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Article 3. Scope1.This Convention shall apply to human rights violations in the context of any business activities of a transnational character.2.This Convention shall coverall international human rights and those rights recognized under domestic law.
Article 3. Scope
1. This (Legally Binding Instrument) shall apply, except as stated otherwise, to all business activities, including particularly but not limited to those of a transnational character.
2. For the purpose of paragraph 1 of this Article, a business activity is of a transnational character if:
a.It is undertaken in more than one national jurisdiction or State; or3. This (Legally Binding Instrument) shall cover all human rights.
b.It is undertaken in one State through any contractual relationship but a substantial part of its preparation, planning, direction,control, designing, processing or manufacturing takes place in another State; or
c.It is undertaken in one State but has substantial effect in another State.
But that optimistic conclusion is hard to square with the text of Article 3. A close reading reveals ambiguities that suggest that while the deck chairs have been moved around, the treaty "ship" might not have changed its "Zero Draft" course.
First, the role of the exception clause, and its interpretive effects remain unclear in a number fo important respects. First, it is not clear what is meant by "stated otherwise" either with respect to where that statement otherwise is located, and the extent to which that exception is subject to limitation. At its narrowest, perhaps, it was meant to refer to exceptions contained in the text of the DLBI itself, and then only to the extent the exception significantly aligned with the DLBI purpose. But that is not how the text is written.
Broadest still would be a reading that permitted the exception to be written in to the domestic legal orders of state parties without regard to the treaty itself. That might make sense, especially since it echoes the constitutional role of international law within the domestic "higher law" of some important states. But it also suggests that, if the exception clause is read this broadly, that the scope of the DLBI, will vary from jurisdiction to jurisdiction in ways that cannot be managed through the treaty. The only constraint wuld be by application of Article 2 and the purpose and objectives provisions (read perhaps together with the Preamble and the definitions of Article 1). But that would require the development of a jurisprudence of fundamental treaty principles or at least the development of consensus in state practice., both f which would be risky and long term projects.
In addition, a substantial narrowing of the general rule of Article 3(1) might be written into the operational rules of those "regional integration organizations" defined in Article 1(5). That would not be inconsistent with the purposes of the DLBI, especially with reference to Article 2(c) ("the promotion of international cooperation").
It is unclear why this definitional provision is inserted as Article 3(2), when it might have been better to place it in the Definition Section (Article 1). The choice of placement can be important. Placement in Article 1 suggests that the definition applies to the term anywhere in the text of the Treaty. In contrast it might be possible to suggest that definitions in Article 3 apply only within Article 3. It is also unclear why the definition is commanded to apply only for the "purpose of paragraph 1 of this Article ." One way of reading that is to assume that this definition is meant to inform the scope of the DLBI directly, and the rest of the Treaty indirectly whenever the term "transnational character" is invoked. A more cynical reading would suggest that the drafters sought to have their cake and eat it too. By setting up Articles 3(1) and (2) in this way they could produce a formal expression of broad scope, and then include a mechanics, coupled with a black letter intent, to focus "particularly" (the language of Article 3(1) on business activities of a "transnational character." That would preserve the intent of the much criticized Zero Draft, but now cloaked behind the maze of complex legal text. Bravo!
In any case, the definition is somewhat circular. Article 3/2) seeks to define the transnational character of business activity, by reference to the locus of activity. But "business activity" is itself dependent on the transnational character of the corporation or other business enterprise engaged in commercial or productive activity. In a sense, then, the transnational character of the enterprise is determined by the transnational character of its activities, but the transnational character of business activities is determined by the transnational character of the enterprise.
Let us try to unpack this a little. Article 3(3) declares that the DLBI "shall cover all human rights." Curiously the term "human rights" is left undefined. The Treaty goes to some lengths to define "human rights violation or abuse" in Article 1(2) (discussed here) but not human rights itself. The curiosity comes form the dissonance between this statement in Article 3(3)--which appears to attempt scope human rights within its legal normative context--and the definition of human rights violations and abuses, which appears to develop a perhaps sounder harm principle basis as the touchstone for business activity responsibility. The deliberate ambiguity of the Article 3(3) statement does little to clarify or resolve this dissonance.
Why dissonance? If Article 1(2) introduces a (salutary) harm principle at the heart of emerging international human rights law, then the traditional structures of human rights law making (in the form of international treaties to the extent they have found their way into the domestic legal order of states) assumes a secondary and perhaps complementary role. That is, traditional human rights law as text based pronouncements shifts in function from creating rights, to describing the context in which harm can give rise to liability. But the central element, for purposes of behavior management, is the harm itself (or at least the possibility of harm). That approach is consonant with the move toward cultures of compliance and risk management around which global consensus is emerging (consider in this respect the American Law Institutes Compliance, Risk Management, and Enforcement project which addresses standards and best practices on the law of compliance and risk management.
Yet the ambiguity of the term "human rights" stands in the way of interpretation. The drafters deliberately did not use the term human rights law. They chose to avoid that term for obvious reasons--to have focused on legal standards defeats an aim set out in the preamble--to legalize an entire multi-generational cluster of hard and soft law, declarations, pronouncements and the like--without the bother and constraints of international law. But that, of course, is impossible. National judicial organs are rarely empowered to entertain claims that are not grounded in law recognized in accordance with the constitutional traditions of the state in which these judicial organs assert authority. Vague declarations or statements in treaties are hardly the stuff of law. And to the extent they may produce a legal obligation--on states--against which (if the constitutional order permits) a judicial organ might to able to compel compliance, they do not provide the basis for legal action. On the other hand, such non-legal or international legalities might inform a national judicial organ in the exercise of its authority to provide a remedy against harm by elaborating conditions and policies from which harm may be discerned. While this is not without its own limitations, it at least provides something more traditionally workable.
That does not appear to be the intent here. Instead, what appears to have been created is a way in which the Treaty itself could avoid that contentious issue (what human rights are legally cognizable (actionable) under the treaty,?), and its companion issue (can the DLBI be a vehicle for transforming declarations and other non-legal actions at the international level into duties with legal effect?). The most reasonable interpretation, however, may be the least satisfying to the DLBI drafters. Article 3(3) permits a state to incorporate by reference into its domestic legal order all human rights related statements, declarations, law, etc., to the extent identified in the Treaty Preamble. At its broadest this incorporation would extend (and modify to the extent incompatible) any constitutional constraints on that effort. This would then have the effect of constructing Article 3(3) to operate in parallel to Article 3(1) with respect to scope. But that causes the same challenge already noted in Article 3(1) flexible scope provision. States may, if they choose, read Article 3(3) this way: "This (Legally Binding Instrument) shall cover all human rights as and to the extent they have been incorporated into the laws of (State) and are not otherwise incompatible with its Constitutional provisions." That provides a far more narrow scope to the Treaty. It also continues the pattern of treaty writing that appears to produce uniformity but actually invites substantial and potentially incompatible fracture. We end where we start--a global order in which state scan do as they please provided they adhere to the forms of the treaty to which (subject to reservations) they have become parties.