Would a Treaty Be All It Is Made Up to Be?

Frédéric Mégret is an Associate Professor at the Faculty of Law, McGill University and the Canada Research Chair on the Law of Human Rights and Legal Pluralism

In moving towards the negotiation of a treaty on business and human rights, the international human rights movement is on familiar terrain. Indeed, legalization has represented a hallmark of the movement’s strategy ever since the adoption of the Universal Declaration of Human Rights. “From declarations to conventions” seems to be the natural direction that the project has been taking for decades. The International Covenants for example were a specific response to the perceived limitations of the UDHR. There is a time for politics, and there is a time for law. Human rights both domestically and internationally are fundamentally invested in the idea that the move from policy to binding standards is indispensable.

The move to a treaty on business and human rights should therefore not come as a surprise. No doubt it has some things to commend it. At the same time, doubts are already being voiced about whether it is a good idea. Some of these doubts may have to do with perceived hidden motivations for proposing a treaty, and the sort of substantive instrument that might result. For example, there is concern that the current treaty agenda reflects an anti-business bias, seeking to draw attention away from the responsibilities of the host state at the expense of the state of incorporation and transnational businesses themselves. Violations of human rights as a result of the activities of corporations result from a complex chain of causation that may include predatory corporate actors, but also irresponsible states on both ends (sending, receiving). The balance achieved in the Guiding Principles is a fragile one and there is a risk that it might be disrupted. The interstate environment in which treaties are negotiated might resurrect South-North antinomies that today are not the most helpful when it comes to the question of business and human rights. As Ruggie points out helpfully, whether a corporation is “transnational” or not is increasingly irrelevant. If nothing else, a human rights paradigm ought to inform a more cosmopolitan approach (as it has for most existing human rights treaties) one which is as much focused on the domestic as the transnational.

Nonetheless, it is far too early to anticipate what the eventual substance of a Treaty on business and human rights might be. Fears about its orientation are not really a reason for not having a treaty at all, only a reason to fight to have as good a treaty as possible. The real question at this stage is whether there is something inherently problematic about having a treaty as opposed to the Guiding Principles as they stand. And if one is to look for an inherent problem with having a treaty, it must be a problem with a treaty as a form. Although the Guiding Principles would presumably not be eliminated merely as a result of the emergence of a treaty, they would most likely be sidelined, or at least cease to reflect the global consensus alone, especially if the treaty was comprehensive. Here the question is whether, as in the traditional human rights vision, “Guiding Principles” were always a second best to a treaty, or whether there is something in the notion of Guiding Principles that is inherently appealing as a regulatory model when it comes to that particular topic (business and human rights) and in the current conditions (largely post-national and post-modern). I take John Ruggie’s Harvard piece as ambivalent on this very issue, at the same time not ruling out the need for a treaty yet cautiously trying to defend the sui generis character of the Guideline and the need to stay true to their “regulatory dynamics.” As I am in broad agreement with that cautious attitude, I want to suggest three ways in which we might see a comprehensive treaty as problematic.

A first concern might be what one might call the untranslatability of the Guiding Principles project into the language of a human rights treaty. As a human rights instrument, an international treaty on multinational corporations would be an almost unprecedented treaty focused not on proclaiming certain rights or protecting certain groups (as has traditionally been the case), but on imposing obligations upon a certain category of actors. It would therefore be more a treaty on obligations than on rights, even though the implementation of the obligations would be presumed to lead to the fulfillment of the rights. The combination of rights and duties is, admittedly, not unprecedented and, in fact, increasingly common. For example the Convention on the rights of persons with disabilities is a very mixed bag of rights proclamation and insistence on certain standards that states, local authorities and private actors ought to respect to make the rights of persons with disabilities a reality. However at stake is clearly a change in the style of human rights and it may be that something is lost by legalizing too many things, in ways that reflect international legislative inflation and perhaps a move away from the parsimony of rights. In other words, one might think there should be an international regulatory division of labour between human rights treaties (that remain at the level of quasi-constitutional principles) and implementing instruments (guidelines, corporate guides of conduct) that seek to chart the many ways in which treaties ought to be implemented.

