Keeping Perspective - Article 30 Commentary on the Revised Draft of the Proposed BHR Treaty
Dr. Matthew Mullen, Founder, Article 30
This commentary is part of the Reflections on the Revised Draft Treaty blog series. Our Debate the Treaty Blog highlights a diverse range of voices from across the globe on the proposed legally binding treaty on business and human rights, which we believe is complementary to the implementation of the UN Guiding Principles.”
Building on the ‘Zero-Draft’ treaty released in mid-2018, the Open-ended Intergovernmental Working Group on transnational corporations and other business enterprises released a revised draft of a proposed binding treaty on business and human rights on 16 July 2019. This draft will serve as the bases for discussions during the 5th session of the Working Group scheduled for 14-18 October 2019 in Geneva.
The Revised Draft of the Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises features welcome improvements, but also gaps and shortcomings. Regardless, it is important to keep this in perspective and look beyond the proposed BHR treaty. Waiting for the treaty to come into force would be a mistake. The time to act is now.
A treaty on business and human rights would be game-changing as it would move the field beyond the constraints of a soft-law regime. However, the UN Guiding Principles on Business and Human Rights (UNGPs) already provide plentiful basis for taking action and tackling vexing issues. Much progress can be made without a BHR treaty, and efforts must be made to do so.
Alignment with the UNGPs is a must for any state or business enterprise that champions human rights, responsible business conduct, sustainability, and the Sustainable Development Goals. Ultimately, the business and human rights agenda is about reckoning with salient risks and issues, preventing predatory or otherwise harmful conduct, and putting people in a position to protect themselves and others. These are undertakings for today, not someday.
Stakeholders who are preparing for the discussions in October may take interest in the final three chapters of Navigating a New Era of Business and Human Rights, Article 30’s recently released flagship publication. The section “A New Era of Accountability: Towards a BHR Treaty?” includes useful and pertinent perspectives from leading thinkers on the subject.
p. 204. Experimentalist Global Governance and the Case for a Framework Convention based on the UN Guiding Principles on Business and Human Rights, Dr. Claire Methven O’Brien
p. 214. Extraterritorial Obligations of States in the Business and Human Rights Context, Dr. Humberto Cantü Rivera
p. 221. An Interview with Prof. Surya Deva
Welcome expansion of scope. Article 3.1 (Scope) expands the draft treaty’s scope of coverage from "any business activities of a transnational character" to ''all business activities, including particularly but not limited to those of a transnational character". This is a critical shift as it makes the treaty a more effective tool for tackling local procurement, localized risks, PPPs and SMEs. Still, note that 3.1 does pose conditions – ‘except as stated otherwise’ and ‘substantial effect’ – that may block the kind of universal coverage and accountability that is necessary to confront these issues. Nonetheless, as many expert commentaries, such as Nadia Bernaz’ Clearer, Stronger, Better? – Unpacking the 2019 Draft Business and Human Rights Treaty, note, this expansion of scope is one of many important steps in the right direction.
Welcome language around human rights victims and defenders. Articles like 4.9. (under Article 4. Rights of Victims) aptly stress the role of human rights defenders and the need to protect them: “State Parties shall take adequate and effective measures to guarantee a safe and enabling environment for persons, groups and organizations that promote and defend human rights and the environment, so that they are able to act free from threat, restriction and insecurity.” Such a standard can act as a rallying cry against apathy.
A Notable Gap
A gap in Article 5 (Prevention). Article 5 outlines the expectations that states are to impose on business enterprises under the rubric of human rights due diligence. The list is straight forward: locate salient human rights risks and issues, strategize around those, continuously monitor impact, publicly communicate evolving plans and performance. Article 5.3 goes on to specify some of the ‘what’ and ‘how’ around these measures.
However, the language in the existing draft does not explicitly state that business enterprises must formally embed measures across the business enterprise or manage their performance in any specific way. This is a step backwards from the UNGPs, which, by prescribing a human rights statement of policy, calls upon business enterprises to disclose some type of human rights strategy or blueprint. Human rights policies allow stakeholders to assess whether a business enterprise has taken appropriate and effective action. Such policies also serve to prevent human rights due diligence from becoming a haphazard, arbitrary, or endlessly selective exercise. Gaps of this kind fail to challenge the status quo of apathy and selectivity around whether and how business enterprises manage and report on their human rights performance.