Experts reflect on the Zero Draft of the legally binding treaty on business and human rights

In July 2018, the UN Intergovt. Working Group on proposed treaty released the first official draft of the legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises ("Zero Draft"). This compilation of commentaries and statements on the Zero Draft by academics, professionals and civil society members reflects on the Zero Draft strengths and limitations.

For Business & Human Rights Resource Centre blog series on the Zero Draft click here.
More commentaries, opinions and statements on the proposed Treaty in general available here.

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Auteur: Makbule Sahan & Ruwan Subasinghe, Equal Times (India)

...[u]nions cautiously welcome the following key provisions of the Zero Draft:

  1. Coverage of international human rights law, including international labour standards
  2. Mutual legal assistance and international cooperation
  3. State obligation to adopt regulatory measures to:
  • Require businesses to adopt and apply human rights due diligence policies and procedures;
  • Ensure access to effective judicial recourse for victims of human rights violations...

However, in order to truly close the major gap that exists...it is imperative that the next draft of the Binding Treaty captures the following points:

  1. A re-statement of the business duty to respect human rights throughout their operations
  2. An explicit recognition of the primacy of human rights obligations over trade and investment agreements
  3. The need to overcome jurisdictional barriers by limiting the use of the doctrine of forum non conveniens
  4. Alignment of due diligence provisions with Pillar II of the UN Guiding Principles on Business and Human Rights to reduce some definitional and operational ambiguities
  5. The need for a strong international enforcement mechanism beyond the frameworks set out in the Zero Draft and the Optional Protocol...

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Auteur: Gabriela Kletzel & Andrés López Cabello, Centro de Estudios Legales y Sociales & Daniel Cerqueira, Due Process of Law Foundation

At first glance, the zero drafts of the Legally Binding Instrument (LBI) (link is external) and  Optional Protocol (OP) (link is external) raise serious doubts as to whether they add value to the effort of making business enterprises accountable for human rights abuses. The draft LBI establishes the “effective access to justice and remedy to victims of human rights violations in the context of business activities” as one of its main purposes. However, the OP addresses enforcement mostly through national implementation mechanisms and an international committee of experts, both of which have weak oversight and monitoring powers...

...We must voice once again our disagreement with the limited scope of the draft treaty. The current text excludes corporations that act solely within the confines of the jurisdiction of the State where they operate...

Even for transnational corporations that commit abuses, the LBI fails to establish effective measures to prevent impunity with exemptions for the enforcement of judgments involving redress for these kinds of abuses...

Furthermore, the LBI does not adequately address States’ extraterritorial obligations...

 

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Auteur: International Organisation of Employers, International Chamber of Commerce, Business at OECD (BIAC), International Chamber of Commerce, Business Europe

"Business response to the Zero Draft Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises ("Zero Draft Treaty") and the Draft Optional Protocol to the Legally Binding Instrument ("Draft Optional Protocol") Annex", Oct 2018

...This document provides their joint response to the Zero Draft Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises ("Zero Draft Treaty") and the Draft Optional Protocol to the Legally Binding Instrument ("Draft Optional Protocol"). These texts were released by the Chair of the IGWG - the Government of Ecuador - for States to negotiate on at the IGWG's fourth session (15-19 October 2018) and its fifth session scheduled for 2019.

The Zero Draft Treaty and the Draft Optional Protocol raise issues of significant and genuine concern to the international and regional business community and they do not provide a sound basis for a possible future standard on business and human rights. Both texts incorporate inconsistent provisions that would greatly undermine countries' development opportunities and they would create a lopsided global governance system that would result in significant gaps in human rights protection. Taken as a whole, the legal regime that the Zero Draft Treaty and Draft Optional Protocol would create is legally imprecise; divergent with established standards and laws; incompatible with the aim of promoting inclusive economic growth and investment; at risk of enabling politically-motivated prosecutions; and - crucially - not capable of serving all victims of human rights abuses.

Furthermore, the business community is profoundly concerned with the process that has led to the release of a Zero Draft Treaty and a Draft Optional Protocol. It has repeatedly stressed that it wishes to contribute meaningfully to the business and human rights debate. However, it is concerned that no real effort has been made to ensure a robust, transparent and open process that fully draws on the expertise and experience of all stakeholders. The way in which the UNGPs were developed highlights the overarching value of meaningful private sector engagement. The business community encourages all participants in the IGWG to enhance dialogue with business in tackling such complex human rights issues...

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11 October 2018

Analysis of the Zero Draft

Auteur: Charlie Holt, Joshua Jackson & Daniel Simons, Greenpeace International

The following analysis outlines Greenpeace International’s position on the draft Legally Binding Instrument on Business and Human Rights. Ultimately, Greenpeace International supports the initiatives to develop such an instrument. As reflected in the following analysis, however, it is our hope that the draft can be developed so as to fulfil its potential in providing for corporate accountability for human rights violations...

...For the treaty to decisively contribute to closing accountability gaps and providing access to justice in the context of corporate human rights abuse, it must contain: (1) comprehensive legal standards addressing corporate human rights abuse; and (2) effective mechanisms to enforce such standards.

...[T]he following analysis consists of:

  1. A commentary on the provisions of the Zero Draft for the Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and other Business Enterprises; and
  2. A commentary on the modes of enforcement for the Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and other Business Enterprises...

