White Paper: Options for a Treaty on Business and Human Rights
The United Nations Human Rights Council decided in June 2014 to establish an Intergovernmental Working Group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The first meeting of the Working Group will take place in Geneva in July 2015.
The Council did not further specify what sort of instrument should be drafted. The Center for Human Rights of the American Bar Association and the Law Society of England and Wales have asked the present authors to prepare a “White Paper” on possible options for a treaty on business and human rights.
The Paper takes no position for or against a treaty, or any particular form or content of a treaty. It is purely informational. It represents the views only of its authors, not necessarily those of the American Bar Association or its Center, or of the Law Society. Although other experts provided helpful comments on earlier drafts, the authors are solely responsible for the content.
The Paper begins by summarizing the context of the treaty process and current international law on business and human rights. It then addresses three main topics:
- Treaty Options: The wide variety of forms and content a treaty could take;
- Templates: Forms of treaties that enjoy broad support in international law, which could serve as templates for a treaty on business and human rights; and
- Cross-cutting Issues: Issues of international law and policy that drafters may need to address, regardless of the form and content of a treaty (companies covered; applicable rights; law governing civil damages suits; geographic scope of State duties; parent company responsibilities; and whether to impose duties only on States or directly on business).
II. Background and Context
A broad consensus has emerged that business has a responsibility to respect human rights. A recent survey reports that senior executives of companies “overwhelmingly perceive a responsibility to protect human rights.” In 2014 all member States of the UN Human Rights Council called upon “all business enterprises to meet their responsibility to respect human rights in accordance with the [UN] Guiding Principles [on Business and Human Rights].”
This consensus is reflected in the UN Framework on Business and Human Rights, endorsed by the Council in 2008, and the UN Guiding Principles on Business and Human Rights, endorsed by the Council in 2011. The Framework has three “Pillars”:
- The State duty to protect against human rights abuses by business (Pillar One);
- The business responsibility to respect human rights (Pillar Two); and
- The responsibility of States and business to provide effective access to remedies (Pillar Three).
While the business responsibility to respect human rights arises partly from existing law, it rests more generally on the “basic expectation society has of business,” which is part of a company’s “social license to operate.” The business responsibility is twofold. First, companies should not violate human rights. Second, they should exercise “due diligence” to anticipate and avoid or mitigate adverse impacts on human rights arising from their activities.
All three Pillars of the Framework were elaborated by the 2011 UN Guiding Principles, which provide more specific guidance for States and business. Implementation of the Guiding Principles is now being promoted by international bodies; States; many businesses and industry associations; bar associations; civil society; and a UN Working Group of five independent experts.
Nonetheless, doubts about the effectiveness of this “soft law” approach, especially with regard to remedies for victims, led Ecuador and South Africa in 2014 to ask the UN Human Rights Council to begin a process to draft a legally binding treaty. By a plurality vote of 20 States in favor, 14 opposed, and 13 abstaining, the Council agreed to establish an Intergovernmental Working Group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The Group’s first meeting will take place in Geneva in July 2015.
III. Existing International Legal Obligations of Business with Regard to Human Rights
Current international law imposes certain human rights obligations on business, but the coverage is incomplete, indirect and largely ineffective. International human rights law obligates States to protect human rights from infringement by business, but the obligations relating to business are vague and general. International labor law and international criminal law impose specific obligations on business, but their coverage is narrow. Most treaties in all three bodies of law are not universally ratified, and none grants victims effective remedies against companies.
IV. Treaty Options
There is a wide range of possibilities for the form and content of a treaty on business and human rights. They range from a comparatively weak treaty that would simply mandate public reporting by large companies, to a strong treaty with civil and criminal remedies in national and international courts.
The global coalition of NGOs calling for a treaty, as well as the lead governmental sponsors, advocate a treaty that comes closer to the “hard” end of the spectrum. However, it is not clear that any treaty that ultimately emerges from a drafting process will meet these objectives. Most options outlined in this Paper would not fully meet the goals of leading treaty proponents, such as Ecuador and the global NGO coalition, to provide broad accountability for companies and accessible remedies for victims.
