Madrid Workshop on a Treaty on Business and Human Rights--Conference Statement and Presentation Abstracts

(Pix © Larry Catá Backer 2015)

The issue of crafting an international legally binding instrument to regulate, international human rights law, the activities of transnational corporations and other business enterprises has moved to center stage since the adoption of a resolution by the U.N. Human Rights Council (A/HR/RES/"&/9 (14 July 2014) to create an open-ended intergovernmental working group to elaborate such an instrument. 

To the end of considering this development and the possible contents of such a treaty, a Workshop on a Treaty on Business and Human Rights, hosted by the Universidad Autónoma de Madrid, was organized by the Autónoma and the Fakulteta za državne in evropske študije and convened by Jernej Letnar Černič and Nicolás Carrillo-Santarelli.  The Workshop, taking place on June 26, 2015, focuses on the debates about the adoption of a treaty on business and human rights that are being discussed in the Human Rights Council, by NGOs and State delegations, and by the academic community. These debates deal with crucial aspects of the protection of victims and the place of corporations in international law, the relevance of which are widely acknowledged.

Set out below is the text of the Conference brochure, including (1) the Conference Program; (2)  Introduction, and (3) Presentation abstracts.

WORKSHOP ON A TREATY ON BUSINESS AND HUMAN RIGHTS
AUTÓNOMA DE MADRID UNIVERSITY,
MADRID; SPAIN, 26 JUNE 2015
Venue: Room G-III, Faculty of Law

PROGRAMME

9:00 Welcome and opening remarks

Jernej Letnar Černič and Nicolás Carrillo-Santarelli

9:30-10:30 Possibility of a treaty on business and human rights

Chair and discussant: Carlos Espósito-Massicci

Chiara Mhiacci, Pisa: "Beyond the Guiding Principles: problems and prospects of a treaty on business and human rights.”

Tara van Ho, Aarhus: “A Modest (and Traditionalist) Approach to a Treaty.”

Surya Deva, Hong Kong: “Business and Human Rights: Is there any value in strolling on the treaty road?”

10:45-11:00 Recess

11:00-12:00 Critical analyses of a treaty on business and human rights

Chair and discussant: Jernej Letnar Černič

Antony Crockett, Hong Kong: "6 reasons why a treaty on business and human rights is a bad idea"

Larry Catá Backer, Penn State: “Considering a Treaty on Corporations and Human Rights: Mostly Failures But With a Glimmer of Success.”

Ana María Suárez-Franco, Geneva: “Voluntary vs. Binding: civil society's claim for a binding treaty on Human Rights, TNCs and other Business.”

12:00-12:10 Recess

12:15-13:15 Regional and local experiences and demands

Chair and discussant: Nicolás Carrillo-Santarelli

Humberto Cantu Riviera, Paris: "The Position of Developing Countries in the Business & Human Rights Treaty Process: The Case of Latin-American States."

Adriana Espinoza, Madrid: “HRIA and the strength of grassroots. Lessons for a draft treaty from European and Inter-American case law on environmental rights”.

Sara Seck, University of Western Ontario: “Lessons for the Treaty Process: Home State Practice and the Environment.”

13:15-13:30 Book launch: Jernej Letnar Černič, Tara Van Ho (eds): Direct Corporate Accountability for Human Rights (Wolf Legal Publishers, 2015)

13:30-14:30 Lunch

14:30-15:30 Inspiration and elements from different branches of international law and the position of States

Chair and discussant: Tara Van Ho

Nadia Bernaz, London: “Including Corporate Criminal Liability for International Crimes in the future Business and Human Rights Treaty”.

Ago Shinichi, Kyoto: "Whether to adopt a convention or a recommendation - experience of international labour legislation."

