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2 Aug 2018

Doug Cassel, Letters Blogatory

At Last: A Draft UN Treaty on Business and Human Rights

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...The draft treaty text...zeroes in on what victims need most.  To prevent human rights violations, states parties must commit to require their companies to exercise human rights due diligence...[B]oth home and host states of companies engaged in “business activities of a transnational character” will be required to provide remedies and to cooperate in their enforcement...The new text also addresses the practical realities of access to justice...[T]he treaty will be implemented and enforced by States parties.  State laws are to mandate human rights due diligence by business and to afford victims access to judicial remedies...

[T]he new text contemplates no binding international enforcement mechanism...International oversight will...combine the self-reporting and non-binding review characteristic of early human rights treaties governing states, with the more recent innovation of a conference of states parties...States should find the draft treaty text appealing in concept...Global business organizations are not likely to welcome any treaty that imposes mandatory human rights due diligence and remedial obligations. Still,...[t]he preamble of the new text makes explicit...that the “primary responsibility” for human rights...remains with states. Gone is the reference in the “elements” to direct imposition of international law obligations on business...The new text drops the claim in the “elements” that this treaty overrides trade and investment treaties...

Overall, the new text seeks to strike a balanced compromise among the interests of human rights claimants, states and business...[I]t will likely provoke significant objections...from human rights NGO’s. ..[A]lthough some provisions need to be clarified, the proposed text shows a degree of sensitivity to avoiding the imposition of unreasonable obligations on business. The proposed treaty’s coming into force...would accelerate existing momentum for states to take more seriously their legal obligations to protect human rights from business abuse, and would encourage business to strengthen their human rights due diligence procedures...