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The Necessity for a Business and Human Rights Treaty

  • David BILCHITZ

In June 2014, the Human Rights Council passed a resolution establishing an inter-governmental working group to discuss a legally binding instrument relating to transnational corporations and other business enterprises. In this article, I outline four arguments for why such an instrument is desirable. Identifying the purpose of such a treaty is crucial in outlining a vision of what it should seek to achieve and in determining its content. The arguments indicate that a treaty is necessary to provide legal solutions to cure serious lacunae and ambiguities in the current framework of international law which have a serious negative impact upon the rights of individuals affected by corporate activities. The emphasis throughout is upon why a binding legal instrument is important, as opposed to softer forms of regulation such as the United Nations Guiding Principles on Business and Human Rights. The four arguments in turn provide the resources to respond to objections raised against the treaty and to reject an alternative, more restrictive proposal for a treaty that only addresses ‘gross’ human rights violations.

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Professor, University of Johannesburg; Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law; Secretary General, International Association of Constitutional Law [].

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1 Lincoln, Abraham, ‘Speech in the House of Representatives’ (20 June 1848) at para 153, available at .

2 Human Rights Council, ‘Elaboration of an internationally legally binding instrument on transnational corporations and other business enterprises with respect to human rights’ A/HRC/26/L.22/Rev.1 (25 June 2014).

3 In the case of Ecuador, this relates to a long-standing dispute with Chevron/Texaco around serious environmental harms caused by Texaco: see Lambooy, Tineke, Argyrou, Aikaterini and Varner, Mary, ‘An analysis and practical application of the Guiding Principles on providing remedies with special reference to case studies related to oil companies’ in Surya Deva and David Bilchitz (eds.), Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (Cambridge University Press, 2013) 329, at 336341 . In South Africa, the issue has arisen around corporations that were implicated in propping up the system of apartheid: see, for instance, the litigation in In re: South African Apartheid Litigation, U.S. District Court, Southern District of New York, No. 02-md-01499.

4 He already made the choice not to follow this route many years back when he outlined his ‘Protect, Respect and Remedy’ Framework on Business and Human Rights: see, for instance, his reasoning in John Ruggie, Business and Human Rights – Treaty Road Not Travelled (1 May 2008), available at With the advent of the current debate after his mandate ended, he has taken a number of public positions which question the wisdom of pursuing a treaty: see, for instance, John Ruggie, A UN Business and Human Rights Treaty?, available at; Ruggie, John, ‘Quo Vadis? Unsolicited Advice to Business and Human Rights Treaty Sponsors’ (9 September 2014), available at ; and Ruggie, John, ‘Life in the Global Public Domain: Response to Commentaries on the UN Guiding Principles and the Proposed Treaty on Business and Human Rights’, available at

5 See, for instance, the symposium on ‘Business and Human Rights – Next steps’ at

6 The range of options for such an instrument is canvassed in Cassel, Douglass and Ramasastry, Anita, ‘White Paper: Options for a Treaty on Business and Human Rights’ (2015) 6 Notre Dame Journal of International and Comparative Law 1 , 12–13.

7 A treaty between states is the main method of creating law at the international level: I thus focus on this option rather than suggesting a change in customary international law where the process of doing so is much more nebulous and uncertain.

8 For an exploration of the relationship between morality and law in the idea of fundamental rights, see Sen, Amartya, ‘Elements of a Theory of Human Rights’ (2004) 32 Philosophy & Public Affairs 315 , 320.

9 See, for instance, the Preamble to the International Covenant on Civil and Political Rights (1966) 999 UNTS 171 and 1057 UNTS 407, available at

10 See Bilchitz, David, Poverty and Fundamental Rights (Oxford: Oxford University Press, 2007), 4774 .

11 Donnelly, Jack, International Human Rights, 4th edn. (Westview Press, 2007), 18 and Dicke, Klaus, ‘The Founding Function of Human Dignity in the Universal Declaration of Human Rights’ in David Kretzmer and Eckart Klein (eds.), The Concept of Human Dignity in Human Rights Discourse (Kluwer Law International, 2002) 118 .

