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The Role of Non-Governmental Organizations in the Business and Human Rights Treaty Negotiations
Abstract
In June 2014, the UN Human Rights Council established an intergovernmental working group to elaborate a treaty on business and human rights. In July 2015, the working group held its first session launching the negotiations process—the culmination of a global movement of non-governmental organizations (NGOs) that over the last four decades have called for greater corporate accountability for human rights violations. The advocacy activities of the Treaty Alliance, an alliance of NGOs that supports the development of the treaty, were pivotal to the tabling of the resolution establishing the working group. These organizations now have the opportunity to engage with the negotiations process, both formally and informally, through consultations, advocacy, and lobbying. This article considers the impact NGOs may have in the drafting negotiations of the proposed treaty. It identifies several lobbying and advocacy strategies that were successful in previous international law-making processes and discusses the extent to which they could be applied to the current negotiations. It presents the benefits of an NGO coalition, of formal and informal lobbying strategies, and of the development of a common NGOs and friendly states framework. It analyses the reasons for Western states’ opposition and suggests lobbying strategies that may overcome it. Recognizing the unique subject matter of this treaty, it also focuses on lobbying corporate actors, and explores the complementarity between the Guiding Principles on Business and Human Rights and the treaty and the need for NGOs to support both. The article concludes on the necessity to compromise on essential points if a treaty is ever to emerge.
... Current efforts in the UN Human Rights Council to draft a binding instrument on BHR also depend heavily on the efforts of global civil society networks, particularly the Treaty Alliance network of NGOs (Deva, 2021). This coalition of leading international NGOs, environmental movements, trade unions, and victims' organizations from around the world was pivotal to pressuring the Human Rights Council to start the process of drafting and negotiating a BHR treaty (Bernaz & Pietropaoli, 2017). ...
The symposium "Governance Authority in Business and Human Rights" explores the authority of non-state actors in the global business and human rights (BHR) regime. Our point of departure is that the involvement of different public and private actors in the BHR regime rests on their authority as governance actors. This alludes most obviously to companies, but also includes other actors. In this framing paper, we investigate these actors' governance authority in three steps, which provides insights into the different ways in which their power in the BHR regime is (or is not) legitimated. First, we outline how the multiplication of actors in the BHR regime raises questions and challenges regarding its governance. In the second step, we introduce a concept of governance authority that captures distinctive forms of power and legitimacy, and how they connect to human rights. Third, we discuss how the concept of governance authority can be used to study particular non-state actors in the BHR regime, and how the contributions to this symposium do so. In sum, we discuss avenues for research that disentangle the different types of governance power and legitimacy of multiple actors in the BHR regime to clarify their public and private roles as well as their relevance in BHR governance.
... idea seems to have been abandoned (Lopez and Shea 2015, p. 115;Lopez 2017, p. 363;Macchi 2018). On the whole, the 2020 Second Revised Draft Treaty embodies a halfhearted form of corporate accountability, far from the expectations of many stakeholders (Bernaz and Pietropaoli 2017;Garrido Alves 2019). If the final text of the treaty were to keep this wording, the outcome would be disappointing to many civil society organizations. ...
This article conceptualizes corporate accountability under international law and introduces an analytical framework translating corporate accountability into seven core elements. Using this analytical framework, it then systematically assesses four models that could be used in a future business and human rights (BHR) treaty: the United Nations Guiding Principles on Business and Human Rights model, the Universal Declaration of Human Rights model, the progressive model, and the transformative model. It aims to contribute to the BHR treaty negotiation process by clarifying different options and possible trade-offs between them, while taking into account political realities. Ultimately, the article argues in favour of the BHR treaty embracing a progressive model of corporate accountability, which combines ambitious development of international law with realistic prospects of state support.
Developing legislation to counter the negative impacts of businesses' transnational activities on human rights and the environment is a recent trend. Supporters of such legislation have campaigned to convince policy‐makers to adopt strong law, but this legitimation process has not been theorised. Using Vaara et al.'s theoretical framework, we uncover the six discursive legitimation strategies used by the proponents of the European Union (EU) Corporate Sustainability Due Diligence Directive (CSDDD) to legitimise its creation. Based on interviews with proponents, we offer two main findings. First, the directive's supporters seek to reverse the narrative that legislation with extraterritorial implications is neo‐colonial by arguing instead that the neoliberal status quo exemplifies neo‐colonial exploitation. Second, non‐governmental organisations (NGOs) can convince businesses of the directive's advantages by using playing down, mimicry and rationalisation as discursive legitimation strategies. These findings have major implications for debates on how to make the CSDDD effective in regulating business operations in the Global South.
