Book Review

The Future of Business and Human Rights, Jernej Letnar Cernic and Nicolas
Carrillo-Santarelli (eds) (Intersentia, Cambridge, UK, February 2018), 330 pp.

This collection of twelve articles delves into the various debates surrounding the current
United Nations (UN) attempt to establish a binding treaty on the duties of states and
transnational corporations (TNCs) to protect and respect human rights. The controversies
concern basic questions such as the very scope of the treaty – should it cover TNCs and
their affiliates or all businesses? Who has the obligation to protect human rights, the state or
TNCs or both? How can the asymmetry between TNC rights and duties be bridged?
Should there be a binding treaty to fill in gaps in international human rights law or is the
voluntary approach using the previously worked out UN Guiding Principles on Business
and Human Rights sufficient?
The articles are based in part on the proceedings of the first two sessions (2015–16) of
the Open-Ended Intergovernmental Working Group on Transnational Corporations and
Other Business Enterprises with Respect to Human Rights established by a resolution of
the UN Human Rights Council in 2014. The Human Rights Council resolution empowers
the Working Group to elaborate an internationally legally binding instrument to regulate in
international human rights law the activities of TNCs and other business enterprises with a
transnational character. By focusing on the first two sessions the authors have given
readers half a loaf. The first two sessions were merely an ‘airing’ of diverse views while the
third and latest session (2017) was devoted to a concrete discussion of the ‘elements’ of a
binding treaty for TNCs and human rights. Consequently, some articles mislead the reader
as to where the treaty is headed as well as the position of civil society and some states on
treaty content. During the third session the ‘elements’ paper prepared by the chairperson-
rapporteur provided clarity as to the treaty’s direction. The latest stance of civil society,
especially the Treaty Alliance, was largely supportive of imposing direct obligations on
both states and TNCs. The European Union (EU), although announcing it would play a
constructive role in the debates, was overwhelmingly negative, especially in the third
session which the book does not cover.
The authors take up the question whether TNCs have a direct duty to protect human
rights. Some think it is legally feasible to impose obligations on TNCs, others argue that
direct obligations are not consolidated under international law or there is no precedent
for direct obligations. However, there are precedents for direct obligations on TNCs in
the Universal Declaration of Human Rights, and the Optional Protocol to the Convention
on the Rights of the Child as well as other conventions. One author claims that even ‘civil
society prefers state duties’ and that the Treaty Alliance is promoting the idea of a treaty
directly binding on states, not on corporations, thus this proposal has been marginalized.
Nothing of the sort. The fact is that the Treaty Alliance, with over 600 organizations and

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hundreds of individuals, has proposed a long list of TNC duties regarding the respect of
human rights.
Other authors suggest that the solution may not lie in the direct obligations for TNCs
but in expanding the jurisdiction of states. However, weak states would not be able to
make use of such jurisdiction; only the powerful if they so choose. According to Van Ho,
the current laws allow TNCs to structure themselves in a way that prevents effective
regulation, oversight and remedies as TNCs have no liability for the actions of their
subsidiaries (the corporate veil argument). A way out, suggests Van Ho, is to establish
group liability and have the treaty ensure cooperation between states and expand
jurisdiction so that states can oversee the totality of a group’s operations.
Possibly, the most readable article of the book is from Kuwali. He explains why South
Africa was one of the first countries to propose the adoption of a binding instrument
on TNCs as it has seen some of the worst human rights abuses of corporate activity.
He says that:
Balancing the pros and cons of having a legally binding treaty on business and human
rights, a reasonable view is that international binding law on corporations and human
rights is the only effective way to tackle corporate abuse of rights, given the impunity of
powerful corporations and the voluntary nature of the UN Guiding Principles.

Kuwali then makes specific and clearly stated proposals for the treaty in a number of
different areas covering due diligence or the duty of care, criminal and civil liability,
access to legal redress, penetrating the corporate veil, victim assistance, cooperation
among states, a monitoring and accountability mechanism, and extraterritoriality of
corporate responsibility. At least here the reader is on solid ground and not lost in the
controversies.
Besides the thorny issues of direct obligations and jurisdiction, some authors assessed
the participation of states in the treaty exercise. Most EU countries voted against the
resolution but there were 13 abstentions from Latin, Asian and African countries who did
not want to endanger foreign direct investment flows. Latin American delegations barely
participated in the first two sessions outside of Bolivia, Cuba, Ecuador and Venezuela.
Many states even boycotted the first treaty session. The EU announced prior to the
second session its commitment to constructive participation, but its participation in both
the second and third sessions was anything but constructive. It ranged from slowing
down the adoption of the agenda to rejecting most proposals in the elements paper to
accusing the chairperson of formulating the language of the session’s report in the
staircase. It insisted that the enabling resolution authorized only three sessions. Clearly
the EU was attempting to end this initiative by blocking any further sessions.
The inconsistent positions of the Council of European Union, the European Commission
and the European Parliament are not given sufficient analysis by the authors. The first two
organizations clearly favour the voluntary approach of the UN Guiding Principles, while
members of the European Parliament favour a binding treaty and the Parliament even
requested the European Commission and the Council to make ‘proposals to develop the
right legal basis for establishing a European multilateral framework governing companies’
operations worldwide’. Furthermore, members of the European Parliament expressed their
strong support in a video presentation for a binding instrument thus distancing themselves

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 2018 Book Review 3

from the positions taken during the third session by the representative from the European
Commission. Nevertheless, one author hopes that the EU will adopt a more ‘industrious
and engaged approach in the next sessions’ of the treaty. One could add that a spirit of
constructive compromise would also be helpful in this difficult endeavour.
Suarez and Fyfe point out the merits of this exercise even if it fails. It has provided a
space to give more visibility to the views of those harmed by TNC activities; it has
enabled the debates to shift focus from corporate social responsibility to legal corporate
accountability or from a voluntary to an obligatory approach; it has energized the
convergence of diverse civil society organizations and allowed them to develop common
positions, thus strengthening the human rights movement. While it seems that some
states are withdrawing from multilateralism in various areas and there is little appetite on
their part for multilateral treaties, declarations or conventions, clearly civil society once
galvanized is a potent force for progress however difficult the path.
Overall, the selection of articles in the book provides insights into the process of the
treaty on business and human rights. The major challenge for the book is that it is based
on the first two sessions. We are still in the treaty process and things have changed since
the beginning of the process. While only time will tell how the treaty process evolves, the
book is a useful read for those who want to know about the early part of the treaty process
and how it was perceived at the time.

Lorraine RUFFING
Former Director of Business Development, UNCTAD

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