"Ready, Steady, Debate!": Treaty Talks Begin at UN

Chip Pitts, Lecturer in Law, Stanford and Oxford

The right treaty can benefit everyone and cohere with the Guiding Principles; to get there, we need a broad open debate.

This blog introduces a new debate blog series on the proposed treaty and its complimentarity with the UN Guiding Principles. We believe that an inclusive and open debate is crucial to make sure these initiatives deliver for everyone, and that the business & human rights movement continues its 'unity in diversity'.

The mind whirls at the pace of change today. 

Just a few years ago, explaining the “treaty road not travelled,” former SRSG Prof. John Ruggie said negotiations were “unlikely to get off the ground.”  Only last year, Business & Human Rights Resource Centre co-hosted with Notre Dame a London event debating whether the world needs a treaty. 

Yet next week in Geneva, the UN Human Rights Council’s Open-Ended Intergovernmental Working Group (OEIWG) begins negotiations in Geneva toward a binding treaty in the field of business and human rights. 

Although at a preliminary stage, the talks are very real.  (“We’re here! Don’t fear! Get used to it!”).  Excellent side events are also planned, ranging from that of the IOE and business on July 6th to that for civil society on July 8th.

In retrospect, this development was practically inevitable and should be welcomed on all sides (rather than the occasion for wailing and gnashing of teeth it appears to be for some).

First, this is the natural next stage of the progressive evolution the SRSG himself and the Guiding Principles (GPs) themselves have contemplated, since the GPs are “a common global platform for action, on which cumulative progress can be built.” 

More than a decade ago, Prof. Ruggie noted that “at the end of the day the accumulation of experience inevitably will lead to a desire for greater benchmarking, for moving from ‘good’ to ‘best’ practices and even formal codification, so that some of the ‘soft law’ products of voluntary initiatives are likely to become ‘harder’ law down the road.”  Indeed, the GPs recognize that “[c]ollective action through multilateral institutions can help States level the playing field.”

Second, things have changed over the past decade.  Polls by the UN Global Compact and The Economist Intelligence Unit confirm that business mindsets have evolved, with overwhelming majorities of business executives recognizing that human rights are a matter for businesses as well as states.  More and more, executives see enhanced global regulation playing a positive role.  Participants in the UN GC survey “unequivocally” call for stronger hard law frameworks to support a level playing field for responsible corporate action, as do those in the Economist Intelligence Unit survey (see graph below).

Graph from Economist Intelligence Unit survey

Third, it’s clearer than ever that every arrow in the global quiver must be used to enhance effective remedies, since (as Business & Human Rights Resource Centre constantly shows) most victims of business abuses remain without remedy most of the time – and this will continue to be so unless there’s much faster and better progress.

None of this is to underestimate the complexity or the ideological, political, and other tensions and barriers in reaching an effective treaty, or to suggest that a good one can be achieved overnight.  (The resolution itself contemplates a longer-term, likely multi-year process).  But it is to say that achieving a meaningful result is both possible and worth the concerted effort of all stakeholders concerned.

Good process will be indispensable, as the successful GPs demonstrated.  The OEIWG’s similar attention to inclusiveness, openness and transparency, diversity of viewpoints, and mutual respect will help the OEIWG deliberations to be “constructive” (as the authorizing resolution expects). The focus should be on issues, not ideologies or personalities (or assumptions and caricatures regarding “national personalities”). Developing ways to hear victim input deserves early prioritized attention.

Some broad areas of consensus seem to be emerging, including the need for the OEIWG to complement and not compete with the GPs

The OEIWG-sponsoring states are to be commended for keeping good process in mind thus far, with advance submissions solicited, audio recordings planned, and the initial meeting set to “public” by default.  Discussions will be widely open and accessible (to UN member states, observers, agencies, intergovernmental organizations, national human rights institutions, and NGOs with UN consultative status).  Global Business Groups including the IOE, NGOS including ICAR, Business & Human Rights Resource Centre and the Treaty Alliance, and academics, have already productively engaged with the OEIWG. 

Some broad areas of consensus seem to be emerging, including the need for the OEIWG to complement and not compete with the GPs. The OEIWG can encourage states to develop and implement National Action Plans (NAPs), urge companies to roll out due diligence, and require reports back to UN supervisory mechanisms. Other issues are tougher:  Duties on only states or companies too? Only transnationals or also local companies? What about extraterritorial liability?

Unfortunately, the US  government plans to boycott the deliberations, and the EU and Norway apparently still condition participation on several parameters, including (i) a third-party chair to facilitate the process, (ii) broadening the focus beyond transnationals, (iii) commitment by all to continued implementation of the GPs, and (iv) consultation with relevant experts, civil society, and business. Switzerland plans to attend and some individual EU nations (Greece?) might do so as well.

While undoubtedly intended to be useful, the EU should consider these more as suggestions to be discussed with the OEIWG rather than rigid conditions to be imposed before the EU offers its usual constructive participation.  For the EU and US to boycott the talks, given the greater power and wealth of the EU and US and their multinationals vis-à-vis the 85 mainly developing nations supporting the treaty, is unseemly. 

The EU in particular has “consistently supported efforts to enhance more effective implementation of the [GP’s] Access to Remedy Pillar” – which (treaty sponsors note) is also a major goal of the treaty.  So EU participation would help this shared goal as well as the EU’s aim to more closely align its CSR approaches with global approaches.

Let us hope some lessons are drawn from the current Grexit crisis, where each side has created unnecessary risks for everyone by failing to display integrative leadership (truly and deeply listening and responding to core interests and needs of the other side). 

Regarding this treaty, too, developed countries are too quick to defend untrammeled freedom of action by their financially powerful transnationals, while people in developing countries want and need responsible investment and capacity-building but are literally sick and tired of the exploitative social and economic dumping.

This opportunity to lift the playing field through the right treaty will require transcending comfortable politics and ideologies, which highlights the ongoing need for a broad and open debate such as that you’ll see on this site.  With proper care and feeding, however, a treaty can grow from this small seed into a living instrument that will cohere with and build on other initiatives (such as the GPs) and serve the interests of all – states, companies, and especially the victims of violations.

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Stanford and Oxford Lecturer in Law Chip Pitts teaches CSR, Business & Human Rights and serves as an independent expert to the Human Rights Council’s Open-Ended Intergovernmental Working Group on an International Instrument in this field.