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When It Comes to Human Rights, Zero Is Better than Nothing

...[Z]ero draft marks a key milestone in the effort to bring about a UN treaty on business and human rights...In several aspects, the new text is likely to be more appealing than its infamous predecessor, the draft elements...

Access to remedy and due diligence are the focus of the new draft, and rightly so.  This choice zeroes in on the top priorities for victims and nudges...recalcitrant states to put more serious effort into negotiations...Victims, however, are still in a position of serious weakness and power imbalance when it comes to having access to remedy for human rights abuses involving multinational companies...

...To tackle the existing gaps...the working group chose to place its bet on the traditional international law pathway...Only states have legal obligations to make business legally accountable and provide victims with access to remedy...[C]oncerning the scope issue, the zero draft is only half a success.  Language-wise, the definition of its subject matter in terms of “all international human rights” will need some tweaking...clarify the conventional or customary source of such rights...

...[T]he new draft text strikes a mixed balance on two...themes... — due diligence and access to remedy...[W]ith respect to prevention, states are the immediate duty-bearers, but the actual addressee and target is business...Failure to abide by this obligation would become a source of liability under domestic law for the faulting enterprise...Also changed is the very content of due diligence...On access to remedy, the zero draft scores important points for its mission to be a “victim-oriented” text...

...Dropping the idea of establishing international remedy mechanisms...was perhaps a wise move.  Yet...the zero draft contains little novelty in the mechanisms that should inject life into the treaty.  This poverty of imagination or courage is also visible when it comes to monitoring and implementation...

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