Experts reflect on the Zero Draft of the legally binding treaty on business and human rights

In July 2018, the UN Intergovt. Working Group on proposed treaty 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 ("Zero Draft"). This compilation of commentaries and statements on the Zero Draft by academics, professionals and civil society members reflects on the Zero Draft strengths and limitations.

For Business & Human Rights Resource Centre blog series on the Zero Draft click here.
More commentaries, opinions and statements on the proposed Treaty in general available here.

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Article
15 May 2019

Briefing Paper on the Zero Draft: Unpacking Arguments Against the Treaty

Author: Treaty Alliance Germany

On 26 June 2014 the UN Human Rights Commission approved a resolution to form a working group (Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, OEIGWG) to elaborate a legally binding instrument to regulate the activities of transnational corporations and other companies with regard to compliance with human rights standards (‘Treaty Process’)...

The working group has met four times since then. In July 2018 the Ecuadorian chair submitted a first draft treaty (Zero Draft) which was debated at the fourth meeting of the UN working group in October 2018. The states were invited to comment on this draft until end-February 2019.

The present briefing paper discusses objections raised in political debates to the overall process or to contents of the Zero Draft and formulates proposed solutions.

1. Argument on the significance of an international regulation generally

2. Argument on scope of application (with reference to Art. 3.1 in combination with Art. 4.2 Zero Draft)

3. Argument for taking into account the UN Guiding Principles (relating to Art 9. Zero Draft)

4. Argument on legal liability (relating to Art. 10 Zero Draft)

5. Argument on the relationship between human rights and trade and investment agreements (relating to Art.13 Zero Draft)

 

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Article
29 April 2019

Commentary: Binding Treaty on Business & Human Rights and Corporate Impunity

Author: Hanz Wetzels, IPS news

"A Treaty to End Corporate Immunity?", 25 Apr 2019

When Ecuadorean diplomat Luis Gallegos first proposed a “Binding Treaty on Business and Human Rights,” many countries and environmental activists welcomed the idea with open arms.

Backed by South Africa, Mr. Gallegos urged the UN Human Rights Council in Geneva, Switzerland, to immediately begin negotiations to end human rights violations and environmental damage by transnational corporations.

In October 2018, 94 countries drew up a draft text for the binding treaty, which could address the issue of the complex global supply chain that currently makes it difficult to determine who is responsible for environmental damage or human rights violations. It should also give victims access to justice.

For two decades, Mr. Gallegos’s birth place of Ecuador waged a court battle to hold Chevron (formerly Texaco), a US-based multinational, accountable for oil spills and for allegedly dumping 16 billion gallons of toxic waste into waterways and open pits in the country’s Amazon jungle, affecting 30,000 indigenous people and campesinos in the area. The South American country tried without success to seek redress in American, Ecuadorian, Brazilian and Canadian courts.

130 oil spills in Nigeria’s Niger Delta in 2015 were reported by Amnesty International...

Chevron in turn dragged Ecuador before the Permanent Court of Arbitration in The Hague, Netherlands, for violating a 1997 bilateral investment treaty, and was awarded a hefty $112 million. A binding treaty on environmental damage might have prevented this kind of outcome... 

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Article
7 March 2019

Commentary: The Way Ahead for a UN Treaty on Business and Human Rights

Author: Antonella Angelini, Columbia Law School, on Fair Observer

"The Way Ahead for a UN Treaty on Business and Human Rights", 28 Feb 2019

We still have a very limited understanding of the impacts businesses have on human rights worldwide...

It has been just over a month since the Brumadinho dam, operated by the Brazilian minerals form Vale, collapsed, killing at least 171 people, with a further 141 still missing. In the wake of what appears to be yet another disaster heavily abetted by the failures of business, news from the Geneva headquarters of the United Nations may seem remote and out of touch. Important developments, however, are brewing there...

October 2018 saw a whopping number of 94 states and 400 civil society organizations participate in the fourth session of the UN intergovernmental working group tasked with developing a binding treaty on business and human rights. This high participation reflects the fact that, unlike in previous sessions, a first-ever full negotiating text — a “zero draft” treaty and a “zero draft” optional protocol — was finally on the table. The draft treaty in particular had already drawn much attention as soon as it went public in July, and a very focused scholarly and policy discussion has thrived ever since...

While all BRICS countries and many states from the so-called “global south” contributed, Western states — including the European Union, the US and Australia — were either absent or dissociated themselves from the conclusions of the October session. The EU in particular rubbed salt into the wound by pointing to the many open issues and the virtual boycott by major Western states as signs of dwindling faith in the leadership of the working group...