Often seen as selfless champions of human rights, non-governmental organizations are vulnerable to attacks from unscrupulous states, which makes NGO regulation and accountability for human rights a sensitive issue. Yet, like all organizations, NGOs can have negative human rights impacts. States and international organizations have developed business and human rights (BHR) instruments that apply to corporations but there is no equivalent for NGOs. This article assesses the extent to which BHR standards may be relevant to enhance NGO accountability for human rights. It argues that these instruments, although not designed with NGOs in mind, are relevant to their operations and provide an attractive and moderate avenue to enhance NGO accountability. Ultimately, it shows that applying BHR instruments to NGOs could strengthen these instruments.
This article conceptualizes corporate accountability under international law andintroduces an analytical framework translating corporate accountability into seven core elements.Using this analytical framework, it then systematically assesses four models that could be used ina future business and human rights treaty: the United Nations Guiding Principles on Business andHuman Rights model, the Universal Declaration of Human Rights model, the progressive model, andthe transformative model. It aims to contribute to the BHR treaty negotiation process by clarifyingdifferent options and possible trade-offs between them, while taking into account political realities.Ultimately, the article argues in favour of the BHR treaty embracing a progressive model of corporateaccountability, which combines ambitious development of international law with realistic prospectsof state support.
Multinational corporations are one of the main actors of today’s life intended to bring economic development to build a more equal world. However, these corporations impact societies, communities and individuals around the world. They have a direct and negative impact on human rights. Therefore, how to make corporations accountable and determine how to prevent them from committing human rights violations is crucial. Criminal liability is not the only way to hold corporations accountable. This article focuses on some of the pathways towards corporate accountability addressing local and international perspectives. For this purpose, I analyse both hard-law and soft law instruments, including international instruments such as the United Nations Guiding Principles. The fact of being a “soft law” instrument does not detract in any way from it. Recent legislative developments show how a large majority of European countries and even the EU have either binding rules on the matter or have in mind the introduction of due diligence obligations.
This essay offers a ‘state of the art’ of the study of human rights practice. It begins with delineating human rights practice as an academic perspective, defining its distinct research questions and approaches, and noting in particular the influence of sociological and anthropological standpoints on its development. The essay proceeds by exploring the study of human rights practice as a form of activist-scholarship—bridging the world of academia and practice—and the strengths and risks that such a position entails, and later by characterizing this type of research as a self-critical project, utilizing an insider perspective to identify the weaknesses of the human rights framework but also to avoid abstract gloomy generalizations. The concluding section identifies the themes of pragmatism and radical hope and introduces the contributions to this special issue.
In 2016, the United Kingdom (UK) government publicly shifted its position from being a staunch opponent of the proposed Convention on the Rights of Older Persons to expressing a cautious interest in creating new international standards on older persons—a move welcomed by advocates. The significance of the UK’s new level of engagement was that it was now one of the few states in the European Union (EU) to constructively engage in the international process to establish a convention, and it contributed to Germany’s interest as well as that of the EU, without whose endorsement a convention is unlikely to be negotiated. This article explores the role of the transnational advocacy network (TAN) in contributing to the UK’s discursive shift, and identifies opportunities to strengthen its influence. Drawing on multiple qualitative data sources, the article argues that the TAN influenced the government both by applying subtle pressure on members of parliament and by framing issues in a way that resonated with the identity of the state. This influence was facilitated, however, by pressure and persuasion from states at international and regional levels of governance. The TAN was further aided thanks to the politically charged subject of the treaty: older persons. The article applies the theory of the ‘radical flank effect’ to suggest how the TAN might further influence the government. This would involve some civil society organizations adopting contentious tactics at domestic and international levels, which could advance the claims of more moderate organizations, and might ultimately contribute to strengthening the government’s position on the convention.