Luis Espinosa Salas, Mission of Ecuador to the United Nations in Geneva

15:30 Conclusions and publication (Jernej Letnar Černič and Nicolás Carrillo-Santarelli)

Introduction

The idea for a potential UN treaty on business and human rights has been around in international civil society for many years. Moreover, several years ago, two human rights law professors included in the draft statute proposal for the World Court of Human Rights the proposal that such a body would also have jurisdiction over corporations.1 However, the formal proposal for a UN treaty on business and human rights was first put forward by the delegation of the Republic of Ecuador at the September 2013 session of the Human Rights Council, when they submitted a statement aimed at the adoption of ‘an international legally binding instrument, concluded within the UN system, which would clarify the obligations of transnational corporations in the field of human rights, as well as of corporations in relation to States.’2 Almost, a year later, the UN Human Rights Council adopted on 26 June 2014 with a majority vote, a Resolution establishing

“an open-ended intergovernmental working group on a legally binding instrument on transnational corporations and other business enterprises with respect to human rights; whose mandate shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of Transnational Corporations and Other Business Enterprises.”3

Aside from some general observations, the proponents of a binding treaty on business and human rights have been so far mostly silent on what exactly the treaty should entail. Therefore, this Workshop will critically engage with the proposal for the UN Treaty on Business and Human Rights. 

NOTES:

1 Julia Kozma, Manfred Nowak and Martin Scheinin, A World Court of Human Rights - Consolidated Statute and Commentary (Vienna: Wissenschaftlicher Verlag, 2010).
 

2 Statement of the Republic of Ecuador on behalf of a Group of Countries at the 24th Session of the Human Rights Council (September 2013). Available at: http:/ /business-humanrights.org/media/documents/statement-unhrc-legally- binding.pdf

3 UN Human Rights Council, Resolution on Elaboration of an international legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to human rights (Bolivia (Plurinational State of), Cuba, Ecuador, South Africa, Venezuela (Bolivarian Republic of)): draft resolution,

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Abstracts

Session I: Possibility of a treaty on business and human rights

Tara Van Ho, “Band Aids Don’t Fix Bullet Holes”4: In Defense of a Traditionalist Approach to the Business and Human Rights Treaty

Some direct corporate obligations on human rights already exist, particularly at the domestic level. The desire to elevate these expectations to an international responsibility stems from the fact that domestic standards have too-often been unenforced or unenforceable. The fear is that without direct international human rights obligations, there is nothing to control corporations and no way in which to hold them accountable for their harms. Ascribing DIHRO to corporations is expected to be a means of controlling their conduct, or at least securing remedies for victims when corporations do fail. However, direct international obligations via treaty may not prove to be the most effective means for achieving the desired results. DIHRO were soundly rejected when they were first formally articulated in the 2003 Draft Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights (“Draft Norms”). In an attempt to resurrect DIHRO for corporations, some scholarship has been dedicated to addressing the most problematic issues in the UN Norms, such as the notion that corporations act within their “sphere of influence,” standard that not even states are held to, and the expectation that corporations should use their influence over states to affect change. Less attention has been paid to the appropriateness of ascribing DIHRO to corporations through treaty, and the competence of the current state-centric approach to public international law (“PIL”) to address the issue without expanding the reach of DIHRO to corporations.

This article considers these questions before drawing on existing treaties to suggest clauses that could meet the goals of DIHRO proponents without changing the nature of international legal personality. I write this piece not out of conviction that the treaty must reject direct obligations for corporations, but out of concern that the rush to create DIHRO, while stemming from a legitimate frustration, may create larger problems in the future. My fear is that focusing on DIHRO could prove – as the title of this piece indicates – a Band-Aid for a bullet hole: an unnecessary solution that ultimately masks the real problem without fixing it. If the real problem is the ability of corporations to avoid significant regulation and remedies aimed at controlling their impacts on human rights, assigning them international responsibility does little (if anything) on its own to address that problem. This article questions whether using a DIHRO approach will really address this issue or simply mask the reality of it. This article is intended to contribute to the treaty debate so that the final draft, in whatever form it takes, is one of lasting impact. 

