Why Business and Human Rights are Connected

Every human is a bearer of rights and it is the states' obligation to respect, protect, and fulfil human rights (HR). This includes the protection from abuse through third parties, such as businesses. Adverse impacts of corporations on the full spectrum of human rights are not the exception and their practices are affecting the rights of workers, their families, as well as local communities. The exploitation of workers abuses the rights to just and favourable conditions of work as well as the rights not to be subjected to slavery or forced labour. The exposure to toxic chemicals and pollution impacts the rights to life, water, and a healthy and sustainable environment. The rights of the child and to education are infringed upon when profiting from child labour. The list of negative impacts goes on and often multiple rights as enshrined in the UDHR and other international HR conventions are abused at the same time.

Such circumstances indicate that states are not meeting their human rights obligations when it comes to enacting and enforcing laws to hold businesses accountable. Since the 1970s, the Business and Human Rights (B&HR) debate has tried to address this shortcoming and a special focus has always been on Transnational Corporations (TNCs) and other businesses operating in global value chains. These are often involved in abuses in their so called ‘host state’ while avoiding any legal consequences. In recent years, the issue gained traction within the human rights institutions in Geneva which are important in identifying states’ obligations as well as clarifying the role of businesses. Currently two main tracks are being followed. 

Track 1: Protect, Respect, Remedy – The UN Guiding Principles
The first track picked up momentum in 2011, when the then Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie presented the ‘Guiding Principles on Business and Human Rights’ (UNGPs) which were unanimously endorsed by the Human Rights Council (HRC). The UNGPs constitute an authoritative global framework based on three pillars. Protect: reaffirming the states’ duty and obligations to protect human rights and to look after businesses. Respect: in an unprecedented manner clarifying the responsibility of all businesses to respect human rights, not only the ones enshrined in domestic laws of their ‘host’ state but also in international human rights treaties; Remedy: calling upon both—states and businesses—to establish effective access to remedies for victims.

The HRC further established the ‘Working Group on the issue of human rights and transnational corporations and other business enterprises’ (known as ‘UN Working Group on Business & Human Rights’), as one of its Special Procedures, as well as the annual UN Forum on Business & Human Rights in Geneva. Both, the working group and the forum were established to promote and implement the UNGPs and to promote dialogue and cooperation on issues linked to business and human rights. 

However, the UNGPs are not legally binding. Although they reaffirm obligations of states, it remains, once again, in the hands of the states whether they comply with these by implementing legislation accordingly. Thus, the UNGPs can only be as strong as states allow them to be. Paired with ongoing adverse impacts by businesses calls for a legally binding initiative continue. Calls which resulted in a second track. 

Track 2: On the way to a legally binding instrument
In 2014 the HRC set up an ‘open-ended intergovernmental working group’ (OEIGWG) to develop an international legally binding instrument (also known as ‘UN Treaty’) to regulate activities of transnational corporations and other business enterprises in international human rights law. On 23 October 2023, the OEIGWG will enter its ninth round of negotiations to discuss its most recent draft. Many points remain controversial and the intense negotiations among states and other stakeholders will orbit among other issues around the scope of what kind of businesses the treaty should be applied to (TNCs only or also other businesses), whether environmental issues should be addressed, as well as access to remedies. 

Following the opening of these two tracks on the international level, crucial initiatives were also introduced on the national and regional level (e.g. France (2017): Loi de vigilance; Germany (2021): Supply Chain Act; EU (ongoing): Corporate Sustainability Due Diligence Directive – CSDDD). It is, however, becoming clear that in order to be effective, national and regional laws need to be accompanied by international legal and policy frameworks. A crucial role in developing these frameworks must be played by the international human rights mechanisms. In turn experiences and assessments from initiatives on the national and regional level can nourish the work in the international sphere.

Connecting the dots 
In an ever-changing world business activities and their impact on human rights will constantly evolve. Those changes, in turn, have to be addressed adequately by adapting the human rights instruments in a progressive manner. In collaboration with its partners the FES Geneva continues to engage with the Geneva based UN human rights mechanisms in their norm-setting and monitoring function as well as in their guidance on the implementation of standards to hold states and businesses accountable. A further angle is to embed human rights in trade agreements, such as the African Continental Free Trade Area. Though trade agreements are signed between states, they are directly impacting businesses and therefore, they can complement the B & HR mechanisms delineated above.

It is evident that the national, regional, and international levels cannot be considered independently. Civil society actors will continue to play a central role in linking the various levels and fields. They have to provide reality checks for the various initiatives: What impact implemented legislations have on the ground; how do they need to be readjusted; what lessons can be learned for mechanisms that are still in the making. Ultimately, it will also be a matter of protecting such processes against corporate capture. Only in this way will it be possible for the initiatives described above to close the current and obvious protection gap. Let's connect the dots!