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19 Sep 2018

Flora Sapio via Law at the End of the Day

Comments on the "Zero-Draft," the first official draft of the legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises

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...The premises and logic behind the UNGPs marked a significant progress, bestowing on TNCs something very close to legal subjectivity in international law...The LBI [Legally Binding Instrument]...attributes the “primary responsibility” to promote, respect and fulfil human rights and fundamental freedoms to national States, and a duty to respect human rights to all business enterprises...While the Preamble perpetuates the spirit of the UNGPs, Articles 3 and 9 adopt a traditional perspective, whereby TNCs are no longer considered as autonomous non-state actors in international law...but as mere objects of state regulation and control...The attribution of the primary responsibility...to national States...seems to place an excessive burden on States vis á vis business enterprises. This drafting choice results in a reversal of the equilibrium reached by the United Nations Guiding Principles on Business and Human Rights...

...The mention in article 3.1 of business activities of a transnational character may be interpreted as excluding domestic business activities...from the scope of the State duty to protect human rights.

...The harm most commonly caused by any economic activity, be it transnational or domestic in nature, is a direct and often irreversible harm to health. Yet the right to health is not mentioned among the rights listed by Article 4...

While there is no general agreement on the definition of TNCs...[i]t is suggested that the definition of TNCs includes the entire supply chain of any TNC, and legal persons incorporated as not-for-profit entities...

Each one of the due diligence obligations in article 9 seem to be conceive of human rights as referring to aggregate of individuals.  It would otherwise be difficult to understand how due diligence obligations such as measuring and monitoring impact, identifying and assessing potential violations and preventing them could apply to individual cases...

...Establishing a hierarchy among human rights would not be entirely coherent with the principles of inter-relatedness, inter-dependence and indivisibility of human rights. It would potentially open up the way for TNCs to adopt selective...approaches to human rights due diligence.