Most Latin American states insisted on the need to focus, like the UN Guiding Principles (UNGPs), on all business enterprises. States that are home to fewer multinational companies — such as IndonesiaEgypt and the Philippines — blended their support for the draft treaty with a veiled defense of the special position of national small and medium enterprises. Others still reiterated a more open support for a primary focus on transnational corporations. But very few zeroed-in on the actual language of the draft treaty that speaks of for-profit business activities of a transnational character...

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Article
28 February 2019

Comments by Organizations of the NGO Mining Working Group at the UN to The Intergovt. Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights regarding The Elements for the Draft Legally Binding Treaty

Author: NGO Mining Working Group at the UN

The NGO Mining Working Group welcomes the opportunity to submit this input on the elements of the Draft Legally Binding Treaty and reiterates comments and acts in solidarity with NGO’s that have contributed to the formulation of the Zero Draft...

The NGO Mining Working Group would like to give input regarding accountability and responsibility for promotion and protection of human rights, address Article 8 "Rights of Victims” and Article 9 “Prevention” within the Draft Treaty; as well as mechanisms for promotion, implementation, and monitoring...

1. Accountability and responsibility for promotion and protection of human rights

When violations against people and the earth occur as a result of corporate activities, who is accountable; is it the State? Or corporations? Evidence suggests that international corporations hold significant monetary and political power, and yet often commit violations with impunity...

2. Article 8 “Rights of Victims”

The Draft Treaty’s focus on the rights of victims and access to justice and remedy is key. Many of these forums are lacking in current State legislation, especially for victims of business-related human rights abuses...

3. Article 9 “Prevention”

The Draft Treaty includes important ways for States Parties to strengthen preventative mechanisms of human rights abuses from “business activities of transnational character...taking into consideration the potential impact on human rights resulting from the size, nature, context of and risk associated with the business activities” (Article 9.1) into their domestic legislation...

 

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Article
28 February 2019

Submission to the UN Working Group on Business & Human Rights Pax Christi International

Author: Pax Christi International

Pax Christi International welcomes last year’s published Zero Draft “Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises” and the Zero Draft Optional Protocol on national implementation mechanisms. Although these instruments should be further strengthened, they are truly historic instruments giving important recognition to the pledges of victims of human rights violations linked to business activities and those supporting them...

Considering the devastating impact of extractive activities on communities in Latin America, in other regions in the world and also by other business sectors, we call upon all UN member states to actively and constructively participate in the next round of negotiations2 and to contribute to robust legally binding treaty that promotes and protects human rights and the environment...

In response to the working group’s invitation for submissions, Pax Christi International would like to identify several areas where we hope the treaty draft text can be strengthened through subsequent draft texts and the next rounds of negotiations. Please note that we support several asks of other civil society members and UN member states which were expressed during the Fourth Open-Ended Intergovernmental Working Group meeting of last year October...

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Article
11 January 2019

Commentary: Implications of Zero Draft treaty on business & human rights for construction sector

Author: Dentons, on JD Supra

"Time for construction to step up to its human rights responsibilities?", 8 Jan 2019

  • Developments continue apace in human rights responsibilities for businesses. A UN Working Group has published its first draft treaty to regulate the activities of transnational corporations regarding human rights (the Zero Draft). 
  • Those in the construction sector face particular challenges in safeguarding rights to life, health and safety. Large-scale international projects, delivered to tight timescales and using complex, widespread supply chains, exacerbate the risk of human rights violations, worker exploitation and environmental damage. The construction industry is thus, unsurprisingly, subject to ever-increasing scrutiny in this area. 
  • This article examines the key proposals of the Zero Draft and considers their practical implications for construction businesses. 
  • The Zero Draft would require signatory governments to implement a series of laws aimed at ensuring businesses respect human rights. Of particular significance are the proposals for civil and criminal liability for corporations that commit human rights violations – whether directly or indirectly – and for concrete legal requirements to carry out due diligence as to potential impacts on human rights...

 

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Article
4 November 2018

Counterbalancing disproportionate power: a response to John Ruggie

Author: Harris Gleckman, Open Democracy

…This autumn, Professor John Ruggie,…shared his concerns…that the zero draft has not adequately dealt with ‘scale’ and ‘liability’. 

I think Ruggie’s arguments…fail to recognize the historic opportunity offered by the Human Rights Council to create a human rights remedy system for corporate abuse across national boundaries…  

To be clear, my underlying difference with Ruggie and other supporters of the UNGP who disparage the complementary nature of a binding treaty is that times have changed...

