International Standards on Business and Human Rights: Is Drafting a New Treaty Worth it?

Abstract

In 2014, the United Nations Human Rights Council adopted a resolution to establish a Working Group to draft a treaty on business and human rights. In the aftermath of this resolution, much is being written on what such a treaty would cover. And in light of the very close vote approving the resolution — and the likelihood that few developed countries would ratify the treaty — a question may arise as to whether the effort to draft the treaty would be worth it. To answer this question, this paper examines the International Convention for the Protection of All Rights of Migrant Workers and Their Families — which has only been ratified by a small number of states (and primarily by sending countries). This paper first summarizes the history of the efforts to address corporate accountability, and examines the current voluntary and mandatory international standards relevant to the human rights obligations of businesses. The paper then reviews the Convention on Migrant Workers and the Committee on Migrant Workers (CMW) Concluding Observations on reports of the States Parties. These reports indicate that states have adopted legislation to both educate their own citizens who might emigrate to other countries as well as to provide some benefits to migrant workers in their own countries. Despite the small number of States Parties to the Convention, this legislation demonstrates what can be done to protect the rights of migrant workers both in sending and receiving countries, and it helps develop best practices to promote their rights. And while the CMW has raised concerns regarding the adequacy of this legislation, the laws have helped to develop the legal standards regarding the definition of migrant workers, and regarding the rights of those in irregular situations. The paper asserts that these benefits will clearly have an effect on the evolution of the law protecting migrant workers and their families. The Convention on Migrant Workers thus provides a good model for the possible benefits of a treaty on human rights, even if such a treaty is not widely ratified. First, the drafting of a binding document has helped develop the law on migrant workers. Second, the treaty has helped to promote and protect the rights of workers from sending states as well as migrants who live in the States Parties. The paper concludes that the drafting of a treaty on business and human rights could have a similar effect. Such a treaty could promote the development of international standards to address the topic at the international level, as well as the development of procedures at the national level. It could also provide a forum for addressing redress at the international level when the domestic procedures are not sufficient.