4 Lyrics from “Bad Blood” by Taylor Swift. I almost named this “You Don’t Have to Try So Hard, You Don’t Have to Give it All Away,” based on the song “Try” by Colbie Caillat. However, all the internal titles were based on Taylor Swift songs from her album “1989” and I felt consistency was best here.

Chiara Macchi, “Beyond the Guiding Principles: problems and prospects of a treaty on business and human rights”

The proposal for a binding international treaty on business and human rights has given rise to mixed reactions, being applauded by some sectors of the global civil society and the international community and strongly adversed by others. While the most vocal critics of the proposal include most States of the global “North”, business organisations and the former UN Special Representative on Business and Human Rights, Prof. John G. Ruggie, the current proposal - or at least aspects of it - is met with some reservations also by some civil society actors and academics.

This paper is going to review the main arguments advanced by critics to argue that a treaty on this matter is not desirable, or even damaging, for the cause of improving corporate accountability for human rights violations and victims’ access to remedy. The present contribution argues that, while some of these arguments are instrumental to specific interests and agendas and may easily be refuted due to their conceptual weakness, others deserve a very careful examination, if the international community is to make any meaningful progress on the treaty path. The paper is going, first of all, to put the current proposal for a binding treaty in relation to the UN Guiding Principles on Business and Human Rights. The question to be addressed, in this respect, is whether the fear – expressed, among others, by Prof. Ruggie - that the treaty route is going to undermine the consensus capitalized by the Guiding Principles has any merit. This paper argues that working for the adoption a binding treaty may actually reinforce the incentives for States and businesses alike to align their conduct with the Guiding Principles and strengthen the civil society’s lobbying for the adoption of credible National Action Plans.

The present contribution is then going to address crucial concerns that currently remain about the precise nature and scope of a treaty, assessing, in particular, the pros and cons of limiting its scope to multinational corporations. The paper will then respond to Ruggie’s contention that a treaty body on business and human rights would have too broad a scope and would not be able to fulfil its role effectively, arguing, contrary to the former SRSG, that such a body would play a precious complementary role in respect to other UN human rights treaty bodies that already address corporate violations in their monitoring activities.

The next crucial question, and maybe the most pressing, is whether a binding treaty would improve victims’ access to remedies, as critics argue that it would not be able to overcome current enforcement problems at the national level, and that the option of an international remedial mechanism is not realistic. While responding to these objections, this paper is going to highlight how crucial barriers to remedy, such as the issue of jurisdiction, may be reduced by an internationally agreed instrument. 

Lastly, the contribution is going to address what may be deemed as the “elephant in the room”: is there any merit in striving for a treaty when half of the world seems to be rejecting this option? Is the North-South divide clear-cut on the matter, and what are, possibly, the agendas of States supporting or adversing the treaty route? Is Ruggie right in fearing that the long and complex process the international community is embarking on will result in a “minimum common denominator”?

Surya Deva, “Business and Human Rights: Is there any value in strolling on the treaty road?”

In June 2014, the Human Rights Council adopted Resolution 26/9 to establish an open-ended intergovernmental working group (OEIWG) 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 is the third attempt at the international level to put in place a legally binding instrument to impose human rights obligations on (transnational) corporations – the earlier two attempts being the 1990 UN Code of Conduct on Transnational Corporations and the 2003 Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. Repeated attempts to negotiate a legally binding international instrument should in itself show that the other existing regulatory initiatives – including the Guiding Principles on Business and Human Rights – do not offer effective “preventive” and/or “redressive” remedies to the victims of corporate human rights abuses and that there is some merit in taking a stroll on the treaty road.

