From 14 to 16 November, some 2000 government, business and civil society representatives from 140 countries gathered in Geneva for the fifth meeting of the Business and Human Rights Forum. Their purpose was to assess the painfully slow progress in implementing the UN Guiding Principles on Business and Human Rights since their adoption in Geneva in 2011.
Some days previously, from 24 to 28 October, the UN Intergovernmental Working Group (IGWG) had met at the Palais des Nations in Geneva for its second session. The Working Group had been established following the adoption of UN Human Rights Council Resolution 26/9 in June 2014. Described as historic, the mandate of the IGWG is "to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.1
This resolution was the outcome of mobilization by some 600 civil society organizations that make up the "Treaty Alliance." It comprises NGOs from North and South and aims to end the impunity of those responsible for environmental and human disasters such as the explosion at the Union Carbide agrochemical plant in Bhopal, India in 1984, or the consequences of discharging millions of tonnes of toxic waste into the environment in Ecuador between 1964 and 1990 by Texaco, a Chevron subsidiary. Or the 2013 collapse of the Rana Plaza garment factory in Bangladesh, which claimed over 1,000 lives. In an attempt to fill this legal vacuum, the Human Rights Council therefore decided to prepare an international treaty.
Similar to its first meeting in July 2015, the work of the IGWG focused on determining the "content, scope, nature and form of the future international instrument", with a view to preparing elements for the draft of the legally binding instrument, in anticipation of the substantive negotiations set for the Working Group's third session in October 2017. A draft treaty could therefore be ready by next year…
Binding law rather than voluntary principles
The road to binding obligations is full of obstacles and for the past 40 years the endeavour has been staunchly resisted by transnational enterprises in general and their associations in particular. We recall that in the 1970s the UN had set itself the priority of drafting an international code of conduct for transnational corporations. The OECD Guidelines for Multinational Enterprises were adopted in 1976 and revised in 2011. In 2000, the UN Global Compact launched by Kofi Annan at the World Economic Forum in Davos urged enterprises to adopt socially responsible behaviour. In the view of some, however, it went against the logic of binding international law in favour of voluntary principles, which have yet to prove their effectiveness. Lastly, the UN Guiding Principles on Business and Human Rights adopted in 2011 contain no obligations that bind enterprises.
But the countries in the North, where 85% of transnational corporations have their head offices, reject any binding text. The United States, Australia and Canada refuse to take part in the work of the Group and Russia has announced that it does not want a treaty. As a result of pressure from civil society and the Parliament, the EU was represented at the October session. In 2015 it had imposed very strict conditions, for example, that the text must be extended to cover all enterprises, including domestic ones, that multinationals must be present at the negotiating table and that the discussions must be limited to the scope of the 2011 Guiding Principles.
There is one key difference between the process of preparing the future treaty and that which gave rise to the UN Guiding Principles of 2011. The distinction lies in the very approach to regulation: Resolution 26/9 provides for a return to the conventional regulation process centred on States alone, thus putting an end to the "multi-stakeholder" approach (encompassing States, business enterprises and civil society). This inclusive approach was instrumental in ending the trench warfare that followed the failure of the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights in 2003. Currently, only States are represented at the negotiating table.
It is impossible at this stage to predict the direction of the future negotiations without mentioning the time it takes to draft a binding instrument. These negotiations could last several years with no certainty of a concrete outcome, especially in the light of experiences with the 2003 Norms on Responsibilities. Moreover, transnational corporations will only be held accountable for human rights violations in States that will have ratified the treaty. As it is highly unlikely that all States (mainly in the North) will accede to it immediately, the initial impact of any treaty could be limited.
Given so many imponderables, it would be regrettable for countries as well as enterprises to roll back their commitment to ensuring effective implementation of the UN Guiding Principles. Instead, these players should redouble their efforts to devise the indispensable "smart mix" of voluntary measures and a binding regulatory framework in order to ensure full respect for human rights by business enterprises in all their activities.
1 The resolution was drafted by Ecuador and South Africa and co-signed by Bolivia, Cuba and Venezuela. It was adopted with 20 votes in favour (mostly from developing countries), 14 against (including several EU countries, but not Switzerland), and 13 abstentions.