"The glass is still half full: the second revised draft of the negotiation text for the UN treaty on transnational corporations and human rights", 28 August 2020.
...Together with hundreds of social movements and non-governmental organisations worldwide, Global Justice Now has followed the developments in the treaty process and participated in four sessions of the negotiations from 2016 to 2019.
For us and fellow campaigners, especially in the global south, the LBI is a historic and important process, which did not come about easily. It was born out of hard-fought struggles of communities and workers groups who are in huge conflicts with TNCs whose operations have negatively affected them, their environment and territories...
Is the revised draft a step forward or a step back?
The current draft is meant to take into consideration the debates in the 2019 Fifth Session of the process, as well as the submissions of concerns and proposals from governments and NGOs after the session. There are some aspects of the text that improved on the UNGPs. The gender aspects are strengthened and some concerns from civil society were addressed.
However, the spirit of the treaty – its reason for being, which is to regulate TNCs – is weakened. The key aspects that would allow it to regulate the operations of TNCs and guarantee justice to those that they negatively affect and abuse are still missing...The treaty must...each farther than the already existing international instruments to regulate TNCs...With the broadened scope, which covers all kinds of businesses, including state-owned enterprises (SOEs) that do not have international operations, the draft further deviates from its original mandate. The organisations within the Global Campaign to Reclaim People's Sovereignty, Dismantle Corporate Power and Stop Impunity (Global Campaign), which GJN is a part of, share the view that the extension of the scope of the treaty is dangerous for the its effectiveness...
The Global Campaign’s statement notes the continuing weaknesses in the document. It highlighted the following:
The absence of recognition of human rights obligations for TNCs;
The omission of global value chains, which are the key character of the international corporate architecture;
The lack of effective international legal mechanisms to implement the Treaty and to sanction in case of non-compliance (such as the international court proposal advanced by the Global Campaign); and
The lack of unequivocal recognition of the primacy of international human rights law over any other legal instruments, in particular over trade and investment agreements...
The inclusion now of even SOEs without transnational activities could be problematic. According to Raffaele Morgantini of the Geneva-based Centre Europe Tiers Monde (CETIM), which has a long history of engagement with the UN, “TNCs and related organizations could use it to attack the activities of southern SOEs, which are against their interests”. For him, “the extension of scope to all businesses: big or small, local and transnational, deviates from the real problem, which is the architecture of impunity that TNCs managed to create over the years.” Other members of the Global Campaign agree with him...
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.