"BHR Symposium: The Requirement to Practice Due Diligence–A Floor Not a Shield", 10 September 2020.
One of the innovative contributions of the Guiding Principles on Business and Human Rights, endorsed by consensus within the Human Rights Council in June 2011, was to include the practice of human rights due diligence as part of businesses’ responsibility to respect human rights — the so-called “second pillar” of the GPs. The message then was clear: companies cannot merely abstain from conduct that might lead to human rights violations; they must also proactively seek to inform themselves about the impacts of their activities...
The formalisation of the requirement to practice human rights due diligence has been central to the negotiations on a new Treaty on Business and Human Rights since their start. As the « prevention » provision of article 6 the Draft Treaty confirms...that States should adopt a regulatory framework imposing human rights due diligence on companies, backed by the threat of effective sanctions (article 6.2.)...
Even if human rights due diligence duties as prescribed under domestic legislation...are fully complied with, this should not result in a guarantee of legal immunity from civil liability claims, where it appears that the preventative measures have failed to avoid the harm from occurring. This is what the Draft Treaty now provides for, where it notes that sanctions for failure to comply with human rights due diligence obligations should be « without prejudice to the provisions on criminal, civil and administrative liability under Article 8 » (on remedies). Article 8.8 of the Draft is explicit in this regard, as it states that « Human rights due diligence shall not automatically absolve a legal or natural person conducting business activities from liability for causing or contributing to human rights abuses or failing to prevent such abuses by a natural or legal person as laid down in Article 8.7. The court or other competent authority will decide the liability of such entities after an examination of compliance with applicable human rights due diligence standards. »...
The statement points out that, while support has been given by the European Parliament and the European Economic and Social Committee to the treaty’s negotiation, there is no substantive involvement by the EU and its Member States in the process.
In October 2020, Caritas Ghana in partnership with DKA Austria and Misereor Germany, organised a stakeholders Virtual Workshop to heighten awareness of Local Civil Society Organizations, especially members of the FAITH in Ghana Alliance, about the Binding Treaty process and how they can influence the Government of Ghana to support the Binding Treaty.
After a statement issued immediately after publication of the new draft, where FIDH, FIAN and Franciscans International welcomed the draft, FIDH is publishing its Reflections on the ’Second Revised Draft’, a more comprehensive summary of its analysis. The organisation notes that the text takes into account some of the comments made by civil society organisations during the latest negotiation session, and identifies remaining shortcomings that must be addressed.
The German Institute for Human Rights argues that the new draft retains the right priorities for closing human rights protection gaps in supply and value chains, while at the same time meeting demands for an expansion of the material scope of application and a more systematic orientation toward the UNGPs. This is another reason why, according to the authors, the European Union should join the negotiating table in Geneva.
Ahead of the beginning of the session, CIDSE is releasing its contribution to the debate and making recommendations on the 2nd revised draft. CIDSE welcomes the consistency of the draft with the UN Guiding Principles on Business and Human Rights (UNGP), but highlights areas where there is still room for improvement, including reversal of the burden of proof, administrative sanctions for cases abuses in the context of human rights due diligence, and specific measures to ensure trade and investment agreements do not undermine the purpose of the treaty.
En prélude à l’adoption du 2e draft du Traité des Nations Unies sur les activités des multinationales et des droits de l’Homme, un atelier a été organisé le 30 septembre à l‘Institut des Relations Internationales du Cameroun (IRIC) sise à Yaoundé par l’Association Action pour le Développement Communautaire (ADC), le mouvement Young Friends of the Treaty (YouFT) et l’Amicale des étudiants de la 5e Promotion du Master CA2D. Des jeunes d’horizons divers notamment des leaders de la société civile, des chercheurs et étudiants ont pris part à cette consultation dont l’objectif était de recueillir les avis des jeunes sur ce deuxième projet.
The Office of the United Nations High Commissioner for Human Rights (OHCHR) is submitting a note for consideration by members of the open-ended intergovernmental working group (IGWG) in the context of the negotiations to take place at its Sixth Session. The note draws from findings of OHCHR's work on accountability and access to remedy to inform the Second Revised Draft on the issues of mandatory human rights due diligence, mutual legal assistance, international cooperation, and protection from retaliation.
La CNCDH a examiné le second projet révisé d’instrument publié en août 2020. La Commission souligne les améliorations apportées quant au champ d’application du projet d’instrument ainsi qu’à son articulation avec le droit international et les droits nationaux, mais attire l’attention sur l’affaiblissement de la formulation de l’obligation de vigilance.
The Office of the United Nations High Commissioner for Human Rights has released updated information on registration and participation for the sixth session of the open-ended intergovernmental working group (OEIGWG). The session, to take place from 26 to 30 October 2020, will discuss the Second Revised Draft of the binding treaty on business and human rights.
The joint statement from trade unions, including UNI Global Union and IndustriALL, argues that the Binding Treaty represents a unique opportunity to end the impunity for corporate human rights abuses, especially in the broader context of the COVID-19 pandemic exposing once again the fragility of global supply chains and current business models.
In this commentary, Makbule Sahan and Ruwan Subasinghe argue that the latest draft of the proposed Binding Treaty provides a strong basis for an instrument that is both politically viable and effective in addressing accountability gaps in international human rights law. They note, however, that there are still significant improvements that can be made to the text, including explicitly recognising trade unionists as human rights defenders.
An international binding treaty for business and human rights is needed in order to better protect environmental and human rights defenders worldwide. IUCN NL believes the current draft of the treaty is significantly better than the previous versions, however there is room for improvement.
In this opinion piece, Olivier de Schutter, the UN Special Rapporteur on extreme poverty and human rights, explains the need to keep human rights due diligence and legal liability separate, in order to ensure human rights due diligence doesn't become a formalistic exercise to absolve companies of liability for their human rights impacts.
In this opinion piece, Elizabeth Mangenje and Timothy Fish Hodgson argue that the proposed binding treaty on business and human rights has an important role to play in holding private actors in the health setor accountable for human rights abuses. With examples from the health industry in Africa during the COVID-19 pandemic, the authors explain how the private health industry can contribute to abuses of the right to health.
In this blog, Claire Methven O'Brien argues that the 2020 draft, as it stands, is heading towards failure, and calls for an alternative approach, namely a framework convention based on the UN Guiding Principles on Business and Human Rights.
In this commentary, Professor Justine Nolan reviews the second revised draft of the Binding Treaty on Business and Human Rights, analysing in particular the change in scope from "contractual relationships" to "business relationships" and implications for the responsibility and liability of companies in global supply chains.
In this commentary, Dorothy Grace Guerrero analyses remaining gaps in the Second Revised Draft of the proposed binding treaty on business & human rights, and argues against the broadening of its scope to all kinds of businesses, including SOEs.
In this commentary, ESCR-Net argues that the pursuit of ending corporate impunity continues to progress through the second draft of a legally binding instrument, but a strengthening of collective resolve remains essential to its urgent realization. Only through meaningful participation of States, civil society and social movements in this process can the gaps in corporate accountability be genuinely closed, particularly in relation to transnational corporations.
Jonathan Drimmer from Paul Hastings argues that the new draft still maintains a handful of provisions that may cause great alarm for companies and many prospective states who might become party to the treaty. According to the author, mandatory diligence, broad potential civil and criminal exposure, liability for failing to prevent harms caused by subsidiaries and suppliers, litigation in attenuated jurisdictions, and potential corporate criminal prosecutions appear as the future of corporate liability for human rights abuses.