Over time the approach has shifted to include that the state should have a positive obligation to use it power to protect the human right of individuals, citizens, and communities. 

What has now changed is that businesses with a transnational character have vastly greater power than states and individuals. 

And therefore it is wise to combine the power and authority of states, individuals, and community associations to establish clear and effective standards, rules and procedures to counterbalance those which have disproportionate power today.  

 

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Article
31 October 2018

Working up from Zero: Initial Negotiations on the “Zero Draft” treaty on Business and Human Rights

Author: Hogan Lovells on JD Supra

The UN intergovernmental working group tasked with developing a binding international treaty on business and human rights recently concluded its fourth round of negotiations in Geneva (15-19 October 2018).

In contrast to the third session,...delegations were provided with the “Zero Draft” treaty in July 2018..., giving them ample opportunity to consider the text in advance of the session...

A number of unresolved issues from previous negotiating rounds re-emerged and continued to be a sticking point in discussions...[among which:]

- the limited scope of the Treaty’s application to transnational businesses,...

- [the] lack of consensus on the scope of national courts’ exercise of adjudicative jurisdiction over human rights claims,...

- the proposed obligation of mandatory human rights due diligence...[an obligation] that will need to be further refined... 

The “Zero Draft” is merely the starting point, and it will be important to have continued engagement from all interested parties to develop and refine the document. Expect there to be further parsing of the language of the text in the upcoming rounds of negotiations.

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Article
15 October 2018

Let’s seize the opportunity to ensure a strong, international binding treaty on business and human rights

Author: Makbule Sahan & Ruwan Subasinghe, Equal Times (India)

...[u]nions cautiously welcome the following key provisions of the Zero Draft:

  1. Coverage of international human rights law, including international labour standards
  2. Mutual legal assistance and international cooperation
  3. State obligation to adopt regulatory measures to:
  • Require businesses to adopt and apply human rights due diligence policies and procedures;
  • Ensure access to effective judicial recourse for victims of human rights violations...

However, in order to truly close the major gap that exists...it is imperative that the next draft of the Binding Treaty captures the following points:

  1. A re-statement of the business duty to respect human rights throughout their operations
  2. An explicit recognition of the primacy of human rights obligations over trade and investment agreements
  3. The need to overcome jurisdictional barriers by limiting the use of the doctrine of forum non conveniens
  4. Alignment of due diligence provisions with Pillar II of the UN Guiding Principles on Business and Human Rights to reduce some definitional and operational ambiguities
  5. The need for a strong international enforcement mechanism beyond the frameworks set out in the Zero Draft and the Optional Protocol...

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Article
12 October 2018

Business response to the Zero Draft Treaty and Draft Optional Protocol

Author: International Organisation of Employers, International Chamber of Commerce, Business at OECD (BIAC), International Chamber of Commerce, Business Europe

"Business response to the Zero Draft Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises ("Zero Draft Treaty") and the Draft Optional Protocol to the Legally Binding Instrument ("Draft Optional Protocol") Annex", Oct 2018

...This document provides their joint response to the Zero Draft Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises ("Zero Draft Treaty") and the Draft Optional Protocol to the Legally Binding Instrument ("Draft Optional Protocol"). These texts were released by the Chair of the IGWG - the Government of Ecuador - for States to negotiate on at the IGWG's fourth session (15-19 October 2018) and its fifth session scheduled for 2019.

The Zero Draft Treaty and the Draft Optional Protocol raise issues of significant and genuine concern to the international and regional business community and they do not provide a sound basis for a possible future standard on business and human rights. Both texts incorporate inconsistent provisions that would greatly undermine countries' development opportunities and they would create a lopsided global governance system that would result in significant gaps in human rights protection. Taken as a whole, the legal regime that the Zero Draft Treaty and Draft Optional Protocol would create is legally imprecise; divergent with established standards and laws; incompatible with the aim of promoting inclusive economic growth and investment; at risk of enabling politically-motivated prosecutions; and - crucially - not capable of serving all victims of human rights abuses.

Furthermore, the business community is profoundly concerned with the process that has led to the release of a Zero Draft Treaty and a Draft Optional Protocol. It has repeatedly stressed that it wishes to contribute meaningfully to the business and human rights debate. However, it is concerned that no real effort has been made to ensure a robust, transparent and open process that fully draws on the expertise and experience of all stakeholders. The way in which the UNGPs were developed highlights the overarching value of meaningful private sector engagement. The business community encourages all participants in the IGWG to enhance dialogue with business in tackling such complex human rights issues...

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