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It has been quite a treat to sit on the sidelines as the glitterati of the business and human rights communities--its influencers, press organs, shock troops, academics (especially its public intellectuals), think tanks (especially those gambling on relevance among a small circle of enablers), and the units of its discipline inspection shock troops, have, since 2014, engaged in the quite remarkable project of shepherding through the Ottoman hareem that is the United Nations apparatus in Geneva this manifestation of a very specific and quite ideological point of view masquerading as an Updated draft legally binding instrument (clean version) to regulate, in international human rights law, the activities of transnational corporations and other business enterprises. It is not for nothing that the concept of hareem is derived from the word haram (حَرَام, ḥarām)--either forbidden- because it is evil/sinful or associated with evil/sin, or forbidden to any but those initiated into the rites and community of believers (reservedfor the sacred). For that is precisely what this document has become: a project forbidden in fact to all but its minders.
The document remains, from a certain point of view, as flawed as it was in its first guise as an ironically named "Zero Draft." (For extended critical comments, see,Vol. 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). Nothing much has changed since the Zero draft except at the margins.
And yet. This is not to suggest that hearts were not n the right place, or that there is no need for some sort of action. Indeed, the opposite is self-evident. Economic activity ought no longer to be able to avoid the full costs of production; states ught to own up to the hard business of enforcing their own human rights orders with a capable apparatus; civil society ought to be mindful both of its responsibilities and of the dangers of seeking from others what they are incapable of imposing on themselves.
And yet. In the discursive circus that international relations within the Geneva hareem
has become--with its eunuchs, Janissary forces, officials, merchants,
clerics, spies, household staff, and a legion of wannabees--it has been
something of an achievement to bring this document to the point that it
may be offered up for consumption for those with an appetite for this
sort of fare.
But offered up to whom? Certainly the shock troops of its ideological programming will welcome its finalization. To acolytes and preachers, it will serve as the aspiration document that in its own way will represent the voice of the ideal state to which all the rest of us must be taught to aspire. The nomenklatura that now constitute the apparatus of many states will welcome its provisions for the leverage it may provide for the clarification, protection, and aspirations with respect to the only thing that matters--the protection and augmentation of their own little piece of the public regulatory pie. Others may see in it a convenient basis for adhering to a set of provisions that will be effectively unenforceable in a world in which the major states matter far more than others, and in which development, prosperity, and social order (whatever may be printed in pandering press organs) will in the end find a way of bending the narrative embedded in this text, into something far more amenable to the realization of their quite aspirations. That, too, is a good. For there is nothing worse for civil society of a certain mindset than to witness the start of an era in which the the disappearance of the causes that made their business possible threatens their viability. It is here that the hareem shows its true form as haram.
What continues to be noteworthy in this Потемкинские деревни (Potemkin Village) of an effort? Several provisions continue to stand out.
1. The Preamble remains a mine shaft of information about attitudes, agendas, and sometimes a marvelous venture in the art of throwing shade. My personal favorite: "(PP17) Recognizing the contribution and complementary role that the United Nations Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework have played in that regard and to advancing respect for human rights in the business activities."
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3. Article 1 (¶1.4). The term business activities are defined to include the business of civil society. That ay me lost on treaty drafters. Yet in the effort to cast as wide a net as possible, it became impossible to avoid the consequence. The careless though aggressive drafting is broad enough to include virtually all service activities of the state, even those with governmental characteristics. It is not saved by the half-hearted effort to list the personal favorite targets of the drafters. This textual conundrum will be a gift that keeps on giving.
4. Definitions (¶1.8 Human rights due diligence). A valiant effort to condense the more nuanced elaboration for markets driven risk analytics at the heart of the UNGP's 2nd Pillar, careful application leaves more questions unasked and unanswered than not. One does appreciate, though, the adoption of core notions of human rights tort in the definition of "remedy" (Article 1.9).
5. Article 6 remains a model of ambiguity cloaked in imprecision of language. ¶6.1 indulgences in the contortions of pragmatic compromise appearing both to limit the scope of obligation to activities of a transnational character while at the same time suggesting that it applies to all business enterprises. ¶6.2's emphasis on prevention in the context of economic activity speaks more the language of the priest or the bureaucrat, than of producers and consumers on goods and services in physical and virtual platforms. It does make clear, however, that the privileging of markets and markets principles would breach treaty duties, and that the core notions of corporate purpose will be either rewritten or written out of domestic law. That is fair; it is a pity that the effort to write markets based economic models out of globalization was undertaken in this sort of stealthy way. The thrust of that objective is further elaborated with the same zeal in Article 8 on so-called legal liability. The object of all of this, of course, is the mandatory human rights due diligence in ¶ 6.4--but one coupled with a governmentalization framework built around the causes of the contemporary era, also set out in § 6.2. This is not writing for the ages but writing short term policy for an administrative agency.