This article delves into the deep seabed mining regime under the United Nations Convention on the Law of the Sea (UNCLOS) with a view to inform the negotiating process of the proposed business and human rights (BHR) treaty. It highlights points of convergence and divergence between the two regulatory regimes and explores how the BHR treaty negotiations could draw from the deep seabed mining regime with regard to the responsibility and liability of states and corporations. In particular, it suggests that a BHR treaty could incorporate some of the arrangements of UNCLOS to address state obligations and direct corporate human rights obligations, both of a general and specific nature, including the obligation to carry out human rights due diligence. The article also proposes a mechanism of responsibility and liability of states and corporations under the future BHR treaty going beyond UNCLOS and embracing residual liability for home and/or host states.
The state-based system of global governance has struggled for more than a generation to adjust to the expanding reach and growing influence of transnational corporations. The United Nations first attempted to establish binding international rules to govern the activities of transnationals in the 1970s. That endeavor was initiated by developing countries as part of a broader regulatory program with redistributive aims known as the New International Economic Order. Human rights did not feature in this initiative. The Soviet bloc supported it while most industrialized countries were opposed. Negotiations ground to a halt after more than a decade, though they were not formally abandoned until 1992.
Non-governmental organizations (NGOs) have been strongly involved in law-making on children's rights, as has been documented for the drafting process of the Convention on the Rights of the Child (CRC) and its Optional Protocol on the involvement of children in armed conflict (CRC–OPAC). In article 45 of the CRC, they have been given a formal position in monitoring these instruments. While NGOs have been instrumental in putting a complaints procedure about violations of the CRC on the agenda, they seem to have failed to impact substantially on the norm-setting itself during the drafting process on the Optional Protocol providing for a complaints procedure (OP III CRC), which was adopted in December 2011. Similarly, NGOs have been given quite some space for involvement in the state reporting procedure under the International Covenant on Economic, Social and Cultural Rights (ICESCR). They faced considerable difficulties in putting the Optional Protocol to the Covenant (OP–CESCR) on the agenda, but proved successful in the end. Here too, their impact on the actual norm-setting seems to have been in the end limited, although it was unmistakably greater than with regard to the OP III CRC. This article seeks to understand this somewhat paradoxical finding – that is, strong involvement in the work of the monitoring bodies, but limited impact on recent norm-setting on complaints mechanisms – by documenting the role NGOs have played in law-making processes on both these complaints mechanisms. The article analyses degrees of impact through the conceptual prisms of repertoires of NGO participation and alignment of frames.
On 13 December 2006, the General Assembly of the United Nations adopted the Convention on the Rights of Persons with Disabilities
(CRPD) and an associated Optional Protocol. The formulation of the CRPD has been hailed as a great landmark in the struggle
to reframe the needs and concerns of persons with disability in terms of human rights. The CRPD is regarded as having finally
empowered the world's largest minority to claim their rights, and to participate in international and national affairs on
an equal basis with others who have achieved specific treaty recognition and protection. This essay interrogates the intellectual
antecedents of the CRPD and its continuity and discontinuity with 25 years of international law and its struggles with disability
and human rights. It then explores the text of the CRPD, critically examining its potential contribution to the realisation
of the rights of persons with disability.
The discussion on corporate human rights obligations has been ongoing for some time. More recently, the potential for corporate
accountability under a new domain of international law, namely international criminal law, is being explored. This raises
questions as to the interrelationship between and the intersection of the two fields of international law. This article argues
that the intricacies of accepting corporations as duty-bearers of human rights obligations are of a quite distinct nature
than those permeating the international criminal law debate. Moreover, the corporate violations at stake are to a very large
extent of a different nature. It is thus argued that the discussions on corporate liability in the two fields of international
law run parallel rather than directly intersecting. The debate on corporate human rights obligations may well be informed
by potential future developments within international criminal law, but international criminal law is not the panacea that
solves all theoretical and practical obstacles surrounding the debate on corporate human rights obligations.
