Should business participate in the process towards a UN treaty on business and human rights?

May 23, 2017

An opinion editiorial by Carlos Lopez, ICJ Senior Legal Adviser.

This would seem a rhetorical question and the answer self-evident.

Businesses, in particular big businesses, or their lawyers normally follow up closely key developments of policy and law at the international level that would have an impact in the way they operate.

So, why would they want to stay away from negotiations on global binding rules on respect for human rights? Surprisingly, some businesses (or their representatives) seem to think it wise to effectively boycott the process.

At a recent public panel at the Notre Dame University Gateway in London on possible and viable content of the prospective treaty now under discussion in the United Nations in Geneva, the argument was made that maybe businesses should not come to the table. That was astonishing.

The UN processes are by nature intergovernmental – only States vote and decide.

But non governmental organizations are formal stakeholders in these processes.

All NGOs accredited by the UN Economic and Social are entitled to engage at various levels with the UN Human Rights Councils and its bodies, including the Open Ended Working Group negotiating the Business and human rights treaty.

There are also means for non-ECOSOC accredited civil society groups and individuals to participate.

These non-governmental actors are allowed to speak in the meetings, raising issues, posing questions, making substantive proposals and formulating recommendations.

Although treaties are negotiated and adopted among States, it is a long established practice to have civil society at large and other key actors as participants in the process of formation and implementation of international law.

Businesses as profit seeking organizations do not have the same nature and objectives as non-governmental human rights organizations. But their participation and “buy in” is important.

There is no real obstacle to such participation.

Global and even domestic business associations can participate in UN debates, and they can do so with a delegation as sizeable as they wish it to be.

If necessary, some NGOs that work close with the business sector typically help businesses to have a place in the room.

So, there is no issue about not having access or a place in the discussions.

Then, why are now businesses worried and what is their demand?

Current business stance suggests that they want a special status and place in the negotiations.

The suspicion is that they would prefer the backroom and the direct lobbying to authorities in countries’ capitals to exert decisive pressure in States positions and vote during the negotiations.

Many business enterprises do not seem interested in taking part in open, transparent and democratic processes where their positions are exposed and subject to public scrutiny.

If such is the true attitude of the business community or even of a sector of them, it would be unfortunate and counterproductive.

Backroom lobbying and blackmailing to weak or corrupt States can only spur accusations of creeping “corporate capture” of governmental authority and accentuate the current public opinion distrust of big corporations and their tactics and feed into the current backlash against economic globalization.

The ICJ and other organizations have been trying for months to convince a group of business leaders to come to Geneva for meetings with States and civil society groups ahead of the official intergovernmental meeting of October 2017.

The meetings would be a unique opportunity to hear their views as to the contents of the future treaty. Very few have responded positively.

The reluctance by business sector actors to attend consultations with civil society and states is counterproductive.

They are missing the opportunity to exercise the “corporate citizenship” that they claim so often.

More importantly, they will lose the moral ground to complaint that they have not been consulted in the elaboration and negotiation of treaty texts.

If they willingly choose not to participate in the meetings and consultations, it will be difficult for them to complain later that they have not been consulted.