A call for the UN:

Adopt a Binding Treaty on Business and Human Rights!

Every so often we read in the news about cases of companies around the world committing human rights abuses. In one of the most notable cases, apparel and footwear company Nike contracted factories in Asia where workers were underpaid, denied days off, and subject to physical and verbal abuse. A similar story reported by Danwatch involves Danish fashion brand Bestseller that produces clothing in garment factories in Myanmar where workers are affected by unfair working conditions. As companies expand beyond national borders and supply chains become more complex, it becomes difficult for Transnational corporations (TNCs) to ensure that human rights are respected in all their operations. But where does their responsibility lie? And how can we hold TNCs accountable for their abuses?

In 2011, the UN members adopted the Guiding Principles for Business and Human Rights (UNGPs) as the framework to define the global standard of expected conduct for all business enterprises in relation to human rights wherever they operate. These principles are based on the three pillars of ‘protect, respect and remedy’:

  1. Pillar one concerns the state’s duty to protect human rights and reaffirms its responsibility, including to prevent and punish adverse human rights impacts taking place in domestic business operations. The guidelines also point out that states should set out clear expectations to corporations residing in the country to respect human rights in all the jurisdictions in which they operate.
  2. Pillar two clarifies the corporate responsibilities to respect human rights. Corporations have a responsibility to prevent, mitigate and ensure effective remedy in human rights abuses that they have directly caused, have contributed to, or are linked to. To meet their responsibility under the UNGPs, corporations should develop a human rights policy, engage in ongoing human rights due diligence, and provide remediation for victims of potential or adverse human rights impact.
  3. Pillar three concerns access to effective remedy for victims of human rights abuses. States are the primary responsible to ensure effective remedy through appropriate judicial mechanisms and non-judicial grievance mechanisms for potential or actual victims. However, corporations also have a responsibility to ensure access to effective remedy for victims of human rights abuses that can be directly or indirectly linked to their operations.

The UNGPs are crucial in pointing out that corporations have a responsibility for human rights abuses occurring in their partnerships and in their supply chains. Even if a company is not directly causing an abuse, it should be expected to take action if its operations can be linked to an abuse.

The UNGPs framework additionally focuses on preventive measures. Due diligence and human rights policy are instruments that companies are expected to use in order to integrate the respect of all human rights in their activities. However, a 2018 report by the Corporate Human Rights Benchmark (CHRB) showed how companies are still failing to demonstrate respect for human rights almost a decade after the adoption of the UNGPs. Of the 101 major extractive, agricultural and clothing or footwear companies surveyed, 40% failed to show any evidence of identifying or mitigating human rights issues in their supply chains, as required by the Guiding Principles.

Part of the issue is that the UNGPs are a normative framework and do not have legal enforceability. This means that companies should adopt the UNGPs and act accordingly, however, they do not legally have to. This allows for human rights abuses to persist and for corporations to remain unpunished. As things currently stand, each state is in charge of implementing legislation which ensures protection from corporate human rights abuses. However, still in many cases, the governments of the countries where the companies operate are too weak or unwilling to ensure protection of human rights, sometimes even the national law stands directly counter to international human rights standards. The issue becomes especially complicated if the responsibilities of companies are not clearly defined.

Human rights advocates, NGOs and the general public have long been calling for the adoption of an internationally legally binding treaty as the right and effective way to address human rights abuses by companies. A UN working group was established in 2014 to work on this new instrument and already produced two drafts since the work has begun, however, an agreement has not yet been reached. The opponents to a Binding Treaty claim that the Guiding Principles have only been around for a few years and more time is needed to measure their actual effect. However, is ensuring that basic human rights are observed really something that can wait any longer?

From October 26 to 30 2020, the UN working group will meet up for their sixth session of negotiations. Hopefully, governments and political decision-makers will stand up to companies, and demand, that they fulfill their responsibility to respect human rights in all their operations