Wednesday, 1 March 2017

Private Law, Public Goal: contracting human rights

Might a 'private law' instrument (a commercial contract) in some cases hold more regulatory potential, in human rights terms, than a 'public law' instrument such as a treaty or related legislation?

We know a lot about the compliance gap in the mainly treaty-based international human rights system, which does not apply directly to business actors.

In this context, one way to innovate on promoting compliance with these standards, at least where business actors or commercial relationships are involved, is to find ways to frame human rights obligations as contractual promises.

If the pitfall of human rights compliance is the existence of sanctions or some enforcement mechanism, the attractiveness of using private law mechanisms is the potentially more tangible commercial consequences of a material breach of contract.

There's a whole literature on this sort of thing (eg Hugh Collins' Regulating Contracts, 1999), and some practice evident in (for example) incorporating reference to the Voluntary Principles into extractive industry contracts.

Here now is another practical manifestation of it.

This week my attention was drawn* to the fact that the International Olympic Committee (IOC) has recently amended its standard 'Host City' agreement to incorporate reference to the 2011 UN Guiding Principles on Business and Human Rights.

The procuring power and commercial influence that a body such as the IOC might bring to bear in this way would seem to offer one important way to influence human rights compliance by those supplying, sponsoring and indeed hosting mega sporting events.

More broadly, one has a glimpse of the potential to steer or influence commercial behaviour by finding private law means to public law ends.

Already there is some work being done on the scope for building human rights compliance mechanisms (or at least reporting / disclosure ones) into government procurement from private suppliers and contractors: see here (Danish Institute for Human Rights).

Advocates can move beyond repeated claims of 'human rights violation' to something that might resonate more effectively or in different ways, with specific consequences, now framed as 'contractual breach'.

On one view, the human rights law student or lawyer of the future might be someone who specialises in contract negotiation or studies International Commercial Arbitration, rather than the very public-law focused discipline of human rights as it exists today.


See news stories on the IOC move from Human Rights Watch, and the International Trade Union Confederation.

See here this previous blog of mine on mega-sporting events, business, and human rights (Rio Olympics 2016), and these resources on that topic:

* Thanks to Justine Nolan

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