human rights & business (and a few other things)

Clearer, Stronger, Better? – Unpacking the 2019 Draft Business and Human Rights Treaty

imagesThe Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights has just published a new draft business and human rights treaty. This post focuses on a few selected points, many of which I consider improvements compared to the 2018 Zero Draft. The new draft is clearer, stronger, and arguably better than the 2018 version.

(1) Clearer language and structure

Overall, the 2019 draft is clearer and more precise than the previous version. I have picked a few examples but a close reading of the text should reveal many more. Drafters fleshed out the definitions article, and polished up the language. For instance, under Article 8 on Statute of Limitations, the previous text stated that “[d]omestic statutes of limitations (…) should not be unduly restrictive and shall allow an adequate period of time for the investigation and prosecution of the violation” (Article 6, 2018 Zero Draft). In the new text, this becomes: those statutes of limitation “shall allow for a reasonable period of time for investigation and prosecution of the violation”. “Unduly restrictive”, a subjective requirement likely to cause problems, was dropped; and “adequate” was replaced by a more precise term, “reasonable”. Similarly, the necessity for States Parties to “protect the[...] policies and actions” they adopt/take “from commercial and other vested interests of the [business sector]” (Article 15(3), Zero Draft), which was likely to antagonize certain states, is now gone.

In terms of structure, the text is also clearer. For example, the requirement that “States Parties shall cooperate in good faith” is now located in the opening paragraph of Article 11 on International Cooperation, where it belongs, rather than in the opening paragraph of the article on Mutual Legal Assistance, where it was in the previous draft (Article 11, 2018 Zero Draft). In a similar vein, the International Fund for Victims is now mentioned in Article 13 on Institutional Arrangements, rather than buried within the article on the rights of victims (Article 8(7), 2018 Zero Draft). Those are significant improvements.

(2) Stronger provisions

The new text also contains stronger provisions from a human rights perspective, as well as key additions. In the preamble, a new paragraph recognizes “the distinctive and disproportionate impact of certain business-related human rights abuses on women and girls, children, indigenous peoples, persons with disabilities, migrants and refugees, and the need for a perspective that takes into account their specific circumstances and vulnerabilities.” Under Article 31(2) of the Vienna Convention on the Law of Treaties, preambles may be used to provide context in treaty interpretation. Therefore, this paragraph could have important consequences on how operative provisions of the treaty are interpreted in the future.

The 2019 draft treaty includes a new Article 15 titled Relation with protocols, which paves the way for the adoption of an optional protocol to the future treaty. Last year a Draft Optional Protocol was released, which I discussed here. The first reading of the Draft Optional Protocol is scheduled for October 2019.

The 2019 draft treaty also includes a rather interesting optional compromissory clause (Article 16(2)). Under this provision, States Parties can declare they “accept (…) as compulsory” the “submission of the dispute to the International Court of Justice” and/or “arbitration in accordance with the procedure and organization mutually agreed by both state parties”. Although oddly phrased, I suppose this means that states may consent to the compulsory jurisdiction of the International Court of Justice or to arbitration in case of a dispute between State Parties that could not be resolved by non-judicial means. This opt-in mechanism is different from that of existing UN human rights treaties which either include a general compromissory clause (CERD), or a compromissory clause with the possibility to opt out (CEDAW, CAT, ICPRAMW, and ICPPED). The fact that it requires states to opt in makes it weaker, but it is a positive development that it is in there at all.

