This post is part one of the first in a symposium that the BHRJ blog is running on the revised binding treaty on business and human rights, which was released in July 2019. All posts in the symposium will be collated here.

The 16 July 2019 revised draft of the legally binding instrument on business and human rights is quite curious. In spite of replicating to a greater or lesser extent several provisions of last year’s ‘zero’ version, some subtle and not so subtle adjustments and additions make it potentially better suited to addressing the problems surrounding the prevention of corporate human rights violations and ensuring the protection of victims. In this post, I will focus on aspects related to the responsibility of businesses themselves –which has been a concern of mine for a long time.

At the outset, I would like to mention that there are at least two aspects that, in my opinion, strengthen the newest version of the proposed treaty: its applicability to all businesses and corporate operations, transnational or not, explored in Part I; and the clear recognition that businesses do have the capacity to violate human rights, thus getting rid of the euphemisms that some authors have employed when studying non-state actors. There may be a confusion when some authors draw a distinction between the ‘violation’ of human rights attributable to States and the ‘destruction or abuse’ of said rights by non-state actors. This aspect will be explored in a second post of mine.

The first of the previous elements, which can be found across different provisions of the draft, including the Preamble and article 3 –among others— has to do with the fact that the latest version seeks to strengthen the protection of human rights from all corporate abuses, regardless of whether they are generated by means of transnational conduct or can be attributable to transnational businesses. In this sense, for instance, the Preamble mentions that ‘all business enterprises, regardless of their size, sector, operational context, ownership and structure have the responsibility to respect all rights’ (emphasis added, and more on this later), whereas article 3 clearly indicates that the proposed treaty is applicable ‘to all business activities, including particularly but not limited to those of a transnational character’ (emphasis added). Last year, I expressed concern at the narrow scope that the ‘zero’ draft had, which was concerned with ‘business activities of transnational character’ (see its article 10, for instance). I fully concur with what Nadia Bernaz has recently said on the matter, in the sense that the current broader scope is certainly an improvement over the previous one.

In this regard, I would like to say, first, that the content of the draft can be seen as an improvement in strategic and political terms over the previous draft ‘zero’ by means of its aligning with a position that coincides with the one held by European Union States –thus potentially generating greater favorability towards the instrument, which is quite important in political terms for the sake of the future adoption of the treaty with a support as wide as possible, in light of alleged EU reticence as to its endorsement.

In addition to this, from the point of view of the protection of human rights, the change is a welcome one that acknowledges that, if the drafters seriously intend to protect victims from all corporate violations, considering that around the world many violations are attributable to small businesses and to corporations operating locally, it would have been a mistake to miss the opportunity of requiring States to do something in order to prevent and respond to non-transnational corporate violations. Indeed, all violations are unacceptable, and accordingly all businesses ought to have a responsibility to respect rights–as has been recognized, for instance, by the Equality and Human Rights Commission of the United Kingdom. Likewise, Shift has also pointed out that the aforementioned requirement of respect must also be taken into account by small and medium enterprises; and the Guiding Principles themselves recognize that “small and medium-sized enterprises can have severe human rights impacts” (emphasis added).

The scope of the treaty is thus a comprehensive one in terms of conduct and actors from whom the protection of human rights is necessary. This coincides with other elements of the draft that likewise point towards a non-fragmented and non-reductionist scope. In this sense, for example, one cannot ignore that the draft also provides a holistic and strong framework when it expressly refers to environmental matters and responsibility, which are crucial given global warming and other environmental degradation aspects in which corporate action has an undeniable impact; to the express recognition of the need to protect activists and defenders (in line with the recent Escazú agreement, for example); to the need to consider the heightened risks of violations that may affect vulnerable persons (e.g. art. 5.3) and that may exist in risk situations (e.g. conflict-affected areas, art. 14.3) –pointing towards a specialization of business and human rights law in terms of express protection from specific risks; to the importance of countering fragmentation by means of making sure that international agreements, including those pertaining to international economic law matters, are ‘compatible and […] interpreted in accordance with” business and human rights standards, especially considering that policies based on these standards must be protected from inimical interests of a ‘commercial’ or other nature; or to the legitimacy and importance of checks and balances carried out by ‘civil society actors’ (Preamble), which points towards a multi-actor and multi-level framework of protection from human rights abuses that bears in mind the limits of State, international and other initiatives in isolation.

Altogether, protection from corporate abuses cannot be carried out in a reductionist manner, focusing only on the duties of a given actor such as the State. The recognition of non-state violations in the draft, specifically those attributable to businesses, can also strengthen the comprehensive approach that the draft seeks to pursue.

Indeed, by recognizing that other responsibilities may exist outside of those that States have, bringing about a common set of requirements in participating States (and even beyond them if sufficient practice and opinio juris follow), and seeking to guarantee complementary actions of different actors, the treaty could well become another step in the right direction, which better works when it follows and is complemented by other initiatives and potential actions in a ‘hybrid’ approach. In the end, the protagonists of business and human rights are human beings, not corporations, not States. This is further recognized in the rights of victims recognized under article 4 of the 2019 draft, which, among others, refer to the different components of reparations required for them to be full. They are in line with international human rights case law and the Basic Principles and Guidelines on the Right to a Remedy and Reparation, which, as Theo van Boven has well noted, have a ‘victim-oriented perspective’ which thus may recognize the ‘responsibility and liability of non-State actors’, among which businesses are included. Concerning this, one may well say that if businesses that perpetrate violations do not participate in reparations, the components of satisfaction, for instance, will never be completely provided, and thus reparations will not be full, frustrating the rights that victims have to a full and effective reparation. Accordingly, I will explore the aspects related to corporate violations in a following entry.

Nicolás Carrillo-Santarelli is an Associate Professor of International Law at the Universidad de La Sabana (Colombia). He holds a PhD degree in International Law and International Relations, and an LLM in the Protection of Human Rights. He has conducted research on several international legal issues, especially those related to business and human rights and non-state actors under international law.