A First Step is Better than No Step at All

Jenny S. Martinez is the Warren Christopher Professor in the Practice of International Law and Diplomacy at Stanford Law School. She is the author of The Slave Trade and the Origins of International Human Rights Law (OUP, 2012).

Last year, the U.N. Human Rights Council voted to “establish an open-ended intergovernmental working group with the mandate to elaborate an international legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to human rights.” The objective of this working group would be to “clarify the obligations of transnational corporations and other business enterprises with respect to human rights.” The new initiative has largely been supported by states in the Global South, while the United States and the European Union have opposed the treaty effort on the grounds that it is unlikely to succeed and will divert attention from implementation of the non-binding but widely discussed Guiding Principles on Business and Human Rights. The Guiding Principles were, of course, spearheaded by John Ruggie when he was the U.N. Special Representative for Business and Human Rights, and endorsed by the Human Rights Council in 2011.

Last December at the U.N. Forum on Business and Human Rights, however, Ruggie himself resisted this framing of the path forward, saying that he “saw no intrinsic contradiction between implementing the Guiding Principles, on the one hand, and further international legalization, on the other” and urging “in the strongest possible terms that as the treaty negotiations unfold, we resist any attempt to polarize the debate as one between the Guiding Principles and a treaty.”

Ruggie is correct that, in principle, there need be no contradiction between pursuit of the voluntary implementation of the non-binding principles as to some aspects of the human rights obligations of businesses and simultaneous negotiation of binding international legal obligations as to other aspects. In practical terms, however, the danger is that the treaty drafting process will slowly limp forward without resulting in a document with any legal bite, while giving states and businesses an excuse to abandon all effort to implement the Guiding Principles. How can this trap be avoided?

Ruggie is right to suggest that the best path forward may be through narrower, more focused agreements on specific topics rather than one overarching treaty that attempts to govern the entire field. A single treaty is likely to be rich in aspiration and weak on detail and tools for implementation. Moreover, narrower and more specific treaties might be more likely to garner eventual ratifications from initially skeptical states.

What kinds of problems might treaties address, and how might they do so? One comparison might be the ILO Convention on the Worst Forms of Child Labor, which was adopted by the ILO in 1999 and has now been ratified by 174 countries (the fastest pace for ratification of any ILO agreement). In that treaty, states obligate themselves to take “immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.” Contrast with the murky language of the International Covenant on Economic, Social and Cultural Rights, wherein a ratifying state “undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant.” While intrepid international lawyers have attempted for decades to give teeth to this vague language through forceful and elaborate interpretations, the basic mushiness remains.

Moreover, rather than relying on lofty generalities, the ILO child labor treaty lists several concrete practices — such as slavery, debt bondage, forcible use of child soldiers, and prostitution — that automatically constitute worst forms of child labor, while also including more open-ended definitions that encompass abuses of similar gravity. It is much easier to tell whether a state has prohibited five very concrete things than to tell whether it has achieved a much vaguer goal like promoting equality. Moreover, concrete goals provide a rallying point for domestic political advocacy, as civil society groups can lobby for adoption of legislative and administrative measures in compliance with the international standard.

Now, it would be a mistake to treaty the ILO Convention on the Worst Forms of Child Labor as a model treaty, because despite its wide ratification, it is not clear how successful it has been. Despite its immediate and binding language, and sharp definition of certain prohibited practices, the lack of a strong international enforcement mechanism is a problem. A more effective treaty would provide stronger means for monitoring, measuring and enforcement.

A good start in the area of business and human rights would be a treaty focused on the worst types of abuses, such as corporate actors knowingly aiding and abetting core international crimes as defined in the Rome Statute of the International Criminal Court. Such a treaty would oblige states to take immediate measures in domestic law to prohibit and provide for appropriate civil and criminal liability for such abuses.  It would provide for some kind of international monitoring and oversight, and might include jurisdictional provisions clarifying which states would have obligations and would be entitled to exercise jurisdiction in the case of corporate actors whose activities span multiple jurisdictions. Would such a treaty lead us to a perfect world? Would it address fundamental issues of distributional justice between global north and global south, between the haves and have nots of globalization? Of course not. But a first step is better than no step at all, and it would be a sensible place to start the effort of moving from soft to hard law in this arena. Such a focused treaty would be more likely to garner support from wary countries, and if it clarified jurisdictional rules, could even gain support from businesses because it would bring greater predictability and clarity.   This would not preclude simultaneous efforts to implement the Guiding Principles, nor would it preclude later treaties addressing other aspects of business and human rights. The long-term questions raised by the relationship between business and human rights will ultimately require long-term solutions, but this would be a sensible place to start.