Navigating the Waters of a Convention on Business and Human Rights

In 2005, the U.N. Commission on Human Rights, now the Human Rights Council, requested the U.N. Secretary General, through its resolution 2005/69, to appoint a Special Representative on the issue of Human Rights and transnational corporations and other business enterprises. 

Kofi Annan, followed the resolution’s mandate and later appointed John Ruggie. Ruggie’s work as a Special Representative ended with the suggestion of a non-binding legal framework on Business and Human Rights. Today, Ruggie’s contribution is known worldwide through the U.N. Guiding Principles on Business and Human Rights, and they are based on three core pillars: Protect, Respect and Remedy. 
 
The Guiding Principles were endorsed by the Human Rights Council on June 16, 2011, and seven years after such endorsement, the international community is now working towards the drafting of a U.N. Convention on Business and Human Rights. It is, of course, a pivotal moment for both human rights advocates and businesses, the repercussions of a legally binding framework on this issue could change the behavior and economics of all industries, including the global maritime sector.
 
Human Rights At Sea, a British non-profit independent maritime charitable organization promoting human rights protections throughout the maritime environment, published through its legal research program a paper addressing the legal and practical implications of a U.N. Convention on Business and Human Rights in the maritime sector. The paper assesses not only the spine of the “Zero Draft,” a document that was meant to provide the structure and content of the Convention, but also the evolution of the discussions. Vital elements such as the State duty to protect, the scope of the treaty, meaning the nature of the companies the convention will regulate, the issue of jurisdiction and the obligation of companies to demonstrate due diligence were explained. 
 
The “Zero Draft” as it was presented, did not deliver the utmost certainty, especially for the maritime industry. For instance, it did not cover the field of joint ventures constituted by a State and a private actor which usually operate in the mining, oil and gas and maritime sector. 

Additionally, the maritime business is a segment where seafarers, shipowners and passengers often coexist in international waters far from the borders of a specific territory. Therefore, if a U.N. Convention on Business and Human Rights is adopted it would cohabit with the United Nations Convention on the Law of the Seas (UNCLOS) 1982, and would potentially impose more responsibilities to protect, respect and provide effective remedy to human rights abuses within the supply chain for flag States.
 
On October 15 this year, the fourth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises took part in Geneva. Civil society organizations, non-profits and private sector representatives from all industries and countries were on the same table negotiating the terms of  legally binding treaty on Business and Human Rights. More than 280 accredited members and 25 experts agreed on one point: there is more work to be done.
 
Throughout five days, the debate on the fourth session was focused on different areas, many of them covered in the paper published by Human Rights at Sea. The lack of consensus in both the scope of the future Convention and the definition of universal jurisdiction was fundamental to some actors who insisted on the importance of avoiding conflict with domestic laws. Switzerland asked why the concept of due diligence, indispensable for underwriters and the marine insurance sector, was not aligned with the Guiding Principles and the OECD references. 

During the third day, negotiations were focused on legal liability, mutual legal assistance and international cooperation. Surya Deva, an expert from the U.N. Working Group on Business and Human Rights, argued the nature of the sanctions the treaty will enforce, he believes, should be not only reactive sanctions, but also preventive and administrative sanctions. His opinion could not be more accurate.
 
While the European Union and its representative held a position of silence during the sessions, the question on how the treaty will be coerced over the trade agreements was on the floor, and Russia did not hide its skepticism towards a binding treaty.
 
The fifth session was summoned for next year, and further discussion will rely on fulfilling the unanswered questions. There are lessons to be learned from academics, professionals and organizations within the U.N. system itself. 

The contribution of the maritime industry to the implementation of a Business and Human Rights treaty could be enormous, but the shipping associations and representatives from the maritime supply chain need a sit at the table, especially as the IMO has vast experience in moving forward with controversial Conventions. 

In the end, the spirit of multi-lateralism was celebrated in Geneva, but the international community has to keep its eyes on the target which is to protect, to respect and to remedy.

Alejandro Guzmán Woodroffe is a Legal Researcher for Human Rights at Sea.