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21 Aug 2018

Dr Nadia Bernaz, Associate Professor of Law, Wageningen University

The Draft UN Treaty on Business and Human Rights: the Triumph of Realism over Idealism

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'.

Last month Ecuador released the Draft UN Treaty on Business and Human Rights (the Draft), the text that will be discussed in October during the fourth round of negotiations on the treaty at the UN. I was under the impression that things would develop differently, and thus was surprised to find out that the core of the Draft includes neither direct corporate human rights obligations, nor corporate criminal responsibility under international law. Instead, the Draft covers the international obligations of states, and states only, and stays clear of controversy.

Corporate obligations under international law: what’s the big deal?

The mandate of the intergovernmental working group, set up in 2014, is to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” (UN Human Rights Council, Res. 26/9 (2014), para. 1) Based on this mandate, many have advocated for a treaty directly regulating business activities in the area of human rights, as opposed to a treaty creating obligations for states only.

The distinction is important because of the classic reading of international law, under which only states, as sole full subjects of international law, can bear international obligations. In other areas of law, such as environmental civil liability, treaties already aim to directly regulate corporations. However, while some treaties such as the American Convention on Human Rights and the African Charter on Human and People’s Rights mention individual duties, human rights treaties create real obligations for states only. There has been resistance against a treaty creating direct human rights obligations for corporations, a move many consider unrealistic and too radical.

As a middle ground, some commentators, including me, have advocated for the inclusion of international corporate criminal liability for international crimes in the treaty. This would send the message that corporations may and do commit gross human rights violations while remaining within known international legal territory. Individuals can be subject to international prosecution, and there is no reason why corporations shouldn’t.

What does the Draft say?

The Draft could have included corporate responsibility grounded in international law, but it doesn’t. Instead, the Draft’s preamble (confusingly titled Article 1) talks about State “obligations and primary responsibility to promote, respect protect and fulfil human rights and fundamental freedoms.” A few paragraphs down, the Draft reads as follows:

“Underlining that all business enterprises, regardless of their size, sector, operational context, ownership and structure shall respect all human rights, including by avoiding causing or contributing to adverse human rights impacts through their own activities and addressing such impacts when they occur.”

This could be read as an international obligation, because of the use of “shall”, but it is in the preamble. While there is some debate about this among international lawyers, it is generally believed that only the core part of a treaty is legally binding, while the preamble is not. Instead the preamble may be used to provide context in treaty interpretation as per Article 31(2) of the Vienna Convention on the Law of Treaties.

This is the only mention in the Draft of something resembling corporate human rights obligations under international law. The core of the draft only mentions corporate liability under domestic law and aims to get states to strengthen domestic mechanisms for such liability. Of course this is important, and indeed it is a welcome move given the often-mentioned weakness of the third Pillar of the UN Guiding Principles on remedies.

Moreover, staying clear of corporate obligations under international law will probably facilitate wider acceptance of the treaty. Given how the negotiations started, it is a good idea to try and secure support, in the name of realism. But the idealist in me can’t help feeling a bit disappointed. Fifteen years ago, the Draft UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises were released. They included direct corporate obligations and caused uproar among international lawyers. Despite undeniable progress in the field of business and human rights, the Draft is a reminder that there is still a lot to do.

Reflections on the Zero Draft Treaty


New business and human rights treaty takes shape

Maysa Zorob, Business & Human Rights Resource Centre 11 Dec 2018


A Toothless Tool? First impressions on the Draft Optional Protocol to the Legally Binding Instrument on Business and Human Rights

Gabriela Kletzel & Andrés López Cabello, Centro de Estudios Legales y Sociales (CELS) & Daniel Cerqueira, Due Process of Law Foundation (DPLF) - members of ESCR-Net 13 Nov 2018


Observations on the Zero Draft - A Detailed Proposal for a System of Arbitration

Klentiana Mahmutaj, Barrister at Red Lion Chambers 29 Oct 2018

View Full Series