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Some observations and opinions on the “zero” version of the draft treaty on business and human rights

The very fact that the recently-published draft treaty “to regulate, in international human rights law, the activities of transnational corporations and other business enterprises” is expressly referred to as the “zero draft” is a testament to its embryonic character. Still, its very existence, however preliminary and uncertain its content, is a victory in itself, and the publicity of such content permits discussions from civil society and different stakeholders that can provide interesting inputs for negotiators. That being said, as Nadia Bernaz has argued, in some regards aspects as those on direct international obligations are rather conservative and refrain from alternatives that some describe as ‘idealistic’. Even if such were the definite content of a final agreement, that treatment of issues as that of direct obligations or others would not foreclose future –or even simultaneous— developments at all, insofar as business and human rights issues may well be regulated by other sources of international law, customary law and general principles of law included, as Surya Deva and Humberto Cantú have well expressed. Furthermore, the United States Court of Appeals for the Second Circuit acknowledged in the Kiobel v. Royal Dutch Petroleum case that corporate liability may well “gradually ripen [] into a rule of international law” –in spite of considering –wrongly, to my mind— that corporations had no responsibility under lex lata –needless to say, international law can and has addressed non-state actors whenever logical and normative conditions are observed, as doctrines on capacities of such actors have explained.

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