Making Sausages?: Preliminary Thoughts on the "Zero-Draft," 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
...
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...