The 2019 Draft of the Business and Human Rights Treaty: Nothing left to improve?
“This post is part of the 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. This blog piece is co-published by the Business & Human Rights Resource Centre as part of its Reflections on the Revised Draft Treaty blog series“
The United Nations inter-governmental working group has on 16 July 2019 published an improved draft of the legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises (hereinafter: The 2019 Draft of the Business and Human Rights Treaty). Several authors have previously on this blog and elsewhere explained that the 2019 Draft of the Business and Human Treaty has been a substantial improvement on its »Zero« Draft. I concur with their reflections and conclusion on the extended applicability of the Business and Human Rights Treaty to all corporations and their activities, improved and new sections on rights of victims, human rights defenders and legal liability of corporations. Nonetheless, I have some reservations as to the language and content of the current draft. To be clear, the 2019 Draft is no perfect draft and it can be further improved as I explain below.
The preamble of the 2019 Draft rightly reaffirms the primacy of human rights and ensuing state obligations. The preamble, nonetheless omits the underlying value of all human rights and fundamental freedoms, namely human dignity, which is both of an individual and collective nature. Somehow surprisingly, the 2019 Draft also does not include a single reference to the rule of law. As anyone familiar with business and human rights would know, much of the problems that victims have encountered on daily basis have been connected with general, systematic and structural deficiencies in the exercise of the rule of law in the jurisdictions worldwide, but particularly in the Global South and Central and Eastern Europe such as the abuse of the executive power; lack of or limited access to independent, impartial and fair proceedings; corruption and conflicts of interest between public sector and large private corporations. Therefore, if victims do not have efficient recourse in their domestic systems to independent, impartial and fair judicial, quasi-judicial and/or non-judicial mechanisms, there rights are left unenforced. After all, the lack and deficiencies of existing remedial systems have been one of the triggering points for the Business and Human Rights Treaty Initiative. The rule of law, often defined as the absence of arbitrary power by ruling institutional elites, therefore needs to be mentioned in the preamble and throughout the treaty, perhaps even in a separate provision at the beginning of the treaty.
There appears to be some confusion as to the terminology employed in the 2019 Draft. Section I, explains the definitions mentioned in paragraph 2, »human rights violation or abuse«. On the other hand, the preamble refers in paragraph 12 to »human rights impacts, whereas paragraph 14 returns again to language of »abuses«. The definition section of the draft does not explain what »human rights impact« in fact means. Additionally, although the language of violations prevails throughout the text, the draft at some instances refers to abuses and impacts (see Articles 4, 9, 12, which all refer to impact)) seemingly without particular order. The drafters should therefore if possible avoid such and similar inconsistencies in the future version(s) of the draft.
Obligations and legal liability
The 2019 Draft of the Business and Human Rights Treaty is undoubtedly aimed at states, similarly as traditionally all the United Nations international human rights treaties have been. Its article 5 on »Prevention« set outs the nature of state obligations to regulate the operations of corporations »within their territory or jurisdiction«. It specifies the measures states are to employ to regulate and supervise corporate operations. State obligations indirectly, but not exclusively follow the tripartite framework of respect, protect and fulfil human rights. Nonetheless, Section 6 of Article 6 appears to allow for extraterritorial application of the Treaty. Perhaps most interestingly, Section 5 of Article 5 stipulate that states are obliged »…to protect these policies from commercial and other vested interests of persons conducting business activities, including those of transnational character, in accordance with domestic law.« The inclusion of such provision is long overdue. It is, however, in need of reform as perhaps the phrase »actual or potential conflict of interest« would have better summarized the often seen collusion of the public and private sectors in practice.
Nonetheless, as a long-time proponent of corporate human rights obligations, I would have wished that the 2019 Draft would have perhaps in Article 6 recognised the direct human rights obligations of corporation, which are certainly to be enforced primarily, but not exclusively through the state judicial framework. Article 6 asks the states to introduce criminal, civil and administrative liability of corporations. I have argued with Nicolás Carrillo-Santarelli in the conclusions of the »The Future of Business and Human Rights« (Intersentia, 2018) for the inclusion of a »clear specification of corporate human rights obligations and obligations of States to implement them in domestic systems« (p. 305). The 2019 Draft of the Business and Human Rights Treaty still addresses corporate human rights obligations only indirectly through state obligations. However, their nature and scope have been in the 2019 nonetheless partially clarified. The positive corporate obligations to protect human rights in Section 6 of Article 6 of the Draft have now been based on the standards of »sufficient control or supervision of the relevant activity that caused harm« and of »foreseeability of risk of human rights violations or abuses«. Such inclusion should be welcomed as it at least to some extent clarifies the nature of corporate obligations in the supply chains. Moreover, what is missing from the draft is the scope of second limb of corporate positive obligation to protect, namely the obligation of fulfil, which is specifically important as to corporate obligations concerning socio-economic rights. Additionally, it would be opportune for the drafters to concentrate on the holistic approach to liability, which would include greater coherence between state responsibility and liability of corporations and that of natural persons.
The 2019 Draft also includes a provision in section 7 of Article 6 that urges state to introduce in their domestic systems legislation on international crimes. Including such provisions in the Business and Human Rights Treaty is a two-edged sword. On one hand, its inclusion could be positive as it may provide a basis for corporate criminal liability for international crimes, at the moment absent from most, particularly civil law, jurisdictions. On the other hand, it risks moving the focus away from »the responsibility to respect all human rights« as it particularly disregards business’s obligations and responsibility to respect socio-economic rights, which traditionally, with some exceptions, are not categorized in the narrow group of international crimes. Socio-economic rights obligations of corporations in the light of their seminal importance for livelihoods and capabilities of individuals deserve equal attention and examination as provision on international crimes.
As far the rights of victims and access to justice goes, the text of the 2019 Draft leaves some room for improvement. Article 4 in paragraph 5 stipulates that »Victims shall have the right to fair, effective, prompt and non-discriminatory access to justice…« thereby without any explanations omitting the right to independent and impartial access of justice, despite both being essential elements of the right to fair trial and the rule of law. The right to fair, impartial and independent trials is also forgotten in the somehow more technical provisions in the Articles 7 to 11. The only time the word »independence« is mentioned in the draft is in the paragraph 10 of the preamble referring to the »political independence of States«. Given the lack of the effective right to fair, impartial and independent trials in many jurisdictions worldwide, it is of outmost importance that the drafters of the Treaty show their commitment to such fundamental right as the right to fair trial.
The 2019 Draft of Business and Human Rights Treaty is definitely an improvement on previous draft both in the content and structure. Nonetheless, much work needs to be done if the potential Treaty and its supervision mechanism will be able of championing victims’ rights and essential protecting their human dignity. The Draft of the Business and Human Rights Treaty should throughout the text more clearly refer to corporate human rights obligations, the rule of law and right to fair, independent and impartial proceedings. The drafters should in the future version(s) of the draft improve and streamline its language and revise its content in order to more clearly reflect the rights of victims and corresponding obligations of corporations. All in all, the new Draft Treaty is much improved, but some fine-tuning is still outstanding if treaty will have any added value for the victims of corporate human rights violations.
Jernej Letnar Černič is Associate Professor of Human Rights and Constitutional Law at the Faculty of Government and European Studies of the New University (Ljubljana/Kranj, Slovenia).