Against this background, this paper will advance two claims. First, the idea of a legally binding international treaty should not be seen in isolation or in competition with other regulatory tools: rather we should conceive the treaty as an additional tool in our armour to regulate effectively the activities of difficult regulatory targets. In particular, I will propose that the proposed treaty should be seen as a “logical extension” of the Guiding Principles. Second, this paper will outline several arguments to demonstrate the value of a treaty – e.g., reiterating the normative hierarchy of human rights; redressing multiple regulatory asymmetries; fixing defects of the Guiding Principles; dealing with situations in which states and/or companies have no incentives to uphold human rights; facilitating a “continuous upward-downward” cycle of norm creation. I will also argue that even if no treaty is finally adopted, the process of negotiating a treaty should help not only in clarifying some unresolved legal issues but also pressurising companies to realise that human rights are no longer optional or negotiable rules of the game for doing business. In short, we should keep “flirting” with the treaty idea.

Session II: Critical analyses of a treaty on business and human rights

Antony Crockett, Hong Kong: "6 reasons why a treaty on business and human rights is a bad idea"

Larry Catá Backer, “Considering a Treaty on Corporations and Human Rights: Mostly Failures But With a Glimmer of Success” (pdf HERE)

In June 2014, three years after it endorsed the U. N. Guiding Principles on Business and Human Rights, the UN Human Rights Council moved to establish an open-ended 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. These actions brought into the open long festering tensions among stakeholders involved in developing governance frameworks to manage the human rights behaviors of enterprises. The substantive positions of most stakeholders are now quite clear. They appear perhaps irreconcilable. This chapter will consider what the process of negotiating the contemplated treaty may reveal about the state of structuring governance frameworks for business and human rights either within the anticipated treaty framework or under the UNGPs. What analysis may reveal is that while the move toward the negotiation of a treaty may reveal substantial normative and conceptual failures, it also suggests some not inconsiderable successes. After setting the context of the current debate, Part II considers the normative and structural difficulties of the move toward a comprehensive business and human rights treaty. Part III then considers its benefits, both for the process of developing structures of governance for business and human rights, and its substance. Taken together what may become clear is that even were the move toward a treaty to end in failure, the movement toward more robust governance of the human rights effects of economic activity will emerge stronger.

Ana María Suárez-Franco, Geneva: “Voluntary vs. Binding: civil society's claim for a binding treaty on Human Rights, TNCs and other Business.”

The initiative towards an international binding instrument on the issue of Human Rights, Transnational Corporations and other Business and the establishment of an Open- Ended Intergovernmental Working Group of the Human Rights Council, dedicated to its negotiation, derives in great part from the claim by a broad group of civil society organizations, social movements and grass roots communities worldwide, mainly during 2013 and 2104.

This demand is originated in the frustration created among affected communities and their advocates by the existing voluntary standards, which have shown to be insufficient for the effective protection of the victims and to ensure the liability of the involved companies, especially in the cases of human rights abuses caused by transnational corporations beyond the borders of their home countries.

Within the richness of views and experiences hold by the diverse groups involved in the process at local, national, regional and international level, the organizations facilitating the so called the Treaty Alliance, have identified some minimum elements that, on their view, shall be included in the new binding instrument to be negotiated.

The presentation will explain the political process behind the initiative, the main arguments to demand a binding international instrument in the area of Human Rights, Transnational Corporations and other business and the main agreements of the Treaty Alliance, regarding which should be the content, the nature and the form of the binding instrument. Finally, some aspects will be highlighted, regarding the way in which the process should be conducted.

Session III: Regional and local experiences and demands

Humberto Cantú-Rivera, “The Position of Developing Countries in the Business & Human Rights Treaty Process: The Case of Latin-American States”

The business and human rights sphere is in a particularly complex dilemma, resulting from apparently competing processes: on the one hand, the UN Guiding Principles on Business and Human Rights have recently started to make their way into domestic policy and non- governmental projects, in an effort to implement at the national level the guidance provided by its three pillars. On the other hand, as a result of resolution 26/9 adopted by the Human Rights Council in June 2014, discussions revolving around a treaty project on business and human rights are set to commence in July 2015. However, the complexity of this issue doesn’t stop there, but rather continues at a different, less- discussed level: how do the different States that will participate in the treaty process discussion approach this issue?

