"Ongoing discussions at UN level on a draft international treaty binding businesses on Human Rights related due diligence and obligations: Major changes introduced by the Second Revised Draft", 14 October 2020.
The Second Revised Draft...is a step forward before the adoption of a UN Legally Binding Instrument in the field of business and human rights...
A broader scope
The Second Revised Draft includes State-owned enterprises in the definition of legal entities undertaking business activities which clarifies that domestic business activity is covered by the Draft Treaty. It also refers to “business relationship” instead of “contractual relationship”...
Due diligence and prevention
...Article 6(2) provides that business enterprises need to take appropriate actions not only to prevent, but also to effectively mitigate actual or potential identified human rights abuses in the context of business activities, including in their business relationships.
New Article 8 clarifies the system of purported legal liability for legal entities and individuals carrying out business activities that might lead to human rights abuses. Both home and host States shall ensure that their domestic law provides for criminal or a functionally equivalent liability where legal entities or individuals carrying out business activities have caused or contributed to human rights abuses. This is a major change, since many States Parties such as Argentina and Russia do not recognise the criminal liability of legal entities.
New jurisdiction rules
...Business enterprises can now be sued under the Second Revised Draft Treaty where “an act or omission contributing to the human rights abuses occurred” provides a logical connection between the forum and the abuse. Most importantly, courts cannot use the doctrine of forum non conveniens to decline jurisdiction...
Global Campaign to reclaim peoples sovereignty, dismantle corporate power and stop impunity shares comments and amendments on the Second Revised Draft and argues that the draft treaty should be primarily focused on TNCs in accordance with the IGWG's mandate created by Resolution 26/9.
In this collective submission, ESCR-Net - International Network for Economic, Social, and Cultural Rights, a network that connects over 280 NGOs, social movements and advocates, addresses key points that must be further strenghtened in the Second Revised Draft, including feminist visions, FPIC, criminal liability across the value chain and more.
In this advocacy paper, ESCR-Net stresses that social movements and affected communities must be central to the Treaty process - with their lived experiences and demands for justice informing moves forward.
Ahead of the beginning of the session, CIDSE is releasing its contribution to the debate and making recommendations on the 2nd revised draft. CIDSE welcomes the consistency of the draft with the UN Guiding Principles on Business and Human Rights (UNGP), but highlights areas where there is still room for improvement, including reversal of the burden of proof, administrative sanctions for cases abuses in the context of human rights due diligence, and specific measures to ensure trade and investment agreements do not undermine the purpose of the treaty.
The German Institute for Human Rights argues that the new draft retains the right priorities for closing human rights protection gaps in supply and value chains, while at the same time meeting demands for an expansion of the material scope of application and a more systematic orientation toward the UNGPs. This is another reason why, according to the authors, the European Union should join the negotiating table in Geneva.
After a statement issued immediately after publication of the new draft, where FIDH, FIAN and Franciscans International welcomed the draft, FIDH is publishing its Reflections on the ’Second Revised Draft’, a more comprehensive summary of its analysis. The organisation notes that the text takes into account some of the comments made by civil society organisations during the latest negotiation session, and identifies remaining shortcomings that must be addressed.
The Office of the United Nations High Commissioner for Human Rights (OHCHR) is submitting a note for consideration by members of the open-ended intergovernmental working group (IGWG) in the context of the negotiations to take place at its Sixth Session. The note draws from findings of OHCHR's work on accountability and access to remedy to inform the Second Revised Draft on the issues of mandatory human rights due diligence, mutual legal assistance, international cooperation, and protection from retaliation.
The Office of the United Nations High Commissioner for Human Rights has released updated information on registration and participation for the sixth session of the open-ended intergovernmental working group (OEIGWG). The session, to take place from 26 to 30 October 2020, will discuss the Second Revised Draft of the binding treaty on business and human rights.
In this commentary, Makbule Sahan and Ruwan Subasinghe argue that the latest draft of the proposed Binding Treaty provides a strong basis for an instrument that is both politically viable and effective in addressing accountability gaps in international human rights law. They note, however, that there are still significant improvements that can be made to the text, including explicitly recognising trade unionists as human rights defenders.
The joint statement from trade unions, including UNI Global Union and IndustriALL, argues that the Binding Treaty represents a unique opportunity to end the impunity for corporate human rights abuses, especially in the broader context of the COVID-19 pandemic exposing once again the fragility of global supply chains and current business models.
