03 Sep The Third Revised Draft of a Treaty on Business and Human Rights: Modest Steps Forward, But Much of the Same
[Carlos López is a Senior Legal Advisor at the International Commission of Jurists]
The 3rd revised version of a draft treaty on transnational corporations and other business enterprises (3rd revised draft treaty on business and human rights) was published by the Intergovernmental Working Group established by the UN Human Rights Council in 2014 under Resolution 26/9 for the elaboration of the treaty. The 3rd Revised Draft maintains the structure, scope and the balance of content and approaches of the previous drafts of 2020 and 2019, improving in drafting and clarifying certain ambiguities, but it misses the opportunity to develop and strengthen further the provisions that are more important for enhancing access to remedy and reparation.
The 3rd draft will be discussed between 25 and 29 October 2021, in the context of the 7th session of the IGWG open to all Member of the UN, NGOs, National Human Rights Institutions, trade unions and business associations accredited to the UN. The draft is informed by the discussions held in 2020, written and oral comments provided by States and stakeholders, although many, including the numerous active NGOs, will likely be dismayed that most of their recommendations were not taken onboard.
The new draft is only slightly different from the 2nd revised draft of 2020. Some changes include in style and language, eliminating some redundancies and inconsistencies, reordering certain articles and a noticeable effort to align some of the language with the UN Guiding Principles on Business and Human Rights (UNGPS) when relevant, in response to comments from certain states and stakeholders. But it preserves the general structure, and most importantly, its main purposes and content. As I wrote in 2020 in respect of the second draft, the current draft goes in the right direction in terms of filling some of the major gaps in ensuring prevention of business human rights abuse and access to justice and reparation for the victims of abuse. However, it misses the opportunity to further clarify and strengthen some key provisions that are essential to the treaty.
Scope and Purpose
One of the welcome changes operated in the new draft is on article 3 (scope) to cover all “internationally recognized human rights binding on the State Parties” to the new treaty, including not only core human rights instruments and ILO Conventions and customary law. This is certainly an improvement over the old draft that seemed to refer only to those obligations in treaties to which a state is a party. However, it is unclear whether the new formulation solves all problems, especially in relation to the human rights norms applicable to business enterprises, where it remains uncertain whether this scope relates only to State responsibility, or also to the direct responsibilities of businesses.
In connection to the above, it is noticeable that the new draft article 2 adds one “purpose” to the already long list of purposes of the proposed treaty: “To clarify and ensure respect and fulfillment of the human rights obligations of business enterprises”. There is no apparent corresponding operative part of the treaty that would seem to develop this new purpose in the body of the draft treaty, which remains strictly confined to establish obligations for States. The formulation of the scope (article 3) confines the treaty to addressing human rights obligations “binding” on States, however, in relation to businesses, the UNGP 12 and its commentary states that businesses’ responsibility is to respect all “internationally recognized human rights”, irrespective of whether these are binding on the respective states or not. If the drafters of the proposed treaty and IGWG really want to address human rights obligations of businesses progressively, they will have to find a way to build on the UNGP’s formulation.
Prevention, Legal Liability and Remedies
Accountability and remedies for business human rights abuses remain the focus of the proposed treaty and its main contribution to the international legal framework on human rights. Other instruments of non binding character (such as the UNGP) have focused on providing companies with tools and methods to avoid human rights abuses and respect human rights in the framework of the preventive approach. But, the third draft treaty contains provisions on prevention, in particular mandatory human rights due diligence (current article 6), giving equal emphasis to both prevention and remedies. Nonetheless, the main contribution of the proposed treaty has always been in addressing the elusive and thorny question of remedies and reparations for those who suffered violations, in particular in the context of transnational business operations. Thus, several articles reinforce that objective: article 4 (rights of victims), article 5 (protection of victims) and article 7 (right to a remedy). Further, article 8 (legal liability) attempts to clarify the rules of legal liability for business abuse of human rights, making it possible for many affected people to have access to courts with a valid legal claim.
However, the provisions on accountability and remedy are insufficient, with several of them still drafted in an ambiguous or vague way. For instance, the provision relating to access to information (7.2) stands out for its generality: it is not clear access to what kind of information should be facilitated, and what kind of proceedings should be “allowed by the courts”. This numeral seems to refer to the courts’ jurisdiction and if so it should be clearer about it. Article 7.3 adds an important precision by incorporating children as one of the groups to provide legal assistance, but it could have kept consistency by also referring (in 7.3.b) to the rights of children to be heard in an appropriate time and manner.
The grounds and modalities of legal liability for business abuse are addressed in article 8. Among all of the sub-articles in this article 8, 8.6 and 8.8 continue to be a source of contention, as they tackle the most difficult and pressing scenarios where company legal liability may arise. 8.6 reproduces the wording of the 2020 draft:
“8.6. States Parties shall ensure that their domestic law provides for the liability of legal and/or natural persons conducting business activities, including those of transnational character, for their failure to prevent another legal or natural person with whom they have had a business relationship, from causing or contributing to human rights abuses, when the former controls, manages or supervises such person or the relevant activity that caused or contributed to the human rights abuse, or should have foreseen risks of human rights abuses in the conduct of their business activities, including those of transnational character, or in their business relationships, but failed to take adequate measures to prevent the abuse.”
This provision deals with the delicate question of legal responsibility in the context of triangular relationships, where there is a parent or lead company, a subsidiary or business partner and the affected people. The existence and detail of this norm is in itself a step forward, but its content is inadequate and confusing. It seems to be conflating different modalities of civil liability in one single formulation (tort based on negligence and what appears to be at least two forms of strict liability), and it is not clear about the cases in which a discharge or rebuttal by the defendant company whould be allowed. More extensive analysis of this provision can be found here (my 2020 blog) and also in the International Commission of Jurists’ commentary to the 2019 and 2020 draft.
In relation to liability for the most serious human rights abuses amounting to crimes under international law (currently in article 8.8), the draft offers no changes with respect to the previous draft. In respect of that draft, I previously wrote that although well meaning, the provision “may not serve the purpose of bringing more clarity and legal security for States or businesses.” It would be difficult for States to ascertain the full range of conduct that they are required to address in implementing measures to ensure that persons and entities, including companies and the law enforcement and prosecution authorities, are aware of the kind of conduct that is proscribed.
In both cases (article 8.6 and 8.8), substantial work is still necesary to address these and other ambiguities which would be necessary to develop their full potential and impact.
Similar to the 2nd Draft (2020), the current draft is a useful proposal for a serious conversation and negotiation, but still insufficiently clear to be adopted. The drafters missed this year’s opportunity to fully clarify the provisions that remain unclear, adopting instead an over cautious approach to insert mostly style and technique improvements. One of the few advantages of this approach is that by keeping the text largely unchanged and avoiding dramatic changes the drafters provide an additional opportunity to those who did not have sufficient time to analyse, consult and comments last year, and provide a measure of continuity in the discussions. On the other hand, a fundamentally unchanged draft treaty may not be more persuasive than the previous draft in bringing any recalcitrant States on board, and may reinforce the political impasse that has held during the six years of negotiations to date.
The responsibility is lies with those States and stakeholders who abstain from actively participating in the discussions and then complain that the drafts are not sufficiently clear or acceptable. But it also lies with the drafters and their advisers who, in an ill-advised and overcautious attitude, have so far failed to take the proactive steps necessary to broaden the base of support that would make possible this treaty to be adopted in the foreseeable future.