Week of 2 November 2020
The sixth round of negotiations on the UN’s draft treaty on business and human rights has concluded – and the discussions continue to be lively
The sixth round of negotiations on the UN’s draft treaty on business and human rights has concluded. Commentators, academics, lawyers, trade unions, civil society organisations and others are weighing in and there is lively discussion taking place on a number of the draft’s features. The latest draft of the treaty is yet another signal of the direction of travel towards hard legal requirements for businesses to respect human rights.
- In June 2014, the UN Human Rights Council accepted a resolution from Ecuador and South Africa and voted to establish an open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (IGWG). The working group’s mandate is to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”
- Since then, the working group has met multiple times to decide on the terms of the treaty and draft it for a vote by the UN. Most recently, in October 2020, the IGWG concluded its sixth session, where governments discussed and negotiated the substance of the second revised draft legally binding treaty on business and human rights.
What is included in the second revised treaty draft?
- Scope: “The Treaty covers ‘all internationally recognized human rights and fundamental freedoms emanating from the Universal Declaration of Human Rights, any core international human rights treaty and fundamental ILO convention to which a state is party, and customary international law’ (Article 3).”
- Adjudicative Jurisdiction: “Jurisdiction vests in the courts of the State where the human rights abuse occurred, an act or omission contributing to the abuse occurred, or the legal or natural persons alleged to have committed an act or omission causing or contributing to the abuse are domiciled (Article 9).”
- Rights and Protection of Victims: “Article 4 affirms that victims in the context of business activities shall enjoy all internationally recognized human rights and fundamental freedoms,” including the “right to fair, adequate, effective, prompt and non-discriminatory access to justice and effective remedy.”
- Prevention and Due Diligence: “States shall require business enterprises to undertake human rights due diligence,” including: Undertaking regular environmental and human rights impact assessments; Integrating a gender perspective in all stages of human rights due diligence processes; Conducting meaningful consultations with individuals or communities whose human rights can potentially be affected and giving special attention to vulnerable groups; Ensuring that consultations with indigenous peoples are undertaken in accordance with the internationally agreed standards of free, prior and informed consent; and Adopting and implementing enhanced human rights due diligence measures to prevent human rights abuses in occupied or conflict-affected areas.
- Access to Remedy: “States shall provide adequate and effective legal assistance to victims, including by: making information available to victims on their rights and the status of their claims (Article 7.3 (a)), providing assistance to initiate proceedings in the courts of another State Party in appropriate cases (Article 7.3 (d)), ensuring that rules concerning allocation of legal costs do not place an unfair and unreasonable burden on victims (Article 7.3 (e)).” States may also “enact or amend laws to reverse the burden of proof in appropriate cases to fulfil the victims’ right to access to remedy.”.
- Legal Liability: “Article 8.1 provides that ‘State Parties shall ensure that their domestic law provides for a comprehensive and adequate system of legal liability of legal and natural persons conducting business activities, domiciled or operating within their territory or jurisdiction, or otherwise under their control, for human rights abuses that may arise from their own business activities’ or ‘from their business relationships.’” In addition, “States shall adopt legal and other measures necessary for ‘effective, proportionate, and dissuasive criminal and/or administration sanctions where legal or natural persons conducting business activities’ have caused or lead to human rights abuses (Article 8.4).” “Human rights due diligence will not automatically absolve a legal or natural person conducting business activities from liability. ‘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.’ (Article 8.8)”
- Mutual Legal Assistance and International Judicial Cooperation: “States ‘shall make available to one another the widest measure of mutual legal assistance and international judicial cooperation in initiating and carrying out effect, prompt, thorough and impartial investigations, prosecutions, judicial and other criminal, civil or administrative proceedings in relation to all claims covered’ by the Treaty. (Article 12.1).”
- International Fund for Victims: “States shall establish an International Fund for Victims covered under the Treaty to provide legal and financial aid to victims. (Article 15.7)”
What are stakeholders saying?
- Jonathan Drimmer from Paul Hastings points to “a handful of provisions that may cause great alarm for companies and many prospective states who might become party to the treaty in the distant future once it is finalized, adopted and ratified”;
- Claire Methven O’Brien from the Danish Institute for Human Rights finds that the draft is heading towards failure, and calls instead for “a framework convention based on the UN Guiding Principles on Business and Human Rights” as this would be “more desirable, feasible, effective and relevant to the challenges” the draft is seeking to tackle;
- Olivier de Schutter, the UN Special Rapporteur on extreme poverty and human rights, cautions against human rights due diligence “degrad[ing] into a box-ticking exercise, shielding companies from any form of liability provided they follow the standard list of ‘do’s’ and ‘do not’s.’” To avoid this, De Schutter describes why “human rights due diligence and potential liability for violations occurring in the supply chain should be treated as two separate, albeit complementary, duties.”
- A coalition of eight global unions (UNI Global Union, IndustriALL, Building and Woodworkers International (BWI), International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), International Transport Workers’ Federation (ITF), Public Services International (PSI), Education International (EI), and the International Trade Union Confederation (ITUC) welcomed the “further conceptual clarity, alignment with the UN Guiding Principles on Business and Human Rights (UNGPs), a more coherent structure, and a text that is politically viable for States and non-State actors alike.” They make a number of suggestions to strengthen the draft, including replacing the term victim with rights-holders, recognizing “that consultation is a right in itself in many labour-related instruments” and “reiterat[ing a] call for a complementary international mechanism to oversee compliance with the binding.”
This is just a snapshot – there is extensive commentary and discussion available on the Second Revised Draft, which you can find here.