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.

On 16 July 2019, the revised draft of the legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises (hereinafter, legally binding instrument) was released. The current revised draft of the legally binding instrument integrated various provisions and elements which were proposed by civil society organisations. This includes but is not limited to an increased and necessary inclusion of and reference to international humanitarian law; specific provisions on situations of occupation and protected populations; amended language on legal liability to encompass internationally-recognized crimes that corporations may be involved in and complicit in aiding and abetting; as well as provisions aimed at ensuring the protection of human rights defenders and the environment. The continuity of the process and publication of an updated draft of the legally binding instrument, in a timely manner, is certainly a step in the right direction towards realizing a binding treaty to regulate the activities of business enterprises, particularly those of a transnational character, and which aims to hold corporations accountable, while prioritising human rights and the rule of law over corporate interest and affluence, at all times.

The legally binding instrument, in its current draft, attempts to provide better established rights for affected individuals and communities, including human rights defenders and protected persons and populations, among other groups that are at high risk in the context of corporate activities. It is important that the legally binding instrument continues to be developed in a way that more closely resembles the language of the UN Guiding Principles on Business and Human Rights (UNGPs) and rights guaranteed under international law, including international humanitarian law and international criminal law, especially in relation to prevention, due diligence and legal liability.

The legally binding instrument must maintain a goal of requiring States and business enterprises (each to their competencies) to promote, protect and respect the human rights of individuals, communities and populations within the context of business activities and contractual relationships, at all times and in all situations. It should therefore be developed further in order to counter corporate abuses and complicity in grave breaches and international crimes. It is also essential that the legally binding instrument addresses the ramifications of corporate activities on the fundamental rights of communities and peoples, particularly the fundamental right to self-determination and sovereignty over natural resources, including in conflict-affected areas and situations of foreign occupation and colonisation.

In this regard, the revised draft of the legally binding instrument has made some progress in incorporating language moving towards the protection of the individual and collective within the context of business activities during situations of conflict and occupation. The preamble of the legally binding instrument explicitly highlights the desire to contribute to the development of international law, including international human rights, humanitarian and criminal law, in relation to corporate activities. While more focus on environmental rights has been included in the current revised legally binding instrument, no specific reference has been made to situations of armed conflict or occupation in this regard. This coincides with and should be parallel to the adoption of Draft Principles on the Protection of the Environment in Relation to Armed Conflicts in July 2019 which includes principles on corporate accountability for their effects on the environment in such contexts.[1]

Meanwhile, more provisions on prevention have been added to encompass conflict-affected areas and situations of occupation, as seen in article 5. Article 5(3)(e) requires the adoption and implementation of enhanced human rights due diligence to prevent human rights violations or abuses in occupied or conflict-affected areas, arising from business activities or contractual relationships, including with respect to products and services. This is a positive development that should be accompanied by other obligations to ensure that States impose mandatory and enhanced human rights due diligence for businesses in conflict-affected areas – including more urgent and immediate preventive measures, divestment and disengagement policies – to avoid corporate involvement in or contribution to human rights abuses and grave breaches of the Geneva Conventions in their activities and relationships.

Paragraph 3(b) of article 5 on carrying out meaningful consultations with groups whose human rights can be affected by business activities or relationships is of high importance. The addition of protected populations under occupation or conflict areas as part of the categories of stakeholders requiring special attention is welcome, especially considering the heightened risks of violations in the context of business activities. However, it remains insufficient and in practice may be unrealistic, given the situation of armed conflict, hostilities, and/or a foreign occupation and authority – all of which often aim to advance territorial expansion and land take-over, including the exploitation of natural resources therein, without the consent of the rightful owners, and where businesses are often involved. In such circumstances, more stringent human rights due diligence, effective mechanisms and methods of prevention are needed.