12 Donnelly, ibid, 18.

13 See further Velásquez Rodríguez v Honduras, Inter-Am.Ct.H.R. (Ser C) No. 4 (1988) para 144.

14 See Bilchitz, note 10, 74 in response to an objection by O’Neill, Onora, Towards Justice and Virtue (Cambridge: Cambridge University Press, 1996) 134 .

15 Kuper, Andrew, ‘Introduction: The Responsibilities Approach to Human Rights’ in Andrew Kuper (ed.), Global Responsibilities. Who Must Deliver on Human Rights? (New York: Routledge, 2005) at x .

16 ‘If human rights are aimed at the protection of human dignity, the law needs to respond to abuses that do not implicate the state directly.’ Ratner, Steven R, ‘Corporations and Human Rights: A Theory of Legal Responsibility’ (2001) 111 Yale Law Journal 443 , 472; see also Wettstein, Florian, Multi-National Corporations and Global Justice: Human Rights Obligations of a Quasi-Governmental Institution (Stanford: Stanford University Press, 2009) 285 and Bilchitz, David, ‘Corporations and the Limits of State-based Models for Protecting Human Rights in International Law’ (2016) Indiana Journal of Global Studies (forthcoming).

17 See Hamdani, Khalil and Ruffing, Loraine, United Nations Centre on Transnational Corporations: Corporate Conduct and the Public Interest (London: Routledge, 2015)

18 For an overview of problems with the voluntary approaches, see Deva, Surya, Regulating Corporate Human Rights Violations: Humanizing Business (Oxford: Routledge, 2012) 74100 .

19 See Weissbrodt, David and Kruger, Muria, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’, (2003) 97 American Journal of International Law 901 , at 915.

20 For an overview of these developments, see David Bilchitz and Surya Deva, ‘The Human Rights Obligations of Business: A Critical Framework for the Future’ in Deva and Bilchitz, note 3, 1, 5–10.

21 Commission on Human Rights ‘Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises’, E/CN.4/2006/97 (22 February 2006) (SRSG ‘2006 Interim Report’) paras 64–5. For a more detailed critique from which I draw some of the argument in this section, see Bilchitz, David, ‘A Chasm Between “Is” and “Ought”? A Critique of the Normative Foundations of the SRSG’s Framework and the Guiding Principles’ in Deva and Bilchitz, note 3, 107137 .

22 Human Rights Council, ‘Protect, Respect and Remedy: A Framework for Business and Human Rights’, A/HRC/8/5 (7 April 2008), at para 54 (2008 Framework).

23 Since these implications necessarily follow from the law that already exists, they have legal rather than simply moral force. The argument I make is logical, however, it has been bolstered by a number of other arguments concerning why businesses already have obligations under international law rooted in what is necessary to render human rights effective, and the fact that businesses already have obligations in relation to a number of soft and hard law instruments: see Andrew Clapham Human Rights Obligations of Non-State Actors (2006) 80 and 195–270.

24 SRSG, 2006 Interim Report, note 21, para 60. See, for instance, Cassese, Antonio, International Law in a Divided World (Oxford: Clarendon Press, 1986), 103 . Whilst Ramasastry and Cassel, note 6, 12–13 recognize the human rights project has never been confined to states, they conclude that corporations are generally only bound indirectly through the state’s duty to protect.

25 Boyle, Alan E, ‘Some Reflections on the Relationship of Treaties and Soft Law’ (1999) 48 International and Comparative Law Quarterly 901 , at 903–4 recognizes that a treaty generally demonstrates a ‘greater sense of commitment than a soft law instrument’ and is particularly appropriate for the elaboration of human rights law.

26 Velásquez Rodríguez v Honduras, note 13, para 172.

27 Wettstein, note 16, 285 writes in a similar vein: ‘[i]f corporations did not have prior moral obligations to individuals, the state’s derivative responsibility to hold them accountable would be empty and meaningless’.

