For a business and human rights treaty based on progressive national implementation of the UNGPs and modelled after the WHO Framework Convention on Tobacco Control

Abstract

SUBMISSION TO UN OPEN ENDED INTER-GOVERNMENTAL WORKING GROUP ON TRANSNATIONAL CORPORATIONS & OTHER BUSINESS ENTERPRISES WITH RESPECT TO HUMAN RIGHTS

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SUBMISSION TO UN OPEN ENDED INTER-GOVERNMENTAL WORKING GROUP ON
TRANSNATIONAL CORPORATIONS & OTHER BUSINESS ENTERPRISES WITH
RESPECT TO HUMAN RIGHTS
For a business and human rights treaty based on progressive national
implementation of the UNGPs and modelled after the WHO Framework
Convention on Tobacco Control
Claire Methven O’Brien1
1. INTRODUCTION
Despite growing consensus on the need to ensure business respect for human rights, opinion
remains divided on how best to achieve this goal. While some, for example, advocate an
international treaty to establish a new “hard” law regime, others urge the need to focus, instead, on
implementing the “soft” standards that we already have, in the form of the UN Guiding Principles
on Business and Human Rights (UNGPs).
To cut this Gordion knot, this submission argues for a business and human rights framework
convention, modelled after the WHO Framework Convention on Tobacco Control and focused on
promoting progressive implementation of the UNGPs, including via National Action Plans on
business and human rights (NAPs). The submission first outlines the positive factors favouring such
an approach. Secondly, it provides a brief sketch of what such a business and human rights
framework convention might look like. Finally, it highlights some of the drawbacks of alternative
treaty models.
2. FACTORS IN FAVOUR OF A UNGP-BASED FRAMEWORK CONVENTION
Amongst factors favouring a business and human rights framework convention to promote
progressive implementation of the UN Guiding Principles on Business and Human Rights
(UNGPs), including via NAPs, are the following.
i) Existing support for the UNGPs and NAPs
The UN Human Rights Council,2 as well as the European Union3 and Council of Europe4, have
endorsed the UNGPs. They have also addressed requests to their member States to develop NAPs,
1 Claire Methven O’Brien, LLM PhD, Strategic Adviser, Human Rights and Business, Danish Institute for Human
Rights, Visiting Research Fellow at the International Law Department of the University of Groningen. This submission
reflects the personal views of the author alone and does not represent those of the Danish Institute for Human Rights.
2 Human Rights Council, ‘Human Rights and Transnational Corporations and Other Business Enterprises’,
A/HRC/RES/26/22 (15 July 2014).
3 European Commission, ‘A Renewed EU Strategy 2011–14 for Corporate Social Responsibility’, COM (2011) 681
final (25 October 2011).
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and NAPs-related processes in which governments, business, civil society organisations, national
human rights institutions and other stakeholders are actively involved are now underway in
approximately forty countries worldwide, an impressive implementation effort in the short space of
time since 2011 that ranks favourably by comparison with any human rights treaty. 5 Many
businesses, in addition, have committed to support the UNGPs and have embarked on efforts
towards their internal implementation. These developments represent a significant investment of
scarce resources across society that should be built on and incorporated into any future norm-
making endeavour.
ii) Subsidiarity in business and human rights regulation
If business and human rights norms are to be truly effective, they should penetrate every area of
national policy, from food to finance, corporate governance to court procedure. Yet the details of
existing domestic regulations in such areas embody balances often carefully struck between
competing interests and arguments, as well as countries’ legal, institutional, historical and political
particularities, which international rules and institutions may be ill-suited to overturn.
Moreover, the resulting diversity of national arrangements means that there is an inverse
relationship between the specificity and applicability of international rules: the more detailed
prescriptions a business and human rights treaty might make (for instance, defining the specific
class of companies obliged to do due diligence) the less likely it becomes such rules can or will be
universally implemented; while binding rules that are universally valid tend to add little to existing
high-level norms (in this case, the UNGPs) or represent “lowest common denominator” positions.
Hence it is at the national level that detailed business and human rights rule-making should occur,
informed by local contexts and priorities, but within a global framework of universal principles, in
this case, the UNGPs, that can be interpreted in a way that is responsive to both a dynamic global
business environment and evolving human rights discourse.
iii) A platform for policy learning and cross-fertilisation
Because of the novelty and complexity of the business and human rights agenda, knowledge on
“what works” in terms of regulatory techniques and legislative models is still emergent and sparse.
Some countries have embarked on experimentation (for example, in the areas of supply chain
responsibility and transparency) but we still lack a firm evidence-base on which to judge the
relative strengths and weaknesses of the specifics of different approaches, much less which are the
definitive “successes” and “failures”.