This Paper does not attempt to catalogue all treaty options; there are simply too many. It outlines illustrative options, each modeled partly on existing international law binding States in regard to human rights, anti-corruption or environmental law. Each potential template is already either widely ratified or recently adopted. Thus, there is reason to believe that its form, at least, may be generally acceptable to States.
The Paper presents the options in two broad categories: treaties mandating mainly national action; and treaties establishing international enforcement machinery. (A treaty could of course mandate both.) Within each category, the listing proceeds, roughly speaking, from relatively “weak” to relatively “hard” options. Each option could constitute either an entire treaty, or one component of a broader treaty. The Paper notes advantages and disadvantages of each treaty option.
A. National Action:
1. Business Reporting: A treaty might require corporations to report publicly on their human rights policies, risks, outcomes and indicators.
2. State Planning: A treaty might require States to adopt National Action Plans to implement the UN Guiding Principles and other norms.
3. Business Implementation of Guiding Principles: A treaty might commit States to require business to carry out its responsibilities under Pillars Two and Three of the UN Guiding Principles. In particular, States might require business to exercise human rights “due diligence.”
4. Framework Treaty: A treaty might initially adopt a generally worded “framework,” committing States only to broad principles, later to be supplemented by more specified duties, through additional protocols (i.e., treaty supplements) or actions, based on review of experience over time.
5. Criminalization: A treaty might specify certain internationally recognized crimes against human rights, and require States to prosecute corporations and corporate executives and to cooperate with each other in doing so. The form of such a treaty could be modeled on the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Such a treaty might also provide a defense or mitigation for companies that could demonstrate they had robust due diligence programs in place.
6. Prevention: A treaty might require criminal prosecution and international cooperation, but add provisions requiring States to seek to prevent human rights violations by business through policies, practices, periodic review, independent prevention bodies, reporting and international collaboration. The form could be modeled on the widely ratified UN Convention against Corruption.
7. Civil Remedies: A treaty might require States to provide civil damages remedies for victims of human rights violations in which business is involved. Legal and practical barriers to access to justice would need to be addressed.
8. Comprehensive National Protection: Existing human rights treaties impose wide-ranging duties on States to protect people from human rights violations, including violations committed by third parties. A treaty might make explicit and precise how States must implement those treaties with regard to business.
B. International Supervision:
1. State Reports: A treaty might require States periodically to report to committees of international experts on progress and obstacles in implementing their treaty obligations. As with current human rights treaties, the reporting process might allow civil society to submit “shadow reports,” and authorize the committee to dialogue with States in public hearings and to publish concluding observations. This commitment would need to be harmonized with other UN treaty reporting procedures.
2. Individual Complaints: A treaty might follow existing UN human rights treaties, which allow individuals to file complaints against States before expert treaty bodies, once the complainants exhaust domestic remedies or show good cause for not doing so. A threshold question is whether to allow complaints against States, companies, or both. The answer might depend on the nature of the obligations imposed by the treaty, and on whether they mandate conduct by States, companies, or both. A complaint procedure might build on the existing procedure before “National Contact Points” under the OECD Guidelines for Multinational Enterprises.
3. International Civil Adjudication: A treaty might establish an international court to hear civil complaints, and to issue legally binding judgments granting reparations to victims, against States or companies or both. Regional human rights courts in Europe, Africa and the Americas currently order such reparations against States.
4. International Mediation and Arbitration: A treaty might create or make use of an international arbitral tribunal to hear complaints by victims against companies allegedly involved in human rights violations. A proposal to create such a tribunal has recently been circulated; if that tribunal is established beforehand, a treaty might then mandate States to require companies to submit to its jurisdiction, or the treaty itself might require business to submit to its jurisdiction.
5. International Criminal Prosecution: A treaty might authorize companies and business executives to be prosecuted before an international criminal court. The existing International Criminal Court can prosecute individuals, including business executives, for genocide, war crimes and crimes against humanity. A Protocol recently adopted by the African Union, but not yet entered into force, would both broaden the list of international crimes that could be prosecuted before the African Court of Justice and Human and Peoples’ Rights, and permit corporations to be prosecuted.