6. It is a pity that the Treaty draft was not written around Article 7. That, at any rate, serves as a quite level headed and useful framework for obliging states to expend resources on building remedial capacity--and systems of accountability around them. Bravo. In contrast, Article 9 is a breathtaking romp through a quite fragmented global ecology of jurisdiction--and a jurisprudence of jurisdiction carefully toed to national constitutional orders (and their founding principles)--all wiped away by the (many) strokes of the keyboard. Three consequences: (1) the provisions will be ignored; (2) State Parties will reserve against the applicability of this (and other) provisions; and/or (3) the provision will be interpreted in ways that will effectively align their application with practices and principles more to the liking of the the state ging to the trouble to do this.
7. And the capstone (¶ 14.3 Consistency with International Law) opens a doorway to quite flexible interpretation. On the one hand it preserves principles of state immunity--insulating states form their own human rights harming incompetence or worse (§ 14.4). On the other hand, it protects states in their actions by the heightened application of principles of sovereign equality and territorial integrity (¶ 14.1) and protections against extraterritorial actions (¶ 14.2).
A pity really. What ought to have been an effort to develop state consensus on their collective duty to protect human rights in the area of (1) normative principles; (2) access to remedy; (3) compensation; and (4) enhancing business risk assessment against all costs of production, has instead become a multi-year extravaganza of flank attacks against the jurisprudential pillars of globalization. That may still be a worthy goal, but one that ought no longer hide behind efforts that are meant to appear to strengthen the ability of holders of human rights to effectively protect themselves against those who control the risks for such breaches--individuals, enterprises, civil society, . . . . and states.
Nonetheless, and for all its technical weakness, the treaty project has been worth pursuing for one important and related cluster of objectives: to control the narrative of human rights regulation in economic activity, to set the parameters in which that discussion is undertaken; and to make legitimate discussions about the value (here used in the sense utility and benefit) of profit, of markets, of bottom up action, and of the relation between human autonomy and guided direction by the collective. This was, in a way, the greatest success of the UNGP process--to provide the baseline framework for talking about issues and framing analysis; and for developing an ecology of values and objectives against pragmatic policy could be assessed.
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All of these are issues worth discussing. The Treaty drafters prestidigitation around them is both disappointing and unworthy of the effort into which so many good people have poured so much effort. To the extent the treaty drafters are able to control or drive that narrative--to provide the language and framing of the issues--they would have succeeded even if the Treaty project itself fails. Around all of this is is worth again recalling that in the myth of the
Potemkin Village, the construction of the illusion served to produce
the intended effect. Illusion may, in this case, be more powerful than
fact, for the reaction it produces in those who embrace it. However, Treaty proponents' failure to more clearly reveal their normative intentions makes that objective much more difficult to attain, and the illusion much more difficult to maintain. In any case, illusion or reality will eventually produce a counter-action against which it is not clear the treaty boosters are prepared. Certainly their predecessors were unprepared even as they though that the New International Economic Order principles was on the cusp of success. That is a lesson the value of which appears to have been cast aside.
Stay tuned.
The text of the Revised Draft follows:
Updated draft legally binding instrument (clean version) to regulate, in international
human rights law, the activities of transnational corporations and other business
enterprises
The text is submitted in accordance with paragraph 25 (g) of A/HRC/52/41, and in line
with para paragraph 25 (i), will form the basis for State-led direct substantive
intergovernmental negotiations during the ninth session of the open-ended
intergovernmental working group on transnational corporations and other business
enterprises with respect to human rights.
July 2023
Background
Paragraph 25, literals (f), (g) and (i), of the report on the eighth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights
(A/HRC/52/41) stated:
“25. Following the discussions held during the eighth session, and acknowledging the comments and concrete textual suggestions expressed therein on the third revised draft legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises, and also acknowledging the comments and concrete textual suggestions on the informal suggested Chair proposals for select articles of the legally binding instrument, the Chair-Rapporteur makes the following recommendations:
… (f) That the Chair-Rapporteur note the concrete textual proposals submitted by intergovernmental organizations, national human rights institutions, civil society, business organizations, trade unions and all other relevant stakeholders during the eighth session, for the appropriate consideration in the work on the draft legally binding instrument during the intersessional period. Those stakeholders will be consulted by the friends of the Chair and invited to submit written inputs;
(g) That the Chair-Rapporteur update the draft legally binding instrument taking into consideration the concrete textual proposals and comments submitted by States during the eighth session and the outcomes of the consultations as reported by the friends of the Chair, and circulate it in a version in track changes, including by publishing it on the working group’s website, by no later than the end of July 2023;
… (i) That the Chair-Rapporteur promote State-led direct substantive intergovernmental negotiations during the working group’s ninth session, on the basis of the updated draft legally binding instrument”.
In this context, this document contains an updated draft legally binding instrument, which has been elaborated during the intersessional period taking into consideration the following materials:
1. The concrete textual proposals and comments submitted by States during the eighth session, which refer to comments and concrete textual suggestions expressed therein on the third revised draft legally binding instrument (A/HRC/52/41/Add.1), and to the comments and concrete textual suggestions on the informal suggested Chair proposals for select articles of the legally binding instrument (A/HRC/WG.16/8/CRP.2).