Accordingly, diverse national experiences represent invaluable “raw data” which may valuably
inform the gradual definition, over time, of universal norms and goals. Rather than imposing, now,
4 Recommendation CM/Rec (2016)3 of the Committee of Ministers to member States on human rights and business
(Adopted by the Committee of Ministers on 2 March 2016 at the 1249th meeting of the Ministers’ Deputies).
5 http://www.ohchr.org/EN/Issues/Business/Pages/NationalActionPlans.aspx. See further C. Methven O’Brien et al,
‘National Action Plans: Current Status and Future Prospects for a New Business and Human Rights Governance Tool’,
1(1) Business and Human Rights Journal (2015), pp.117-126.
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a single model of business and human rights regulation, across the board, a framework convention,
to which additional thematic protocols can be later appended, would allow policy innovation to
continue to flourish, in line with new issues, risks and technologies, as they develop.
At the same time, NAPs and a structured review process based on them would render much more
visible countries’ various efforts, and their respective shortcomings and virtues, than they are at
present, promoting and accelerating convergence around those capable of delivering the best results.
iv) Strengthening institutional capacity and sustaining stakeholder engagement
Without active local support and engagement from both rights-holders and duty-bearers, the
advancement of human rights proceeds falteringly, if at all. While the “message from the top” is
important, ultimately, effective enjoyment of human rights requires that subordinate levels of public
and private institutions gradually absorb their values into formal rules and procedures and well as
informal scripts and practices.
Inclusive, participatory and deliberative NAPs processes should create multi-site, repeat
opportunities to strengthen the buy-in, knowledge and capacities of national and local actors on
business and human rights; to engender new cross-actor networks and partnerships; and, where
affected communities and workers and their representatives are adequately involved, to let those
whose rights have been abused claim their rights and speak truth to power.6
By contrast, and though the picture may in some respects be improving, existing human rights
treaty implementation processes have too often given precedence to form over substance, failing
sufficiently to involve the actors who should be their principal concern.7 A NAPs-based treaty,
therefore, presents a golden opportunity, which should be seized, to extend the circle of active
participants in business and human rights implementation efforts, and their scrutiny, in much needed
ways.
3. SKETCH OF A BUSINESS AND HUMAN RIGHTS FRAMEWORK CONVENTION
Taking inspiration from the WHO Framework Convention on Tobacco Control,8 a business and
human rights framework treaty built around the UNGPs and NAPs could comprise the following
amongst its main elements:
i) Clause on relationship between the Convention and other agreements and legal
instruments, for example: “In order to promote implementation of UN Framework on
Business and Human Rights, Parties are encouraged to implement measures beyond those
required by this Convention and its Protocols, and nothing in this instrument shall prevent a
6 DIHR and ICAR (C. Methven O’Brien et al.), National Action Plans on Business and Human Rights - A Toolkit for
the Development, Implementation, and Review of State Commitments to Business and Human Rights Frameworks
(DIHR/ICAR, 2016).
7 J. Ford, ‘The Risk of Regulatory Ritualism. Proposals for a Treaty on Business and Human Rights’, GEG Working
Paper 118, April 2016; M O’Flaherty and C Methven O’Brien, ‘Reform of UN Human Rights Treaty Monitoring
Bodies: A Critique of the Concept Paper on the High Commissioner's Proposal for a Unified Standing Treaty Body’,
(2007) 7 Human Rights Law Review 141.
8 See http://www.who.int/fctc/en/ .
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party from imposing stricter requirements that are consistent with their provisions and are in
accordance with international law”
ii) Statement of overall objective, for example: “To promote the effective implementation of
the state duty to protect, the corporate responsibility to respect and the right to effective
remedy with regard to business activities, by providing a framework of measures to be
implemented progressively by the Parties at the national, regional and international levels”
iii) Statement of Guiding Principles, for example: “To achieve the objective of this Convention
and to implement its provisions, the Parties shall be guided by and promote the UN Guiding
Principles on Business and Human Rights, set out below…”
iv) Statement of states parties’ general obligations, for example:
a. Each Party shall develop, implement, periodically update and review comprehensive
multisectoral national action plans on business and human rights, in accordance with this
Convention and the protocols to which it is a Party.
b. Towards this end, each Party shall, in accordance with its capabilities:
 Establish or reinforce and finance a national coordinating mechanism or focal
points on business and human rights
Adopt and implement effective legislative, executive, administrative and/or other
measures and cooperate, as appropriate, with other Parties in developing
appropriate policies for preventing and reducing, and enhancing effectives access
to remedy in relation to, business-related human rights abuses
c. The Parties shall cooperate in the formulation of proposed measures, procedures and
guidelines for the implementation of the Convention and the protocols to which they are
parties
d. The Parties shall cooperate, as appropriate, with competent international and regional
intergovernmental organisations and other bodies to achieve the objectives of the
Convention and the protocols to which they are Parties
e. The Parties shall, within means and resources at their disposal, cooperate to raise
financial resources for effective implementation of the Convention through bilateral and
multilateral funding mechanisms.
v) Development of the Convention: provisions allowing for the amendment of the Convention
and adoption of annexes to the Convention, such as protocols or other procedures.