28 I draw this argument from Bilchitz, note 21, 111–14 and have elaborated on some the assumptions contained in the state duty to protect in Bilchitz, note 16.

29 See Sunstein, Cass, ‘On the Expressive Function of Law’ (1996) 144 University of Pennsylvania Law Review 2021 , 2021ff.

30 Communication 155/96, African Commission on Human and Peoples’ Rights (2001) African Human Rights Law Reports 60.

31 Ibid, para 58.

32 I am indebted to Meghan Finn for highlighting this point to me.

33 Article 2 of the International Covenant on Civil and Political Rights, note 6.

34 Velasquez Rodriguez v Honduras note 13, paras 172 and 174.

35 Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework (A/HRC/17/31), principle 11, available, with commentary, at

36 See Deva, note 18, 24–45.

37 See Moller, Kai, The Global Model of Constitutional Rights (Oxford: Oxford University Press, 2012) 217 .

38 See, for example, the Canadian position in R. v Oakes [1986] 1 S.C.R. 103 and, the South African position, S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391, paras 100 ff.

39 See Ratner, note 16, who provides a sophisticated approach to this question.

40 See, for instance, Khumalo and Others v Holomisa [2002] ZACC 12; 2002 (5) SA 401.

41 See, for instance, the approach in R. v Big M Drug Mart Ltd [1985] 1 S.C.R. 295; and De Lange v Smuts NO and Others [1998] ZACC 6; 1998 (3) SA 785, paras 86–8.

42 For an examination of the necessity enquiry in proportionality, see Bilchitz, David, ‘Exploring the Necessity Enquiry in the Limitation of Fundamental Rights’, in Liora Lazarus, Christopher McCrudden and Nigel Bowles (eds.), Reasoning Rights (Oxford: Hart, 2014) 4162 . The obligations of corporations in the context of privacy rights are considered in Bilchitz, David, ‘Privacy, Surveillance and the Duties of Corporations’ (2016) Journal of South African Law 45 .

43 See, for example, instances in the 2008 Framework, note 22, in relation to anti-discrimination, para 55 and, in relation to due diligence, para 56; and the 2009 Report of the SRSG A/HRC/11/13, at paras 61–5.

44 SRSG ‘2006 Interim Report’, note 21, para 66 and Ratner, note 16, 518.

45 See, for instance, Hsieh, Nien-he, ‘The Obligations of Transnational Corporations: Rawlsian Justice and the Duty of Assistance’ (2004) Business Ethics Quarterly 14 ; Florian Wettstein, note 16, 311–33; Wood, Stepan, ‘The Case for Leverage-based Corporate Human Rights Responsibility’ (2012) 22 Business Ethics Quarterly 63 , 76–92; Santoro, Michael, ‘Post-Westphalia and its Discontents: Business, Globalisation and Human Rights in Political and Moral Perspective’ (2010) 20 Business Ethics Quarterly 281, 291292 ; Young, Iris Marion, ‘Responsibility and Global Justice: a Social Connection Model’ (2006) Social Philosophy and Policy 127130 ; Bilchitz, David, ‘Do Corporations Have Positive Fundamental Rights Obligations?’ (2010) 125 Theoria 1126 ; and Bilchitz, note 21, 126–36.

46 Wettstein, note 16, 324–5.

47 Bilchitz, note 45, 21–2.

48 Wettstein, note 16, 324–5; Young, note 45, 127.

49 Human Rights Council, note 2.

50 See Bilchitz, note 45, 24–6.

51 Article 40(4) of the International Covenant on Civil and Political rights, note 9.

52 See Deva, note 18.

53 Multi-stakeholder initiatives are defined as ‘private governance mechanisms involving corporations, civil society organizations, and sometimes other actors, such as governments, academia or unions, to cope with social and environmental challenges across industries and on a global scale’: see Mena, Sebastien and Palazzo, Guido, ‘Input and Output Legitimacy of Multi-Stakeholder Initiatives’ (2012) 22 Business Ethics Quarterly 527 , at 528.

