Business and Human Rights Journal symposium on revised binding treaty on business & human rights

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All contributions in the symposium are available here.

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Article
19 September 2019

A progressing approach on conflict-affected settings and situations of occupation in the revised draft of the legally binding instrument, more needed

Author: Maha Abdallah, Al-Haq

On 16 July 2019, the revised draft of the legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises (hereinafter, legally binding instrument) was released.

The legally binding instrument, in its current draft, attempts to provide better established rights for affected individuals and communities, including human rights defenders and protected persons and populations, among other groups that are at high risk in the context of corporate activities. It is important that the legally binding instrument continues to be developed in a way that more closely resembles the language of the UN Guiding Principles on Business and Human Rights (UNGPs) and rights guaranteed under international law.

Paragraph 3(b) of article 5 on carrying out meaningful consultations with groups whose human rights can be affected by business activities or relationships is of high importance. The addition of protected populations under occupation or conflict areas as part of the categories of stakeholders requiring special attention is welcome, especially considering the heightened risks of violations in the context of business activities. However, it remains insufficient and in practice may be unrealistic, given the situation of armed conflict, hostilities, and/or a foreign occupation and authority.

In the same article, paragraph 2, human rights due diligence should be presented more explicitly in line with the UNGPs and relevant obligations and responsibilities set forth under international law. It remains unclear what ‘appropriate actions’ are needed, notably by business enterprises, in order to prevent human rights violations and abuses in the context of their activities and contractual relationships.

 

 

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Article
11 September 2019

Legal Liability for Business Human Rights Abuses under the Revised Treaty on Business and Human Rights

Author: Carlos Lopez, International Commission of Jurists

The revised draft of an international treaty on the issue of business and human rights, released on 16 July 2019, represents a huge step forward in relation to the so-called “zero draft” published in 2018.  The revised draft makes crucial choices that may constitute a turning point in the process. One significant change is the definition of the scope of the proposed treaty, which has been expanded to encompass all business enterprises, while still having a heightened focus on businesses with transnational activities.  

Article 6 in itself represents a major development in the area of legal liability for business enterprises. The article aims at promoting a “comprehensive” system of legal liability for human rights abuses committed by business enterprises or with their participation.

Article 6.6 posits a standard of legal responsibility of one company in relation to the harm caused by another company, no matter where the latter is located, when the former company controls or supervises the activities that caused the harm. This norm that would potentially cover the responsibility of parent companies in relation to subsidiaries’ wrongs, and similar situations, is seemingly limited by the reference to the “contractual relationship” between the two companies involved. 

Article 6.7 refers to the legal responsibility of business legal persons for some of the atrocities commonly known as crimes under international law. In this context, the new revised draft treaty proposes a flexible approach to give States the choice between criminal, civil or administrative liability even for the most serious crimes. Practice shows that in the implementation of this flexible approach States tend to enact criminal liability or an equivalent form when serious offences are at stake, or at least, to apply the most severe sanctions against the culprits, to reflect the serious nature of the offence committed. 

Article 6 will surely generate some controversy in relation to the list of offences included, their definitions, or even the convenience of having a separate provision for serious offences . . . It will also be useful to guide States that already recognize the criminal liability of legal entities, such as business corporations, to expand the list of criminal offences attributable to those entities. . . In this regard, this treaty provides a minimum threshold, and each State may decide on the upper limits of its laws.

 

 

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Article
6 August 2019

A step in the right direction: corporate responsibility under the 2019 revised draft. Part II: the recongnition of corporate violations and its implications

Author: Nicolás Carrillo Santarelli, La Sabana University, on Business and Human Rights Journal

I turn now to address the question of whether the reference to both corporate abuses and violations in the draft is an improvement over prior initiatives on non-state actors and human rights...

...[U]nlike the ‘zero’ draft, which expressly said that corporations ‘shall respect all human rights’ (a very strong indication given the verb that was chosen, but still a confusing one considering that no direct obligations were enshrined in it), the 2019 version says instead, in a somewhat analogous way in the Preamble, that all businesses ‘have the responsibility to respect all human rights’ (emphasis added). As Bernaz also pointed out, this may seem to tie the draft to the Guiding Principles –perhaps in the sense of recognizing that such respect they must have has already been enshrined therein. But, perhaps, the idea of ‘recognition’ implicit in the wording of businesses as ‘having’ responsibility ought to be interpreted as going beyond the Guiding Principles...

one can interpret that the treaty acknowledges that corporations may have even direct human rights obligations and responsibility recognized outside of it, in an express or implied manner, as has been argued by Jordan J. Paust or was even mentioned by an ICSID Tribunal in the Urbaser case. Thus, the treaty strategies would be complementary to those of other sources of international and domestic law.

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Article
5 August 2019

A step in the right direction: corporate responsibility under the 2019 revised draft. Part I: beyond transnational conduct and corporations by means of non-reductionist approaches

Author: Nicolás Carrillo Santarelli, La Sabana University, on Business and Human Rights Journal

At the outset, I would like to mention that there are at least two aspects that, in my opinion, strengthen the newest version of the proposed treaty: its applicability to all businesses and corporate operations, transnational or not, explored in Part I; and the clear recognition that businesses do have the capacity to violate human rights, thus getting rid of the euphemisms that some authors have employed when studying non-state actors...

...[T]he latest version [of the draft] seeks to strengthen the protection of human rights from all corporate abuses, regardless of whether they are generated by means of transnational conduct or can be attributable to transnational businesses...

...[T]he content of the draft can be seen as an improvement in strategic and political terms over the previous draft ‘zero’ by means of its aligning with a position that coincides with the one held by European Union States –thus potentially generating greater favorability towards the instrument...

the drafters seriously intend to protect victims from all corporate violations, considering that around the world many violations are attributable to small businesses and to corporations operating locally, it would have been a mistake to miss the opportunity of requiring States to do something in order to prevent and respond to non-transnational corporate violations...

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