(This post is written in response to a piece by Mark Taylor appearing on the Institute for Human Rights and Business’ blog)
During the upcoming June session of the United Nation’s Human Rights Council (HRC), representatives of Ecuador and South Africa will be presenting a first proposal, supported by a number of governments,[1] to begin the process of drafting a binding treaty to hold business actors accountable to human rights.
With the support of over 400 civil society organizations (CSO), it is clear that this process reflects a growing discontent among CSOs regarding the results of the 8 year mandate of the Special Representative on Business and Human Rights, which ended with the unanimous adoption of the voluntary Guiding Principles in 2011.
In response to this, a number of actors with a strong vested interest in upholding the appearance of a consensus emanating from the adoption of the UN GPs have brought forward several concerns regarding the proposed treaty. However, their arguments seem to be based around a fear that binding mechanisms will truly change the way states allow companies to do business.
For instance, the idea that states will refuse to sign on because they will be putting there comparative advantage in jeopardy is a theoretical assumption that does not take into account other forces at play motivating state’s policies. For example, governments in the South are increasingly being sued by foreign investors through investment agreements for having implemented human rights or environmental policies and these host governments are actively seeking, by many means, ways to uphold their sovereign right to regulate.
From this, there is a growing need to review the current hierarchy of international law in which trade and investment law takes precedent over human rights law. By creating a binding treaty tool that states can ratify, it would allow them to defend their right to regulate business activity and level the playing field between both investment and human rights law.
There is also a fear that treaty discussions will dismantle the current consensus. However, for a large number of CSOs (400 and counting), this initial consensus is but a sign that the current UN process is weak enough to not pose a threat to the current state of impunity in which businesses operate. Ultimately, civil society will continue to push for stronger mechanisms until the core tenants of the 2003 UN Norms are revived and implemented.
The call for this treaty reflects a need, expressed both by states and CSOs, to create a tool to hold business actors accountable for human rights violations. To be successful in closing this accountability gap, the proposed treaty would need to include provisions that address the following key issues (to name a few):
- Clarify the scope of responsibility to make companies in home countries responsible for the actions of their subsidiaries in host countries.
- Establish a duty of care for companies to prevent damages to the environment, health and human rights throughout all their economic relationships, including supply chains.
- Allow for criminal suits to target both management personal of companies and key investors.
- Ensure the protection of the right to Free, Prior, and Informed Consent (FPIC) of communities affected both directly and indirectly by business activities.
- Apply the right to FPIC in a meaningful way by respecting decisions to withhold consent.
- Create strong extraterritorial obligations for home states including obligations to withhold financial support to companies linked to human rights violations and prohibit meddling by home states in the regulatory processes of host states.
- Allowing for cases to be heard in the home state jurisdiction of companies.
- Create a binding international dispute settlement body with similar enforcement capacities as investment settlement dispute bodies.
Taking the example of indigenous peoples struggles to uphold their ancestral and cultural rights to their land in the face of large scale destructive investment activities; it is evident that legal tools such as the binding treaty called for by Ecuador will only help in solidifying their claims. These communities have managed to use legal tools such as the ILO Convention 169 to add legitimacy to their claims, and have gained a great deal of support not only from CSOs but also from the Inter-American Commission on Human Rights and a number of UN Special Rapporteurs.
For those who will argue that this process will break the current consensus, CSOs advocating for this treaty have made it clear that they have nothing to lose in continuing to push for binding mechanisms until human rights law bears the same weight, and hopefully one day more, as investment law.
[1] On behalf of the African Group, the Arab Group, Pakistan, Sri Lanka, Kyrgyzstan, Cuba, Nicaragua, Bolivia, Venezuela, Peru and Ecuador
Mining for Rights 