This year's round of negotiations comes at a crucial time: It was decided both at EU level and in Germany that companies should be obliged to carry out human rights and environmental due diligence through their supply chain. The German government should have a vital stake in a UN treaty that obliges all States worldwide to protect human rights and the environment in economic activities.
An international binding treaty for business and human rights is needed in order to better protect environmental and human rights defenders worldwide. IUCN NL believes the current draft of the treaty is significantly better than the previous versions, however there is room for improvement.
In this opinion piece, Olivier de Schutter, the UN Special Rapporteur on extreme poverty and human rights, explains the need to keep human rights due diligence and legal liability separate, in order to ensure human rights due diligence doesn't become a formalistic exercise to absolve companies of liability for their human rights impacts.
In this opinion piece, Elizabeth Mangenje and Timothy Fish Hodgson argue that the proposed binding treaty on business and human rights has an important role to play in holding private actors in the health setor accountable for human rights abuses. With examples from the health industry in Africa during the COVID-19 pandemic, the authors explain how the private health industry can contribute to abuses of the right to health.
In this contribution, Markus Krajewski, who holds the Chair in Public and International Law at the University of Erlangen-Nürnberg, argues that as the 2020 Second Revised Draft for a Legally Binding Instrument (LBI) on Business and Human rights is “negotiation-ready”, the EU should engage with those negotiations and the development of the Treaty, both for policy and legal reasons.
In this blog, Claire Methven O'Brien argues that the 2020 draft, as it stands, is heading towards failure, and calls for an alternative approach, namely a framework convention based on the UN Guiding Principles on Business and Human Rights.
In this blog, Daniel Uribe, Programme Office of the Sustainable Development, Climate Change and Gender (SDCCG) Programme of the South Centre, analyzes the incorporation in the Second Revised Draft of a provision requiring State Parties to ensure that all existing and new agreements, including international economic agreements (IEAs), do not undermine or limit States Parties obligations under the legally binding instrument. He argues that the inclusion of these provisions is an interesting effort to bolster the impact of international human rights law in the sphere of IEAs.
Sarah Joseph, Professor of Human Rights Law, and Mary Keyes, Director of the Law Futures Centre at Griffith University, analyze the draft treaty with regards to international private law arguing that, while trying to facilitate cross-border human rights litigation against businesses and associated cross-border cooperation, anomalies within the draft treaty might facilitate new types of protracted proceedings.
In this piece, Jelena Aparac, lecturer and legal advisor in international law with a focus on Business and Human Rights in Armed Conflicts and expert member of the UN Working Group on the Use of Mercenaries, analyzes the Second Revised Draft in the light of Business and Human Rights in Armed Conflicts. She argues that while it does not recognize international responsibility or criminal liability of corporations, it could potentially open the door to additional Rome Statute negotiations.
In this blog, Surya Deva, Associate Professor at the School of Law of City University of Hong Kong and co-editor of "Building a Treaty on Business and Human Rights: Context and Contours" (CUP, 2017), analyzes four objectives of the treaty and argues that in comparison to the Zero and Revised Drafts, the 2020 Draft is more cohesive, better aligned with the UNGPs and attempts to strike a fairer balance between competing interests of states, businesses and CSOs.
In this commentary, Professor Justine Nolan reviews the second revised draft of the Binding Treaty on Business and Human Rights, analysing in particular the change in scope from "contractual relationships" to "business relationships" and implications for the responsibility and liability of companies in global supply chains.
In this blog, Carlos Lopez, Senior Legal Adviser at the International Commission of Jurists, analyzes the 2nd Revised Draft, arguing that it contains welcome improvements but also some persisting inconsistencies and grey areas that need to be fixed.
In this commentary, Dorothy Grace Guerrero analyses remaining gaps in the Second Revised Draft of the proposed binding treaty on business & human rights, and argues against the broadening of its scope to all kinds of businesses, including SOEs.
In this commentary, ESCR-Net argues that the pursuit of ending corporate impunity continues to progress through the second draft of a legally binding instrument, but a strengthening of collective resolve remains essential to its urgent realization. Only through meaningful participation of States, civil society and social movements in this process can the gaps in corporate accountability be genuinely closed, particularly in relation to transnational corporations.
Jonathan Drimmer from Paul Hastings argues that the new draft still maintains a handful of provisions that may cause great alarm for companies and many prospective states who might become party to the treaty. According to the author, mandatory diligence, broad potential civil and criminal exposure, liability for failing to prevent harms caused by subsidiaries and suppliers, litigation in attenuated jurisdictions, and potential corporate criminal prosecutions appear as the future of corporate liability for human rights abuses.