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The Business and Human Rights Treaty in 2020–The Draft is “Negotiation-Ready”, but are States Ready?

"BHR Symposium: The Business and Human Rights Treaty in 2020–The Draft is “Negotiation-Ready”, but are States Ready?", 8 September 2020.

The Second Revised Draft (2020 Draft) marks an important step in negotiating a business and human rights (BHR) treaty. In comparison to the Zero Draft and the Revised Draft (2019 Draft), the 2020 Draf...is more cohesive...is better aligned with the UN Guiding Principles on Business and Human Rights (UNGPs)...attempts to strike a fairer balance between competing interests of states, businesses and civil society organisations (CSOs)...

Because of these and other reasons, the 2020 Draft is more politically feasible without unduly compromising the desirable normative trajectory of the proposed treaty. In this blog, I will analyse selected provisions of the 2020 Draft and assess their suitability to achieve the “four objectives” that a BHR treaty should aim to accomplish in my view.     

Scope...

Rights of victims and states’ obligations...

Prevention and legal liability...

Removing barriers to remedy...

Human rights compatibility of trade and investment agreements...

Overall assessment vis-à-vis the “four objectives” The 2020 Draft has the potential to push states to adopt mandatory HRDD legislation, remove barriers to access to remedy, and reform trade and investment agreements. However, it should be strengthened to deal with what I call “hard cases”: where there is no clear business case for respecting human rights and the concerned states are unwilling or incapable to perform their duty to protect against human rights abuses by enterprises...While the Zero Draft was “on the right track, but not ready yet” and the 2019 Draft made some progress, the 2020 Draft is “negotiation-ready”. But are states, especially the European Union because of its commitment for mandatory HRDD, ready?...

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