What can the zero draft Treaty text offer to people negatively affected by business operations?
Denise Auclair, Senior Advisor, CIDSE
This blog is part of the Reflections on the Zero Draft blog series on the proposed binding treaty on business and human rights. We present this series as part of our work to highlight key developments and opportunities for change, with the aim of empowering advocates in civil society, governments and businesses with the evidence and guidance to help define their position and engagement in the treaty process. We believe this initiative is complementary to the implementation of the UN Guiding Principles, and that an inclusive and open debate is crucial to ensure these initiatives deliver for everyone, and that the business & human rights movement continues its 'unity in diversity'.
Rooted in our direct work with women and men, communities and workers, for CIDSE and our members a key question is what the zero draft can offer to concretely improve the situation of people whose rights are infringed, and who stand up in defense of their territories and way of life.
Communities are feeling increasing pressure from business activities, also in the context of international trade and investment. In September, CIDSE hosted a delegation from the Pan-Amazonian Ecclesial Network presenting their Regional report on violations of human rights. Two cardinals together with indigenous leaders told policymakers of the encroachments on lands by mining, agribusiness and logging companies, and how national legislation was insufficient to protect their rights.
In May came visitors from Brazil, including a woman affected by the country’s worst-ever ecological disaster caused by the burst of the Fundão dam operated by Samarco in Mariana (multimedia dossier here). Three years later justice has stalled, both nationally and regarding the responsibility of transnational actors. The report “Dirty Profits” analyzes this and other investments by European banks in extractive companies linked to violations of human rights and damages to the environment. It is unclear whether the banks involved conducted their due diligence properly.
And in March, four human rights defenders from Andean countriesvisited while launching the report ‘Defending our land and nature is our right’ which aims at strengthening capacities of defenders in regions that suffer negative impacts of extractive industries and energy projects.
Listening to these realities means that those who take business and human rights seriously must take an interest in the potential of the Treaty text to strengthen international action to help stop business-related human rights abuses.
The very publication of the zero draft is a victory of sorts for people increasingly mobilizing in support of the Treaty. With multilateralism and the UN Human Rights Council having been under attack, the opening of negotiations on a Treaty text is a heartening message that the international community will not stand by immobile while people’s rights are violated by powerful economic interests.
From CIDSE and our members’ experience and work on business & human rights frameworks at international and national level, we can confidently say that the zero draft text reflects and builds upon the UN Guiding Principles, offering tools to strengthen their implementation and addressing acknowledged gaps. This is a helpful dynamic in view of building broad-based support and action.
The zero draft’s emphasis on preventive human rights due diligence is crucial for avoiding corporate negligence or willful disregard for people and nature leading to future disasters. The text strengthens the approach of the UN Guiding Principles, making it legally binding in Article 9.2 via national legislation. Here the French duty of vigilance law already shows the feasibility of regulation of multinationals’ activities and their international supply chains. In this light the text could be further strengthened by specifically mentioning business relationships related to supply, export, services, insurance, finance and investment, reinforcing the whole value chain approach of the International Labour Conference on decent work in supply chains.
With a view to implementation, the recently published OECD Due Diligence Guidance for Responsible Business Conduct brings helpful clarity, for example requiring direct engagement with affected persons throughout the life cycle of a project. This is an essential aspect of human rights impact assessments and Free, Prior and Informed Consent, to ensure adequate space so that the realities and views of both women and men are taken into account, in support of gender equality. Further, the connection between due diligence and liability is recognized in Article 9.4, but needs further substantiation in relation to Article 10.
In the context of increasing killings of human rights defenders, the Treaty needs to help break new ground. The recently-signed Latin American Escazú agreement with measures for protection for defenders in environmental matters is an important regional development to build upon. The zero draft’s mention of environmental aspects (Art 4.1., 8.1., 9.2.) is welcome, as many of our partner organizations experience threats while working to ensure protection of human rights related to the environment. The Treaty can go further by explicitly mentioning defenders and establishing specific measures, for example refraining from restrictive laws, protecting against criminalization and obstruction to their work, including gender-specific violence against women defenders; and fully, promptly and independently investigating and punishing attacks and intimidation.
The zero draft’s focus on the rights of people affected and access to remedy is key. This can be a strong contribution towards implementation of the third pillar of the UN Guiding Principles, with opportunities for important synergies with the OHCHR project on Access to Remedy. The broad definition of jurisdiction and of applicable law in Articles 5 and 7 is positive, with its choice for victims; this a serious answer to the known legal obstacles caused by complex corporate structures and relationships. An explicit reference to extraterritorial obligations would strengthen legal certainty and reflect well the shared responsibility of host and home States in our global, interdependent world.
Several provisions to help overcome barriers to justice are important but need further specification. Among these, the requirement to avoid delays in the legal process (Art. 5c); the proposed International Fund for Victims; the provision on access to information, such as on corporate structures and activities that can substantiate claims of victims; andthe reversal of the burden of proof (Art. 10), in the context of huge power and resource asymmetries between corporations and affected communities.
Article 13.6 addresses the severe conflicts between trade and investmentagreements and human rights, recognizing the role of the Treaty in helping to avoid these. Many agreements give corporate actors privileged access to arbitration tribunals, allowing them to drive decisions on national regulation on labor rights, health and environment, while affected people struggle to have access to justice. However, the “least restrictive interpretation” asked in Art. 13.7 could be understood as continuing to allow these agreements to have some restraining effect on the State duty to protect. A specific clause on the primacy of human rights obligations would better clarify this relationship, adding to a stable legal environment.
Finally, enforcement mechanisms will be crucial to the success of the Treaty. International action is necessary to address important acknowledged gaps and help to strengthen national judicial systems. In this light, the number of derogations subject to domestic law (e.g. Articles 13.1-3) could severely weaken the Treaty’s effectiveness, as certain existing laws may precisely represent obstacles to justice. A more balanced articulation between the national, regional and international levels of action will be needed for the Treaty to work effectively in practice.
With these observations in mind, the zero draft providesa solid basis for further constructive dialogue and advances as the negotiations begin.