54 Ibid and see also Fransen, Luc and Kolk, Ans, ‘Global Rule-setting for Business: a Critical Analysis of Multi-Stakeholder Standards’ (2007) 14 Organisation 667 .

55 That can of course be a strength too as they buy into the process; yet, there is a fundamental problem with having the industry, at least partially, set the rules for themselves.

56 Peter Muchlinski, ‘Beyond the Guiding Principles: Examining New Calls for a Legally Binding Instrument on Business and Human Rights’, available at clearly states that ‘an international instrument that sets down corporate responsibilities and liabilities in a more authoritative manner would be a genuine advance’.

57 See Boyle, note 25, 904–6.

58 I recognize that the status of general comments is generally not taken to be as binding as the particular contents of a treaty: at the same time, they have a status and persuasiveness that is affected by the origins of the committee that issues them in a binding treaty. This is what I mean by ‘strongly authoritative’ (which is not equivalent to binding law): see, for example, International Law Association, ‘Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies’ (2004) at 5.

59 Developments at national and regional levels could of course also influence the standards expressed by the international mechanism so there would be a virtuous two-way effect on norm development in this field.

60 See, for example, Killander, Magnus and Adjolohoun, Horace, ‘International Law and Domestic Human Rights Litigation in Africa: An Introduction’ in Magnus Killander (ed.), International Law and Domestic Human Rights Litigation in Africa (Pretoria: Pretoria University Law Press, 2010); and Courtis, Christian, ‘Notes on the Implementation by Latin American Courts of the ILO Convention 169 on Indigenous Peoples’ (2009) 10 International Journal on Human Rights 53ff .

61 See sec 39(1)(b) of the South African Constitution which requires that courts must consider international law when in interpreting the Bill of Rights.

62 See for instance Choudhury, Barnali et al, ‘A Call for a WTO Ministerial Decision on Trade and Human Rights’ in Thomas Cottier and Panagiotis Delimatsis (eds.), The Prospects of International Trade Regulation (Cambridge: Cambridge University Press, 2011) 323ff . Rights violations which have flowed from the WTO are detailed by Choudhury et al from p. 330 and include public services, including the rights to education and water. See also Cullet, Philippe, ‘Patents and Medicines: The Relationship between TRIPS and the Human Right to Health’ (2003) 79 International Affairs 139 and, generally, Hestermeyer, Holger P, Human Rights and the WTO (Oxford: Oxford University Press, 2008).

63 Piero Foresti, Laura de Carli v Republic of South Africa (ICSID) Case No. ARB (AF)/07/1.

64 See, for example, Hestermeyer, note 62; Joseph, Sarah, Blame It On the WTO?: A Human Rights Critique (Oxford: Oxford University Press, 2013); Dine, Janet and Fagan, Andrew (eds.), Human Rights and Capitalism: A Multidisciplinary Perspective on Globalisation (Edward Elgar, 2006); Abbott, Frederick et al, International Trade and Human Rights: Foundations and Conceptual Issues (Michigan: University of Michigan Press, 2006); and Jacob, Marc, ‘International Investment Agreements and Human Rights’ (2010) 3 INEF Research Paper Series on Human Rights, Corporate Responsibility and Sustainable Development .

65 Justine Nolan, ‘The Corporate Responsibility to Respect Rights: Soft Law or Not Law?’ in Deva and Bilchitz, note 3, 138.

66 See Guiding Principles 8 to 10, note 35.

67 Ruggie, John, Just Business: Multinational Corporations and Human Rights (W. W. Norton & Company, 2013) 184 .

68 There is an interesting and controversial question about the extent to which there is a hierarchy of norms in international law: see, for example, Shelton, Dinah, ‘Normative Hierarchy in International Law’ (2006) 100 The American Journal of International Law 291 ; Koskenniemi, Marrti, ‘Hierarchy in International Law: A Sketch’ (1997) 8 European Journal of International Law 566 ; and de Wet, Erika and Vidmar, Jure, Hierarchy in International Law: The Place of Human Rights (Oxford: Oxford University Press, 2012). Fundamental rights would be key candidates for norms that have a superior status given their rootedness in the dignity of individuals: as a matter of normative philosophy, they should have this status. Yet, as international law develops, there is no clarity as to whether fundamental rights are recognized to have this prior status and how they intersect with other bodies of international law.

