A Business and Human Rights Treaty: Updates from the Third Session of the Intergovernmental Working Group

International Bar Association Conference on Law and Corporate Social ResponsibilityThe Open-Ended Intergovernmental Working Group that is considering an international treaty on business and human rights held its third session from October 23-27 in Geneva. A draft report of the session is available here.

The mandate of the Working Group, as set forth by the U.N. Human Rights Council in 2014, is “to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”

The Working Group’s first two sessions, in 2015 and in 2016, aimed to conduct “constructive deliberations on the content, scope, nature and form of the future international instrument.” The third session was focused on consideration of potential elements of a draft treaty.

In late September, the Working Group had released a paper reflecting proposed elements for a treaty. Key elements reflected in the paper included: an intent to reaffirm the U.N. Guiding Principles on Business and Human Rights; language stating that companies should respect internationally recognized human rights; and language stating that governments “shall adopt legislative and other measures…to establish and apply the legal liability” of companies for violations or abuses of human rights resulting from their operations.

The five-day working session included discussions and panels on subjects including: the potential scope of application of a future treaty; general obligations for states and companies; the imposition of legal liability on corporate actors; jurisdictional questions; access to justice and effective remedies; and mechanisms for the promotion, implementation, and monitoring of treaty mechanisms.

Deliberations during the session reflected ongoing debates regarding the need for such a treaty, with some constituencies arguing that the U.N. Guiding Principles on Business and Human Rights are sufficient, while others stating that a binding instrument is necessary to ensure that victims of human rights abuses can seek appropriate remedies. Even as this debate continue to underlie the treaty negotiations, the normative impact of the due diligence expectations at the core of the U.N. Guiding Principles could be seen in the support of many delegations for state efforts to require due diligence on the part of companies with regard to the human rights impacts of their operations. Long-standing debates also continued regarding whether or not any future treaty will apply to purely national companies.

Notably, the United States once again declined to participate in the Working Group’s discussions, a position it has maintained since voting against the 2014 resolution that launched the treaty process. The European Union, which also voted against the original resolution and declined to participate in the 2015 session, did participate in the 2017 session.

Looking ahead, the Working Group is expected to enter into a period of consultations with states and other stakeholders in advance of more concrete discussions regarding a draft treaty instrument in the coming years.

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