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1 Okt 2018

Nadia Bernaz, Rights as Usual

A Commentary of the Draft Optional Protocol to the Business and Human Rights Treaty

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...Under the Draft Protocol, states parties shall establish a National Implementation Mechanism (hereafter “the Mechanism”) to promote compliance with, monitor, and implement the future treaty...The Mechanism will be tasked with raising awareness of the business and human rights treaty, in cooperation with other national institutions, civil society organizations, and foreign Mechanisms...In many countries the Mechanism could be run within existing, domestic National Human Rights Institutions (NHRIs)...Article 4 purports to entrust the Mechanism with a role in the prevention of human rights violations by corporations...[I]t is expected that when undertaking due diligence, corporations produce and publish reports on non-financial matters...Article 4 of the Draft Protocol indicates that the Mechanism “shall, as a minimum, have competence to request all necessary information from the State Party in whose territory” that Mechanism operates...This assumes that states actually gather and somehow store or keep track of such information...

...Article 5 seemingly aims to address an important gap in the current legal framework on business and human rights...by giving the Mechanism the power to review corporate performance of their due diligence obligations...[I]t is going to be difficult to implement...[I]t is likely corporations will view this review process with suspicion, at the very least...How to ensure that the Mechanism is staffed with people with a good understanding of how corporations function?...

Article 6 sets up a non-judicial complaint mechanism relying on mediation...[T]his could really add value...One important point: in practice the potential for overlap between the work of the Mechanism in this area and the work of NCPs seems high.  If States go forward with the idea, it would perhaps make sense to explore ways to merge the two institutions...