Treaty or No Treaty?

My initial response to the question posed as to whether the international community should devote efforts toward developing a legally binding instrument to regulate the activities of transnational enterprises in the human rights space was “No†because there are several existing mechanisms in place that require time for maturation.  The UNGPs have been in place ten years and the OECD Guidelines were revised to include similar human rights principles.  The OECD Guidelines require participating countries to stand-up National Contact Points and develop National Action Plans.  The International Labour Organization, around the same time, updated its Declaration on Rights at Work in 2010.  Further, there are numerous multi-stakeholder initiatives in the human rights, or closely related, space such as the Global Network Initiative, Freedom Coalition, Extractive Industries Transparency Initiative, Voluntary Principles on Security and Human Rights, and International Code of Conduct.  I was viewing this through corporate and State government eyes, in that those countries and corporations that are already sensitive to human rights entitlements will bear the weight of the added obligations of this new treaty. 

Interestingly, though, as I read through the Second Revised Draft of the proposed legally binding treaty and the Report on the Sixth Session held October 2020 I began to change my position.  As stated in the report, “…the instrument was meant to strengthen human rights and be mutually supporting and reinforcing of existing standards, such as the Guiding Principles on Business and Human Rights… modifications that had been made in the most recent draft in order to broaden the protection of victims, clarify State obligations and business responsibilities in the business and human rights sphere, promote access to justice, and facilitate mutual legal assistance and international cooperation…human rights abuses relating to business activities impacted different social groups in different ways and, in some cases, in a disproportionate way. That was why a treaty could be and must be part of the solution to the obstacles and legal gaps that victims faced when seeking justice and reparation.†(My emphasis added here.)  Considering this potential instrument through the lens of victims of human rights abuses as the result of business activities makes this a more worthy effort.  In my opinion, Article 7 – Access to Remedy and Article 8 – Legal Liability are going to be two of the most relevant articles of the proposed treaty language and must not be left on “the drafting room floor.â€Â  It will take a significant amount of negotiation to work through the complexities of these legal issues and reach consensus.  I also appreciate Article 15.7 which establishes an international fund for victims.  In summary, the pursuit of this international, legally binding instrument addressing where States, business entities, and civil society organizations/non-government organizations intersect on human rights impacts to peoples around the world should remain on the United Nations’ agenda.