I was delighted to read the June 2020 announcement by Claire Methven O’Brien (Senior Researcher, Research Department, Danish Institute for Human Rights; Lecturer, School of Law, University of Dundee (email@example.com) of her proposed Draft text for a Business and Human Rights Treaty. The draft text follows her quite exciting essay, recently published in the AJIL Unbound (114:186-191 (2020)), "Transcending the Binary: Linking Hard and Soft Law Through a UNGPS-Based Framework Convention."
The reason I was delighted was this: I have been quite sympathetic to the need to meet the challenge of compliance with emerging norms and practices that touch on the human rights consequences of economic activity by those engaged in economic activity (whatever their character and wherever they may happen to reside). However, I remain unconvinced that the current approach works. That approach circles around the mandate of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, "whose mandate shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” (HRC resolution 26/9 ). Driven through a series of alliances of leading civil society organs, key developing states, and academic thought leaders, over the course of five sessions the OEIGWG has developed an instrument, the current version of which, a revised draft legally binding instrument on business activities and human rights, was released in 2019. (For the section by section analysis of the Draft, see Coalition for Peace & Ethics Bulletin, Emancipating the Mind 14(2) (Special Issue (Commentary on the U.N. Inter-Governmental Working Group (Geneva) 2019 Draft “Legally Binding Instrument to Regulate, in International Human Rights Law, The Activities of Corporations and Other Business Enterprises” (Textual and Conceptual Analysis) 2019).
That draft evidences both the great promise and the terrible deficiencies, of an effort to attempt global legislation within the established United Nations system and its foundational ideology--the apex position of the state and its autonomous sovereign character, and the formal division between public and private activity. This was a lesson unlearned after the tragedy that was the effort that produced the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003) (discussed HERE). The difficulty is inherent, then, in the ideology of international law--a law which at its traditional core is directed to states but not in states (and yes, it is worth remembering this baseline principle as inconvenient as it has become to those who would re-invent international law from out of its structuring principles into something quite distinct). This basic principle has been the foundation on which the great international projects of the United States and China have been built since the middle of the second decade of the 21st century. It comes as a great annoyance (and impediment) to those who for a generation have devoted themselves to the great transformation of international law from the legalization of compacts among states into something quite grander. The greatest expression of that thrust in the context of the management of the human rights effects of economic activity continues to be the Norms --the rock on which all other legalization efforts (including the a revised draft legally binding instrument are built) .
Claire Methven O'Brien suggests a different path to a common goal. Drawing on key contributions of the draft legally binding instrument to the construction of a structure for the development of traditional law based approaches to the prevention, mitigation and remediation of human rights harms, O'Brien produces a simple, clean, realistic, and objectives based pathway toward robust state participation through law to the creation of a human rights based framework applicable to economic activities. If for no other reason, the draft is worth serious consideration and substantial discussion.
This post seeks to contribute preliminarily to that discussion. It includes the text of the draft (O'Brien, Claire. (2020). Draft text for BHR treaty June 2020 Claire Methven O'Brien. ) along with brief reflections and comments.
1. One of the most appealing aspects of the Draft Text is that it abandons the approach of the Norms and of the "Draft Legally Binding Instrument" to regulate. It moves from the impulse to bind to the goal of binding state parties to a set of objectives which they are then obligated to achieve. It has been a quite curious thing in the context of the Norms and the "Draft Legally Binding Instrument" of their unwillingness to consider (or better confront) the value and use of the distinction between regulations and directives within European Union law for example, and within the great family of directives, of the difference between goal oriented directives ( leaving substantial room for national variation in approaches to goal achievement) from more precisely drafted directives (whose goal is in fact the legislation of substantially identical legislative acts). A generation of debate might by now have suggested quite forcefully that (1) human rights as a concept and as a legality has been a quickly evolving concept; (2) human rights itself as a legal concept is currently in the midst of a great transformation in light of its likely merger with core issues of sustainability and climate change; (3) state sovereignty remains an important political issue that is unlikely to be swept away by rhetorical flourishes in international instruments; (4) extraterritoriality remains a serious issue (except of course for those proposing these instruments) and an impediment to internationalization projects based on regulatory uniformity; (5) any such instrument will be obsolete even before it comes into force; and (6) in the absence of a global dispute settlement body, the core objectives of such regulatory approaches will never be realized.
