The debates about a draft Treaty on Business and human rights has become more interesting as the core group that has served as the vanguard for a particular vision of that project has advanced its version of what such a treaty should look like through its third draft, a process that itself has been subject to criticism (Brief
Reflections on the Tragedies and Traps of Discursive Tropes Around the
3rd Draft of the Business and Human Rights Treaty Considered at the 7th
Session of the OEIGWG October 2021). That conversation has been enriched by the return of the United States to multilateral venues and its joining with others to suggest the value of and viability of a different, framework, approach to treaty making, one the essence of which has been nicely developed (considered in "A Better Approach to the Robust Treaty for Business and Human Rights:
Considering Claire Methven O’Brien's Proposed "Draft text for a Business
and Human Rights Treaty").
It is in that context that I am delighted to share links to the Video Recordings which are now available for the Seminar Series: "A framework treaty on business and human rights: Interdisciplinary insights" sponsored through the University of Dundee Institute for Social Sciences Research (ISSR) and organized by the extraordinary Claire Methven O'Brien (Lecturer in Law, University of Dundee and Danish Institute for Human Rights). This series adds much meat to the issues surrounding the current treaty making efforts, the framework treaty alternative, and the way in which both ought to more carefully embed themselves within the realities of the evolving trajectories of international law and governance. (my initial discussion published as "Shaping
a Global Law for Business Enterprises: Framing Principles and the
Promise of a Comprehensive Treaty on Business and Human Rights").
Given the heightened interest in the model, Claire was prevailed upon to now made recordings of the seminars available on YouTube. Included here are links to the respective sessions below:
1. Framework instruments and human rights treaties: Insights from experience
Panellists include Prof Barbara Koremenos (University of Michigan, USA), Dr Claire Charters (University of Auckland, New Zealand), Prof Shin-Ichi Ago (Ritsumeikan University, Japan), Dr Annalisa Savaresi (University of Eastern Finland, University of Stirling), Dr Jacques Hartmann (University of Dundee)
2. A business and human rights framework treaty: Contours and challengesPanellists include Prof Peter Muchlinski (SOAS, University of London), Dr Eva Jueptner (University of Dundee), Dr Alex Ansong (Ghana Institute of Management and Public Administration), Prof Dr Markus Krajewski (FAU, Germany), Dr Nicholas Bueno (UniDistance Suisse, Switzerland), Prof. Olga Martin-Ortega (University of Greenwich, UK) and Prof Humberto Cantú Rivera (University of Monterrey, Mexico).
3. Supporting the operation of a framework treaty in practicePanelists include Professor Başak Çalı (Hertie School, Berlin), Professor Erika George (University of Utah), Dr Anja Mihr (Center on Governance through Human Rights, Berlin), Dr Tom Pegram (University College London) and Dr Michael Riegner (Humboldt University Berlin).
4. Business and human rights: Governance challenges in an era of transitionPanellists include Professor Lorna McGregor (University of Essex), Professor Morris Altman (University of Dundee), Dr Axel Marx (University of Leuven), Professor Brigit Toebes (University of Groningen) and Dr Gale Raj-Reichert (Bard College Berlin).
5. Links to the business and human rights governance constellationPanellists include Professor Larry Catá Backer (Pennsylvania State University), Professor Dorothée Baumann-Pauly (University of Geneva), Dr David Birchall (London South Bank University), Dr Jernej Letnar Černič (Nova Univerza, Slovenia), Dr Sorcha McLeod (University of Copenhagen) and Dr Miho Taka (Coventry University).
Information about the Seminar series follows below along with Claire Methven O'Brien's quite useful: "A business and human rights framework treaty: Information note."
Business and Human Rights Network
A framework treaty on business and human rights: Interdisciplinary insights
The world faces unprecedented and inter-linked environmental, economic and social challenges with profound implications for human rights. Besides climate change, catastrophic biodiversity loss and unsustainable resource consumption, these include demographic change, deepening global inequalities and trends of asset concentration, as highlighted during the Covid-19 pandemic. Meanwhile financialisation and the commercialisation of the public sphere and private communications carry implications for democracy’s ability to sustain itself that are still emerging.