The preamble of the 2018 Zero Draft contained a paragraph that said: “all business enterprises, regardless of their size, sector, operational context, ownership and structure shall respect all human rights, including by avoiding causing or contributing to adverse human rights impacts through their own activities and addressing such impacts when they occur.” At the time I wrote that this was “the only mention in the Draft of something resembling corporate human rights obligations under international law”. I also made the point that being in the preamble and not in the operative part of the draft, this statement was actually quite weak. The preamble of the 2019 draft treaty contains a similar provision. It says that business enterprises “have the responsibility to respect all human rights”. I am struggling with how to interpret this change. On the one hand, “shall respect” was pretty strong, possibly stronger than “have the responsibility”. On the other hand, replicating the language of the UN Guiding Principles, whose second pillar is titled the “corporate responsibility to respect human rights”, ties the draft treaty to the already widely accepted UNGPs. I see this as a clever, strategic move. And it does not end there. The paragraph then uses similar language to that of Guiding Principle 13 (which defines the corporate responsibility to respect human rights), almost word for word. I suspect there will be some discussion about this, but my initial feeling is that this strengthens the text.

Finally, I am of course delighted to see references to international crimes in Article 6 of the 2019 draft treaty (Legal Liability). In 2015 I argued that the negotiation of a business and human rights treaty provided a golden opportunity to establish corporate criminal liability under international law. I still believe this is the case. The 2019 draft falls short of this but still, it asks States Parties to establish liability under domestic law for a series of core crimes. This is in line with recent developments at the International Law Commission (ILC). Article 6(8) of the ILC Draft Convention on Crimes against Humanity requires states to establish the liability of legal persons for the offences covered in the Draft Convention. Draft Principle 10 of the 2019 ILC Draft Principles on the Protection of the Environment in Relation to Armed Conflicts also provides for corporate liability under domestic law.

I look forward to following debates on this at the next session of the Open Ended Intergovernmental Working Group. I hope this part of the draft treaty stays in the final text, and states and other stakeholders understand its symbolic importance. Criminalizing the involvement of corporate actors in international crimes is not a mere technical issue, it’s a necessity. Corporate interests of the Global North are central to many armed conflicts around the world, and this needs addressing. As Jelena Aparac recently argued in relation to the ICC and its controversial focus on Africa, “by excluding corporate liability, the Court implicitly assumes that violence is indigenous to the Third World and overlooks external factors that contribute to local conditions of violence. As a result, the Court, through international criminal law, places crimes as specific to third world countries and reproduces the neo-colonial narrative”. Obviously, the future business and human rights treaty is not going to fix the ICC, nor is it meant to do so. However, by acknowledging corporate involvement in international crimes, the 2019 draft treaty is a step in the right direction, even if we are only talking about domestic prosecutions.

(3) Better text, better chances of success?

In light of all this, I am convinced we are now working with a better text, which is both clearer and stronger. Moreover, strategic decisions were made, which should improve the treaty’s chances of success.

As mentioned already, the text mirrors the language of the UNGPs. What is more, the preamble mentions them explicitly and notes “the role” they “have played”. This wasn’t in the Zero Draft, and is important given concerns about the UNGPs and the treaty process being on two parallel tracks. Instead, the treaty now links itself to the UNGPs, which is likely to please States of the Global North who generally support them. At the same time, the preamble suggests to “take into account all the work undertaken by the Commission on Human Rights” (and the Human Rights Council) on business and human rights. I guess this is meant to be a non-confrontational way of saying that the 2003 Draft Norms designed at the time when the Commission on Human Rights was still in existence, might be relevant after all. This is remarkable when one considers that Professor Ruggie’s self-confessed “Normicide” took place almost 15 years ago. I confess I don’t understand why this provision is there. While mentioning the UNGPs is certainly a nice gesture towards those States who don’t particularly like the idea of the treaty, reviving the Norms really isn’t.

But the clearest move towards EU States is to be found in revised Article 3 on Scope. The new text mentions that the treaty “shall apply, except as stated otherwise, to all business activities including particularly but not limited to those of a transnational character.” By contrast, the 2018 Zero Draft was to apply to human rights violations in the context of any business activities of a transnational character, and only those. The new scope is aligned with the position the EU delegation had defended in the negotiation. This clearly improves the treaty’s chances of success and is a welcome development.

On the whole, the 2019 draft treaty should be easier to sell to reluctant states than the 2018 Zero Draft. Let’s see what happens in October, at the fifth session of the Open-Ended Intergovernmental Working Group.

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