A focus on human rights due diligence continued into Day 2 of the UN Forum, highlighting the importance of factoring gender considerations into the analysis. Elsewhere, the role played by governments and business lawyers came under the microscope. Other sessions considered the proposal for a legally binding instrument on business and human rights and the compatibility of investment treaties with human rights obligations.
By Natalie Sheehan and Michael Quayle
Towards a convention on business and human rights
One session considered the “zero draft” of a proposed convention on transnational corporations and human rights, prepared by a working group on transnational corporations and other business enterprises, which was established by the Human Rights Council. The zero draft, published earlier this year, provides the starting point for negotiations on the creation of a legally binding instrument to regulate the activities of transnational corporations and other business enterprises with respect to human rights. Its stated aims are: (i) the promotion and protection of human rights in the context of business activities of a transnational character; (ii) effective access to justice and remedy for those affected; and (iii) the advancement of international cooperation with a view to fulfilling states’ obligations under international human rights law.
The discussion at the UN Forum made clear that much work remains to be done to clarify terms used in the draft, including as to its scope and effect, an issue that had been highlighted during a recent session of the working group in October 2018. Stakeholders have been invited to submit their comments on the zero draft by the end of February 2019, with a view to a revised draft being circulated ahead of the next working group session in October 2019.
Investment treaty reform
There was discussion around the compatibility of investment treaties with human rights, and the extent to which such treaties can and should address human rights matters. This is part of a wider ongoing debate on investment treaty reform. Panellists pointed to the increasing calls for a balancing of rights and obligations between states and investors in the investment treaty regime. In so doing, some commentators highlighted the approach taken in recent investment treaties, including the Dutch Model bilateral investment treaty (on which we have previously written) and the Morocco-Nigeria bilateral investment treaty, which focus on sustainable development and incorporate references to corporate social responsibility and the protection of human rights and the environment.
Gender in business and human rights
There were a series of discussions concerning the importance of developing and implementing a “gender lens” in business and human rights. Panellists and commentators called for recognition by states and businesses of the gendered impacts of trade and investment policies, and business strategies and operations. Discussion focused on the implementation of a gender-sensitive approach in human rights due diligence and as part of good business practice more broadly, including in providing effective remedies through company grievance mechanisms.
Several sessions on Day 2 focused on modern slavery, addressing both corporate and governmental responsibilities in this regard. A representative from the Organisation for Security Co-operation in Europe (OSCE) took aim at governments and international agencies pressurising the private sector on supply chain transparency. Such organisations (it was suggested) should apply those same standards in their own procurement processes in order to maintain “some semblance of integrity”; and the panel took note of the steps that the OSCE is taking to demonstrate leadership and guide others.
Attendees also discussed the importance of harmonisation of national modern slavery transparency laws, in order to avoid unnecessary distractions and inefficiencies arising from regulatory divergence.
Business lawyers and human rights
Sessions on the role of business lawyers in business and human rights have become an annual event at the UN Forum. Lawyers are attending in ever greater numbers; a reflection, perhaps, of the continued “concretisation” of business and human rights concepts into hard law.
Today’s session examined what lawyers can do to support businesses pursuing UNGP compliance. Participants cited the usefulness of lawyers’ extensive transactional and investigative experience in conducting human rights diligence, and how they can help balance the demands of the UNGPs alongside deal certainty, often in a time-pressured environment. The panel also touched on whether the same skills could ultimately be deployed in related contexts, such as the Sustainable Development Goals. Speakers recognised the growing awareness of business and human rights amongst parts of the legal profession, but noted that further efforts to educate were needed.
We will report on the third and final day of the UN Forum tomorrow. All our reports of the 2018 UN Forum can be found here.