2. One of the most salutary decisions made in crafting the Draft Text was to avoid breaking new ground away from the UNGP. Do not mistake that for criticism. One of the greatest difficulties of moving the UNGP project forward has been a singular lack of discipline. Not that a lack of discipline is a bad thing--indeed, the core insight of the UNGPs was precisely that: the inherent power of the market (including the market place of ideas) to effectively sort out and eventually arrive at efficient and values based choices for the organization and expectations of economic activities by state, private, and individual actors. That was certainly the ideal behind the Second Pillar corporate responsibility to respect human rights. But markets as vectors for development can be messy--and they resist control by vanguards who may have quite specific goals in mind--goals that they are not above imposing on others. More importantly, markets are slow; when combined with messy accountability mechanisms (with respect to which there is also virtually no consensus) they produce the appearance of little forward movement toward the attainment of goals. That, in turn, can play quite strategically (in a positive way) to actors who have sought to "prove" that the UNGPs are not "working" because they have not manifested in some of sort measurable conduct assessed in some sort of way. The result, of course, has been the creation of the very impetus for the revival of the Norms and the approach of the "Draft Legally Binding Instrument"on the ashes of a UNGP deemed insufficient, defective, or incapable of meeting its goals. O'Bien pivots treaty making back to its roots, shorn of this detritus by providing a legal basis for the embedding of the UNGP themselves within the domestic legal orders of states exactly to the extent states seek to engage in that project. And that was precisely the point of the UNGP. Sadly it has been one that has been thrust aside by those who saw in the UNGP merely an opportunity to advance a quite different regulatory project.
3. The Preamble is meant to serve this UNGP based orienting goal. It draws from all three Pillars of the "Protect-Respect-Remedy" structure to build a legal structure within which the UNGP might be embedded within the domestic legal order of states, and serve, as well, as the basis for the construction of regional and multilateral approaches to harmonizing those effects at legalization within domestic orders. In that respect, the Preamble moves down the list of framing principles: (1) the principles and purposes of the UN system from which it necessarily arises; (2) International Bill of Human Rights from which it draws its core normative structure and derived from the UNGP 2nd Pillar; (3) the overarching principle of attaching rights to individuals; (4) the reference to the initial and still contentious legalization of the Universal Declaration of Human Rights to civil, political, economic, social, and cultural rights; (5) the centrality of the UNGPs; (6) the acknowledgement of the supremacy f states within the UN system and the burden to which they have assented with respect to human rights; (7) the recognition of the autonomy and legitimacy of business enterprises as a positive social force (which in some sectors remains controversial, except perhaps when undertaken by the state); (8) the positive contribution of national legislation to furthering the core principles respecting business and human rights within the UN system; (9) the importance of matching obligation and rights, that is of furthering the project of a torts based notion of human rights holding; (10) the centrality of harmonization as an important element of the framing project represented by this Draft Text; (11) the contribution of these principles to a socially and environmentally sustainable globalization (and it is a pity that it is only here ad in the reference to the 2030 Agenda for Sustainable Development that issues of sustainability and environment creep in--something that might be enhanced in later versions of the draft); and (12) the responsibility for states to aid each other in capacity building, and at least some sort of coherent view of legitimate practice in engaging in economic activity. Taken together, the preamble provides a simple and quite useful roadmap for the interpretation of the text that follows, and lays out the conceptual framework within which it is constructed.
4. Article 1 defines 4 key terms: human rights, business, parties, and “Regional economic integration organization.” The great positive of these definitions put forward is that they are to some extent well recognized and sometimes used. But each produces challenges that will require some thought. I consider two in a little more detail.