Within this architecture, states parties could, as they have done under the Tobacco Convention,
adopt additional protocols addressing specific issues (for instance, business involvement in human
rights abuses amounting to violations of international criminal law, measures to promote or require
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human rights due diligence and corporate human rights reporting), as well as more detailed general
guidelines for implementation, in line with demand from stakeholders and insights on effective
practices, as these emerge.
4. DRAWBACKS OF OTHER TREATY MODELS
A further advantage of a framework convention based on progressive implementation of the UNGPs
is that it avoids a number of pitfalls affecting other treaty proposals.
i) Duty of home states to regulate extraterritorial activities of transnational corporations
Although it has been suggested that a treaty could oblige home states to protect against the human
rights impacts of transnational corporations (TNCs) abroad,9 there is no settled basis in international
human rights law for such a duty,10 and principles for apportioning the respective contributions of
home and host states, or other actors, as joint tortfeasors, to international law violations are also
currently lacking.11 Treaty models incorporating this element might thus in practice fail to deliver
effective remedies to victims through legal uncertainty, while such a duty could also “open the
floodgates” to cases for whose adjudication any new treaty body, or indeed existing ones, would not
be well-suited or sufficiently resourced in practice. Finally, in the present climate of “re-bordering”,
with the supervisory mandates of many human rights bodies being questioned, the extension of new
and wide-ranging extraterritorial human rights duty on states would seem unlikely to be able to
secure political backing.
ii) Direct human rights duties of TNCs
Another suggestion is that a treaty should establish a duty to respect, protect and/or fulfil human
rights directly on TNCs.12 While TNCs and other business enterprises can impact on the enjoyment
of most human rights, fixing them with duties for their protection and fulfilment is not appropriate.
The whole jurisprudence of human rights assumes a state duty bearer, with all its formal powers,
institutions and resources, in assessing victims’ claims and extending this jurisprudence to
corporations is not possible without doing violence to the conceptual fabric and holistic logic of
human rights as it has evolved over time. Few amongst treaty proponents would, moreover, wish to
mandate any greater role for TNCs in the delivery of public services than they have secured to date,
while besides, efforts to secure legal remedies against TNCs face challenges on grounds of
attribution and causation parallel to those mentioned in relation to states, not to mention the obstacle
of the corporate veil.
iii) A treaty restricted to “gross” human rights violations
9 O. De Schutter, ‘Towards a New Treaty on Business and Human Rights,’ 1(1) Business and Human Rights Journal
(2016), pp.41-67.
10 C. Methven O’Brien, ‘A home state duty to regulate the extraterritorial human rights impacts of TNCs? A bridge too
far’, DIHR Human Rights Research Paper (forthcoming, 2016).
11 See e.g. ICJ, Case concerning Oil Platforms (2003), Separate Opinion of Judge B. Simma, para.66 et seq and
http://opiniojuris.org/2010/09/01/apportioning-responsibility-among-joint-tortfeasors-for-international-law-violations/
12 E.g. D. Bilchitz, ‘The Necessity for a Business and Human Rights Treaty’, 1(2) Business and Human Rights
Journal (2016), pp.203-227.
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Another option canvassed would be a treaty addressing corporate involvement in abuses rising to
the level of international criminal law, such as war crimes, crimes against humanity, slavery or
forced labour. Although its narrower scope makes such a treaty more viable from the perspective of
legal certainty, it would at the same time fail to capture corporate involvement in broader civil,
political, economic and social rights abuses, while the obstacles to proving criminal intent on the
part of simple business entities have been amply demonstrated in the domestic context with regard
to offences such as corporate manslaughter.13 Though not without potential value, as an isolated
measure, then, such an initiative would seem unlikely to bring about the sought-after scale of
change.
30 September 2016
13 See e.g. S. Tombs, ‘Still killing with impunity: corporate criminal law reform in the UK’, 11(2) Policy and Practice
in Health and Safety (2013), pp. 63–80.
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