Corporations, their activities, influence, incentive structures and business models are deeply implicated in such problems. This raises the question, through what international standards and mechanisms should corporate human rights impacts be addressed? Recent decades have witnessed an explosion of new initiatives, from individual company codes of conduct to multi-lateral trade, investment and financial instruments, sustainability reporting rules and supply chain legislation. In the United Nations (UN) attempts to define international human rights standards addressed to business have spanned several decades. In 2011, the Human Rights Council endorsed the UN Guiding Principles on Business and Human Rights (UNGPs), a soft-law framework.
A parallel process to develop a business and human rights treaty launched in 2014 has struggled to make progress. Yet interest from key players suggests that a framework treaty on business and human rights, as proposed by Dr. Claire Methven O’Brien, Baxter Fellow and Lecturer in Law at the University of Dundee, might offer a route to break the impasse. To explore this possibility further, this series of inter-disciplinary online seminars will convene internationally-recognised scholars and experts to address questions including:
- What should be the scope and content of a framework treaty on business and human rights, taking into account existing standards, current problems and future needs?
- What institutional design features could help to make framework treaty regime effective?
- What lessons can be learned from experience under other international framework treaties?
- How can more constructive diplomacy on a framework treaty be fostered?
- How can we optimise the contribution of a framework treaty in addressing threats to human rights from business activities, but also wider global governance challenges, now and in the future?
Online seminar series part I: September 2021
1. Framework instruments and human rights treaties: insights from experience.
Wednesday 15 September 2021 12:00-13:30 BST
This opening seminar will draw together leading experts to examine the operation of framework-style instruments in other policy domains, including international labour regulation, indigenous peoples’ rights, environment and climate change, as well as existing international human rights treaties. The panel will explore the strengths and challenges of framework instruments in such contexts, their normative structure and institutional design, as well as factors influencing their effectiveness in practice – providing a platform to reflect on the possible merits of a framework-style treaty in the business and human rights domain.
Panellists include Prof Barbara Koremenos (University of Michigan, USA), Dr Claire Charters (University of Auckland, New Zealand), Prof Shin-Ichi Ago (Ritsumeikan University, Japan), Dr Annalisa Savaresi (University of Eastern Finland, University of Stirling), Dr Jacques Hartmann (University of Dundee)
The seminar will be chaired by Dr Claire Methven O'Brien (University of Dundee)
2. A business and human rights framework treaty: contours and challenges.
Thursday 23 September 2021, 12:00-13:30 BST
In light of Dr. Claire Methven O’Brien’s 2020 and 2021 proposed draft framework treaty texts, this seminar will seek leading experts’ reflections on the objectives and role of a business and human rights treaty seen from the perspective of other fields of international law, including trade, investment, labour, international private and humanitarian law and regional human rights treaties. This will provide a platform to explore strengths and weaknesses of a framework approach to a business and human rights treaty as well as what should be its main elements.
Panellists include Prof Peter Muchlinski (SOAS, University of London), Dr Eva Jueptner (University of Dundee), Dr Alex Ansong (Ghana Institute of Management and Public Administration), Prof Dr Markus Krajewski (FAU, Germany), Dr Nicholas Bueno (UniDistance Suisse, Switzerland), Prof. Olga Martin-Ortega (University of Greenwich, UK) and Prof Humberto Cantú Rivera (University of Monterrey, Mexico).
The seminar will be chaired by Dr Claire Methven O'Brien (University of Dundee)
3. Supporting the operation of a framework treaty in practice.
Thursday 30 September 2021, 14:00-15:30 BST
How should a business and human rights framework treaty regime be designed to have greatest impact preventing and remediating abuses, and securing effective accountability of duty-bearers? What obstacles to effectiveness can be avoided? What insights about its potential – and likely limits - as an engine of human rights governance in the corporate sector are available from existing studies? This seminar will draw together leading experts to identify institutional design elements and contextual factors shaping the influence of a business and human rights framework instrument.