A second perhaps more significant concern might be that the move to a treaty does too much of the promise of legal bindingness and therefore the prospect of enforceability. There is no doubt that currently there continues to exist huge gaps in the sort of accountability that victims of corporate rights violations can hope to obtain. The question, however, is whether this is because of the absence of a treaty. In practice, for example, it is not clear that simply because treaties are binding in Law means that they are regularly or systematically enforced. There is by now two decades of theoretical and empirical literature on whether treaties improve human rights compliance that is at best inconclusive. Note that the issue of whether human rights treaties induce compliance generally is distinct from whether they can command compliance in particular cases: the latter may be true even as the former is not, in the sense that one can evidently win an individual case under a treaty on the basis of its binding character even as that treaty is otherwise regularly ignored. In practice the existence of a treaty may or may not be the focus of strategies to promote human rights, but many such efforts do not particularly rely on its binding character (except rhetorically). In fact, as pointed out by Ruggie, the Guiding Principles have already become influential (with international institutions for example) largely despite not being binding. It is no small feat, in particular, that a non-binding international instrument has already translated into binding legislation, where many binding treaties are never incorporated into domestic law.

The lesson is that at least when it comes to that issue area, orienting institutional change may be more important than imposing it. At least as important to treaty compliance is the extent to which treaties set realistic standards or have a degree of legitimacy with the actors whose behaviour they claim to regulate. But herein lies the crux: bindingness, of course, is not everything. One might have standards that are scrupulously observed only because they are so low in the first place, something that would hardly count as a victory for human rights. In that sense human rights might be said to be at an implicit disadvantage in international normative competition since they start from a certain axiological high ground rather than simply some promise of rational-efficiency. At any rate, the binding character of a treaty might be obtained only at the cost of diluted standards, as states awaken to some of the legal ramifications of a treaty entering into force; or a treaty might be “strong” but fail to secure the participation of key states (as happened with the Convention on the Rights of Migrant Workers), a potentially disastrous result when it comes to transnational corporations. The move to a treaty, in other words, might destroy some of the constructive ambiguity upon which the Guiding Principles were based and signal, paradoxically, a decline in the implementation of the standards it champions.

Third, moving to the treaty form may effectively redefine the nature of the regulation involved, beyond the question of whether the resulting standards are binding or not. The “treatification” of the Guiding Principles might be seen as pushing in two, not necessarily compatible directions. On the one hand, the existence of a treaty directly regulating multinational corporations might be said to reinforce the status of such corporations as, henceforth, fully fledged subjects of international law and not merely entities producing their own form of endogenous regulation existing in a grey transnational normative zone. This strengthens the idea of corporations as human rights actors in their own right (even if substantively the treaty remains focused on their respecting rather than protecting human rights), in ways that can only challenge the state’s centrality. Given how vexed an issue the status of corporations as subjects of international law has been, a treaty – whatever else it does substantively – might at least clarify this issue. An alternative way of looking at it is that the adoption of a treaty would manifest a strong return of the “public” and an emphasis on the role of the state in regulating non-state actors. This at least is implicit in the idea that treaties’ source of authority is sovereign consent to them. Multinational corporations, even though they would be presumably regulated by the treaty and even though they would presumably lobby states both directly and indirectly, would not be a party to the treaty itself. Under this view, they would ultimately appear more as objects than subjects where one of the merits of the Guiding Principles was to put them at the centre of the regulatory effort that focused on them, thus presumably encouraging ownership and accountability.

In other words, the move to a treaty is a move to “normalize” the regulation of corporations within the vernacular of public international law and away from the sort of “private ordering” that has become a hallmark of the regulation of corporations today. It thus arguably does away with one of the central features of the Guiding Principles as a hybrid instrument at least partly “owned” by corporations. As such, one can wonder whether the move to a treaty does not manifest a form of failure of legal imagination. Is it so difficult to imagine a global instrument that would be binding under international law yet not restricted by nature to state membership?