Is a Business and Human Rights Treaty Necessary?

Professor David Bilchitz
Prof David Bilchitz is a Professor at the University of Johannesburg; Director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) and Secretary-General of the International Association of Constitutional Law. In 2013, he co-edited a book (with Surya Deva) critically examining the Guiding Principles on Business and Human Rights titled 'Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect?' (CUP, 2013).

In June 2014, the Human Rights Council passed a resolution whereby countries agreed to commence discussions on a legally binding instrument relating to transnational corporations and other business enterprises. In this paper, I outline four arguments for why a treaty is necessary to cureimportant lacunae in international law in this field. The arguments all are rooted in a common normative understanding of fundamental rights and seek to ensure that they are accorded the importance they deserve in this increasingly globalized world. Whilst each argument on its own has strength, this paper aims to emphasize the cumulative case that the four arguments create in favour of a treaty. The emphasis throughout is upon why a binding legal instrument is particularly important, as opposed to softer forms of regulation such as the United Nations Guiding Principles. Prof Bilchitz then turns to several objections recently raised by Professor John Ruggie, the former Special Representative of the Secretary General on Business and Human Rights. I attempt to show why none of these objections provides good reason to abandon the idea of a treaty as well as why it would be unfortunate to proceed with Ruggie’s more restrictive proposal for a treaty that only addresses ‘gross’ human rights violations.

This event is being co-hosted with the Oxford Martin School Human Rights for Future Generations.