Wanted: A binding international instrument on business and human rights

In my report to the Human Rights Council in June 2015, I documented the myriad challenges to upholding the rights to freedom of peaceful assembly and of association in the context of natural resource exploitation. The stories documented in the report illustrate a clear trend: As the global economy’s insatiable appetite for natural resources grows, the space for ordinary people to voice their concerns about resource exploitation is shrinking. In virtually every corner of the world, assembly and association rights are being steamrolled in favor of economic efficiency and profit.

Assembly and association rights, of course, are enshrined in the International Covenant on Civil and Political Rights (among other instruments), making them among the most well-defined and widely-recognized human rights we enjoy. Why, then, is it so difficult to ensure that they are respected in the context of natural resource exploitation?

I believe a significant part of the answer is obvious: The dominant actors in the sector – namely businesses – are not bound by international human rights instruments.

Sure, there are voluntary principles, such as the UN Guiding Principles on Business and Human Rights, but these rely on commitments from individual companies and place no legal requirement for corporations to redress human rights violations. As a result, these commitments are often just window dressing. This means states alone must enforce domestic laws on human rights norms – an outcome that is not guaranteed once business gets involved, particularly with large and influential corporations.

Why is it not guaranteed? Initially, there’s the simple equation of money and power. Corporations wield immense political and financial muscle – often more than states themselves. Indeed the annual revenue of each of the world’s three highest-grossing oil and gas companies exceeds the gross domestic product of more than 150 countries. This money can buy influence, whether through legal or unscrupulous means, cementing alliances between governments and companies that don’t necessarily factor in the best interests of ordinary people.

There’s also the fact that most States need corporations’ expertise and investment to exploit the natural resources that lie within their boundaries, and they often go to great lengths to attract this. This can translate into elimination of “inefficiencies” that hinder profits, e.g., weakening regulation of environmental and labor standards, disregarding land tenure systems, and, above all, failing to provide open, transparent and inclusive decision-making processes. This last tendency means that those most affected by decisions related to corporations’ activities have the least opportunity to voice their concerns in genuine and productive forums.

The natural resource exploitation context is illustrative of a wider phenomenon where States value an enabling business environment and therefore give business much freer rein on the one hand, and on the other, feel threatened by robust civic engagement. The message this sends is that economic activity is more important than protecting and promoting fundamental human rights. As a result, corporations are largely shielded from liability for human rights violations resulting from their activities. They also make every effort to ensure that the status quo in their favor is maintained.

A binding international treaty that imposes human rights obligations on businesses would be a monumental step toward changing this status quo. Such an instrument should level the playing field, empowering victims to bypass ineffective or indifferent state redress mechanisms and seek justice at the international level.

Critically, I believe that such a treaty should regulate all business entities, not just transnational corporations as currently envisioned in Human Rights Council Resolution 26/9. Constraints on civic space are not the consequence only of State and transnational interactions. Violations of rights also result from the activities of national business entities.

I believe that some states' reluctance to engage with the binding treaty process is a lost opportunity. I’m disheartened to see that support for a treaty is weak among states which are ordinarily among the greatest champions for safeguarding civic space, such as Norway, United States and the European Union. These states have gone beyond simple rhetoric, and actively support the defense of civil society through funding, programming and the use of their political might. I believe that their reluctance to engage with the binding treaty process is a lost opportunity for them to reinforce their leadership and advocacy on behalf of civil society against corporate might.

The open-ended Intergovernmental Working Group on transnational corporations and other business enterprises with respect to human rights tasked with leading the process towards a binding instrument has a long, arduous assignment. But their work is important. Civil society in general and victims of corporate abuses in particular are keen to use available spaces in the process to articulate their concerns. I join with them in their aspiration for an instrument that affirms their interests as of equal importance as those of States and corporations, and empowers them by providing a means of effectively asserting their claims.

The world has changed since the adoption of our core international human rights norms in the 20th century. States are no longer the sole dominant actors. International law must change to reflect this reality.

* Maina Kiai is UN Special Rapporteur on the rights to freedom of peaceful assembly & association. This article was previously published by Business & Human Rights Resource Centre.

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