Credit: UN Photo / Jean-Marc Ferré
In a new attempt to hold transnational corporations accountable for human rights violations, the United Nations Human Rights Council has decided to establish a working group to prepare a treaty imposing international human rights legal obligations on transnational corporations. [OHCHR Press Release] The mandate of the working group will be to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” UN Human Rights Council, Resolution 26/9, Elaboration of an internationally legally binding instrument on transnational corporations and other business enterprises with respect to human rights, A/HRC/26/L.22/Rev.1, 26 June 2014, para. 1.
The expected treaty, when eventually finalized, would be the first international human rights agreement to specifically and explicitly regulate the activities of transnational corporations with regard to individuals’ and communities’ fundamental rights. Previous efforts produced important guidelines and standards, but these are not directly, legally enforceable against business actors. States, however, do have certain legal obligations to regulate corporations and other private actors when their activities impact the enjoyment of human rights.
The decision has triggered mixed responses from the international community. While some civil society groups welcome the new working group, others fear that its mandate is too narrow in scope – by only including transnational corporations – or that it will delay or polarize discussions concerning corporate liability for human rights abuses.
Working Group for a Business and Human Rights Treaty
Member States of the Human Rights Council were also divided on the issue of establishing the working group for a business and human rights treaty, with the majority of States voting against it or abstaining from voting altogether. Twenty States voted in favor of the resolution, 14 States voted against it, and 13 States abstained.
The Member States of the Human Rights Council voted as follows:
- In favor: Algeria, Benin, Burkina Faso, China, Congo, Cote d’Ivoire, Cuba, Ethiopia, India, Indonesia, Kazakhstan, Kenya, Morocco, Namibia, Pakistan, Philippines, Russia, South Africa, Venezuela, and Vietnam
- Opposed: Austria, Czech Republic, Estonia, France, Germany, Ireland, Italy, Japan, Montenegro, South Korea, Romania, Macedonia, the United Kingdom, and the United States of America
- Abstained: Argentina, Botswana, Brazil, Chile, Costa Rica, Gabon, Kuwait, Maldives, Mexico, Peru, Saudi Arabia, Sierra Leone, and the United Arab Emirates
The working group’s mandate is open-ended, rather than time limited. The Human Rights Council has instructed it to hold its first session in 2015, allowing time for the working group to be constituted. The first two sessions will be focused on deliberating on the content, scope, nature and form of the future treaty. The third session will be dedicated to negotiating substantive elements for the draft treaty. The Human Rights Council expects the working group to submit a progress report for consideration by the Council at its 31st session, to be held in March 2016. Id., paras. 2-4. UN Human Rights Council, Resolution 26/9, Elaboration of an internationally legally binding instrument on transnational corporations and other business enterprises with respect to human rights, para. 1.
In creating the working group, the Human Rights Council highlighted its view on some of the persistent issues in the debate over non-State actors’ human rights responsibilities:
[…]
Stressing that the obligations and primary responsibility to promote and protect human rights and fundamental freedoms lie with the State, and that States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including transnational corporations,
Emphasizing that transnational corporations and other business enterprises have a responsibility to respect human rights, [and]
Acknowledging that transnational corporations and other business enterprises have the capacity to foster economic well-being, development, technological improvement and wealth, as well as causing adverse impacts on human rights…
Id., preamble.
Existing Working Group Tasked with Consulting on Access to Justice
The resolution, which was co-sponsored by Ecuador, Bolivia, Cuba, South Africa, and Venezuela, was one of two tabled for adoption. [Institute for Human Rights and Business] Norway sponsored a second resolution, adopted by consensus, supporting the work of the existing Working Group on the issue of human rights and transnational corporations and other business enterprises. [Business & Human Rights Resource Center]
Rather than create a new working group to negotiate a treaty, Norway’s resolution requested the current Working Group to consult with States on ways to improve access to judicial and non-judicial remedies for victims of business-related violations and to present a report at the Human Rights Council’s 32nd session in June 2016 identifying the benefits and limitations of a legally-binding instrument. UN Human Rights Council, Resolution 26/22, Human rights and transnational corporations and other business enterprises, A/HRC/26/L.1, Rev. 1, 27 June 2014. The adoption of both resolutions evidences the variety of opinions on the issue of accountability of business at the Human Rights Council.
Guiding Principles on Business and Human Rights
In 2011, UN Special Representative on business and human rights John Ruggie submitted the UN Guiding Principles on Business and Human Rights to the Human Rights Council. The Human Rights Council endorsed the Guiding Principles as a global standard on the roles and responsibilities of States and business with respect to human rights. UN Human Rights Council, Resolution 17/4, Human rights and transnational corporations and other business enterprises, A/HRC/17/L.17/Rev.1, 16 June 2011.
The UN Guiding Principles prioritize three pillars: the State duty to protect, the corporate responsibility to respect, and the need for victims’ access to effective remedies. Respect for human rights by business enterprises means that “they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.” Guiding Principles, para. 11. In practice, this means that business enterprises should have a policy commitment to meet their responsibility to respect human rights, an ongoing due diligence process, and a remediation process for human rights impacts that they cause or to which they contribute.
Civil Society Reactions
When Ecuador proposed establishing the new working group in September 2013, over 600 organizations joined a “treaty alliance” to support the proposal. [Treaty Movement] Calling itself a “global movement for a binding treaty,” the alliance declared, “Now is the time to join the chorus of global civil society calling for new strong international law and send the right message that powerful corporations must not violate human rights.” [Treaty Movement]
Some civil society groups have criticized the resolution, as adopted, however, in that it purports to limit the definition of “other business enterprises” to those of a transnational nature. [ESCR-Net] Human Rights Watch, for example, pointed out that the proposed mandate of the working group focuses on the activities of transnational corporations and other business enterprises, leaving out national enterprises involved in human rights abuses. The organization stated that “the UN’s decision is too narrow since it only focuses on transnational corporations and will not address national or other businesses that should also be required to respect human rights.” [Business & Human Rights Resource Centre] For its part, EarthRights International stated, “We strongly believe that the UN needs to address corporate human rights abuses at the international level, but it will be difficult to support this process if it remains limited to multinational corporations.” [ERI]
Other groups disapproved of the Human Rights Council’s resolution on the basis that it distracts from full implementation of the Guiding Principles on Business and Human Rights. Guiding Principles author John Ruggie fears that advocates and opponents of a business and human rights treaty may be “on a collision course.” [Institute for Human Rights and Business] He stressed that a treaty on corporate human rights liability could take years to emerge, and that “business and human rights is not so discrete an issue-area as to lend itself to a single set of detailed treaty obligations.”.. For Ruggie, implementation and development of the Guiding Principles is the “obvious answer,” but whether that will happen hinges on overcoming State reluctance to implement the Guiding Principles (including through reinvigorated civil society advocacy) and winning over those opponents who say national law and voluntary initiatives are sufficient to regulate corporate behavior. [IHRB]Similarly, the International Organisation of Employers said that it “deeply regrets that the adoption of the Ecuador initiative has broken the unanimous consensus on business and human rights achieved three years ago with the endorsement of the UN Guiding Principles on Business and Human Rights.” [International Organisation of Employers]
Human Rights Council
For more information on the Human Rights Council and its activities, visit IJRC’s UN Human Rights Council webpage.