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

"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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