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3 Sep 2021

Carlos López, International Commission of Jurists (ICJ), on Opinio Juris

Commentary: The Third Revised Draft of a Treaty on Business and Human Rights: Modest Steps Forward, But Much of the Same

...Similar to the 2nd Draft (2020), the current draft is a useful proposal for a serious conversation and negotiation, but still insufficiently clear to be adopted. The drafters missed this year’s opportunity to fully clarify the provisions that remain unclear, adopting instead an over cautious approach to insert mostly style and technique improvements. One of the few advantages of this approach is that by keeping the text largely unchanged and avoiding dramatic changes the drafters provide an additional opportunity to those who did not have sufficient time to analyse, consult and comments last year, and provide a measure of continuity in the discussions. On the other hand, a fundamentally  unchanged draft treaty may not be more persuasive than the previous draft in bringing any recalcitrant States on board, and may reinforce the political impasse that has held during the six years of negotiations to date.

The responsibility is lies with those States and stakeholders who abstain from actively participating in the discussions and then complain that the drafts are not sufficiently clear or acceptable. But it also lies with the drafters and their advisers who, in an ill-advised and overcautious attitude, have so far failed to take the proactive steps necessary to broaden the base of support that would make possible this treaty to be adopted in the foreseeable future.