The definition of "human rights" remains essentially circular. It provides very little clarity other than that be be a human right several conditions must be met: (1) it must be internationally recognized (itself a problematic standard); and (2) it must be binding on the state in question or the business enterprise (the manner of which remaining mysterious, as the meaning of the term "binding"). It then provides a reference to the core legal documents, as well as to the formally hortatory Universal Declaration.5. Article 2 sets forth the objectives of the framework treaty. Those objectives can, at first blush, be reduced to four key actions: to strengthen, prevent, ensure, and promote. It is important to avoid the distraction of the more detailed elaboration of each in order to positively understand the fundamental approach of this Draft Text. Each of these actons-tasks points to quite distinct responsibilities fro states. And each will require domestic legislation of quite distinct character. Yet that is precisely its strength. To strengthen suggests policy and deepening partnerships with civil society and the objects of regulation--those engaging in actions that are intended to produce financial or economic gain for themselves. To prevent suggests an administrative compliance based, and likely data driven set of mechanisms involving joint cooperation between the regulating entity (most likely an administrative agency) and the enterprises and others engaged in regulated "business" activities. To ensure suggests a set of accountability mechanisms that are at once devolved don to the operational level and at the same tie points to state accountability (to itself, to its people, and to the international community; discussed HERE). And to promote suggests the important task of capacity building both internally and for those states rich and capable enough, externally. This tends to be the overlooked objective--the difficult task not just of teaching, but of naturalizing conduct expectations within administrative organs and those subject to the normative constraints-imposed.
The definition of business enterprise is also circular. It might have been more useful to detach the meaning of the term from an anchoring in a specific set of institutions or actors, and instead to focus on the transactions of these actors. It is, after all, the activities, not the institutions, that produce damage (I discuss this generally in the context of multinational enterprises HERE). And while it is to the institutions and responsible individuals that the obligation to prevent-mitigate-and remedy applies--the triggering event is activity of a very specific kind. If that is indeed the case, then a more useful definition might merge the idea of activity that is intended to produce economic or financial value (an issue that has been usefully considered in the context of sovereign wealth funds in Principle 19 and Appendix 1 of the Santiago Principles) with the idea of control over a process of production (of goods, services, or other activity that generates economic or financial value) that is at the core of the OECD's approach to institutional definition in its Guidelines for Multinational Enterprises.
6. Article 3 centers the UNGP; as it should in order to provide the organizing framework around which states might act. Of course, unstated,but necessary--eventually--would be a mechanism for bringing order and coherence to the broad principles of the UNGP as well. That is something that has been urged almost since the endorsement of the UNGP in 2011 (discussed HERE), but which has not been seriously taken up by any institution with the power or legitimacy to induce others to follow. The collective approach inherent in Pillar 2 of the UNGP is also emphasized; though it may find its coherent expression challenging given the quite distinct paths that state ideology is now taking its relationship between political organs, enterprises, and civil society within fracturing constitutional orders.
7. Article 4, the "appropriate measures" provision, serves as the operational heart of the Draft Text. It provides a clear and straightforward (though challenging) set of tasks for adhering states. It s worth focusing on some of the interesting ones.
The first task, periodic review of "national legislation, policies and practice" for purposes of (self) accountability as well as accountability to others will be difficult. That, certainly has been made clear by the unhappy history of that great theatre that has been the "national action plans" encouraged under the UNGP by the Business and Human Rights Working Grup (criticized HERE, pp. 468-91). Still, it is likely the most important element of Article 4, as it provides a basis for collective accountability that is currently not satisfactory--especially when states are required to assess themselves rather than (as they might prefer) virtually anyone else.8. Article 5 mirrors the intention of the UNGP. It might be less usefully read as an invitation to move beyond the Treaty (the way that the UNGP's similar sentiment has sometimes been read to effectively read into the Principles a mandatory obsolescence provision). Rather, it is meant to suggest that frameworks, unlike codes, are designed to be flexible, to grow with the rimes and to reflect conditions. As such what remains constant are the core principles, the objectives, and the modalities of implementing them. Everything else, as it should, is open to legislation or to its management through markets mechanisms.