Panelists include Professor Başak Çalı (Hertie School, Berlin), Professor Erika George (University of Utah), Dr Anja Mihr (Center on Governance through Human Rights, Berlin), Dr Tom Pegram (University College London) and Dr Michael Riegner (Humboldt University Berlin).
The seminar will be chaired by Dr Claire Methven O'Brien (University of Dundee)
Online seminar series part II: October 2021
4. Business and human rights: governance challenges in an era of transition
Wednesday 6 October 2021, 12:00–13:30
This seminar will set the wider context for the business and human rights treaty discussion by exploring the human rights dimensions of key social, economic and environmental governance challenges; how the business sector is implicated in them; and what might be the contribution of a UN business and human rights framework treaty regime to their effective resolution.
Panellists include Professor Lorna McGregor (University of Essex), Professor Morris Altman (University of Dundee), Dr Axel Marx (University of Leuven), Professor Brigit Toebes (University of Groningen) and Dr Gale Raj-Reichert (Bard College Berlin).
The seminar will be chaired by Dr Claire Methven O'Brien (University of Dundee)
5. Links to the business and human rights governance constellation
Thursday 14 October 2021, 14:00–15:30
This panel will consider how a business and human rights framework treaty should connect with wider institutions and mechanisms of business and human rights governance, for instance, in the International Labour Organisation and Organisation for Economic Cooperation and Development; sector and value-chain based initiatives; corporate governance, reporting and accounting standards; international financial institutions; regional bodies; and national measures including national action plans on business and human rights.
Panellists include Professor Larry Catá Backer (Pennsylvania State University), Professor Dorothée Baumann-Pauly (University of Geneva), Dr David Birchall (London South Bank University), Dr Jernej Letnar Černič (Nova Univerza, Slovenia), Dr Sorcha McLeod (University of Copenhagen) and Dr Miho Taka (Coventry University).
The seminar will be chaired by Dr Claire Methven O'Brien (University of Dundee)
Closing seminar: November 2021
6. Next steps: how to move the treaty process forward
Concluding the series, this seminar will reflect on how the UN process can now be steered to a positive conclusion: an effective, consensus-backed instrument that supplies dynamic and effective accountability for business-related human rights impacts now and in the future.
Further details on this seminar will be announced shortly.
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25 October 2021
Claire Methven O'Brien
A business and human rights framework treaty: Information note
The Seventh session of the United Nations’ open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (OEIGWG) is taking place from 25- 29 October 2021. Participating in this process for the first time, the United States, in its opening statement delivered on Monday25 October 2021, expressed its openness to exploring alternatives to the 3rd Revised Draft Legally Binding Instrument to Regulate, in international human rights law, the activities of transnational corporations and other business enterprises, including specifically “a legally binding framework agreement” that would build on the 2011 UN Guiding Principles on Business and Human Rights (UNGPs).
In June 2020, after several years of closely monitoring the OEIGWG process, I developed and published a Preliminary draft framework treaty on business and human rights, building on the UNGPs. In July 2021, I published a Revised framework busines and human rights treaty text, to illustrate how a framework treaty could integrate elements reflecting the objectives and concerns of the OEIGWG’s 2nd Revised Draft. In October 2021, I published a set of line edits to demonstrate how the OEIGWG 3rd Revised Draft could be amended in line with a framework treaty approach.
Supplementing these texts, and other analyses I have published on the topic, this short note aims to provide information to introduce and explain some of the main characteristics that might be associated with a framework-style binding treaty on business and human rights.
1. What is a framework treaty?
A framework convention, or framework treaty, is a legally binding international agreement. Such agreements have a legal status equal to other international treaties.
The key features of framework treaties include: the formulation of key objectives of the agreement; a set of broad commitments by states parties to implement the objectives specified; and a governance regime to promote and facilitate implementation of treaty commitments (e.g., meetings of state parties). Typically, framework treaties also establish a mechanism (or mechanisms) by which more detailed rules on specific topics can be developed and adopted by states parties over time.