The relationship between human rights law and business has emerged in recent years as one of the most topical to be discussed and put on the agenda almost worldwide. The activities of corporations in this globalized environment have often served as the catalyst for human rights violations; due to the lack of institutional protection, some corporations are able to exploit regulatory lacunae and the lack of human rights protection. On 9 April 2010 Professor John Ruggie, the United Nations Special Representative of the Secretary General on human rights and transnational corporations and other business enterprises, submitted his fifth Report under the title “Business and Human Rights: Further steps toward the operationalization of the 'protect, respect and remedy' framework.” The objective of this article is to examine his 2010 report and to establish whether this Report has contributed to clarifying standards in the field of human rights and business.
Though many years in the making, the UN Human Rights Norms for Corporations only registered on the radars of most states, corporations and civil society organisations in August 2003 when they began to move up the ladder of the United Nation's policy-making processes. Since then they have been subject to intense, and sometimes intemperate, debate, scrutiny and controversy. A particular legal feature of the deliberations has been the focus on the closely related questions of the legal standing of the Norms in their present format (namely, an imperfect draft, and therefore, of no direct legal force), and what they might become (possibly—though not likely soon—a treaty that speaks to corporations but binds states). A potent mix of distrust and suspicion, vested interests, politics and economics has given rise to a great deal of grand-standing and cant concerning these questions and how they might be answered. In this article, the authors explore the history of the Norms and the form and content of the debate that surrounds them, in their attempt to disentangle the legal from the rest. That said, the article also focuses on the real politicking of the circumstances in which the Norms now find themselves and it seeks to offer some guidance as to where the Norms—or at least their substance, if not their form—might go from here.
Business corporations can and do violate human rights all over the world, and they are often not held to account. Emblematic cases and situations such as the state of the Niger Delta and the collapse of the Rana Plaza factory are examples of corporate human rights abuses which are not adequately prevented and remedied. Business and human rights as a field seeks to enhance the accountability of business - companies and businesspeople - in the human rights area, or, to phrase it differently, to bridge the accountability gap. Bridging the accountability gap is to be understood as both setting standards and holding corporations and businesspeople to account if violations occur. Adopting a legal perspective, this book presents the ways in which this dual undertaking has been and could be further carried out in the future, and evaluates the extent to which the various initiatives in the field bridge the corporate accountability gap. It looks at the historical background of the field of business and human rights, and examines salient periods, events and cases. The book then goes on to explore the relevance of international human rights law and international criminal law for global business. International soft law and policy initiatives which have blossomed in recent years are evaluated along with private modes of regulation. The book also examines how domestic law, especially the domestic law of multinational companies’ home countries, can be used to prevent and redress corporaterelated human rights violations.
In June 2014, the Human Rights Council passed a resolution establishing an inter-governmental working group to discuss a legally binding instrument relating to transnational corporations and other business enterprises. In this article, I outline four arguments for why such an instrument is desirable. Identifying the purpose of such a treaty is crucial in outlining a vision of what it should seek to achieve and in determining its content. The arguments indicate that a treaty is necessary to provide legal solutions to cure serious lacunae and ambiguities in the current framework of international law which have a serious negative impact upon the rights of individuals affected by corporate activities. The emphasis throughout is upon why a binding legal instrument is important, as opposed to softer forms of regulation such as the United Nations Guiding Principles on Business and Human Rights. The four arguments in turn provide the resources to respond to objections raised against the treaty and to reject an alternative, more restrictive proposal for a treaty that only addresses ‘gross’ human rights violations.
In recent years, the UN Human Rights Council has approved the 'Respect, Protect, and Remedy' Framework and endorsed the Guiding Principles on Business and Human Rights. These developments have been welcomed widely, but do they adequately address the challenges concerning the human rights obligations of business? This volume of essays engages critically with these important developments. The chapters revolve around four key issues: the process and methodology adopted in arriving at these documents; the source and justification of corporate human rights obligations; the nature and extent of such obligations; and the implementation and enforcement thereof. In addition to highlighting several critical deficits in these documents, the contributing authors also outline a vision for the twenty-first century in which companies have obligations to society that go beyond the responsibility to respect human rights.