69 (1999), 1867 UNTS 154, 33 ILM 1144 (1994).

70 (1999), 1867 UNTS. 187, 33 ILM 1153 (1994).

71 See Jacob, note 64, for instance, for a more detailed discussion in this regard.

72 (1969) UNTS 1155, 331 at art 31(3)(c).

73 Article 2, United Nations Charter (1945) 1 UNTS XVI.

74 Muchlinski, Peter, ‘Limited Liability and Multinational Enterprises: A Case for Reform?’ (2010) 34 Cambridge Journal of Economics 915 .

75 For an approach to addressing these problems, see De Schutter, Olivier, ‘Towards a New Treaty on Business and Human Rights’ (2016) 1 Business and Human Rights Journal 4754 .

76 This is precisely one of the problems with holding Texaco responsible for the environmental damage it caused in Ecuador as it merged with Chevron: see Lambooy, note 3, 337.

77 The reform of a number of doctrines of corporate law are amongst these, a matter I cannot consider here in any detail.

78 See also International Commission of Jurists, Needs and Options for a New International Instrument in the Field of Business and Human Rights (2014), at 9, available at,

79 Deva, Surya, ‘Acting Extraterritorially to tame multinational corporations for human rights violations: Who should “Bell the Cat”?’ (2004) 5 Melbourne Journal of International Law 37 ; and De Schutter, note 77, at 55.

80 See, for example, the case of Wiwa v Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir.) 2000; Siderman de Blake v Republic of Argentina, 965 F.2d 699 (9th Cir. 1992).

81 Kiobel v Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013).

82 See Bilchitz, David, ‘Human rights accountability in domestic courts: Does the Kiobel case increase the global governance gap?’ (2013) 120 South African Law Journal 794 .

83 Akpan and Milieudefensie v Royal Dutch Shell and Shell Petroleum Development Company of Nigeria [2013] District Court of the Hague C/09/337050/HaZA 09-1580, available at

84 (2003) A/58/422. See Ramasatary, Anita, ‘Closing the Governance Gap in the Business and Human Rights Arena: Lessons from the Anti-Corruption Movement’ in Deva and Bilchitz, note 3, 162 .

85 Ibid, at arts 5, 27, 38 and 42.

86 Ibid, at art 43. De Schutter, note 75, at 67 advocates for this type of model as being preferable and the most politically feasible.

87 Kiobel, note 81, 12. Similarly, see Deva, note 79 on the Australian context.

88 See Joseph, Sarah, Corporations and Transnational Human Rights Litigation (Oxford: Hart Publishing, 2004).

89 See De Schutter, note 75, at 65.

90 Sofia Guidelines on Best Practices for International Civil Litigation for Human Rights Violations, adopted at the 75th Conference of the Association held in Sofia, Bulgaria in August 2012, available at

91 Ramasastry and Cassel, note 6, at 33–4 also canvass the possibility of an international arbitration tribunal that could be developed to perform this task.

92 For more details, see the proposal for an international tribunal put forward by Lawyers for Better Business, available at

93 See also Wettstein, note 16, 342–7.

94 Whilst Ruggie has been the most prominent critic, I also consider the views of academic commentators which have been expressed largely on web-sites and blogs at present.

