Workers sew at an American Apparel factory in Los Angeles. In an industry with a history of sweatshops, American Apparel is one of two Los Angeles firms convinced it can make money without underpaying or overworking employees. (AP Photo/Ric Francis)
Workers sew at an American Apparel factory in Los Angeles. In an industry with a history of sweatshops, American Apparel is one of two Los Angeles firms convinced it can make money without underpaying or overworking employees. (AP Photo/Ric Francis)

Last week, the International Law Research Program (ILRP) attended and participated in the American Society of International Law (ASIL)’s 2016 Annual Meeting, which explores some of the most pressing international law topics of the day. In a three-part series, Global Rule of Law blog contributors will share some of the key policy questions that emerged from the meeting. 

At the end of the session entitled “Do We Need a Treaty on Business and Human Rights” at the 2016 Annual Meeting of the American Society of International Law (ASIL), Sam Witten, the moderator described the discussion as “passionate”, the topic “very complicated” and the choice before the major actors “extremely hard.” To underscore the importance of this topic, a day prior to the formal commencement of the 2016 Annual Meeting, the ASIL Human Rights Interest Group organized an almost identical roundtable evaluating the impact of the United Nations Guiding Principles on Business and Human Rights in line with the theme of the year’s ASIL Meeting: “Charting New Frontiers in International Law”.

The session became a debate for and against a binding treaty on the human rights obligations of business enterprises, especially transnational corporations, versus relying on the existing voluntary Guiding (also known as ‘Ruggie’) Principles on the same subject. Supporting a binding treaty was Surya Deva, Associate Professor, City University of Hong Kong and member representing the Asia-Pacific region on the UN Working Group on Human Rights and Transnational Corporations and Other Business Enterprises. Opposing was Lynn Sicade, Senior Advisor for Multilateral and Global Human Rights Policy, United States Department of State. Amol Mehra, Director, International Corporate Accountability Roundtable, provided the historical context for the emergence of corporate accountability for human rights violations as a significant issue in international law.

There is pressure on the UN system from such groups as the Treaty Alliance to take the issue of human rights obligations of corporations beyond the voluntary governance framework as in the Ruggie Principles. The Human Rights Council adopted Resolution 26/9 in 2014, creating an Intergovernmental Working Group charged with elaborating a binding treaty. While the margin of votes that carried the Resolution was not razor-thin by any standards, at 20 for and 14 against (with 13 abstentions), it was close enough to being defeated. 

Ms. Sicade offered some reasons why the United States is opposed to the treaty and suggested it was a distraction from what needs to be done. She said that it is important that all actors – governments, corporations and non-governmental constituencies –  work together towards this goal. Treaty negotiations from her standpoint could exacerbate already visible divisions. She also argued that the Ruggie Principles have not had enough time to be tested, and so talk of a binding treaty might be premature. 

Professor Deva offered several reasons in favor of a treaty. He said the Ruggie Principles are not the end-game and that a treaty would be a logical progression from the foundation laid with the Principles. He argued that governance gaps still remain regardless of the Ruggie Principles especially in “hard cases”. He also noted asymmetries in the international legal regime compounded by the existence of a hierarchy of international norms, wondering for example why Guiding Principles are considered useful in the human rights context but not in regard to international trade and investment. Deva saw treaty negotiation as intrinsic to a continuous cycle of norm creation and empowers victims to negotiate within formal multilateral institutions. 

There was a sense at the end of the session that this debate is being closely followed by governments, corporations and civil society.
Professor Deva noted asymmetries in the international legal regime compounded by the existence of a hierarchy of international norms.
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