The second task, to "periodically review and update national action plans" critically follows form the first task. One might eventually hope fr some sort of mechanism for the use of NAPs as a means of capacity building and convergence--giving due regard to national peculiarities. And indeed, the last two.internal and external cooperation in the creation of the regulatory apparatus and its operation, are meant to further the key role of the first two tasks.
Taken together the provisions and approaches of this Draft Text has much to commend it--indeed much more to commend it than the draft legally binding instrument . It makes good sense in terms of treaty making that is realistic; its aims are attainable; and it can be implemented in a way that brings greater clarity and coherence to the project initiated in 2011 with the endorsement of the UNGP.
Draft text for a Business and Human Rights TreatyClaire Methven O’BrienJune 2020PreambleThe Parties to this Treaty,Recalling the principles and purposes of the Charter of the United Nations,Recalling further the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, and the principles concerning fundamental rights in the eight ILO core conventions as set out in the Declaration on Fundamental Principles and Rights at Work,Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil, political, economic, social and cultural rights,Considering the “Protect, Respect and Remedy Framework” and the “Guiding Principles on Business and Human Rights”,Recalling States’ existing obligations to human rights and fundamental freedoms, and stressing that the obligation and the primary responsibility to promote and protect human rights and fundamental freedoms lies with the State, respect, protect and fulfilRecalling the positive contribution which business enterprises that comply with all applicable laws and respect human rights can make to economic and social progress and the realization of decent work for allRecognizing that proper regulation, including through national legislation, of transnational corporations and other business enterprises, and their responsible operation can contribute to the promotion, protection and fulfilment of and respect for human rights and assist in channelling the benefits of business towards contributing to the enjoyment of human rights and fundamental freedoms,
Concerned that weak national legislation and implementation cannot effectively mitigate the negative impact of globalization on vulnerable economies, fully realize the benefits of globalization or derive maximally the benefits of activities of transnational corporations and other business enterprises and that therefore efforts to bridge governance gaps at the national, regional and international levels are necessaryRecalling the need for rights and obligations to be matched to appropriate, effective and accessible remedies when breached, including where human rights abuses occur in the context of business activitiesEmphasizing the importance of multi-stakeholder dialogue, analysis and capacity building of all actors better to manage challenges in the area of business and human rights and build on progress achieved to date,Recognizing the role of the Protect, Respect and Remedy Framework and Guiding Principles on Business and Human Rights, on which further progress can be made, that will contribute to enhancing standards and practices with regard to business and human rights, and thereby contribute to a socially and environmentally sustainable globalization,Acknowledging that the promotion and protection of human rights, including in the context of business activities, and the implementation of the 2030 Agenda for Sustainable Development are interrelated and must be mutually reinforcing,Have agreed as follows,ARTICLE 1. DEFINITIONSFor the purposes of this treaty:a) “Human rights” means internationally-recognised human rights binding on the state in question or applicable to a business enterprises, such as those expressed in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, and the principles concerning fundamental rights set out in the 1998 International Labour Organisation Declaration on Fundamental Principles and Rights at Work.b) “Businesses” means all business enterprises, both transnational and others, regardless of their size, sector, location, ownership and