Surya Deva is an Associate Professor at City University of Hong Kong, School of Law. He has published extensively on various aspects of business and human rights. His recent books include Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?
This blog entry offers brief comments on three interrelated aspects: the role of international law in regulating corporate conduct impinging upon human rights, the nature and scope of the proposed international instrument(s), and a potential alternative to move forward. In offering these comments, I will engage with the position taken by Professor John Ruggie on this matter, including his remarks at the 3rd UN Forum on Business and Human Rights held in December 2014.
Role of international law
I consider that international law has a critical role to play in ensuring that business enterprises comply with international human rights norms. There are two main reasons for this: first, operations of business enterprises are no longer constrained by artificial territorial boundaries; second, several states are unwilling or unable to act robustly against powerful corporate actors even within their territory or jurisdiction. As I allude below, an effective response to the second reason would require international law to move beyond an excessively state-centric orientation.
International law’s critical role is not, however, as a stand-alone device. Rather, international law should be part of a number of regulatory initiatives invoked in tandem to tame propensity of profit-driven corporations to ignore human rights. Ruggie calls this regulatory design a “smart mix of measures”. I see it in terms of an “integrated theory of regulation” in which multiple regulatory measures are employed in a cumulative and coordinated manner so that different initiatives could counter each other’s limitations (Surya Deva, Regulating Corporate Human Rights Violations: Humanizing Business, Routledge, 2012).
Against this background, the proposed international instrument(s) – in order to be useful – should cover the deficiencies and limitations of the Guiding Principles on Business and Human Rights (GPs) in humanizing business. Ruggie would like future regulatory legalisation to “reinforce and build” on the GPs. But I will caution that the process of reinforcement and building must not gloss over or strengthen the GPs’ deficiencies and limitations, e.g., that corporate human rights responsibilities are based solely on social expectations, that states only have a “duty to protect” against human rights violations by business enterprises, and that companies merely have a responsibility to respect human rights, (see Surya Deva and David Bilchitz, eds., Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?, CUP, 2013).
The proposed international instrument(s) should be able to provide victims access to justice in situations where the GPs might fail to deliver, that is, where states are willing and/or capable to exercise their “protect duty” against corporations or where corporations do not see any clear business case to conduct due diligence to discharge their “responsibility to respect” human rights. In fact, I will argue that the proposed international instrument will be a necessary logical extension of the GPs: while complementing the GPs, such an instrument will also fill gaps inherent in them.
Nature and scope of international instrument(s)
There is extensive discussion about the need for a legally binding international treaty. Binding regulatory initiatives strengthen the overall regulatory efficacy because even voluntary initiatives work better under the shadow of obligatory regimes (and vice versa). It is telling that all major corporate settlements related to human rights abuses or environmental pollution, including the recent one involving Shell, have been offshoots of litigation against transnational corporations (TNCs). So, it is desirable to have binding international instruments regulating corporate behaviour.
However, considering that the obligatory nature of international law is very different in practice from the status of obligatory domestic laws, one should not overemphasise the need for a legally binding treaty over other considerations. A soft but normatively sound international instrument might prove more useful in practice as compared to a hard but a narrow or normatively deficient treaty. Non-state actors and a “coalition of the willing states” could turn a soft international instrument into a hard one in practice.
In terms of the scope of a future international instrument, Ruggie rightly highlights the “highly problematic” nature of the footnote of the Ecuadorian resolution adopted by the Human Rights Council in June 2014. Although certain developing countries might perceive that an international treaty is only required to deal with TNCs, having such a narrow focus will be indefensible, unworkable and politically unviable. Any proposed international instrument should apply to all types of business enterprises, as any attempt to limit its scope by providing a definition of targeted corporations will inevitably result in lawyers advising enterprises how to bypass the given definitional contours.
It is paradoxical, however, that Ruggie does not carry forward his expansive views in relation to another aspect having a bearing on the scope of the proposed treaty. For pragmatic reasons, Ruggie’s advice is to begin with a carefully crafted precision tool aimed at capturing egregious human rights violations. While this may sound sensible, this proposed path is highly problematic. If “the corporate form of the abuser is irrelevant” for victims (John Ruggie, ‘Quo Vadis? Unsolicited Advice to Business and Human Rights Treaty Sponsors’), equally irrelevant is whether human rights violations are regarded as “gross” or not. Why should the proposed international treaty exclude access to remedies for victims of the Rana Plaza building collapse or the Bhopal gas disaster for that matter?
