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Why the Treaty Draft is a Serious Basis for Negotiations

Ana María Suarez Franco and Daniel Fyfe, FIAN International

This blog is part of the Reflections on the Zero Draft blog series on the proposed binding treaty on business and human rights. We present this series as part of our work to highlight key developments and opportunities for change, with the aim of empowering advocates in civil society, governments and businesses with the evidence and guidance to help define their position and engagement in the treaty process. We believe this initiative is complementary to the implementation of the UN Guiding Principles, and that an inclusive and open debate is crucial to ensure these initiatives deliver for everyone, and that the business & human rights movement continues its 'unity in diversity'.

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The draft binding instrument prepared by the chair of the intergovernmental working group on transnational corporations and other business enterprises ahead of the groups’ 4thsession is a serious basis for the first round of negotiations. The draft addresses some of the existing gaps in international law, notably by expanding the judicial competence to extraterritorial abuses and establishing the right for affected people to individually or collectively access justice in the country where a company is based or has substantial activities as an international standard. It also obliges states to hold business enterprises carrying out activities of transnational character accountable under their civil and administrative laws, and opens the way for establishing a criminal liability for corporations along the value chain, which is something currently non-existent in many states. Unfortunately, this advance is limited to national law.

Another strength of the draft is the provision of international cooperation and mutual legal assistance, which will contribute to closing the accountability gap in cross-border cases involving transnational corporations (TNCs). Providing the opportunity for victims to claim their rights in the home states of the controlling companies represents an advance in international law. The inclusion of a treaty body and a complaints mechanism in the Optional Protocol is promising, even if strengthening its enforcement will be key for the effectiveness of the treaty.

The chosen format of a framework treaty with a Conference of States Parties (COP) can facilitate negotiations and provide for rapid adoption of the instrument relatively, whilst not closing the door to further legal developments and mechanisms, which the COP can adopt in the shape of optional protocols. The treaty body will furthermore provide interpretations of the treaty consistent with the evolution of the society and clarify how states should implement the treaty. The treaty will therefore be a first binding milestone for corporate human rights law but also a starting point to develop stronger legal accountability for corporate human rights abuses.  

However, the fact that the draft is relatively short and minimalist is a concern. As we approach negotiations, there is a risk that it will be further weakened. There are several aspects which should be improved during the negotiations, some of them explained below.

Perhaps with the aim to convene those reluctant to the process, the draft includes in different articles (e.g. art. 8, art. 9, art. 10) phrases which limit the effectiveness of the provisions, such “in accordance with national/domestic law”. Such phrases undermine the whole purpose of an international legally binding instrument if states can use their laws to escape from their international human rights obligations. Although it is understandable for the draft treaty to be sensitive to different legal systems, this should not be at the risk of weakening its effectiveness. The draft treaty should include a clause, which clarifies the relation between national law and the treaty in one place, as to avoid these weakening phrases. 

Despite strong demands for a clear gender perspective in the treaty and an adequate recognition of the attacks suffered by human rights defenders advocating in abuses and crimes related to corporate offenses and crimes, the gender perspective is still very weak and lacks mention of human rights defenders. Also in the few references to vulnerable groups (for example art. 15.5), peasants and other rural communities are absent, even though the Declaration on the Rights of Peasants and other People Working in Rural Areas was recently adopted by the Human Rights Council (28 of September 2018). We support the demands by the “Feminists for the Binding Treaty”. We also urge states to include specific provisions for the protection of human rights defenders vis á vis corporations infringing human rights, as well as the inclusion of references to peasants and other rural communities when dealing with groups vulnerable to corporate abuses. 

A critical challenge for the victims is to avoid damages, in many cases irreparable, while they advocate for their affected human rights or during the entire judicial process. If measures to prevent the damage are not taken quickly, a judicial decision can become ineffective. Therefore, article 8 should include a clause establishing victims’ right to demand precautionary measures to stop the damages or prevent the damage until the case is decided.

In summary, the draft treaty tackles many important accountability gaps highlighted by diverse social movements, victims groups and other civil society organizations demanding for the evolution of international human rights law, but there is still big room for improvement. The question is whether the community of states will respond to the expectations of their citizens and begin the long-expected negotiations in a proactive manner and in good faith.