Diplomatic Conference: Business and Human Rights "The Right to a Remedy"

In 2011, the UN Human Rights Council endorsed the UN Guiding Principles on Business and Human Rights for implementing the UN “Protect, Respect and Remedy” Framework (UNGPs). In this way, the first global standard for preventing and addressing the risks of adverse impacts on human rights linked to business activities has been established. The adoption of the Guiding Principles marked the start of multifaceted implementation processes at the international and domestic levels, including the United Nations Forum on Business and Human Rights, the activities of the Working Group on Business and Human Rights of the Human Rights Council, the development of national action plans on business and human rights in countries from all regions, and numerous initiatives on the part of the business community and civil society. 

In 2015, the Diplomatic Conference organised by EIUC and the EU Working Party on Human Rights (COHOM) was dedicated to the topic: “Business and Human Rights – the (EU) way ahead of multilateral action.” A particular focus of this Conference was placed on the EU reaction at that stage to the Human Rights Council resolution adopted at its twenty-sixth session on the initiative of Ecuador and South Africa with a view to elaborating an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights. 

In the previous debates, even those who were skeptical about a single overarching treaty on business and human rights, as it would be too abstract and not very useful to people, recognised that some issues might benefit from further international standard-setting, such as access to remedies, harmonisation of state regulation of business accountability, including extra-territorial reach for domestic remedies or modes of liability for business entities. This would be compatible with the vital role and the impact of the Guiding Principles since they “are a floor, not a ceiling.” (John Ruggie).

In this spirit, the 2017 Diplomatic Conference revisited the issue of an international treaty in light of the evolution of discussions. The topic is highly relevant and timely given that the third session of the Inter-Governmental Working Group on transnational corporations and other business enterprises with respect to human rights will take place in October 2017 and may begin negotiations on the content of a new instrument. The forthcoming Diplomatic Conference offered a conducive framework for a reflection among COHOM members and other EU officials, supported by the expertise of high level experts on business and human rights. Its first part (morning) was dedicated to the scope and key substantive aspects of the treaty proposal, as well to the EU engagement in the relevant processes. It is widely acknowledged that the implementation of the third pillar of the UNGPs i.e. on access to remedies for victims of violations of human rights committed in the context of business activities, has been the weakest as compared to the other pillars. Undoubtedly, any proposal for a legally binding instrument will place a strong emphasis on the access of individuals and groups to tools and procedures enabling them to claim their rights and hold those responsible accountable. Therefore, the afternoon session of the Diplomatic Conference addressed contentious and/or unpacked human rights aspects of the right to remedy.