95 See Human Rights Council, note 2, at 1.

96 Ibid, at fn 1.

97 Ruggie, Quo Vadis, note 4.

98 John Ruggie Closing Plenary Remarks, UN Forum Business and Human Rights, available at

99 Ibid.

100 Deva, Surya, Corporate Human Rights Abuses and International Law: Brief Comments, available at .

101 Ruggie, Quo Vadis, note 4.

102 Ruggie, note 98.

103 Ruggie, Quo Vadis, note 4.

104 Ibid.

105 Ibid.

106 Indeed, it has been pointed out that the same objection could be lodged against the Guiding Principles which attempt to cover the domain of business and human rights as a whole: see Deva, note 100 and John Tasioulas, Human Rights, No Dogmas: The UN Guiding Principles on Business and Human Rights, Ruggie’s response in Life in the Global Public Domain, note 4 is unconvincing, conflating principle with pragmatic considerations.

107 See Rawls, John, The Law of Peoples (Cambridge: Harvard University Press, 2001) 310 .

108 Ruggie, Quo Vadis, note 4.

109 Ibid. The United States government explained its vote against the establishment of the inter-governmental working group partially in this way: see US Mission to the UN ‘Proposed Working Group would undermine efforts to implement Guiding Principles’ (26 June 2014), available at

110 See George, Erika, Incorporate Rights: Making the Most of the Meantime, available at . A similar worry is expressed by Mark Taylor, ‘A Business and Human Rights Treaty: Why Activists Should Be Worried’, available at

111 Ruggie’s advocacy of polycentric governance (see Life in the Global Public Domain, note 4) and Deva’s integrated theory of regulation (developed in Humanizing Business, note 18) need not be at odds with the formation of a treaty.

112 International Commission of Jurists, note 78, at 9; Ruggie too seems to accept this point in Closing Plenary Remarks, note 98.

113 Shelton, note 68, at 320–1.

114 See Boyle, note 25, 904.

115 Ibid 905–6.

116 Ruggie, Quo Vadis, note 4.

117 See Ruggie, Life in the Global Public Domain, note 4, where he raises the spectre of the Migrant Workers Convention which came into force in 1990 but has not thus far been ratified by any migrant worker-receiving country.

118 Shelton, note 68, 300.

119 See DeSombre, Elizabeth, ‘The Experience of the Montreal Protocol: Particularly Remarkable, and Remarkably Particular’ (2000) 19 Journal of Environmental Law 49 .

120 See Junod, Sylvie, ‘Additional Protocol II: History and Scope’ (1983) 33 The American University Law Review 29 .

121 Bhandari, Surendra, ‘Doha Round Negotiations: Problems, Potential Outcomes and Possible Implications’ (2012) 4 Trade, Law and Development 356 .

122 Benedetti, Fanny and Washburn, John, ‘Drafting the International Criminal Court Treaty: Two Years to Rome and an Afterword on the Rome Diplomatic Conference’ (1999) 5(1) Global Governance 1 .

123 Ruggie, Closing Plenary Remarks, note 98.

124 This approach is supported by De Schutter, note 75, at 60–2.

125 Ruggie, Quo Vadis, note 4, fn 17.

126 Ruggie, Closing Plenary Remarks, note 98.

127 See also Stewart, James, A New Instrument on “Gross” Violations? Enthusiasm and Apprehension, available at

128 See Martinez, Jenny, A First Step Is Better Than No Step at All, available at .

129 Deva, note 100.

130 Ibid.

131 Ibid and Stewart, note 127.

132 Clapham, Andrew, ‘Extending International Criminal Law Beyond the Individual to Corporations and Armed Opposition Groups’ (2008) 6 Journal of International Criminal Justice 899 ; and Cassel, Doug, ‘Corporate Aiding and Abetting of Human Rights Violations: Confusion on the Courts’ (2007-2008) 6 Northwestern University School of Law 304 .

133 See George, note 110.

134 Sosa v Alvarez-Machain, 542 U.S. 692 (2004).

135 They also suggest that the proposal of Deva, note 100, for a Declaration on the Human Rights Obligations of Business—whose exact normative force is unclear—would not be optimal except as an interim step if a more binding and expansive instrument cannot be agreed upon.

* Professor, University of Johannesburg; Director, South African Institute for Advanced Constitutional, Public, Human Rights and International Law; Secretary General, International Association of Constitutional Law [].

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