BHR Symposium: The 2020 Draft UN Business and Human Rights Treaty–Steady Progress Towards Historic Failure

[Claire Methven O’Brien is Senior Researcher and Strategic Adviser at the Danish Institute for Human Rights, and Baxter Fellow and Lecturer at the Law School, University of Dundee.]

Human society faces unprecedented and interlinked global challenges: climate change, catastrophic environmental destruction, the concentration of global wealth and power into the grasping hands of a tiny few, while insecurity and denials of basic social and economic rights dog the lives of most – not least in the context of the current pandemic and its social and economic fallout. Meanwhile the commercialisation of the public sphere and private communications seem to threaten democracy’s capacity to sustain itself in ways that are still emerging.

Multinational enterprises are deeply implicated in these problems. Yet their role is hard to disentangle from the investors or sometimes state actors behind them, or from the influence of the increasingly transnationally integrated trade, financial and production systems and communication infrastructures which have permitted their rise and of which governments, by design or default, have generally been the drivers.

The UN human rights system is the only global arena where the injustices embodied in existing laws, social and economic arrangements and distributive outcomes can be challenged with reference to the equal dignity and rights of all human beings. Fulfilling this function is essential to the legitimacy, relevance and power not just of the UN but of the fragile ideals of multilateralism and human rights themselves.

It is not only appropriate, but essential, then, to seek to establish within the framework of the UN human rights system a universal normative platform to facilitate the evaluation and critique of the collective impact on human rights of the market sphere in its current configuration – and to shape and drive its better and stronger regulation in the pursuit of humanity’s common interests.

Lamentably, however, the 2^nd revised draft legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises, does not hold promise of realising this goal.

Building on recent contributions (here and here), in this blog I flag three reasons why the 2020 draft cannot deliver what is needed. Concluding, I repeat my call for an alternative approach, namely a framework convention based on the UN Guiding Principles on Business and Human Rights, as more desirable, feasible, effective and relevant to the challenges described above than the OEIGWG’s current approach and text.

Category error

It is true, as other contributors to this symposium suggest (e.g. Lopez, Nolan; see also Cassel) that the 2020 draft incorporates clarifications and refinements on the version of 2019. Yet, as Lopez highlights, the animating vision and overall scheme remain unchanged: differences between the two drafts are more in the character of tinkering with details than major overhaul.

Accordingly, the 2020 draft, like its predecessor, bears a greater resemblance to a draft model law (consider those promoted by UNCITRAL, UNODC or the Commonwealth) or an international private law convention than to a human rights treaty of global scope. This is best illustrated in relation to remedy, which, as before, provides the text’s principal focus.

Well over half of the draft’s substantive content addresses this topic or, rather, rules intended to facilitate transnational tort claims based on corporate human rights abuses. The text seeks to define how civil courts should handle matters such as jurisdiction, forum, applicable law, recognition and enforcement of judgments, statutes of limitations and parallel proceedings (Articles 8-11), as well as how liability should, under national law, be linked to failures of due diligence as described in Article 6.

As Sarah Joseph and Mary Keyes point out in their valuable contribution, substantial defects persist across these elements of the 2020 text which still lack internal consistency, as well as general legal cogency, in important respects.

Could such deficiencies be corrected? In theory, perhaps. But the likely cost of doing so, given the diversity of national legal arrangements, would be a text so convoluted and qualified that both its progressive value, and the community of states able or willing to accept it as defining international legal obligations, at least at this point in time, would be vanishing.  

These tendencies are already visible, for instance, in Articles 8(7), 8(9) and 12(8)) of the 2020 text. Parallel provisions of the Council of Europe’s 2016 Recommendation on Business and Human Rights, by contrast, rely on purposive formulae. The Recommendation provides, for instance, that “Member States should apply such legislative or other measures as may be necessary to ensure that human rights abuses caused by business enterprises within their jurisdiction give rise to civil liability under their respective laws” (paragraph 32). Under paragraph 38, “Member States should apply such legislative and other measures as may be necessary to ensure that civil claims concerning business-related human rights abuses against business enterprises subject to their jurisdiction are not unduly restricted by the application of doctrines such as “the act of State” or “the political question”.”

As I have discussed previously, this is the approach typically followed by broad spectrum international agreements and human rights treaties, in particular. Why? One reason is that, “Large, heterogeneous groups of states with various cultures, ideologies, and institutional differences,” as Koremenos observes, “can solve the underlying cooperation problems in human rights through imprecise language, reservations, and optional protocols”. Narrow norms, on the other hand, are hostage to “veto coalitions” and rarely get beyond the starting blocks (Braithwaite and Drahos). Another reason is states’ residing commitment to sovereignty and related preference for discretion, over prescription, in the definition of means by which international obligations are to be implemented.

