A Business and Human Rights Treaty: The Risks of Human Rights Counter-Diplomacy

[Luis F. Yanes is a Project and Research Assistant of the Essex Business and Human Rights Project and a PhD candidate at the Human Rights Centre of the University of Essex. You can find him on Twitter @LuisFYanes.]

As we now know, on the 19^th of July 2018, the first draft for a Business and Human Rights Treaty was published (draft zero). In a post published here in Opinio Juris, Carlos López brilliantly summarized some of the key legal aspects that the draft zero proposes, with a critical view of what is missing in order to ensure a more effective treaty.

However, neither the draft, nor any posts regarding it, have addressed one of the mayor risks that all UN human rights instruments have historically presented, this is, the vulnerability to human rights counter-diplomatic tactics. The intention of this post is, therefore, to bring attention to the underlying risks that treaty-making has to the full effective enjoyment of human rights.

A treaty on Business and Human Rights (B&HR) has the potential of resolving many of the ambiguities when interpreting the impacts that the activities of multinational corporations have in the enjoyment of human rights. But we have learned with time that there are some risks in the way human rights treaties have been created. Are we ready to craft a draft that actually tackles these diplomatic risks?

Human Rights Diplomacy and Counter-Diplomacy

It is important to take into consideration that international human rights agreements are the result of a political process, and therefore, are created though a developing dialogue by states who wish to bind themselves to such principles. This process can be seen by certain states as their diplomatic means of advancing human rights issues (by negotiations and persuasion) in other nations. This is what some call human rights diplomacy. However, it is also possible to use the means of diplomacy to frustrate such efforts.

For some, the international politics of human rights is mainly centred on mobilizing shame and public exposure, therefore, the ability of a state to tackle or even diverge the attention of certain allegations are key mechanisms in what can be called human rights counter-diplomacy. This is, using diplomatic means to undermine the efforts of other countries that aim to improve the promotion and protection of human rights.

This human rights counter-diplomacy can also be seen in the process of negotiating and implementing human rights treaties, as a state might want to play-along with the international community, with no real intention of complying with such rules.

Ratifying but not complying

Experts in Diplomacy and International Relations would probably say that it is naïve to suppose that states with questionable human rights records have signed or ratified a human rights treaty because they believe in the principles that such instruments contain. Hence, some believe that a more realistic approach might be to consider that countries with questionable human rights records – such as Venezuela and Cuba, which supported the original initiative of drafting a treaty on B&HR – decide to enter into such international instruments as a response to external pressure, or internal propaganda, but never really expecting to comply with their obligations.

From a legal perspective, acknowledging that states enter into treaties with no expectations to comply with them might be seen as alarming. This of course given that it would undermine one of the most fundamental principles of international law, pacta sunt servanda. If states ratify treaties – in good faith – it is because they are willing to comply with the obligations such instruments enshrine. Foreign Affairs experts, however, calls us to take a step back and look at the political landscape the international community currently faces.

The draft zero, however, does not address this issues. It repeats the Treaty Monitoring Body formula, whereas a Committee of Independent experts is created to oversee compliance with the treaty. These Bodies have been repeatedly criticised for their inability to enforce their decisions and directly ensure the implementation of their treaties. In comparison with Regional Human Rights Institutions, such as the European and Inter-American Court of Human Rights, Treaty Monitoring Bodies have historically been created without tools to ensure non-complying states do not undermine the rights and obligations enshrined in such instrument.

Ratifying with reservations

States may appear to show commitment, by ratifying international human rights treaties, but with substantial reservations. Such reservations could often be incompatible with the treaty itself, undermining the rights that they have vowed to protect. Some states may directly object to reservations done by other states, but rarely do so.

A B&HR treaty could be seen as an accomplishment for the international community, but if substantial reservations were to be made to it, then the real nature and effectiveness of the instrument would disappear. The draft zero explicitly addresses the issues of reservations, by stating in its article 15 that ‘[r]eservations incompatible with the object and purpose of the present Convention shall not be permitted’. But this is no guarantee of success, as we have seen with the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) with 57 reservations, particularly to core provisions to the Convention.

Most of CEDAW’s reservations limit the enjoyment of such rights to compliance with domestic law. Hence, if domestic law is more restrictive, the Convention is basically overridden. CEDAW’s treaty monitoring body has expressed that certain reservations are incompatible with the Convention, but this unfortunately has had no substantial effect in state practice.

Reservations to a B&HR treaty based on compliance with domestic law could potentially undermine the effectiveness of the treaty altogether. If the right of victims to seek direct redress against multinational corporations – as proposed in draft zero – is understood to be essential this international framework, and if such right could be limited or prohibited in a given country by its domestic law, then the essence of the treaty itself disappears.

