confiscated to such an extent that it amounts to a policy of dispossession, and who also live in poverty and suffer ill heath from industrial pollution from oil and gas industries;
• Dalits, especially Dalit women, in South Asia who are disproportionately affected by extremely poor and abusive working conditions in a range of industries, particularly garment manufacturing;
• Karakalpaks in Uzbekistan who have endured poor quality of drinking water and health problems, such as stunted growth, low fertility, and cancer as a result of toxic chemicals used in the cotton fields; and
• Tibetans who have had their land seized for mining projects and rivers diverted that they rely on as sources of drinking water.  

This disproportionate impact on minorities extends to their lack of access to remedies. In all of the above cases, affected communities have been caught in a decades-long struggle to gain substantive improvements to their situation and redress for the harm caused to them.

For instance, in its landmark 2007 Saramaka v. Suriname decision, the Inter-American Court of Human Rights held that the Saamaka people, descendants of self-liberated slaves, had such a close, long-standing and deep connection to their ancestral lands that their rights were analogous to that of indigenous peoples under international law. Yet, despite the ground-breaking judgement, the community continues to struggle against an invasion by Chinese logging and other extractive companies. The parallel to indigenous peoples in Saramaka is particularly crucial in this context, as the draft treaty does include indigenous peoples in its list of enumerated groups at particular risk of harm by businesses.

Consequently, the drafters’ failure to explicitly mention minorities in the treaty is inconsistent with international human rights law and a significant step backwards for minority rights compared with the UNGPs. Finally, since the draft treaty not only reflects, but also, arguably, influences developments in the business and human rights area, the inclusion of minorities in the draft would send an important message not only to states, which should be explicitly addressing minorities in their National Action Plans, but also to businesses, which need to give particular attention to minorities. 

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Corinne Lewis, Phd, is a Partner with Lex Justi, a Brussels-based law firm, and has practiced in the area of business and human rights for nearly 10 years; she was formerly with UNHCR and taught International human rights law at the University of Houston. 

Carl Söderbergh is currently working as Director of Policy and Communications at Minority Rights Group; previously, he worked for 8 years as Executive Director of Amnesty International (Sweden), where he helped establish an Amnesty Business Group, a forum for dialogue and training on business and human rights.