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Auteur: FIDH

Four years after the adoption of Resolution 26/9 which established the Open-ended intergovernmental working group (IGWG), with a mandate to elaborate an international binding instrument on transnational companies and other business enterprises with respect to human rights, the release of the “Zero Draft” of an international binding Convention on transnational companies and other business enterprises and human rights is certainly an important step towards more substantial debates. In this respect, it is expected that session IV of the IGWG, which will take place in Geneva next October 2018, will offer an opportunity to have a meaningful discussion between States’ delegations and should represent a concrete improvement in the negotiation process...This contribution summarises the position of the International Federation for Human Rights (FIDH) regarding the text released by Ecuador: it is a preliminary comment on the text as it has been presented. It follows the structure of the draft and focuses only on some of its articles; it draws on FIDH’s experience as an international federation of human rights organisations around the world: we hope that it can provide useful inputs and feed into the discussions during the negotiation process.

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Auteur: Nadia Bernaz, Rights as Usual

...Under the Draft Protocol, states parties shall establish a National Implementation Mechanism (hereafter “the Mechanism”) to promote compliance with, monitor, and implement the future treaty...The Mechanism will be tasked with raising awareness of the business and human rights treaty, in cooperation with other national institutions, civil society organizations, and foreign Mechanisms...In many countries the Mechanism could be run within existing, domestic National Human Rights Institutions (NHRIs)...Article 4 purports to entrust the Mechanism with a role in the prevention of human rights violations by corporations...[I]t is expected that when undertaking due diligence, corporations produce and publish reports on non-financial matters...Article 4 of the Draft Protocol indicates that the Mechanism “shall, as a minimum, have competence to request all necessary information from the State Party in whose territory” that Mechanism operates...This assumes that states actually gather and somehow store or keep track of such information...

...Article 5 seemingly aims to address an important gap in the current legal framework on business and human rights...by giving the Mechanism the power to review corporate performance of their due diligence obligations...[I]t is going to be difficult to implement...[I]t is likely corporations will view this review process with suspicion, at the very least...How to ensure that the Mechanism is staffed with people with a good understanding of how corporations function?...

Article 6 sets up a non-judicial complaint mechanism relying on mediation...[T]his could really add value...One important point: in practice the potential for overlap between the work of the Mechanism in this area and the work of NCPs seems high.  If States go forward with the idea, it would perhaps make sense to explore ways to merge the two institutions...

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Auteur: Antonella Angelini, Fair Observer

...[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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Auteur: Flora Sapio via Law at the End of the Day

...The premises and logic behind the UNGPs marked a significant progress, bestowing on TNCs something very close to legal subjectivity in international law...The LBI [Legally Binding Instrument]...attributes the “primary responsibility” to promote, respect and fulfil human rights and fundamental freedoms to national States, and a duty to respect human rights to all business enterprises...While the Preamble perpetuates the spirit of the UNGPs, Articles 3 and 9 adopt a traditional perspective, whereby TNCs are no longer considered as autonomous non-state actors in international law...but as mere objects of state regulation and control...The attribution of the primary responsibility...to national States...seems to place an excessive burden on States vis á vis business enterprises. This drafting choice results in a reversal of the equilibrium reached by the United Nations Guiding Principles on Business and Human Rights...

...The mention in article 3.1 of business activities of a transnational character may be interpreted as excluding domestic business activities...from the scope of the State duty to protect human rights.

...The harm most commonly caused by any economic activity, be it transnational or domestic in nature, is a direct and often irreversible harm to health. Yet the right to health is not mentioned among the rights listed by Article 4...

While there is no general agreement on the definition of TNCs...[i]t is suggested that the definition of TNCs includes the entire supply chain of any TNC, and legal persons incorporated as not-for-profit entities...

Each one of the due diligence obligations in article 9 seem to be conceive of human rights as referring to aggregate of individuals.  It would otherwise be difficult to understand how due diligence obligations such as measuring and monitoring impact, identifying and assessing potential violations and preventing them could apply to individual cases...

...Establishing a hierarchy among human rights would not be entirely coherent with the principles of inter-relatedness, inter-dependence and indivisibility of human rights. It would potentially open up the way for TNCs to adopt selective...approaches to human rights due diligence. 

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Auteur: Larry Catá Backer, Law at the End of the Day

...   

1.  The Zero-Draft is a marvelously drafted  articulation of a comprehensive vision...But it was not written to be adopted...

2.  ...The principal value of the Zero-Draft is for interpretation of the UNGP themselves...

3. The greatest failure of the Zero-Draft...is inherent in the reason for its genesis...[I]t continues to adhere to the notion that only law provides both legitimacy and the framework...[T]he assumption of a specific and peculiar relation between international law and norms, and domestic legal orders, may not accord with the realities of the positions of the most powerful states...

4.  There is a regrettable contradiction in the Zero-Draft...bound up in the decision to limit application of the provisions to "activities of a transnational character"...

5.  The emphasis on the state...produces another lacuna.  The State Owned Enterprise (SOE) occupies an ambiguous place within the construct of the Zero-Draft...Yet SOEs occupy an increasingly important place in the global economic order...  

6. Even more...regrettable, was the reactionary character of the scope of the application of the Zero-Draft to "for profit economic activity...

7. Also troublesome is what the Zero-Draft likely views as its key positive feature--the focus on victims...[T]he term, as defined, might cause some concern...[I]t appears to incapacitate this class of individual...These are not victims--these are rights holders...

8.  The Zero-Draft was especially disappointing for its failure to define "human rights."...[T]his could produce a regime where the law applicable along every production chain is fractured along national lines, substantially undermining the objectives of the Zero-Draft...

...[A]s an aspirational document, the Zero-Draft makes very useful contributions. Even if the treaty project itself does not succeed, many of the provisions...remain worthy of continued attention.  There is much to recommend in the Zero-Draft....But at least the Zero-Draft may keep those conversations going...  

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Auteur: Nicolás Carrillo-Santarelli, profesor Universidad de La Sabana (Colombia)

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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