6. Comprehensive Treaty: The foregoing potential elements of a treaty are not mutually exclusive. A treaty could combine some or all, and others besides. Including more elements could make a treaty more effective. On the other hand, the more ambitious the treaty, the more difficult it may become to negotiate and to attract States to join it.
C. Policy Coherence Treaties:
1. National Laws: The UN Guiding Principles call on States to ensure that their laws and institutions affecting business are coherent with their duty to protect human rights. Examples include “corporate law and securities regulation, investment, export credit and insurance, trade and labour” as well as professional codes regulating the legal profession. A treaty might require States to review their laws, or to adopt particular measures (such as including human rights criteria in public procurement policies), to ensure policy coherence.
2. International Agreements: The Guiding Principles further provide that “States should maintain adequate domestic policy space to meet their human rights obligations when pursuing business-related policy objectives with other States or business enterprises.” States might agree, for example, to include human rights protections in future investment and trade treaties. They could also agree to treat human rights conditions as terms of existing treaties.
D. Sectoral Treaties: It would also be possible to adopt a narrower treaty, focusing on a particular sector or on business involvement in certain kinds of human rights abuses.
II. SELECTED KEY ISSUES.
Whatever form or content of treaty is selected, a number of cross-cutting issues will need to be considered:
A. Companies to regulate: UN resolutions cover transnational corporations “and other business enterprises.” The UN Guiding Principles apply to “all” business enterprises, although the extent of “due diligence” required may vary with the size of a business. Yet a preambular footnote in the Human Rights Council resolution initiating the treaty process appears to limit “other business enterprises” to those with a “transnational character.” Treaty drafters will need to consider this controversial limitation.
B. Human rights norms: The range of human rights covered by the treaty may depend on the duties it imposes. Reporting and planning might cover a broad range of rights. The UN Guiding Principles recognize the business responsibility to respect, at minimum, all rights in the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; and the ILO Declaration of Fundamental Principles and Rights at Work. Other rights may apply in specific circumstances. On the other hand, individual complaints or civil damages remedies might be limited to “justiciable” rights. And criminal prosecutions would apply only to crimes under existing law, or any new crimes recognized by the treaty.
C. Law governing civil damages claims: If the treaty authorizes a civil damages remedy in national courts, it might do so either for violations of international human rights law, or for violations of domestic tort law. Human rights claims would more appropriately recognize the gravity of violations, but domestic tort/delict standards might be more familiar to local judges and easier to apply. One solution might be to contemplate both kinds of remedies.
D. Extraterritorial jurisdiction: International law allows States to engage in reasonable exercises of jurisdiction over the conduct of their corporations in other States. A treaty might explicitly authorize, or even require, States to exercise jurisdiction over human rights violations committed by their companies outside their territories.
E. Parent company responsibility: In regard to reporting, planning and prevention, there is precedent to require parent companies to exercise due diligence to make sure that subsidiaries and other entities in the enterprise meet their responsibilities. In regard to civil or criminal liability, however, most States recognize the separate entity doctrine which treats parents and subsidiaries as different legal entities. Typically the parent cannot be held legally liable for wrongs committed by the subsidiary, except in very limited circumstances in which the corporate “veil” is pierced. On the other hand, recent developments in common law jurisdictions recognize that, in some circumstances, parent companies can be held liable for breaching a “duty of care” owed to persons injured by their subsidiaries. Drafters will need to consider such issues under the treaty.
F. Direct obligations on business: Eminent scholars disagree on whether corporations are subjects of international law. Pragmatists argue that the issue of whether or not corporations are “subjects” of international law is irrelevant to the question of what legal responsibilities can be imposed on them. Current investment and trade treaties grant corporations both substantive and remedial rights. Drafters might address whether a treaty should also impose duties on corporations.
G. Lawyers and business advisors: Bar Associations, lawyers and others advising companies need to take into account the responsibility of business to respect human rights. Treaty drafters might wish to ensure policy coherence of professional codes regulating the legal profession with State duties to protect human rights from infringement by business.
This Paper is presented in the belief that an informed negotiating process deserves, at the outset, a basic awareness of the main options, issues and choices that lie before the drafters.