Should Ruggie have built upon the UN Norms to develop a binding treaty?

A legal corporate human rights obligation as would be presented in an international treaty would be more ideal compared to the social norm for corporations proposed by Ruggie in the second pillar of the UN Framework because it would trigger more effective regulatory and remedial mechanisms.9 Binding obligations in the form of a treaty would have the advantage that they defy differing national standards; corporate obligations would be the same across the board, thus deterring the possibility of corporations evading their obligations by seeking to operate in poorly regulated jurisdictions. If direct obligations existed under an international treaty, monitoring bodies would review corporate conduct as they review state conduct: now they cannot. Any monitoring mechanisms that could be applied to ensure that corporate obligations are adhered to are given effect by the constituting law and in the absence of such law remain unenforceable.

Those who are of the view that the time is ripe for a treaty on business and human rights argue that Ruggie should not have rejected the UN Norms, and perhaps treated them as a predecessor to a binding treaty, in the same way that the Universal Declaration of Human Rights (UDHR) was for the International Covenant on Economic Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR).10 The UN General Assembly adopted the UDHR in 1948; the UDHR is regarded as the parent human rights document and the constitution of the entire human rights movement. It has also been termed the international Magna Carta for all humankind.11 The UDHR, being a Declaration as opposed to a treaty, was general in its terms. At the time of adopting the UDHR, the committee of experts working on it was cognizant of what they saw as a great difficulty in establishing a complete list of human rights acceptable to all sides. There was a divergence in beliefs of those involved owing to the diversity of the peoples they represented and the different political and economic

8 _{See discussion on rejection of the Norms in Section 1.2.1 above.} 9 _Ibid.

10

Ibid.

11 _{See Transcript of Eleanor Roosevelt’s speech introducing the UDHR to the General Assembly available at}

http://www.gwu.edu/~erpapers/maps/UDHRspeech.htm, accessed on 25 July 2015. See also http://www.un.org/rights/50/carta.htm, accessed on 23 August 2014.

systems they subscribed to.12 As such, the outcome of the deliberations, the rights listed and described in the UDHR were acknowledged to contain great ambiguity.13

The ultimate agreement on what should be listed as human rights in the Declaration did not mean that there was consensus on what meaning should be given to the rights. Commenting on a surprise reaction to the agreement the drafters had reached despite the different cultures, ideologies and religions of member states of the UN, one of the drafters is said to have remarked “yes we agree on the rights, so long as no one asks us why”.14

The lack of consensus on the reason behind the choice of human rights was not considered fatal by the drafters. The agreement on the basics was deemed sufficient for the development of a framework that could form the basis for further consideration and development.15 Commenting on the same point during the first deliberations of the Open-ended Intergovernmental Working Group (OEIWG) on a Legally Binding Instrument on Transnational Corporations and other Business Enterprises with respect to Human Rights, precaution was urged against fixed definitions.16 This was based on the grounds that experience had shown that it was not always possible to agree on definitions although it was possible to reach a common understanding on the subject of deliberation.17

Maritain, an academic and philosopher who played a role in shaping the development of an understanding on ‘human dignity’ during the post-war period proposed that to get an agreement on any universal declaration, the aim should be to agree on what was prohibited or what was accepted, without getting into the reasons for agreeing as such because such a discussion would lead to disagreements, delays and ultimate failure.18 He was of the view that “rational justifications are powerless to create agreement among men because they (the justifications) are different and perhaps even opposed to each other.”19

If this reasoning was

12

Preface of the UDHR, cited in Sinai Deutch ‘Are Consumer Rights Human Rights?’ (1994) 32(3) Osgoode Hall

Law Journal 537 at 545.

13 _{Mary A Glendon ‘Knowing the Universal Declaration of Human Rights’ (1998) 73 Notre Dame Law Review}

1153, 1174.

14

Ibid at 1156, quoting Maritain.

15 _{Ibid. The Preamble of the Declaration, following the civil law system of drafting, includes a general part which}

sets forth the premises, purposes and principles that guide interpretation of rights, and the last section of the Declaration puts the rights in contrast with limits, duties and the social and political context in which they were to be executed (1159).

16 _{UN General Assembly Report of the Open-ended intergovernmental working group on transnational corporations}

and other business enterprises with respect to human rights (10 July 2015) (Draft).

17

Ibid, para 53.

18 _{See Christopher McCrudden ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19(4) The}

European Journal of International Law 655, 678

applied by Ruggie, it may have been possible to conclude an international agreement on business and human rights.

The UDHR had an initial ‘burs’ of enthusiasm20

and was ‘terser, more general and grander in its provisions than treaties’.21

Unlike the ICCPR, for example, which enjoins the signatories to submit reports showing the measures they have implemented to give effect to the rights enumerated in the Covenant, the UDHR merely ‘proclaims a common standard of achievement for the promotion of respect for rights and freedoms by all peoples’.22

Also unlike the ICCPR and ICESCR, the UDHR was not opened for signatures of states and ratification by interested parties. The UDHR conceptualized the notion of human rights, while the ICCPR and ICESCR fleshed out the details of the ideal that was brought to light by the UDHR.

Referring to the “open-ended general clauses in human rights documents”, a member of the Committee constituted to come up with common areas of potential agreement on the meaning of human rights at the deliberations on the UDHR said that the ambiguities did not result from confusion or contradiction but were instead productive ambiguities that reflected experience and knowledge gained over a long history of human rights.23 These general clauses would be a foundation for future deliberations.24 The future deliberations did indeed take place, on the foundation that the UDHR had set, and they produced the ICCPR and the ICESCR. In a similar manner, perhaps Ruggie could have used the opportunity he was granted to devise a declaration on business and human rights, albeit not binding, which could have set a firmer foundation for the development of a treaty on business and human rights in the future.

Despite any advantages that could have arisen from developing the Norms, the call for binding obligations for Trans National Corporations (TNCs) and other business entities raises the question how different a treaty would be from the rejected Norms. Would not an attempt to create direct human rights obligations for corporations be met with the same reservations as the

20

For example, it is content with proffering rights but, unlike other international documents of its nature, is not concerned with establishing punitive measures for those who violate them.

21 _{Steiner Henry J and Philip Alston International human rights in context: law politics morals: text and materials}

(2000) 120.

22

The Preamble of the Universal Declaration of Human Rights states: “Now, Therefore the General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms…” Non-state actors like businesses would be part of ‘every organ of society’.

23 _{Glendon op cit note 13 at 1171.} 24 _Ibid.

Norms?25 There is the possibility that the resistance put up against the Norms would at least contribute to prolonged negotiations for a treaty to iron out differences in views.

2.3. Is the failure to create internationally binding corporate human rights obligations fatal