This paper focuses particularly on the standpoint of Latin American States in relation to the development of measures in the field of business and human rights. During the Council session where the resolution on the start of a treaty project was being discussed, Latin American States mostly voted in abstention (only Cuba and Venezuela voted in favor of the project, with Ecuador introducing the draft resolution). However, six other States (Argentina, Brazil, Chile, Costa Rica, Mexico and Peru) were not particularly attracted to this position, which may reflect that the so-called “divide” between developed and developing countries may have more nuances than initially thought.

The dissonant approach between the members of GRULAC is an important challenge to a unified regional approach to business and human rights, which may affect the development not only of the treaty discussions, but also of the general regional agenda of the Organization of American States and the Inter-American Commission on Human Rights on this issue.

Sara L Seck, “Lessons for the Treaty Process: Home State Practice and the Environment”

In March 2014, Amnesty International published a book entitled Injustice Incorporated: Corporate Abuses and the Human Rights to Remedy.5 Injustice Incorporated details four case studies described as “emblematic cases” through which the book “exposes how corporate political and financial power intertwined with specific legal obstacles [] allow companies to evade accountability and deny, or severely curtail, remedy.”6 These cases are: (1) the 1984 Bhopal gas disaster in India; (2) the 1995 Omai mine tailing dam rupture in Guyana; (3) the three decades long dumping of mine waste at the Ok Tedi mine in Papua New Guinea beginning in the 1980s; and (4) the 2006 dumping of toxic waste in Abidjan in Côte d’Ivoire by Trafigura. Among other features that these cases have in common is that all involve environmental harm with associated violations of human rights.

Justice Incorporated concludes with recommendations for legal reform, yet does not specifically call for a “binding international treaty” as a necessary mechanism for implementation of the reforms. Instead, recommendations are focused upon implementation measures that could be adopted through state practice, whether of legislatures or through judicial interpretation in common law jurisdictions. Specifically, Justice Incorporated identifies three major obstacles to remedy: (1) “extraterritorial” legal issues such as separate legal personality, limited liability, and jurisdictional hurdles; (2) corporate control over information leading to a lack of access to information by victims; and (3) the nature of “corporate-state relationships” that impact the “willingness and ability of States to uphold human rights, including the right to remedy.”7 In a more recent blog post, Amnesty International has, however, clearly linked these recommendations with its support for a “binding” treaty, indicating that such a treaty should “require each state to pass laws to make corporate human rights due diligence mandatory, and introduce sanctions and legal liability for companies that fail to act responsibly.”8

This paper will first briefly examine each of the Amnesty case studies in order to document the state practice and gaps in state practice identified. The paper will then consider this state practice through the lens of international environmental law so as to offer lessons for the treaty process. In addition to an examination of applicable customary international law,9 the paper will consider the structure of existing international environmental treaties that provide for civil liability in such areas as oil pollution at sea, nuclear accidents, transboundary movements of hazardous wastes, and mining of the international deep seabed. In conclusion, the paper will consider whether or not moving forward with a new treaty in the area of business and human rights is likely to yield real remedy to victims of environmental human rights harms similar to those identified in the Amnesty case studies. 

5 Amnesty International, Injustice Incorporated: Corporate Abuses and the Human Right to Remedy (Amnesty International, March 2014): http://www.amnesty.org/en/documents/POL30/001/2014/en/
6 Ibid at 11.
7 Ibid at 199.
8 Salil Shetty, “Corporations have rights. Now we need a global treaty on their responsibilities”, (Amnesty International, 21 January 2015): https://www.amnesty.org/en/articles/blogs/2015/01/corporations-have-rights- now-we-need-a-global-treaty-on-their-responsibilities/
9 As evidenced by the work of the International Law Commission’s Articles on the Prevention of Transboundary Harm and Loss Allocation Principles, as well as the International Law Association’s Principles on the Transnational Enforcement of Environmental Law.

