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11 Sep 2020

Claire Methven O’Brien, OpinioJuris

Commentary: The Second Revised Draft cannot deliver what is needed; alernative approaches need to be considered

"BHR Symposium: The 2020 Draft UN Business and Human Rights Treaty–Steady Progress Towards Historic Failure", 11 september 2020.

...It is not only appropriate, but essential...to seek to establish within the framework of the UN human rights system a universal normative platform to facilitate the evaluation and critique of the collective impact on human rights of the market sphere in its current configuration – and to shape and drive its better and stronger regulation in the pursuit of humanity’s common interests...however, the 2nd revised draft legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises, does not hold promise of realising this goal...in this blog I flag three reasons why the 2020 draft cannot deliver what is needed. Concluding, I repeat my call for an alternative approach, namely a framework convention based on the UN Guiding Principles on Business and Human Rights, as more desirable, feasible, effective and relevant to the challenges described above than the OEIGWG’s current approach and text.

Category error

...the 2020 draft, like its predecessor, bears a greater resemblance to a draft model law (consider those promoted by UNCITRAL, UNODC or the Commonwealth) or an international private law convention than to a human rights treaty of global scope. This is best illustrated in relation to remedy, which, as before, provides the text’s principal focus...

Access to justice and effective remedies for victims of corporate human rights abuses are crucial goals. Model laws ought (and perhaps even international private law conventions), in due course, have a role to play in their realisation – and the extensive work undertaken via OHCHR’s ARP project, as well as expert submissions to the OEIGWG and in other fora, can valuably inform them. It is a mistake, however, to think that such instruments must be incorporated into, or can be concluded without first securing, agreement on a broad framework of principles...

An alternative route

This is the aim of the alternative draft treaty text that I developed and published earlier this year.  Its basic elements include a statement of overall objectives; a definition of guiding principles, incorporating the UNGPs by way of Annex; a concise list of states’ general obligations, and mechanisms permitting the adoption of additional protocols and other subordinate instruments...the choice for proponents, civil society and expert advocates and states notionally committed to human rights will be whether to allow the process to limp on towards redundancy, or make the more courageous and principled move: acknowledging the need for a fresh direction in negotiations – and for open consideration of alternative approaches such as described here.