Expert commentaries on Jul 2019 Revised Draft of proposed treaty on business & human rights

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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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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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29 July 2019

Commentary on scope, prevention & legal liability provisions of Revised Draft of proposed binding treaty on business & human rights

Author: Peter Hood & Julianne Hughes-Jennett, Hogan Lovells, on JD Supra

"UN Working Group publishes revised draft of business and human rights treaty: commentary on scope, prevention and legal liability", 26 Jul 2019

On 16 July, a UN working group published a revised draft of its business and human rights treaty (following the “Zero” Draft published in July last year). Our post looks at some of the key developments, with a particular focus on its scope and the provisions on prevention and legal liability. We conclude by asking what happens next and providing some practical guidance to business...

The Revised Draft adopts a different, albeit ambiguous, formulation. Article 3 provides that it shall apply to “all business activities, including particularly but not limited to those of a transnational character”, suggesting that the scope of the treaty has been expanded to cover all business activity. However, “business activities” is defined in Article 1 as “any economic activity of transnational corporations and other business enterprises, including but not limited to productive or commercial activity […]”, suggesting that purely domestic business activity remains out of scope...

Article 6 of the Revised Draft introduces a new provision which would require States to establish liability for failing to prevent another person with which it has a contractual relationship from causing harm to third parties, irrespective of where such harm takes place. Such liability would only arise where there is either control over the contract counter-party or where the human rights violation or abuse is reasonably foreseeable...

Like the Zero Draft, the Revised Draft requires that States take certain steps to establish criminal liability for involvement in human rights abuses which amount to criminal offences...



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22 July 2019

Commentary: Clearer, Stronger, Better? – Unpacking the 2019 Draft Business and Human Rights Treaty

Author: Nadia Bernaz, Right as Usual

"Clearer, Stronger, Better? – Unpacking the 2019 Draft Business and Human Rights Treaty", 19 Jul 2019

The Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights has just published a new draft business and human rights treaty. This post focuses on a few selected points, many of which I consider improvements compared to the 2018 Zero Draft. The new draft is clearer, stronger, and arguably better than the 2018 version.

(1) Clearer language and structure

Overall, the 2019 draft is clearer and more precise than the previous version. I have picked a few examples but a close reading of the text should reveal many more. Drafters fleshed out the definitions article, and polished up the language. For instance, under Article 8 on Statute of Limitations, the previous text stated that “[d]omestic statutes of limitations (…) should not be unduly restrictive and shall allow an adequate period of time for the investigation and prosecution of the violation” (Article 6, 2018 Zero Draft). In the new text, this becomes: those statutes of limitation “shall allow for a reasonable period of time for investigation and prosecution of the violation”. “Unduly restrictive”, a subjective requirement likely to cause problems, was dropped; and “adequate” was replaced by a more precise term, “reasonable”. Similarly, the necessity for States Parties to “protect the[...] policies and actions” they adopt/take “from commercial and other vested interests of the [business sector]” (Article 15(3), Zero Draft), which was likely to antagonize certain states, is now gone...

(2) Stronger provisions

The new text also contains stronger provisions from a human rights perspective, as well as key additions. In the preamble, a new paragraph recognizes “the distinctive and disproportionate impact of certain business-related human rights abuses on women and girls, children, indigenous peoples, persons with disabilities, migrants and refugees, and the need for a perspective that takes into account their specific circumstances and vulnerabilities.” Under Article 31(2) of the Vienna Convention on the Law of Treaties, preambles may be used to provide context in treaty interpretation. Therefore, this paragraph could have important consequences on how operative provisions of the treaty are interpreted in the future...

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