ICC Briefing: The United Nations Treaty Process on Business and Human Rights – 26 October 2020

The primacy of the UN Guiding Principles

We continue to believe that the United Nations Guiding Principles on Business and Human Rights (“UNGPs”) represent a transformational roadmap to a future where human beings and corporations alike can thrive and prosper. We urge all governments who have not done so to commence the development of robust action plans without delay. Our global network stands ready to contribute constructively to the elaboration of any new action plans. With specific reference to business, the work of embedding the UNGPs into corporate practices is picking up impressive speed – with risk assessments, enhanced supply chain due-diligence and human rights training all now routinely implemented in many enterprises. ICC continues to actively support its members to scale implementation of the UNGPs – and we will intensify these efforts to achieve the maximum on the ground impact. We also encourage the UN and its member states to enhance the efficacy of follow-up mechanisms under the UNGPs to allow for enhanced sharing of best practices and to catalyse collaborative approaches to enduring challenges.

Principles for future legal developments

While much remains to be done in operationalizing the UNGPs, ICC, in reflecting the views of our global membership, still remains unconvinced that a treaty-based approach can be truly effective in dealing with the web of complex interrelationships between business and human rights.

We would like to take the opportunity to stress the imperative for any future national frameworks to: (i) be internationally consistent; and (ii) align fully and completely with the standards embodied in the UNGPs. Absent of meeting these criteria, it is our concern that future legal developments may inadvertently disrupt the efforts of companies already working to implement the UNGPs – as well as eroding incentives for actors who have yet to step up to their responsibilities to take action.

The draft treaty

With regard to the specific provisions of the draft treaty, ICC recognises that efforts have been made to revise the draft text again – including by attempting to clarify issues that many governments and business groups have raised in past IGWG sessions. We again thank the facilitators of the IGWG for their efforts in this regard, but we believe – as do many delegations – that the current revised draft has serious deficiencies.

Issues raised include those that most notably pertain to scope, rights of victims, remediation, burden of proof, and jurisdiction. In this context, and in light of (i) the initiative of the UN Human Rights and Business Working Group; (ii) the important legal developments being considered in many jurisdictions; and (iii) the lessons being learned from existing legislation in others, ICC would ask to consider whether the revised draft is moving in the right direction, and whether that process might benefit from reflection and consultations intersessionally to review alternative approaches. ICC stands ready to contribute constructively to such a process of reflection, drawing on the experience of the many companies in our network who are leading in the field of human rights promotion and protection.

Conclusion

It is incumbent on us all to support the development of robust, effective and coherent policy settings in the field of human rights and business, and to do so in ways that have real and positive impact on those most at risk of human rights abuses. We stand ready to work with all stakeholders to this end, and we encourage commitment by all to the multi-stakeholder consultations being organised in the context of the UNGP 10+ initiative.