2. What framework treaties have previously been adopted by states, and why?
Existing framework treaties include the UN Framework Convention on Climate Change (1992), the Convention on Biological Diversity (1992), the World Health Organization Framework Convention on Tobacco Control (2003), and the Vienna Convention on the Protection of the Ozone Layer (1985). Some framework treaties have been adopted by regional organisations (e.g. Council of Europe Framework Convention for the Protection of National Minorities). While they vary in their level of detail, they all commit states to certain principles and processes without locking them in to one formula to meet those goals.
In addition, existing human rights treaties within the UN and regional systems of human rights protection exhibit some characteristics of framework treaties, in that they articulate broad-ranging rights, and by implication broad state duties, without specifying detailed means of implementation at the outset. Rather, the content of states’ human rights duties is concretised over time, via supplementary guidance provided by international expert bodies, the jurisprudence of judicial or quasi-judicial bodies, and also with reference to national laws, policies and practices.
Why have states have pursued framework-style agreements in some policy areas, but not others? Researchers have found that framework instruments are used to address policy areas that are characterised by: i) a strong consensus on the importance of international action to address an issue, but only ‘thin’ political consensus on specific approaches to be applied, including enforcement; ii) complexity of the subject matter; iii) breadth of
the subject matter, i.e., going beyond one specific legal domain; iv) dynamism of the subject matter, i.e., the frequently changing nature of the practice to be regulated and the need to take into account evolving policy approaches; v) a need to bring in stakeholders beyond the state, because they have knowledge, resources, expertise and impacts relevant to solving the problem at hand.
3. What might be key elements of a BHR framework treaty aligned with the UN Framework and UNGPs?
Core elements of a BHR framework treaty could include:
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a) Overall objective(s): The treaty’s objectives could be based on the 2008 UN ‘protect, respect, remedy’ Framework on BHR. They could however include additional elements reflecting the concerns of the 3rd RD.
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b) General state obligations under the treaty: These should at minimum oblige states to take steps to achieve the treaty’s core objectives. Specific procedural measures, such as periodic reporting, as well as the development and adoption of BHR national action plans or strategies could also be included. Likewise, some additional substantive obligations might be addressed in this section.
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c) Guiding principles for further normative developments: These could include the 2011 UNGP, but could also incorporate additional principles relating e.g. stakeholder participation.
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d) Mechanisms to facilitate further normative developments: These would include, for instance, a Conference of States Parties to permit the adoption of more issue-specific legal instruments, including additional protocols (e.g. on national due diligence legislation, or legal accountability for business involvement in abuses in conflict-affected areas); as well as nonbinding guidelines (e.g. on national remedy regimes; human rights impact assessment; and corporate human rights reporting).
4. What advantages might a BHR framework treaty have?
The OEIGWG 3rd Revised Draft contains wide-ranging detailed rules on how states should regulate business at the national level and on remediation of business-related abuses, including via transnational private and criminal litigation. National laws and judicial practices currently exhibit considerable diversity in such areas; Equally important, states are still experimenting with new approaches to regulating issues such as corporate due diligence and human rights reporting. The emergence of best practices suggests that a one-size fits all approach at best premature and at worst is ill-advised.
Such national diversity and regulatory dynamism presents also technical and diplomatic hurdles for the 3rd Revised Draft. The more extensive and specific the provisions of any treaty, the smaller becomes the group of states that can or will accept it, particularly where the instrument’s scope is broad. Besides, the threshold of corporate “human rights abuse” remains unclear, as does the consistency of this approach with principles of subsidiarity and exhaustion of domestic remedies.
By contrast, a BHR framework treaty would establish new, binding BHR duties on states, including to regulate business effectively and to ensure effective remediation of BHR abuses for victims. It would consolidate the existing consensus in support of the UNGPs and leverage a decade of investments made by states, businesses, human rights actors and NGOs in UNGPs implementation. It would be inclusive of a wider range of states, broadening its reach and impact, consistent with the universality of human rights. Finally, via a range of mechanisms allowing the adoption, on a continuing basis, of a range of kinds of standards and guidance, a framework treaty could respond agilely to the complex, diverse, and fast-changing BHR challenges.
Dr. Claire Methven O’Brien
Lecturer in Law, University of Dundee
25 October 2021
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