Access voices concern about resolution on business and human rights treaty

On June 25, the United Nations Human Rights Council (HRC) in its 26th session passed a resolution to develop a treaty holding transnational companies legally responsible for human rights abuses.

The resolution, put forward by Ecuador and supported by Bolivia, Cuba, South Africa, and Venezuela, was adopted by 20 votes, with 14 against and 13 abstentions. It creates “an open-ended intergovernmental working group on a legally binding instrument … to regulate, in international human rights law, the activities of Transnational Corporations and Other Business Enterprises.” (emphasis added).

A binding treaty to curtail the varied abuses that corporations cause or contribute to daily seems like a positive step toward the greater realization of human rights worldwide. However, Access is concerned about the terms of this resolution:

1) it empowers an inter-governmental body, leaving civil society and other affected stakeholders without a voice;
2) it overlaps with existing, increasingly effective UN bodies and processes; and
3) it will not likely result in meaningful, timely remedy to users at risk worldwide.

This government-controlled process contradicts the history and nature of online communications: No single stakeholder owns or controls the internet, or knows best how to protect the rights of users online. Likewise, a government-only process will not likely produce robust norms that account for all stakeholder interests, whether on digital rights or the other important issues the Council addresses. The UN knows this dynamic well: its draft “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights” failed to make an impact after their release in 2003. Soon after, Prof. John Ruggie, the UN Special Representative for Business and Human Rights from 2005-2011, led the multistakeholder consultations that produced the United Nations Guiding Principles on Business and Human Rights (UNGPs), a widely adopted set of principles for all stakeholders, including governments and corporations, that civil society continues to build on.

This new body will likely overlap with existing processes. The Third Forum on Business and Human Rights next December is already being programmed, and will highlight substantive work by the existing Working Group on the issue of human rights and transnational corporations and other business enterprises, which was established to continue Professor Ruggie’s work following the adoption of the UNGPs. Created by the Human Rights Council, that group – staffed by experts, rather than governments – has already conducted fact-finding missions to Mongolia, the United States, and Colombia, and highlighted a host of emerging issues, including on privacy and surveillance online. As the UNGPs are already being implemented worldwide, a parallel process may slow the momentum of their adoption and lead to both innocent and willful confusion among governments, companies and other stakeholders.

Finally, we recognize that victims of business-related human rights abuses rarely receive access to remedy, as required under the UN Guiding Principles. Users in Egypt never saw compensation or redress from the companies that shut down communications at the behest of the government in January 2011; victims of arbitrary imprisonment and torture in CIS countries did not get recompense after TeliaSonera provided direct network access to security forces, exposing users locations and communications; and users in Iran have not had few opportunities to voice their complaints to the many businesses, like Cisco, the former Nokia Siemens Networks, and MTN Irancell, who have enabled government censorship and surveillance. Indeed, Access has called on telcos and ISPs to immediately explore remedy and develop grievance mechanisms to make right any human rights harms they cause or contribute to.

Yet, the newly proposed process appears too limited and lengthy to provide effective redress to victims. The treaty process is simply slow: Salil Tripathi of the Institute for Human Rights and Business notes it “could stretch to decades.” In fact, the open-ended working group won’t even hold its first session until midway through 2015.

Moreover, while transnational companies can certainly have significant human rights impacts, the world of corporate human rights risks and responsibilities is far broader and far more diverse than the mandate in today’s resolution. Limiting the mandate of the group to transnational corporations, leaves those affected by domestic or national companies completely out to dry.

Access reiterates our support for the UNGPs, which recognize that all stakeholders play a role in combating human rights abuses related to all types of businesses. A multi-stakeholder approach holds the best chance of making a difference on the ground, and we support UN efforts to guide the development of rules and norms leading to effective remedies for users at risk around the world.