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Reflections on the Zero Draft

Welcome to our Blog on the "Zero Draft" of the proposed legally 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."

We elaborate further on this position - and on the Zero Draft - in our blog: “Another Step on the Road? What does the “Zero Draft” Treaty mean for the Business and Human Rights movement.” Our unofficial summary of the Zero Draft is available here. For earlier reflections on the Treaty process and elements, click here.

 Background

In July 2018, the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights released 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. This “Zero Draft” and the later released Draft Optional Protocol mark a key milestone in a complex and lengthy process, against the backdrop of a political context which has become increasingly challenging since the UN Human Rights Council voted by majority to begin negotiations in June 2014.

How can the draft instrument deliver for all stakeholders? How could it complement the Guiding Principles and other initiatives? What should the content and scope of the Treaty be? Does the Zero Draft address the concerns of the business and human rights movement and other stakeholders? This blog aims to provide space for an exchange of views by thought leaders across the field on these very questions. 

For more commentaries, opinions and statements on the proposed Treaty in general click here.

For a compilation of the Zero Draft blog series as of the 9 October 2018 click here 

 

The continued implementation of the UNGPs and the development of a binding Treaty can and should advance simultaneously, and both stand to benefit from doing so. 

 

 Phil Bloomer & Maysa Zorob, Business and Human Rights Resource Centre-  Read more

 

 

                             

 

(...) the Zero Draft offers a critical opportunity to move beyond a voluntary framework and establish an international framework for legal liability for companies who fail to live up to their human rights responsibilities.

 

 Maysa Zorob, Business and Human Rights Resource Centre- Read more

 

 

Most of the Oprional Protocol text regulates the establishment and functions of the National Implementation Mechanism. However, this mechanism does not provide an effective venue for monitoring and redressing corporate abuses..

 Gabriela Kletzel & Andrés López Cabello, Centro de Estudios Legales y Sociales (CELS) and Daniel Cerqueira, Due Process of Law Foundation (DPLF)-  Read more 

 

                             

 

(...) I propose that the “competent court”...should include an international arbitral tribunal to increase the Convention’s efficacy and efficiency and to properly capture its transnational character.

 

 Klentiana Mahmutaj, Red Lion Chambers- Read more

 

 

                             

 

(...) the work done...under the auspices of the OHCHR’s Accountability and Remedy Project potentially complements the IGWG process in a number of important and specific ways.

 

 Margaret G. Wachenfeld, Themis Research & Institute for Human Rights and Business- Read more

 

 

                

(...)The focus on conflict-affected areas in the Treaty is an absolute necessity, considering the sharp rise in conflicts around the globe in the 21st century.

 Shawan Jabarin & Maha Abdallah, Al-Haq-  Read more 

 

                             

 

(...)The treaty's drafters thus have a dual interest in making a place for human rights and environmental defenders to ensure its success but also to guarantee its own effectiveness in implementation.

 

 Carlos Lopez, International Commission of Jurists- Read more

 

 

                 

Looking at the zero draft through the lens of how such an instrument can contribute to a green and peaceful future, there are still limitations that must be addressed.

 Charlie Holt, Shira Stanton & Daniel Simons, Greenpeace-  Read more 

 

                             

 

(...)a truly foundational challenge for the proposed treaty is how to define and operationalize “business activities of a transnational character.”

 

 Professor John G. Ruggie, Harvard University- Read more

 

 

                             

 

If effectively translated into national laws, the provisions of the Zero Draft would lower the legal and procedural barriers to MNC parent company liability.

 

 

 Richard Meeran, Leigh Day- Read more

 

                             

 

The Draft Treaty on Business and Human Rights stays clear of controversy surrounding corporate human rights obligations and criminal responsibility under international law.

 

 

 Dr Nadia Bernaz, Wageningen University- Read more

 

                 

(...)without a transformative shift in the way that gender equality, women’s human rights and gender justice concerns are articulated, a truly transformative framework to end corporate abuse will not be achieved.

 Felogene Anumo & Inna Michaeli, AWID (member of Feminists for a Binding Treaty)-  Read more 

 

                             

 

(...)neither voluntary initiatives alone nor measures merely at national level will ever be adequate to regulate effectively the conduct of today’s businesses.

 

 Surya Deva, City University of Hong Kong- Read more, Part I and Part II

 

 

                       

"[This draft] is a call that all those who have an interest in an economic development that is respectful of people and of the planet cannot miss." 

 

Maddalena Neglia, International Federation for Human Rights (FIDH) - Read more

 

 

 

                       

 

"We can confidently say that the zero draft text reflects and builds upon the UN Guiding Principles, offering tools to strengthen their implementation and addressing acknowledged gaps." 

 

Denise Auclair, Senior Advisor, CIDSE - Read more

 

 

 

                 

"We need to establish a victim-centered system with enough clarity, and until then affected communities in the Global South and throughout the world will continue the struggle to access justice."

Raphaela Lopes (Justiça Global) and Arnold Kwesiga (Initiative for Social and Economic Rights), members of ESCR-Net - Read more

 

                 

"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."

 

Ana María Suarez Franco and Daniel Fyfe, FIAN International-  Read more