The case for and against a binding treaty on business and human rights

2 Apr 2019

By Sebastian Smart

Hardly a week passes without a new revelation of adverse impacts on human rights by tech companies – from data breaches to problematic decisions over content.   

What can we do when this happens? The pathways to recourse aren’t always clear. Of course, we have the UN Guiding Principles (UNGPs), which set out what businesses should do. But these principles are voluntary, and can be ignored. In some circumstances, victims can seek remedy through judicial mechanisms at the national or supranational level (e.g. regional systems, like the Inter-American Human Rights System), or non-judicial mechanisms such as ombudspersons or National Human Rights Institutions.

But what if the business in question is a multinational, like Facebook or Twitter –which might have collected data in one country, stored it in another, and processed it in a third? In such cases, it’s often not possible to determine the relevant jurisdiction. Indeed, the UNGPs themselves take the position that states are not required to “regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction”(Principle 2: Commentary). This is a crucial gap – and a problem for human rights defenders.

One possible solution is a binding international treaty to regulate the activities of businesses, an idea with a long pedigree, stretching back to 1974, which has re-emerged in recent years with the establishment of an open-ended intergovernmental working group (IGWG) at the United Nations Human Rights Council in 2014. And last year, after years of discussions and consultations with over 600 civil society organisations and numerous governments, the IGWG published its first draft (in UN-speak the “Zero Draft”) of a proposed treaty.

Despite the obvious importance of tech companies to the exercise of human rights, civil society organisations working on digital policy have (with a few exceptions) been notably absent from discussions around the treaty – with the vast majority of engagement with the IGWG coming from groups working in the extractive and garment industries. This reflects a broader lack of attention to the tech sector (particularly online platforms) within business and human rights discussions.

The result is that a number of specific issues related to tech companies aren’t currently being considered in discussions around a treaty. For example, the Zero Draft gives states the option to exempt small and medium-sized enterprises (SMEs) in order to spare them “undue additional administrative burdens” (Art. 9(5)). That makes sense when thinking in the garment and potentially the extractive sector, but not when we think of the tech SMEs like Cambridge Analytica – which, despite its small size, has had an enormous impact on privacy and democratic systems.

Should we, then, be collectively throwing our weight behind a treaty? It’s beyond the scope of this article to make that call. Our intentions here are more modest:

  • First, to establish the key things that, as human rights defenders working on tech-related issues, we would like to see happen in the business and human rights field;
  • Second, to set out the arguments for and against a binding treaty helping us to realise these goals.

With this information, we hope, civil society groups in our space will be able to make an informed decision on whether to support a binding treaty on business and human rights.

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What do we want?

From our perspective at GPD, we believe that there are a few basic points of principle that can be established.

  • We support the UN Guiding Principles, and believe that anything which encourages their implementation is a good thing. Any binding treaty should therefore strengthen the implementation of the UN Guiding Principles.
  • We believe that regulatory processes and mechanisms to develop the treaty and to implement it, should be designed and implemented in an open, transparent and inclusive manner. Any binding treaty that we would support would set clear participatory mechanisms for all stakeholders, including victims.
  • Finally, we believe that access to remedies for victims of human rights violations should be a central focus of any regulatory mechanism around business and human rights. That means that a binding treaty should include remedy mechanisms for victims.

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How likely is a binding treaty to help us GET WHAT WE WANT?

Let’s examine the case for each.

1. Strengthen the implementation of the UN Guiding Principles

Those that promote a binding treaty argue that it is necessary because of the glacial pace of progress in the face of widespread corporate impacts on human rights. A binding treaty, they say, would accelerate implementation by creating a level playing field where now there are huge discrepancies in human rights enforcement across jurisdictions. Moreover, in terms of prevention and remedy processes, they maintain that a legal treaty brings hard-law coherence and power to their full implementation, arguing that the UNGPs would be far more effective if they had teeth.

