This blog is part of the debate blog series on the proposed treaty and its complementarity 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'.

I had the privilege, ten days ago, to attend an excellent meeting on the pros and cons of an international treaty on business and human rights.  It was organised by Vuyelwa Kuuya at the Institute of Ethics, Law and Armed Conflict, University of Oxford.   Fortunately their expertise in conflict mediation was not required – everyone was well-behaved, even when disagreements were stark!

But the international treaty does evoke strong emotions across our broad movement.  Those in favour often express their desire for harder law, by speaking of their frustrations at the UN Guiding Principles and voluntary initiatives.  While advocates of the Guiding Principles retort that they have only been around three years – a blink in the eye of most UN agreements - and that there are harder law applications of the GPs in national law, such as the US reporting requirements in Myanmar, and other international standards (OECD Guidelines, ISO 26000).

What emerged from the meeting was some greater clarity on the fault-lines in our movement.  But I have to admit, I remain to be convinced by either side that a strategy of competition between harder and softer law strategies is likely to be more useful to embedding human rights in business than an effort at complementarity.  To put it another way, I think both the soft and hard law advocates are likely to gain more by seeking an appropriate scale of complementarity and collaboration, than by competing and seeking to undermine the other.

Three questions emerged for me, which I have only tentative answers to:

Will the process of an international treaty draw resources and attention away from the urgent task of implementing the UN Guiding Principles?

From what I have heard recently, I doubt it.  Firstly, a senior UN official told me recently that he had seen more energy in the GPs in the first month after the treaty vote than in the previous year – implying the treaty vote had acted as a political spur to the Guiding Principles rather than creating a ‘legal chill’.  This is perhaps also borne out by the fact that the US and Germany have announced their preparation of their National Action Plans since the vote.  Equally, I have attended two global civil society fora in September where this debate was on the agenda.  In both fora the vast majority of organisations were understandably only willing to be in a secondary support role to binding treaty strategies – ‘call us when you need us’.  They are unwilling to be diverted at all from their current national, regional, or global strategies.  Similarly, my conversations with CSR directors in global companies have confirmed that they are either ignoring the treaty process, or at most keeping a watching brief.  So if there is an opportunity cost to the inclusion of the binding treaty in our multifarious processes for change, it is likely to be only small, at least for the next few years.

Is the international treaty a panacea or the main game?

The answer for most softer and harder law advocates appears to be ‘no’.  I have not heard anyone say that this is the vainglorious magic bullet that will solve all our problems.   Just as the authors of the Guiding Principles made no claim to a cure-all, and John Ruggie described their adoption by consensus as ‘the end of the beginning’, echoing Churchill after the first victories of the allies in World War II.  Yet, I hear both sides accusing the other of over-claiming for their process.  If our broad movement can increase our narrative of mutual respect and a search for the complementarity of our strategies, we are likely all to be strengthened. 

Should the international treaty be antagonistic to the achievement of the Guiding Principles (and other soft law, or advances in national law)?

No.  It would be counter-productive and fly in the face of experience of movements for change.  Our broad movement includes intra-preneurs seeking to embed human rights inside the business models of their own companies; civil servants advocating for greater incentives and regulation to promote human rights in their ‘home’ companies; grassroots and community organisations confronting egregious abuse; and non-governmental organisations either advising or negotiating with companies to prevent abuse and promote human rights due diligence and remedy.

Each of these strategies has legitimacy, and each has delivered results, often amidst considerable frustration.  It is in this light that our movement has to hold, more than ever, to the principle of ‘unity in diversity’ – just like most great and successful movements for systemic economic and social change have: from anti-slavery, to Anti-Apartheid, to civil rights (all three of these are arguably precursors to the current broad movement for business and human rights).  We should disagree assertively and debate the best strategies and fora for change.  But we should also hold to the intellectual rigour of knowing that we don’t know for certain.  It then follows that we should seek to design our own strategies so that they build synergy with, rather than compete against, the strategies of others in our movement.  Our diversity allows our movement to cover a vast terrain, and also to respond when the powerful opponents of business and human rights forum-shift (move their advocacy to another fora if the current site of negotiations is not doing their bidding for them).

And while there are real differences in our movement, which should not be hidden, I have heard quite some complementarity and a continuum of initial ideas around the treaty over the last three months.  For instance:

Most of our movement recognise that together we have to work at the national, regional, and global levels, and that each of these requires a combination of soft and hard power, and soft and hard law.  Opponents to business and human rights have far more hard power than us: they have hard law, new courts for international settlements, vast resources, and the ability to threaten and bankrupt.   But hard power is less useful in our age of global inter-dependency, where there are major costs to valuable relationships if it is exercised.  Our movement’s current strengths rest far more on soft power: modelling good solutions, reciprocity, public trust and legitimacy, soft law, and a diverse network of mutual support.  We would like more hard law and hard power to uphold human rights in business, but we should not underestimate, or still worse, undermine, our movements’ strengths.

Finally, the treaty process may ultimately fail to deliver anything concrete.  Yet even in the face of a failure such as this, it may still have served our movement as a ‘stick’ to drive other processes, alongside the carrot and stick of the Guiding Principles.  I continue to be impressed by the effort that our movement puts into strategy.  The fact that so few organisations are currently planning to devote time to the treaty process is a sign of strength – we need some up-front investment from experts on potential content, not a vast movement in the first year – and it will only gain more resources from across our movement commensurate to its demonstrable potential to deliver for the communities and individuals we serve. 

There is no silver bullet for the cause of human rights in business, but one of our greatest weapons is our unity in diversity.  We should not let our differences around the treaty corrode that weapon.