I will also contend that calls for negotiating a narrow treaty that deals only with egregious abuses is reflective, among others, of the Global North’s prioritisation of civil and political rights over social, economic and cultural rights. For people living in the Global South – who suffer disproportionately due to corporate-related human rights abuses – the latter set of rights are equally, if not more, important. Why should the displacement of indigenous people for mining, emission of (and/or exposure to) hazardous chemicals, compulsory pre-employment pregnancy testing of women and illegitimate land grabs by companies be taken less seriously than slavery or genocide?
If the scope of the proposed international instrument is confined to egregious human rights violations, it will mostly serve a symbolic purpose for its ambit will exclude most of the human rights abuses. Nor will it capture important human rights under several core international conventions such as Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC) and the Convention of the Rights of Persons with Disabilities (CRPD), which the GPs do not expect companies to respect as part of their “minimum” responsibility.
A potential alternative to move forward
Ruggie raises legitimate concerns about the feasibility of negotiating a single comprehensive international business and human rights treaty, which are useful. Why will it be impossible to have a treaty when the GPs could cover the same vast, diverse and complex set of issues within the rubric of business and human rights in a single document? The answer lies, among others, in the GPs’ attempt to avoid controversial issues in this area. If the proposed treaty adopted the same approach, it might not prove useful. Conversely, if the treaty drafters decided to confront such complex controversial issues or outline the exact human rights obligations of companies, they might not be able to reach a consensus.
To overcome this dilemma, I suggest an alternative: we should start with drafting a Declaration on the Human Rights Obligations of Business (Declaration) along the lines of the Universal Declaration of Human Rights. The proposed Declaration should (i) provide a sound normative basis for why companies have human rights obligations, (ii) proclaim that human rights applicable to companies are not limited only to those mentioned in the International Bill of Rights but rather extend to those elaborated in all UN human rights treaties (iii) outline the principles governing the extent of corporate obligations in relation to these rights, (iv) envisage a number of state-focal and non-state-centric mechanisms to implement and enforce human rights obligations against companies, and (v) suggest ways to remove substantive, conceptual, procedural and financial obstacles experienced by victims in holding companies accountable for human rights violations. Keeping in mind the fractured nature of international law, it will be crucial for the Declaration to assert the normative hierarchy of human rights and human rights instruments vis-à-vis other areas/instruments.
Once such a Declaration is in place, simultaneous and/or sequential efforts should be made to concretise the human rights obligations of companies in different areas and also clarify the obligations (including extraterritorial ones) of states in regulating corporate behaviour. This will entail negotiating and adopting a number of international instruments in due course. It may also be worthwhile to draft several Model Laws on specific areas to provide states with concrete guidance as to what legislative reforms and policy adjustments they should make to deal with the privatisation of human rights when acting at domestic, bilateral, regional and international levels. Such a process will of course take time, but that itself should not be a ground to delay initiating the above process.
The Declaration (and subsequent treaties) should employ a number of enforcement mechanisms – both state-based and non-state-based – at municipal and international levels to ensure the companies that do not comply with the agreed obligations could be held accountable in an efficient and speedy manner. In particular, the Declaration should contemplate the institutionalisation of the role of civil society organisation (CSOs) in enforcing and implementing human rights norms against companies. For example, a committee of CSOs in each state could be allowed to receive and deal with complaints of human rights abuses by business. Although such committees might not have formal enforcement and compliance powers, their determinations could be posted on a designated website to be used in dynamic ways by diverse stakeholders.
In additional to acknowledging the role of traditional civil and criminal sanctions in ensuring corporate compliance, the Declaration should underline the role of informal means and social (dis)incentives in enforcing human rights norms. These tools will be especially crucial for victims in those situations where states are unwilling or unable to act against companies for diverse reasons.
In short, the proposed international instrument(s) dealing with corporate human rights violations must not be overly state-centric. A deviation from the state-centric conception of international (human rights) law is required because states are not always consistent and reliable in enforcing human rights norms – this is one of the key reasons for the so-called governance gaps. If such instruments confer on states the exclusive power to enforce human rights norms against companies, they will do very little to fill the current governance gaps.
If the path proposed above does not find favour with enough states, then the option of evolving international norms “bottom-up” should be pursued, as business and human rights would require international law’s imaginative responses in the 21st century (Surya Deva, ‘Multinationals, Human Rights and International Law: Time to Move Beyond the “State-Centric” Conception?’ in Jernej Letnar Černič & Tara Van Ho, eds., Human Rights and Business: Direct Corporate Accountability for Human Rights (Wolf, 2015).