John Ruggie, the originator of the UNGPs, has made this point – stating that “[f]urther international legalisation in business and human rights is inevitable as well as being desirable in order to close global governance gaps.” Yet he also recognises that it will be difficult to convince many states to ratify a binding treaty (particularly the ones in which many large companies are based). By contrast, he argues, the UNGPs have already been endorsed by all UN member states via the UN General Assembly.

On the other side of the debate, there are those who say that a binding treaty is not necessary to strengthen the UNGPs. In their view, the UNGPs gain teeth when they are taken seriously at the national level – for example, through advances in national law. They argue that the UNGPs are only eight years old, and have already made positive contributions to business approaches to human rights and influenced the actions of governments – citing the fact that 23 governments have published NAPs, another 21 are in the process of developing them and 400 leading companies have made efforts to align their policies and practices with UNGPs. A binding treaty, they argue, is a distraction from the real, proven potential of the UNGPs.

2. Set clear participatory mechanisms for all stakeholders, including victims

Critics of the UNGPs often focus on the limited scope of the “Protect, Respect, Remedy” framework, which – they argue – sets standards for governments (“Protect” and “Remedy”) and companies (“Respect” and “Remedy”), but leaves victims and civil society organisations outside of the framework. Some have argued that the binding treaty constitutes an opportunity to address this gap by creating a fourth pillar (the “Participate Pillar”), which would explicitly set out the role and responsibilities of civil society organisations.  

John Ruggie notably doesn’t agree with this point, arguing that the UNGPs are not a multistakeholder initiative, and that – in the present polarised geopolitical environment, characterised by a growing restrictions of human rights – it would be practically very difficult to achieve such a pillar. Proponents of the inclusion of victims and civil society organisations in a binding treaty counter this by acknowledging the geopolitical impasse, but making the point that, given the likely time needed to develop an effective treaty, it makes sense to start the ball rolling now. Waiting for the perfect moment, they argue, is risky; better to do the groundwork now, to be better placed to seize an opportunity when it arises.

3. Develop better mechanisms for victims of human rights impacts to access remedies

A binding treaty represents “hard law” – in other words, law which confers binding responsibilities as well as rights on states and other international actors. The UNGPs, on the other hand, represent “soft law” – unenforceable, and voluntary. Proponents of the treaty often invoke this distinction, arguing that only hard law, with its possibilities for sanction, can really ensure that victims have access to remedy.

Those opposing a binding treaty argue that, in reality, the distance between soft and hard law is much less clear than the analytical distinction would suggest. There are mid-points between a binding treaty and voluntary initiatives, they say – citing stakeholders who have found ways to get around the voluntary nature of the commitments through auditable standards or multistakeholder initiatives. Moreover, they point out that courts, governments, rights-holders, corporations and civil society organisations routinely invoke both soft and hard law in then business and human rights field. In November 2015, for example, the Inter-American Court of Human Rights drew on the UNGPs in the Kaliña and Lokono Peoples v. Suriname judgment.

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Some initial conclusions

 

  • The binding treaty is not going away. It’s been part of the agenda at the UN for 40 years, and – owing to the widespread adoption of the UNGPs, which have laid a lot of the necessary groundwork – looks more likely now than it ever has, despite geopolitical divisions.
  • A binding treaty, if approved, would likely have significant effects on the regulation and operation of tech companies. Given the role that tech companies play in the exercise of human rights, particularly privacy and free expression, it’s therefore crucial that civil society engage with the treaty.
  • While some organisations working in the digital environment have discussed and participated in the process, there’s room for more organisations in our field to take part in these debates, especially those which have practical knowledge of the tech sector.
  • Some states see any treaty as a necessarily radical project, which goes much further than the UNGPs – but this is not the only possible direction for it. One possible role for human rights defenders in the treaty discussions is to raise awareness of these potential “mid-points” – between hard and soft law – and use them to broker a consensus between companies, states and civil society.

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In the next blog, we will take a deeper look at the “Zero Draft” itself – looking at issues such as the scope of the treaty, how it regulates due diligence, and the progress made in terms of remedies, with a specific focus on how these issues can impact tech companies.