structure.c) “Parties” means, unless the text otherwise indicates, Parties to this Treaty.d) “Regional economic integration organization” means an organization constituted by sovereign States of a given region which has competence in respect of matters governed by this Treaty or its protocols and has been duly authorized, in accordance with its internal procedures, to sign, ratify, accept, approve or accede to the instruments concerned.ARTICLE 2. OBJECTIVES1. The objectives of this Treaty are:a. To strengthen the respect, promotion, protection and fulfilment of human rights in the context of business activities;b. To prevent business-related human rights violations and abuses;c. To ensure access to justice and effective remedy for victims of business-related human rights violations and abuses; d. To promote and strengthen international cooperation to prevent and remedy business-related human rights violations and abuses, and towards harmonization of relevant measures to bridge governance gaps at national, regional and international levels and contribute to a socially and environmentally sustainable globalization.ARTICLE 3. GUIDING PRINCIPLES1. In their actions to achieve the objectives of this Treaty and to implement its provisions, the Parties shall be guided, inter alia, by the Guiding Principles on Business and Human Rights, as set out in Annex I to this Treaty.2. The participation of stakeholders, such as businesses, business associations, labour and workers’ associations, civil society organisations, rights-holders and their representatives, and human rights defenders is essential in achieving the objectives of this treaty.ARTICLE 4. GENERAL OBLIGATIONS1. Each Party shall take appropriate measures, in accordance with the provisions of this Treaty, and in line with its guiding principles, to achieve this Treaty’s objectives.2. To this end the Parties shall, furthermore,a. Periodically review their national legislation, policies and practice, including practices of business enterprises, to evaluate implementation and observance of this Treaty and its guiding principles;b. Develop, periodically review and update national action plans on business and human rights, or adapt for this purpose existing strategies, plans or programmes, and ensure, by appropriate means and action, their effective implementation and wide dissemination amongst competent authorities and stakeholders;c. Co-operate in the formulation of proposed measures, procedures and guidelines for the implementation of this Treaty, and seek to involve stakeholders as appropriate in this regard;d. Cooperate with competent international and regional intergovernmental organisations, regional economic integration organizations and stakeholders to achieve the objectives of this Treaty.Article 5. Relationship between this treaty and other agreements and legal instruments1. In order to promote the achievement of this Treaty’s objectives, Parties are encouraged to implement measures beyond those required by this Treaty, and nothing in this Treaty shall prevent a party from imposing stricter requirements that are consistent with this Treaty and in accordance with international law.2. The provisions of this Treaty shall in no way affect the right of Parties to enter into bilateral or multilateral agreements, including regional or subregional agreements, on issues relevant or additional to this Treaty, provided that such agreements are compatible with their obligations under this Treaty.article 6. Jurisdictional Scope1. States Parties shall carry out their obligations under this Treaty in a manner consistent with the principles of sovereign equality and territorial integrity of States and that of non-intervention in the domestic affairs of other States.2. Nothing in this Treaty shall entitle a State Party to undertake in the territory of another State the exercise of jurisdiction and performance of functions that are reserved exclusively for the authorities of that other State by its domestic law or international law.3. Without prejudice to Articles 6 (1) and (2), this Treaty does not exclude the exercise of any jurisdiction established by a State Party under its domestic or international law.ARTICLE 7. CONFERENCE OF THE PARTIES1. A Conference of the Parties is hereby established.2. The Conference of the Parties shall promote