In the same article, paragraph 2, human rights due diligence should be presented more explicitly in line with the UNGPs and relevant obligations and responsibilities set forth under international law. It remains unclear what ‘appropriate actions’ are needed, notably by business enterprises, in order to prevent human rights violations and abuses in the context of their activities and contractual relationships. According to the UNGPs, business enterprises should take adequate measures to prevent, mitigate and remediate adverse human rights impacts associated with their activities and relationships.[2] In addition, the business responsibility may encompass ‘additional standards’ with regards to respecting the rights of specific groups and populations in certain contexts, including situations of armed conflict.[3]

The UNGPs provide for ways through which business enterprises could meet their responsibility to respect human rights, such as a policy commitment, a human rights due diligence process that involves identifying, preventing, mitigating and accounting for adverse human rights impacts, as well as processes to enable the remediation of adverse human rights impacts associated with their activities and relationships.[4] Article 19 of the UNGPs states that business enterprises could prevent and mitigate adverse human rights impacts by effective integration of their impact assessments and by taking appropriate action which varies according to the level of involvement of the business enterprise as well as its leverage points. Such ‘appropriate action’ by business enterprises could include taking necessary steps to cease or prevent contributing to adverse impacts; using their leverage and increasing it to prevent or mitigate adverse impacts, through, for instance, capacity-building and providing other incentives; and ending their relationship.[5]

On another note, the presence of a defined list of offences in the text of the legally binding instrument should make it more conceivable to trigger legal liability under domestic law. The legally binding instrument now requires State Parties to ensure that their domestic legislation provides for criminal, civil, or administrative liability of legal persons for war crimes, crimes against humanity and genocide, in line with the Rome Statute of the International Criminal Court, as well as for extrajudicial execution, forced labour, forced eviction, forced displacement, among others. This is accompanied by a requirement of States to impose no statutory or other limitations in ‘the prosecution and punishment of all violations of international human rights law and international humanitarian law which constitute the most serious crimes of concern to the international community as a whole,’ which is in line with the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity of 1970. However, the legally binding instrument needs to clearly state whether this also allows for universal jurisdiction over relevant crimes and grave violations.

Moreover, the added definition of ‘contractual relationship within this context is imperative, considering the adverse human rights impacts from business activities, relationships and links, which is reaffirmed in the UNGPs. According to the UNGPs, the activities of business enterprises ‘include both actions and omissions’ while business relationships ‘include relationships with business partners, entities in its value chain, and any other non-State or State entity directly linked to its business operations, products or services.’[6] These should be encompassed in article 1(4) of the legally binding instrument, with particular added reference to products and services.

Lastly, despite the progress that has been made so far in the sphere of this legally binding instrument, particularly in the context of conflict-affected settings and situations of occupation, the current draft poses most of the obligations on States to prevent and remedy corporate-related violations and abuses of human rights, without much responsibility directed at business enterprises. There also remain important issues to be discussed and resolved, notably the scope of the legally binding instrument, which has been broadened with a particular focus on transnational corporations. It is therefore important for civil society organisations and social movements, UN Member States, relevant UN bodies, and other pertinent stakeholders to continue the discussion and engage in the process effectively. Within the international legal framework, more work is further needed to counter corporate interest and domination and put an end to corporate impunity in order to guarantee human rights for all, at all times.

Maha Abdallah is a Senior Legal Researcher and Advocacy Officer at Al-Haq, a Palestinian human rights organisation based in the Occupied Palestinian Territory.

[1] For more details, see: Al-Haq, ‘ILC Draft Principles on the Protection of the Environment in Relation to Armed Conflicts’, 25 July 2019, available at: http://www.alhaq.org/advocacy/topics/housing-land-and-natural-resources/1441–qq-.

[2] UN Guiding Principles on Business and Human Rights, Principle 11 and commentary.

[3] UN Guiding Principles on Business and Human Rights, Principle 12 and commentary.

[4] UN Guiding Principles on Business and Human Rights, Principle 15 and commentary.

[5] UN Guiding Principles on Business and Human Rights, Principle 19 and commentary.

[6] UN Guiding Principles on Business and Human Rights, Principle 13.