Systems of law usually establish a hierarchy of norms based on the particular source from which the norms derive. In national legal systems, it is commonplace for the fundamental values of society to be given constitutional status and afforded precedence in the event of a conflict with norms enacted by legislation or adopted by administrative regulation; administrative rules themselves must conform to legislative mandates, while written law usually takes precedence over unwritten law and legal norms prevail over nonlegal (political or moral) rules. Norms of equal status must be balanced and reconciled to the extent possible. The mode of legal reasoning applied in practice is thus naturally hierarchical, establishing relationships and order between normative statements and levels of authority.
Access to an effective remedy is part of the third pillar of the United Nations Guiding Principles on Business and Human Rights (Guiding Principles). It should require states to provide access to judicial remedies for human rights violations, even those that have occurred outside the territory of the state by a corporation domiciled in that state, especially where claimants “cannot access [their] home State courts regardless of the merits of the claim.” While the decision of the U.S. Supreme Court in Kiobel v. Royal Dutch Petroleum Co . may seem to overwhelm or even drown some of the expectations of such remedies within the United States, the case law in the rest of the world is unlikely to be greatly affected by the ruling due to the jurisdictional and legal system foundations of other states. This article will examine the main case law and judicial remedies sought across the world, with a special emphasis on Europe, where the majority of large non-U.S. transnational corporations have their headquarters.
The threats to human rights posed by non-state actors are of increasing concern. Multinational corporations, armed oppositions groups, and the activities of international organizations such as the United Nations, NATO, and the European Union are increasingly examined with recourse to a human rights lens. This book presents an approach to human rights that goes beyond the traditional focus on states and outlines the human rights obligations of non-state actors and addresses some of the ways in which they can be held legally accountable in various jurisdictions. The political debate concerning the appropriateness of expanding human rights scrutiny to non-state actors is discussed and dissected. For some extending human rights into these spheres trivializes them and allows abusive governments to distract us from ongoing violations. For others such an extension is essential if human rights are properly to address the current concerns of women and workers. The main focus of the book, however, is on the legal obligations of non-state actors. The book discusses how developments in the fields of international responsibility and international criminal law have implications for building a framework for the human rights obligations of non-state actors in international law. In turn these international developments have drawn on the changing ways in which human rights are implemented in national law. A selection of national jurisdictions, including the United States, Canada, South Africa, and the United Kingdom is examined with regard to the application of human rights law to non-state actors.
Negotiating a Treaty on Business and Human Rights: A Review of the First Intergovernmental Session - Volume 1 Issue 1 - Carlos LOPEZ, Ben SHEA
Recent years have brought significant interest by governments, international institutions, and nongovernmental organizations in the impact of the activities of transnational corporations on human rights. Corporations have haltingly responded to this phenomenon, but a comprehensive normative framework for resolving these competing claims is still lacking. This Article posits that international law offers a way to develop and circumscribe duties on corporations that avoids the risks inherent in wholly domestic legal approaches. It demonstrates the need for corporate accountability as an alternative to holding only states or individuals responsible for human rights abuses and shows that global decisionmakers have already taken significant steps in recognizing duties on business enterprises. Building on conceptual foundations in the law of nations, moral philosophy, and corporate law, the Article develops a theory in which the corporation's duties turn on four factors - its ties to the government, its nexus to affected populations, the particular human right at issue, and the internal structure of the business enterprise. It further seeks to apply the theory to several claims leveled against corporations and proposes a variety of means by which states and other actors can operationalize such an approach in global decisionmaking arenas.
The Convention on the Rights of the Child (CRC) is often presented as the treaty that allows most strongly for non-governmental
organisation (NGO) participation. Moreover, NGOs were actively involved in the drafting of the CRC itself, as well as of its
three Optional Protocols (OPs). The CRC therefore makes a good case study of the role NGOs can play in the drafting and monitoring
of human rights treaties, and may prove useful in current debates on United Nations treaty body reform more generally. In
order to assess NGO participation and impact, the concepts of repertoires of NGO participation and frame alignment are used.
It is tentatively concluded that 60–70% of NGO concerns tend to be taken up in the CRC Committee's Concluding Observations.
While these findings may seem to confirm that NGOs do have substantial impact on the reporting process, they need to be interpreted
with utmost caution especially because we do not possess insight into whether and to what extent the Committee would have
taken up these issues at any rate.