Adriana Espinosa, “HRIA and the strength of grassroots. Lessons from European and Inter-American case-law on environmental rights for a draft treaty”

The objective of this paper is to show that procedural rights of communities affected by corporate activities should be included and protected as an essential element of any draft treaty on corporations and human rights. This would, among other positive effects, help to attain the enforcement of corporate human rights obligations contained in such treaty.

Session IV: Inspiration and elements from different branches of international law and the position of States
Nadia Bernaz, “Including Corporate Criminal Liability for International Crimes in the future Business and Human Rights Treaty”

The talk aims to answer three questions: (1) Why including corporate criminal liability for international crimes in the future business and human rights treaty? (2) How to do it? (3) What are the main remaining questions that would have to be solved before proceeding?

(1) The main reason for including corporate criminal liability for international crimes in the treaty is that arguably it is a less controversial area than that of the existence of corporate obligations for “simple” human rights violations.

(2) There are three main ways of doing it: (a) Following the model of the UN Convention against Torture, there would be a state obligation to prosecute, at the domestic level, corporations suspected of international crimes; (b) Following the model of the 1948 Genocide Convention, the business and human rights treaty could set up a system to refer cases to the ICC (c) A third option is that no business and human rights treaty is created, but the statute of the ICC is amended anyway.

(3) The pressing questions that would have to be solved have to do with the required mental element with regard to complicity liability under international criminal law, an area which has given rise to great uncertainty in recent years in the context of Alien Tort Statute litigation in the United States. Another pressing question would be related to the links between the treaty and the International Criminal Court Statute.

AGO Shin-ichi, “Whether to adopt a Convention or a Recommendation - experience of international labour legislation”

We may learn a lesson from the ILO’s experience when considering the issue of the UN instrument on business and human rights. The ILO instruments are of particular importance to the discussion on business and human rights, because they are, in a way, human rights standards addressing corporate behaviour and they are jointly formulated by and partly addressed to non-state entities, namely employers organizations (corporate entities) and trade unions (individual workers as ultimate addressees).

When the state parties to the Versailles Peace Conference designed the new institution, an idea was proposed to go for true international labour legislation, namely adoption by majority of an instrument binding all member- States. The idea being a little too drastic, a compromise was struck to have a peculiar form of instruments: a Convention and a Recommendation. The relationship between these two instruments was not clear at the outset, but a custom evolved over the years that a Convention would be adopted together with a Recommendation as a set.

The ILO’s renowned supervisory mechanism added to it a meaningful division of labour between the two mutually supplementing instruments. Art. 19 of the ILO Constitution has bestowed impressive power to a non-binding instrument to become legally more relevant. Both non-ratified Conventions and Recommendations adopted by the International Labour Conference have thus become a great vehicle to promote international labour standards. It is thanks to Art.19 that non- binding instruments of the ILO are more stringent than other similar international legal instruments, such as resolutions of the General Assembly of the UN. The same applies to the Conventions, which are legally binding. Art.22 of the Constitution gave power to the ILO to make ratifying countries to abide by. While supervision conducted by the ILO is not legally binding, as such, it performs a quasi-judicial function, which is only a little short of fully authoritative judicial decisions rendered by the ICJ and the like.

However, the ILO’s strength in international labour legislation has limits, in that the Conventions, even if they are equipped with legally binding force and rigorously monitored by the supervisory machineries, cannot directly address corporate entities, due to their intrinsic nature of being international treaties. Hence a Tripartite Declaration on Multinational Enterprises was adopted. We have, unfortunately witnessed a drawback in the development of this instrument’s implementation. It looks as if the OECD Guidelines on MNE overtook the role of the ILO’s Declaration. There is a reason for this. The follow-up mechanism designed for the ILO Declaration was not efficient enough, compared to that of the OECD instrument, which is equipped with an effective NCP system.

The foregoing argument leads us to reach a conclusion that a follow-up mechanism is most important to make the original instrument viable, regardless whether the original one is legally binding or not.

Luis Espinosa Salas, Mission of Ecuador to the United Nations in Geneva