the development, implementation, evaluation and harmonization of measures to advance the objectives of this Treaty and its observance by businesses as well as Parties.3. To this end, the Conference of the Parties shall:a. Keep under regular review the implementation and observance, including by businesses, of this Treaty and any related legal instruments that the Conference of the Parties may adopt;b. Take, within its mandate, the decisions necessary to promote the effective implementation and observance of this Treaty;c. Develop and adopt, as appropriate, Guidelines and Recommendations relating to the implementation of this Treaty;a. Promote and facilitate the exchange of information;b. Establish such subsidiary bodies as it deems necessary for the implementation of this Treaty;c. Consider and adopt, as appropriate, protocols to this treaty;d. Seek, where appropriate, the services of competent international bodies, regional organisations and other stakeholders, in activities pertinent to the objectives of this Treaty, and make use as appropriate of information from these bodies and actors;e. Consider and undertake any additional action that may be required for the achievement of the objectives of this Treaty.4. The Conference of the Parties shall by consensus agree upon and adopt rules of procedure and financial rules for itself and of any subsidiary bodies it may establish.5. The Conference of the Parties may establish a secretariat or subsidiary bodies to perform such functions as may be determined by the Conference of the Parties.ARTICLE 8. ADOPTION OF PROTOCOLS1. The Conference of the Parties may adopt protocols pursuant to Article 7.2. The text of any proposed protocol shall be communicated to the Parties by the secretariat at least six months before such a meeting.3. The requirements for the entry into force of any protocol shall be established by that instrument.4. Only Parties to this Treaty may be Parties to a protocol.5. Decisions under any protocol shall be taken only by the Parties to the protocol concerned.ARTICLE COMMITTEE OF EXPERTS/WORKING GROUPARTICLE FINANCIAL MECHANISMARTICLE COMMUNICATION OF INFORMATION RELATED TO IMPLEMENTATIONARTICLE SETTLEMENT OF DISPUTESARTICLE ADOPTION AND AMENDMENT OF ANNEXES TO THE TREATYARTICLE DEPOSITARYARTICLE SIGNATUREARTICLE INTERIM ARRANGEMENTSARTICLE RATIFICATION, ACCEPTANCE, APPROVAL OR ACCESSIONARTICLE ENTRY INTO FORCEARTICLE RESERVATIONSARTICLE WITHDRAWALARTICLE AUTHENTIC TEXTSANNEX I. GUIDING PRINCIPLES FOR BUSINESS ON HUMAN RIGHTS
 Cf. UNGPs, Commentary to UNGP 12; OECD Guidelines for MNEs, Ch. IV, para.39. Cf. ICESCR, Preamble. Cf. ICESCR, Preamble. Cf. UNGPs p. 1. Cf. HRC Res 17/4, Preamble. Cf. ILO Tripartite Declaration, para.2; cf. UNGPS p. 1; see also COE Recommendation, Preamble. Cf. UN HRC 8/7, Preamble; UN HRC 17/4, Preamble. Cf. UN HRC 8/7, Preamble, UN HRC 17/4, Preamble. Cf. UNGPs p. 1. Cf. UN HRC Res. 17/4, para.5; UN HRC 17/4, Preamble. Cf. UN HRC Res. 37/24. Cf. OECD Guidelines for MNEs (2011), para.39, p.32. Cf. UNGPs p. 1. Cf. Ozone Art 1(6), UNFCCC Art 1. Cf. RD Art 2(1)(a). Cf. RD Art 2(1)(b); UN Secretary General Prevention Agenda https://www.un.org/sg/en/priorities/prevention.shtml Cf. UNGP 25: “access to effective remedy”; RD Art 2(1)(b). Cf. RD Art 2(1)(c). Cf. UNFCCC Art 3, CBD Art 3, WHO FCTC Art 4. Cf. WHO FCTC Art. 4(7). Cf. COE Recommendation, para.1. Cf. COE Recommendation para.2. Cf. CBD Art.6 (a). WHO FCTC, Art 5(4). Cf. WHO FCTC Art 2(1); Istanbul Convention Art. 71(1). Cf. WHO FCTC Art 2(2); Istanbul Convention Art 71(1). Cf. RD Art. 12 Consistency with International Law and Art 7 Adjudicative Jurisdiction Cf. Palermo Convention, Art. 4(1). Cf. Palermo Convention, Art 4(2). Cf. UNFCCC, Art 7, CBD Art 23, WHO FCTC Art 23. WHO FCTC, Art 23(5)(c). Various guidelines have been developed and formulated under the WHO FCTC: https://www.who.int/fctc/treaty_instruments/adopted/en/ . Such guidelines under a BHR treaty could address e.g.- Remedy, drawing on OHRHC ARP project- Measures to promote HRDD- Measures to promote HR reporting- Human rights impact assessment- Children’s rights – could build on UNCRC General Comment No.16- Sector specific issues , building on e.g. OECD sector guidance- Effective multi-stakeholder initiatives. Cf. WHO FCTC, Art 23(5)(a). Cf. UNFCCC, Art. 7.
 UN FCCC Art. 17.