Is a Treaty on Business and Human Rights Logically & Politically Plausible?

In October 2015, I blogged about the proposed binding treaty on business and human rights and in that post I questioned the rationale behind the proposed treaty. Well, it appears that the proponents of the proposed treaty are not about to give up any time soon. The third session of the Intergovernmental Working Group that is discussing the treaty at the UN Human Rights Council will take place between the 23rd and 27th of October 2017.

In this post, I want to highlight an article by John Ruggie (the author of the UN Guiding Principles on Business and Human Rights) that was recently published in Regulation and Governance titled ‘Multinationals as global institution: Power, authority and relative autonomy.’ The article, among other things, questions the logical and political plausibility of a binding treaty on business and human rights. I will reproduce the abstract below:

“This article aims to inform the long-standing and unresolved debate between voluntary corporate social responsibility and initiatives to impose binding legal obligations on multinational enterprises. The two approaches share a common feature: neither can fully specify its own scope conditions, that is, how much of the people and planet agenda either can expect to deliver. The reason they share this feature is also the same: neither is based on a foundational political analysis of the multinational enterprise in the context of global governance. Such an analysis is essential for providing background to and perspective on what either approach can hope to achieve, and how. This article begins to bridge the gap by illustrating aspects of the political power, authority, and relative autonomy of the contemporary multinational enterprise. The conclusion spells out some implications for the debate itself, and for further research.”

In the article, Ruggie discusses both the voluntary and mandatory approaches to corporate responsibility. However, it is his conclusions on the plausibility of a binding treaty on business and human rights that I find particularly interesting. According to Ruggie:

“…creating an overarching legal regime, whether within human rights law as the current Ecuador and South Africa led initiative has framed it, or some other framing, seems highly implausible, not only on political but also on sheer logical grounds. It would involve harmonizing aspects of often vastly different bodies of national, sub-national and international law – for starters, investment law, trade law, corporate law and securities regulation, tax laws, consumer protection law, labor law, anti-discrimination law, other areas of human rights law, and criminal law, and impinge on underlying conceptions of property rights and private contracts. The point is not that these are unrelated, but that they embody such extensive problem diversity, institutional variations, and conflicting interests, not only across states but even within them, that any attempt to aggregate them into a general treaty, a global constitutional order of sorts, would have to be pitched at such a high level of abstraction that it would be without practical meaning.”

You can read Ruggie’s article (fortunately, it is an open access article) and then you can think about whether or not the proposed binding treaty on business and human rights is really much ado about nothing.

Emmanuel Oke

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