As the dust settles on the recent July meetings in Geneva of the new UN Intergovernmental Working Group (IGWG) on transnational corporations and other business enterprises, which kicked off negotiations towards a treaty on this topic, there are some interesting developments to consider. These developments concern how the human rights narrative at the UN related to business activities might finally be shifting toward recognition and interaction with important traditional human rights principles.
Within human rights law and in the practice of human rights advocates, much is made of the primacy of human rights over all other legal obligations states have. In particular, article 53 of the Vienna Convention on the Law of Treaties, and various articles of the UN Charter, have created a solid international legal foundation for understanding this norm, although so far not much has been made of emphasizing the primacy of human rights in the context of the UN’s debate around ‘business and human rights.’
The ‘principled pragmatism’ of the UN Guiding Principles resulted in little reinforcement for the primacy of international human rights law in the context of investment activities. The Guiding Principles reflection of political realities more than restatement of international law produced the following result in Principle 9:
States should maintain adequate domestic policy space to meet their human rights obligations when pursuing business-related policy objectives with other States or business enterprises, for instance through investment treaties or contracts.
Economic agreements concluded by States, either with other States or with business enterprises – such as bilateral investment treaties, free trade agreements or contracts for investment projects – create economic opportunities for States. But they can also affect the domestic policy space of Governments…Therefore, States should ensure that they retain adequate policy and regulatory ability to protect human rights under the terms of such agreements, while providing the necessary investor protection.
In Geneva in July though, the juxtaposition in the way principled pragmatism can make way for the creative application of a key human rights principle in the context investment activities was clear from the first day. Of the two central messages of the keynote speech, made by Victoria Tauli-Corpuz (UN Special Rapporteur on the rights of indigenous peoples), one was the opportunity a future treaty has to reinforce the primacy of human rights in the context of investment activities. As illustrated by the draft report of the meeting, the primacy (or superiority, as it was framed) of human rights was discussed on several occasions, which provoked no contention from any of the states present.
Whether this seemingly uncontroversial element of the debate goes on to be a persistent feature of future negotiations, we will have to wait and see. For now, it is promising to see the introduction into UN discussions around corporate-related human rights violations take a turn towards directly referencing human rights norms, even if only in a general way at this early stage. The next step is to consider how this concept could further be unpacked in the future to establish concrete recommendations concerning exactly how states should uphold the primacy of human rights in the context of business activities.
Perhaps an examination and application of traditional human rights law principles can again be of assistance here, providing a foundation for further progress later on. In particular, among all the developments of international human rights law principles in the 67 years since the passage of the Universal Declaration of Human Rights, the articulation and subsequent acceptance by states of a their tripartite obligations to respect, protect and fulfil human rights is one of the most useful analytical legal advances in the context of corporate related human rights abuses. Evolving from analytical elaborations of state’s obligations by Henry Shue’s book on American policy and human rights in 1980 and in Asbjørn Eide’s 1987 report to the UN as Special Rapporteur on the Right to Food (UN Doc. E/CN.4/Sub.2/1987/23), these conceptual advances are accepted as key to the modern understanding of how states are required to go about meeting their international legal obligations. And yet, with the remarkable exception of the elaboration and increasing recognition of the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, there is very little consistent application of the tripartite framework of states’ obligations in the context of UN debates around how to address corporate-related human rights violations.
A good example is with investment arbitration – which in fact Ecuador itself (the co-sponsor of the UN Human Rights Council Resolution, 26/9, which established the IGWG) cites as a key problem that developments in international human rights law in this area should address. I was asked by a diplomatic official during a panel discussion at the meetings in Geneva what ideas should he send back to his colleagues at the department of foreign affairs in his capital for how states could begin to address the “architecture of impunity” – a term some NGOs use to describe the structures within investment and trade law that enable corporations to avoid accountability and liability for human rights abuses they are responsible for.
The answer I provided was simple and well-documented by many: It is states that have constructed the systems of international investment and trade law that have been clearly identified as prime contributors to exacerbating human rights violations. So the evidence shows, reflected too in aforementioned UN Guiding Principle 9, trade and investment treaties facilitate investments that can undermine the ability for states themselves to respect, protect and fulfill human rights, without any requirement for due diligence or other human rights safeguards; and it is states, too, that willingly adopt investment treaties containing arbitration mechanisms that have many times punished states for enacting laws that protect their environment and the human rights of their citizens.
How then these practices be considered in alignment with the primacy of human rights, and the obligations of states to respect, protect and fulfill human rights? While there might be many ways to answer this question, in the context of shaping the future narrative within the UN discussions of a treaty, it is imperative that states and advocates look to the rich history of international human rights law to begin to analyze how new instruments of international law can build on this strong foundation to address challenges of the modern economy.
Infusing diplomatic debates and broad narratives within treaty negotiations with the creative restatements of human rights law to address modern problems might only seem like an advance in semantic terms. However, within the complex and often otherworldly airspace of UN negotiation rooms the struggle for control of narrative is central to possessing a key currency of international human rights law diplomacy, which is needed at this moment in time to ensure the beginning of negotiations start beyond the realm of principled pragmatism. The momentum is with human rights advocates, and playing out the negotiations on the terms of human rights principles gives human rights advocates home-ground advantage at the Human Rights Council.
Only once the many hundred human rights activists and advocates present in Geneva each year, so ably keeping watch of the IGWG proceedings, can claim success on these terms, will they be able to begin the heavy lifting of bringing the promise of a treaty to life for communities everywhere.
Dominic Renfrey is a Programme Officer at the International Network for Economic, Social and Cultural Rights -ESCR-Net.