With the endorsement of the Guiding Principles regarding the issue of business and human rights, an important chapter has come to a close. Beginning with the then U.N. Secretary General’s “global compact” speech in 1999, the international legal framework for business and human rights has undergone tremendous change and progress. Yet, for all these developments, there has been no exhaustive examination in the legal academy of all of these events; certainly there is no one piece that discusses or analyzes all the major instruments that have been proposed and endorsed by the U.N. and human rights with respect to businesses. This article attempts to fill that gap. By documenting the rise and development of transnational corporations as potential subjects under international law, the article will help to provide a comprehensive overview of the issues with Transnational Corporations (TNCs) and businesses for the last twelve years. In addition, by examining the Guiding Principles through the lens of bystander rhetoric, the article hopes to point the way forward to the next phase in developing a meaningful accountability structure for TNCs under international law.
Existing human rights law, the body of law that delineates the contours of legal protections for human rights, does not do enough to prevent or provide remedies for corporate-related human rights abuses. Transnational corporations are generally excluded from direct responsibility under international human rights law. The state-centered nature of modern human rights law is inconsistent with the actual power and influence of many transnational corporations. Current human rights law has been conflated with international human rights law and so looks almost exclusively to states to create laws to protect human rights and mechanisms to enforce those laws. However, many modern transnational corporations have achieved a level of power, wealth, and influence that rivals that of states. Failure to regulate the power, wealth, and influence of transnational corporations is a weakness in human rights law that should be remedied. This article takes a new look at a perennial question of human rights: how to prevent corporate-related human rights abuses and provide remedies for victims. It argues that transnational corporations require specialized and targeted regulations and laws, and that the conflation of human rights law and international human rights law should be reversed to allow the advancement of other forms of human rights law. It makes two proposals. First, reimagine human rights law and international human rights law as separate categories. Specifically, classify international human rights law as a sub-category of human rights law. This distinction highlights the need to encourage the development of other forms of human rights law, for example, global human rights law and national human rights law. Second, establish global human rights law as a sub-category of human rights law and create a new global human rights regime with three main elements: a Global Law Commission, global laws and regulations, and universal civil jurisdiction.
The two-decade-long campaign for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) is nearing success. The drafting of the Optional Protocol has been completed, and the Human Rights Council approved the text on 18 June 2008. It is now hoped that the draft OP-ICESCR will finally be adopted by the General Assembly in late 2008, heralding the beginning of a new era in relation to access to international remedies for violations of economic, social and cultural rights (ESC rights). The draft OP-ICESCR establishes a new quasi-judicial function for the Committee on Economic, Social and Cultural Rights (the Committee), allowing it to receive communications from individuals and groups of individuals alleging violations of any of the ESC rights set forth in the ICESCR. It also establishes, inter alia , an inquiry procedure, provides for interim measures to be ordered and establishes a trust fund for the realisation of ESC rights. Some of the contents of its provisions and the procedures it establishes are unique in comparison with other treaty body complaints procedures, and others mirror closely existing provisions in similar protocols and conventions. This article overviews the draft OP-ICESCR, outlining its background and genesis, and detailing some of its most contentious provisions, including the scope of the OP-ICESCR, its locus standi and admissibility provisions, the criteria to be applied by the Committee in its review of the merits and particularly debated issues such as how to take into account the need for international cooperation and assistance. The article then proposes some preliminary assessments regarding the potential success and impact of this important new mechanism.
Corporations Have Rights. Now We Need a Global Treaty on their Responsibility
- Shetty
The Design of an International Code of Conduct for Transnational Corporations
- Wang
The Proposed Business and Human Rights Treaty: Four Challenges and an Opportunity
- McBrearty
Transnational Enterprise and Human Rights: Options for Standard Setting and Compliance
- Redmond
Human Rights Standards Concerning Transnational Corporations and Other Business Entities
- Weissbrodt
Amnesty Criticises UN Framework for Multinationals
- Williamson
The United Nations Code of Conduct for Transnational Corporations
- Coonrod
Corporate Human Rights Litigation in Non-US Courts: A Comparative Scorecard
- Goldhaber
The New Guiding Principles on Business and Human Rights’ Contribution in Ending the Divisive Debate over Human Rights Responsibilities of Companies: Is it Time for an ICJ Advisory Opinion?
- Kamatali