Treaty debate heats up at 2015 UN business and human rights forum

The potential binding business and human rights treaty was a recurring issue for debate at the United Nations Business and Human Rights Forum, held in Geneva from 16 – 18 November. This annual event saw 2,300 attendees, representing States, business, civil society, academia and various international organisations, participate in numerous discussion panels and side events over three days touching on almost every aspect of the field of business and human rights. The Forum provides an opportunity to consider the numerous developments and projects in business and human rights and to assess overall progress in the field.

Several panels focused on the divisive subject of a business and human right treaty, an initiative which has been spearheaded by Ecuador. Human Rights Council Resolution 26/9 established an Intergovernmental Working Group, which met for the first time in 2015, with a mandate to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”. This development has largely been welcomed by civil society, but countries such as the United States and the member States of the European Union, as well as business representative organisations, are opposed. The Forum provided an opportunity for the various protagonists to state their position on the proposed treaty.

Representatives of the United States intervened on several occasions on the subject of a business and human rights treaty, in what was considered a departure from a prior position of not participating strenuously in the debate. Keith Harper, the United States Ambassador to the Human Rights Council, expressed his country’s opposition to the treaty and described it as a “distraction” from the United Nations Guiding Principles. Ambassador Espinosa of Ecuador, and numerous other participants, expressed their view that the Guiding Principles and the proposed treaty should be seen as complementary processes. A representative of the United States speaking from the floor cheekily asked the Ambassador of Ecuador when her country would be issuing their national action plan on the Guiding Principles – the United States has yet to deliver its own national action plan. It was also asked what a treaty would achieve, given that reluctant States could not be compelled to become a State party.

Which businesses?

The now infamous footnote of of Resolution 26/9 was also addressed during the treaty debates. The footnote seeks to exclude purely national companies from the scope of the treaty:

“Other business enterprises” denotes all business enterprises that have a transnational character in their operational activities, and does not apply to local businesses registered in terms of relevant domestic law.

Many have argued that the scope of the treaty should not be limited to transnational companies only – this is a position on which States such as the U.S. and civil society organisations would seem to be in agreement. However, States were criticised for using this limitation as a reason for abstaining from the negotiations and were urged to bring these concerns to the Intergovernmental Working Group rather than remaining outside the process. The treaty process was said to be stirring up “old conflicts” regarding the debate between binding and voluntary approaches, according a delegate from a business representative organisation, although arguably that debate has never really gone away.

A representative of the United States also expressed concern about the potential for a business and human rights treaty to create obligations for companies under international law, as this would go against the prevailing approach of international law in being addressed to States. Professor Doug Cassel of the University of Notre Dame correctly pointed out that companies already enjoy rights under international law, such as the capacity to make claims under the European Convention of Human Rights and to take States to international arbitration such as via the International Centre for the Settlement of Investment Disputes. States can create such obligations if they so wish – non-State actors are already subject to the rules of international humanitarian law, for example. The “options” paper written by Prof Cassel and Prof Anita Ramasastray was frequently referred to in the course of these debates. Proponents of a treaty recommended that it could settle uncertainties in the law, such as those regarding the liability of parent companies and the question of extraterritorial or transnational obligations.

Ireland voted against Resolution 26/9 establishing the Intergovernmental Working Group and has not expressed any enthusiasm for the idea of a business and human rights treaty. The Department of Foreign Affairs and Trade is currently preparing a national action plan to implement the Guiding Principles, some four years their endorsement by the Human Rights Council.

A draft national action plan from Ireland is apparently imminent.

Following the Forum, I participated in a roundtable at the International Commission of Jurists on the subject of the treaty, speaking on the potential criminal law aspects of the proposed treaty. There have been calls for a treaty to clarify issues around complicity and corporate criminal liability, some of which I explored in my paper. The concept of corporate legal liability is already provided for in international human rights law, specifically the second Optional Protocol to the Convention on the Rights of the Child (Article 3(4)). Criminal sanctions are important in this context – earlier in the week, a senior counsel for General Electric noted how companies pay attention when criminal penalties are at stake.

Corporate tax avoidance mentioned only in passing

Surprisingly, there was no dedicated panel at the 2015 Forum on the subject of corporate tax avoidance and human rights. This issue was touched upon at panels on investment and human rights and on the role of the private sector with regard to the sustainable development goals. Interventions by speakers from ActionAid and the Centre for Economic and Social Rights showed that the corporate responsibility to respect human rights should include issues of tax avoidance. UN Special Rapporteurs have made the same point, and it seems about time that the Forum’s organisers put this important subject squarely on the agenda of this annual event.

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