No ratifications

Another risk that human rights counter-diplomacy might bring is that very few countries might ratify it. This presents a mayor risk. If one was to look as an example at the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, with only 51 ratifications to date, a B&HR treaty could end up with the same fate. One must, therefore, question if a treaty with very few ratifications would be a positive step or rather a step backwards, as one could argue that the lack of universal acceptance might restrain the ability of existing human rights bodies to further develop the area of B&HR.

On this point, for example, one could foresee an argument sustaining that – given the importance of state consent within public international law – the Committee on Economic, Social and Cultural Rights would not have the legitimacy to issue General Comments such as its No.24, as there would not be a real universal acceptance that States have specific obligations to regulate the conduct and activities of multinational corporations that negatively affect human rights.

Ensuring that sufficient states ratify a B&HR treaty is not an easy task. Overall consensus will be needed. Time will be essential. To push too soon for a treaty, where some states have not indicated a preference or even presented a slight indication on their position, could present a mayor risk for the future.

Disrupting mechanisms

A more complex, yet common counter-diplomatic tactic, is to disrupt the mechanisms that were created through human rights treaties. Treaty monitoring bodies (TMBs) – as the one draft zero is proposing – play an essential role by examining state reports, reviewing individual complaints and assessing a state’s obligation to a particular human rights treaty. However, the selection of its members and its funding are very much in the hands of states parties to the treaty, ergo, states have the ability to undermine any effectiveness of their work.

The selection process at the UN is highly political and has been criticised for taking limited account of the qualifications of the members that are being proposed to different TMBs. Such selections may be affected by vote trading, with some countries willing to negotiate the selection of certain members to undermine the independence of such bodies; seeking to select members that are less harsh with certain governments.

A clear consequence of ill selection of treaty bodies members is the tremendously vague concluding observations that they often produce, which arises from the political bias of its members, who are unwilling to provide more specific recommendations as to not publicly shame a particular country.

Draft zero, nevertheless, does not provide a clearer language that could potentially overcome some of the historical problems related to the members of the treaty monitoring bodies. The draft states that the members of its committee must have ‘recognized competence in the field of human rights, public international law or other relevant fields.’ B&HR is inherently a complex and multidisciplinary field; the treaty should reflect that the level of competency required for the members of the committee is real expertise and knowledge of this specific field. Moreover, special provisions, as to assess such qualifications should be in place, in order to ensure that real and independent experts are being selected.

On the other hand, the political reality of the UN, were member states have been unwilling to approve substantial budget increases for the human rights work of the UN, places the treaty bodies in a situation of vulnerability. States, on the basis of budgetary decisions, may seek to deteriorate the work of treaty bodies by ensuring they do not receive the necessary funding for their work. As an example, the Chairperson of the TMBs has noted in several occasions that financial and technical resources have been allocated to support the Universal Periodic Review of the Human Rights Council (a political process led by states for states), while TMBs have not seen an increase in their budget.

How will this new Committee be funded? The draft zero gives us no answer to that. And although some might think that it is somewhat precipitated to discuss this, the risk that counter-diplomatic tools could be used to underfund a B&HR Committee, or reduce the funding of other TMBs to provide for this new Committee, is something we need to address in the early stages of this draft.

Looking forward

A treaty that would link B&HR would provide a more coherent and less fragmented international law, stipulating that human rights would take part of the law that regulates businesses. A treaty could clarify the precise content of states’ duty to protect human rights by being explicit in the extraterritorial reach of this duty, in order to dissipate any confusion. It would define clear legal obligations of corporations with respect to human rights, and could address how multi-national corporations can be held accountable for their violations.

Many legal uncertainties might be resolved if there was a positive outcome, however, human rights counter-diplomacy presents a real and unavoidable threat to a successful B&HR rights treaty. Being aware of such risks is essential, and the draft zero does nothing to prevent these foreseeable risks.

The draft zero repeats many of the mistakes – or problematic issues – we have seen with the current human rights treaties. It repeats the language used by other treaties – such as CEDAW – in regards to reservations. Hence, it needs to develop a more sophisticated approach, whereas a clear mechanism to object incompatible reservations is in place, or, whereas the Committee is provided with the authority to determine incompatibilities.

The risk of non-compliance is ultimately unavoidable with the current draft zero. Thus, it is essential that the treaty contains clear provisions that require state parties to incorporate into domestic law the set of rights and obligations enshrined in the instrument. It is also essential that its Committee is given sufficient teeth to be able to ensure that non-complying states are held accountable.

Civil society, academia and those states that champion human rights must be ready to use their knowledge and skills to make sure that a treaty on B&HR rights is less vulnerable to counter-diplomatic tactics; in particular, if we want the treaty to have a real and meaningful impact in the way international law currently regulates the adverse effects that multinational corporations have in the enjoyment of human rights.