In the first steps taken towards a binding treaty on business and human rights, EU member states and the EU Commission have not been making much of an effort. On the contrary, the lack of a defined EU position and the obstacles set out by European national delegations have shown not only a lack of enthusiasm but even a will to slow down and get stuck in the sidings. The general opinion of EU member states, not always expressed clearly, may be that the United Nations Guiding Principles are enough to prevent, protect and remedy business abuses of human rights and even that negotiating a binding treaty damages the process of spreading and implementing the guiding principles. I will try to refute these claims here.

Globalization needs to be reshaped. No one would seriously dare to disagree. And this reshape is to be done in different fields. Of course, environmental issues, and particularly climate change, are urgent and international agreement has led to states assuming specific responsibilities and measures – with deadlines. Unfortunately, in this case someone is daring to flout the agreement, and this has harsh consequences for others. Reforms, however, must be introduced – and not only regarding the environmental challenges. Human rights, global justice and peace need to feature boldly in the new shape of globalisation.   

Economic globalization has multiplied the number, strength and complexity of multinational companies, their branches and partnerships outside their country of origin. At this juncture, there is no international legally-binding instrument on the business sector’s responsibilities vis-à-vis human rights. We have various other non-binding instruments, the chief one being the United Nations Guiding Principles (UNGP), but this does not mean that it is the duty and responsibility of each State to guarantee the respect of human rights when they are threatened by companies. We need to remember that respect of Human Rights is also the concern of private actors and businesses. Yet, in many cases human rights violations continue to be caused directly by transnational companies or the activities of subcontracted enterprises. So, guiding principles are not enough. In fact, a binding treaty would not suffice either – unless it includes a supremacy clause (primacy or legal primacy) in relation to other treaties. Until now, what we have had is the primacy of the rights of transnational companies. They have guaranteed their access to compensation if their profits are damaged. This is an upside-down primacy which makes it difficult for ordinary people to access justice in cases where the implantation of international companies has provoked human rights violations.

United Nations Guiding Principles are a big step forward in the international system of human rights but are clearly insufficient to attain the aim they pursue. As their name shows plainly, they are guiding principles; in other words, they are mechanisms to encourage stakeholders to take into account the human rights of people involved in a transnational company’s project. They are not clear regulations or rules, but guidelines that can show how to cut down the impact on human rights of this kind of investment project. Of course, it is up to the will of stakeholders and we cannot be so naive as to think that every international company is going to embrace these principles willingly as if they had been waiting for them.

Unfortunately, we have another example of this soft approach in another crucial issue concerning the African continent. Voluntary guidelines to support the progressive realization of the right to food in the context of national food security were adopted by the FAO council 14 years ago. The current scandalous statistics of hunger and chronic malnutrition evidence that much more is to be done to end starvation. The AEFJN member organisations religious are committed in many areas of Africa to fighting the plague of hunger. Even if their projects and actions are successful, it is a widely held that stronger decisive measures ought to be taken in the International Community. For example, the personnel of a health centre can succeed in helping children of 0 to 5 recover from malnutrition but still feel defeated when they know for sure that a few kilometres away there are helpless families in a similar situation but out of their reach.

Guiding principles, voluntary guidelines, soft international regulations and the recommendations of international organisations are key tools in furthering respect for Human Rights. They usually mean a shift in the way of tackling the issue in the international community and of publicising their importance, thus helping states to focus on a particular aim. They help especially in creating international consensus over such matters. And, as many things in life, it takes time to do this coherently. Such guidelines also contribute to boosting funding efforts and often include not only academic but also official, national and international reports. They lead slowly but progressively to the enhancement of international standards in Human Rights respect. Such are the main attainments of guiding principles. In the case of UNGP, a whole system is being deployed with a reporting framework, a working group mandated to promote their dissemination and implementation and an annual forum with stakeholders, all for the same purpose.

We can spot, for example, the states that have produced a national action plan without any regard to its sometimes clearly insufficient content. While the UK launched its action plan in September 2013 – followed by the Netherlands in December – and had already updated it in 2016, many of the current action plans were presented in 2017. All of them are from European countries. The proactive attitude of some states in this regard is remarkable and, a hopeful sign, the next in line are four African States: Kenya, Mauritius, Mozambique and Uganda, which are in process of or have committed to drawing up one national action plan.

So UNGP are effective in opening the way to enterprises who want to fulfil the HR standards, prompting others to try to do so and expediting the responsibility of States to assure the HR of their citizens. They have also boosted national legislation, as seen with those approved in Great Britain or France. In the future, we will probably say the Guiding Principles acted also as a spur to adopt the binding treaty on business and human rights. Therefore, calling for a binding treaty does not counter the progress and opportunity that Guiding Principles represent, but aims to help them reach their full potential.

Nevertheless, we have to acknowledge that, alongside their merits, there are deficiencies in the Guiding Principles system. Till now, trade investment agreements have not contained any provisions for implementing the United Nations Guiding Principles. With the protection of Human Rights being left to chance, a stable and trusty environment for its development needs to be created. An international compulsory framework on respect, protection and remedy would state clear rules for all transnational companies and their subcontractors, no matter where they come from or in which country are they operating. Another big gap is the absence of state control in many areas. AEFJN is deeply concerned about cases where businesses operate in areas where there is insufficient state protection. Many African states are in this situation – or have one or more regions that are. International adoption of children is immediately forbidden when there are special risks for children´s rights due to a situation of instability, lack of effective government, huge natural disasters or a conflict situation. But we find that in similar situations, operations of transnational companies are not stopped even if it is broadly recognized that they may be causing human rights violations. Determined measures should be taken in these cases to increase the accountability, foster international control and avoid abuses. With natural resources being the root causes of a number of conflicts, these prophylactic measures could to some extent serve as peacemaking and peace enforcement measures.

Alfredo Marhuenda