A process is now underway at the United Nations to replace the voluntary “soft law” UN Guiding Principles on Business and Human Rights, known informally as the ‘Ruggie’ principles, with harder international law although insiders stress that the approach is still considered “experimental”.
Since adoption in 2011, the Ruggie principles (named after Harvard academic John Ruggie who oversaw them) have been criticised for an over-emphasis on non-judicial and voluntary mechanisms though they are still widely regarded as the key global foundation for business and human rights norms.
UN member states have this week resumed negotiations over a binding treaty which could soon require all companies to prove that their value chains are free from human rights violations, in addition to making it easier to hold companies legally accountable for any abuses.
The landmark Treaty on Business and Human Rights, currently in its second draft, is set to introduce mandatory requirements to proactively identify and address any potential human rights abuses across a company’s own operations and that of its business relationships. Crucially, companies which have carried out the required due diligence will still be on the hook for any abuses committed.
This addresses a key criticism of existing due diligence laws, such as those in France, which suggest that companies have legal immunity against human rights abuses as long as mandatory requirements for due diligence are met.
The treaty also aims to prevent courts from declining to hear human rights claims on the basis that other jurisdictions are more suited to do so. To date, claims filed in Western jurisdictions have often stalled or been thrown out due to companies successfully arguing that they should be decided by courts located elsewhere, often in developing countries.
Legal scholars say that victims find it difficult to attain remedies in such cases, especially in economically vulnerable host states which can be susceptible to coercion and corruption.
Finally, the treaty’s current draft will require countries to ensure that all international trade and investment agreements are compatible with existing human rights conventions and that companies can be held criminally liable for human rights abuses. This would reform the law in a number of countries, including Argentina and Russia, which currently do not recognise the criminal liability of companies.
A proposal, which is currently being considered but is not yet included in the draft, is the creation of a separate international court to adjudicate human rights claims, particularly in the event that a state is unwilling or incapable of doing so.
The treaty takes forward some of the concepts first introduced in the Ruggie principles such as state obligations to protect against corporate human rights abuses and the practice of human rights due diligence as part of corporate governance.
The current negotiations session over the binding treaty, which are due to conclude on Friday October 30, are being undertaken by the Open-Ended Intergovernmental Working Group (OEIGWG) ‘on transnational corporations and other business enterprises with respect to human rights’.
This is an open forum for UN member states to deliberate on the treaty’s draft and the talks are led by Ecuador, which currently holds the working group presidency. This is the sixth session of the OEIGWG since negotiations began in 2013.
Gonzalo Berrón, a Fellow of research nonprofit the Transnational Institute who has been involved in supporting treaty negotiations, said to RI: “If we don’t have a treaty in two years, my thinking is that we won’t have a treaty. Anything beyond this means we will start to lose momentum, considering that we have already been working on this for the past six years.”
Members of the OEIGWG and human rights groups recently called for greater involvement from the European Union after noting the bloc “has not constructively engaged in the substantive debates” during previous sessions.
Domestically, the EU has committed to putting forward mandatory due diligence legislation in 2021. A public consultation on sustainability-focused due diligence, which will inform the proposals, has just been launched.