Building a Treaty on Business and Human Rights: Context and Contours ed. by Surya Deva & David Bilchitz (review)

I. INTRODUCTION

Are the nations of the world ready for a treaty on business and human rights?

For many countries—the United States and Russia, for example—the answer is clearly no. Other states—notably Ecuador and South Africa—are diplomatically committed to a treaty. Another large group remains on the fence; which way they fall will depend on how ambitious the treaty is, and on how effectively they are pushed, one way or the other, by business opposition and by civil society support.

At this writing, the question is as timely as it is unanswerable. In 2014, on the initiative of Ecuador, supported by South Africa and prodded by a broad, global coalition of civil society organizations, the United Nations Human Rights Council—a political body of states whose ambassadors vote as instructed by their governments—decided to initiate a treaty-drafting process. However, the resolution passed by only a plurality, and the vote was sharply divided geographically and ideologically.

The weakness of the diplomatic support was shown by the schedule contemplated by the resolution: one meeting per year, with the chair (Ecuador) tasked to propose possible "elements" of a treaty only in year three, and a draft text only thereafter.

In 2017 Ecuador duly presented draft elements of a treaty. However, perhaps delayed by a change of government mid-year, Ecuador presented its draft less than a month before the annual meeting of the open-ended intergovernmental working group set up by the UN to draft the treaty. Few governments were prepared to provide substantive comments.

Ecuador presented a draft text of a treaty in July 2018 and a draft optional protocol in August 2018. The draft treaty was discussed at the working group meeting in October 2018; Ecuador is tasked to present a second draft by June 2019.

Despite the diplomatic fragility of the process and open opposition to a treaty by major global business organizations and some powerful governments, the prospect of a treaty to protect victims from business-related human rights violations has drawn considerable academic interest from scholars in the fields of international law, human rights, and business ethics.

The single most comprehensive volume, and in this reviewer's judgment the most helpful, is the edited collection, Building a Treaty on Business and Human Rights: Context and Contours, edited by Surya Deva, a law professor specializing in business and human rights at the City University of Hong Kong, and David Bilchitz, a law professor specializing in constitutional law and rights at the University of Johannesburg, South Africa.¹

Wide-ranging issues of policy, politics and law arise in regard to a treaty on business and human rights. Hence the book, weighing in at nearly 500 pages, is necessarily hefty. Fortunately, its intellectual weight does justice to its physical weight. The editors have assembled an expert cast of contributors, who cover all the main issues to be confronted in drafting the treaty.

No short review can adequately summarize the rich content of so sprawling and diverse a set of analyses. The following may assist readers to consult the chapters of greatest interest to them (or indeed the entire volume).

II. NEED FOR A TREATY

The introduction by David Bilchitz identifies four key problems to show the need for a treaty. First is the current lack of clarity as to the existence, nature, and extent of business human rights obligations under international law. Second, while international human rights law at present calls on states to protect people from business, many states—often themselves the principal violators—are too complicit, corrupt, or incapable to protect people from powerful corporations. Third, doctrines of separate legal personality and limited liability often shield parent and lead companies from liability for human rights violations committed by subsidiaries and business partners. And fourth, victims pursuing justice against companies encounter a formidable array of obstacles. These range from practical hurdles...