Access to justice and effective remedies for victims of corporate human rights abuses are crucial goals. Model laws ought (and perhaps even international private law conventions), in due course, have a role to play in their realisation – and the extensive work undertaken via OHCHR’s ARP project, as well as expert submissions to the OEIGWG and in other fora, can valuably inform them. It is a mistake, however, to think that such instruments must be incorporated into, or can be concluded without first securing, agreement on a broad framework of principles. This step must precede them.

Reinventing the wheel

Such a framework of broad principles, of course, already exists. The UNGPs succeeded, where the UN Draft Norms failed, precisely because they sought to align, and not collide, with international human rights law’s basic structure, while applying a procedural approach to defining corporate human rights responsibilities – an essential manoeuvre given the dynamic and context-dependent character of business human rights impacts and the formal legal subordination of non-state to government actors.  

Following their unanimous endorsement in 2011 by the UN Human Rights Council, the UNGPs have given flight to a myriad of state, business and civil society initiatives that seek to interpret and apply their core tenets across themes, geographies and contexts. National action plan processes, albeit slowly, are unfolding across world regions. The UNGPs and NAPs have fostered commitments and coalitions that, in turn, are yielding due diligence legislation or its promise across a growing number of jurisdictions, now including the EU.

The 2020 text is praised by some for offering, via the Preamble and Article 6’s provisions on due diligence, comfort to UNGPs supporters. More important in this regard, probably, are the consolidation of concessions around scope, in terms of companies and human rights. Even so, the fact remains that the current text cuts across, rather than reinforces, the ethos of the UN Framework.

A multiplicity of state, business and other actors have, over a decade, invested scarce legal, political and financial resources in the UNGPs and their implementation. At the same time the most significant economic and political players – the US, China, Russia, Brazil, India as well as the EU and its member states – appear to remain unconvinced by the OEIGWG’s intended approach. Given this, continuing to seek such an instrument, from the standpoint of human rights advocacy, appears profligate in the extreme.

Fit for the future

In her symposium contribution, Justine Nolan highlights the 2020 text’s silence on supply chains. Yet, it could as easily be asked, where are its provisions addressing new threats to labour rights in a ‘gig economy’? Or the impact of financialisation on essential public services such as housing? On public procurement, or the growing role of business in development assistance? Or on the responsibilities of investors, such as Blackrock, when defining the terms of sovereign debt repayments that profoundly influence the ability of states,  for instance, Ecuador, to meet their economic and social rights obligations? Or on how tech giants should be held accountable for their impacts on privacy, discrimination, freedom of thought and expression?

Capital is mercurial. As long as states and societies rely on liberal markets, it will find or create new terrain on which to turn profit. While this triggers opportunities and innovation from which some benefit, inevitably the rights and dignity of others are jeopardised in its wake. 

A UN business and human rights treaty must, given this, comprise broad norms capable of purposive re-interpretation in a dynamic social, environmental and political global context. It cannot be a “dead letter” offering technical fixes only for a sub-set of the business and human rights problems of yesterday or today. Rather it must be “a living instrument” that maintain its relevance for the unknown and unknowable challenges to be faced by future generations.

An alternative route

This is the aim of the alternative draft treaty text that I developed and published earlier this year.  Its basic elements include a statement of overall objectives; a definition of guiding principles, incorporating the UNGPs by way of Annex; a concise list of states’ general obligations, and mechanisms permitting the adoption of additional protocols and other subordinate instruments. As I have highlighted before, the latter could in due course readily address, to the level of detail that the 2020 text desires, measures to enhance access to remedy for victims, as well as the topics mooted above, and more.

Whatever its exact modality, the OEIGWG’s upcoming 6^th session will be unusual, given COVID-related format limitations. States may find it easy to postpone the development of definitive views, or simply dodge involvement in the proceedings altogether. Assessing states’ views, in this context, will be challenging, but to hazard a guess, the 2020 draft will not prompt any major re-positionings.

If this is true, and the arguments made here are accepted, the choice for proponents, civil society and expert advocates and states notionally committed to human rights will be whether to allow the process to limp on towards redundancy, or make the more courageous and principled move: acknowledging the need for a fresh direction in negotiations – and for open consideration of alternative approaches such as described here.