Ruggie warns of conflict as UN negotiations begin on binding corporate human rights law

United Nations launches process that could – potentially – lead to ‘hard’ human rights law

A United Nations process that could potentially lead to a legally binding treaty governing international companies’ human rights obligations has kicked off – though even leading figure John Ruggie has admitted the process will be “drawn out and conflicted”.

The negotiations began earlier this month in Geneva with the first meeting of a body set up under the UN’s Human Rights Council.

The so-called Open-Ended Intergovernmental Working Group (OEIWG) was mandated by a resolution last year that was passed despite opposition from developed nations such as Germany, France, the UK and US. Chairing the process is Ecuadorian politian and diplomat María Fernanda Espinosa.

The resolution called on the 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”.

The initial phases of the process so far have been to collect input; Espinosa’s task is to prepare a draft legally binding instrument for “substantive negotiations” at the group’s third session. Just nine of 28 EU member countries attended the first day of the consultations, and the US boycotted the process entirely.

The UN developments come as investors are demonstrating increased interest in corporate human rights. Earlier this month, for example, saw the launch of a consultation on the Corporate Human Rights Benchmark (CHRB), with the pilot ranking planned for June next year. Also this month, the Principles for Responsible Investment (PRI) released
a report looking at the business case for engaging extractive companies on human rights.

“Further international legalization in business and human rights is inevitable as well as being desirable in order to close global governance gaps,” said Ruggie, the Harvard professor and author of the existing UN Guiding Principles on Business and Human Rights (the “Ruggie Principles”), a ‘soft law’ framework introduced in 2011.

But he went on to say the working group’s first session “shed no light on these questions other than to confirm that the process will be drawn out and conflicted”.In June it emerged that a $4trn coalition of 81 investors now support the new UN Guiding Principles Reporting Framework.

“If present dynamics continue,” Ruggie wrote in a blog posting on the Business & Human Rights Resource Centre, “the process is likely to yield one of two outcomes: no treaty at all, or one that squeaks through to adoption but is ratified by few if any major home countries.” He called for greater leadership from the NGO community, saying: “Civil society needs to help by advancing workable proposals that states cannot ignore or dismiss out of hand.”

“Further international legalization in business and human rights is inevitable”

And, given that the likely “slow and contested negotiations” it was imperative for further progress to be made continue to be made on implementing the UN Guiding Principles, he argued.

At this stage of the negotiations there has been little direct reference to investment institutions, although Ruggie stressed to RI in February that the principles that bear his name clearly apply to institutional investors and the financial community more generally. A White Paper outlining the options for a treaty was prepared for the American Bar Association, Center for Human Rights, and The Law Society of England and Wales in May.

The UN’s Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-Corpuz, told the meeting the Ruggie structure should be seen as an “interim platform” while a new instrument is developed.

She said: “We face a context where corporations still lack international legal responsibility commensurate with their role and influence in international and domestic affairs.” At the same time, there were gaps in the international legal framework in regard to the duty to protect human rights and access to remedy.

“An international legally binding Instrument would significantly help in establishing the much needed balance in the international system of rights and obligations with regard to corporations and host governments,” she added. Link to relevant UN web page.