2. The concrete textual proposals submitted by all other relevant stakeholders during the eight session (which can be found here).
3. The compilation of written inputs by stakeholders entitled to speak at the public sessions of the working group (note verbale of 2 March 2023).
4. The outcomes of the consultations as reported by the friends of the Chair.
More information on the process: https://www.ohchr.org/en/hr-bodies/hrc/wg-trans-corp/igwg-on-tnc
Preamble
The States Parties to this (Legally Binding Instrument),
(PP1) Reaffirming all the principles and purposes set out in the Charter of the United
Nations;
(PP2) Recalling the nine core international human rights treaties adopted by the United
Nations, and the eight fundamental conventions adopted by the International Labour
Organization, as well as other relevant international human rights treaties and conventions
adopted by the United Nations and by the International Labour Organization;
(PP3) Recalling also the Universal Declaration of Human Rights, the Vienna
Declaration and Programme of Action, and all other internationally agreed human rights
Declarations, as well as the 2030 Agenda for Sustainable Development;
(PP4) Reaffirming the fundamental human rights and the dignity and worth of the
human person, in the equal rights of men and women and the need to promote social
progress and better standards of life in larger freedom while respecting the obligations
arising from treaties and other sources of international law, as set out in the Charter of the
United Nations;
(PP5) Reaffirming that all human rights are universal, indivisible, interdependent, inter-
related, and inalienable, and should be applied in a non-discriminatory way;
(PP6) Reaffirming the right of every person to be equal before the law, to equal
protection of the law, and to have effective access to justice and remedy in case of violations
of international human rights law;
(PP7) Stressing that the primary obligation to respect, protect, fulfill and promote
human rights and fundamental freedoms lie with the State, and that States must protect
against human rights abuses by third parties, including business enterprises, and to ensure
respect for and implementation of international human rights law, and to respect and ensure
respect for international humanitarian law in all circumstances;
(PP8) Recalling the United Nations Charter Articles 55 and 56 on international
cooperation, including in particular with regard to universal respect for, and observance of,
human rights and fundamental freedoms for all without distinction of any kind:
(PP9) Recognizing that, in all actions concerning children, including in the context of
business activities, the best interests of the child shall be a primary consideration, and shall
be respected in pursuing remedies for violations of the rights of the child;
(PP10) Acknowledging that all business enterprises have the potential to foster
sustainable development through an increased productivity, inclusive economic growth and
job creation that promote and respect internationally recognized human rights and
fundamental freedoms;
(PP11) Emphasizing that business enterprises play a crucial role in the social and
economic development as well as the implementation of the Agenda 2030 for Sustainable
Development;
(PP12) Underlining that business enterprises, regardless of their size, sector, location,
operational context, ownership and structure have the responsibility to respect
internationally recognized human rights, including by avoiding causing or contributing to
human rights abuses through their own activities and addressing such abuses when they
occur, as well as by preventing human rights abuses or mitigating human rights risks linked
to their operations, products or services by their business relationships;
(PP13) Emphasizing that civil society actors, including human rights defenders, have
an important and legitimate role in promoting the respect of human rights by business
enterprises, and in preventing, mitigating and in seeking effective remedy for business-
related human rights abuses, and that States have the obligation to take all appropriate
measures to ensure an enabling and safe environment for the exercise of such role;
(PP14) Recognizing the distinctive and disproportionate impact of business-related
human rights abuses on women and girls, children, indigenous peoples, persons with
disabilities, people of African descent, older persons, migrants and refugees, and other
persons in vulnerable situation, as well as the need for a business and human rights
perspective that takes into account specific circumstances and vulnerabilities of different
rights-holders and the structural obstacles for obtaining remedies for these persons;
(PP15) Emphasizing the need for States and business enterprises to integrate a
gender perspective in all their measures, in line with the Convention on the Elimination of
All Forms of Discrimination against Women, the Beijing Declaration and Platform for Action,
the ILO Convention 190 concerning the elimination of violence and harassment in the world
of work, the Gender Guidance for the Guiding Principles on Business and Human Rights,
and other relevant international standards;
(PP16) Taking into account the work undertaken by the United Nations Commission
on Human Rights and the Human Rights Council on the question of the responsibilities of
transnational corporations and other business enterprises with respect to human rights, in
particular Resolution 26/9;
(PP17) Recognizing the contribution and complementary role that the United Nations
Guiding Principles on Business and Human Rights: Implementing the United Nations
“Protect, Respect and Remedy” Framework have played in that regard and to advancing
respect for human rights in the business activities;
(PP18) Noting the ILO Declaration on Fundamental Principles and Rights at Work and
the Tripartite Declaration of Principles concerning Multinational Enterprises and Social
Policy;
(PP19) Desiring to clarify and facilitate effective implementation of the obligations of
States regarding business-related human rights abuses and the responsibilities of business
enterprises in that regard;
Have agreed as follows:
Article 1. Definitions
1.1. “Victim” shall mean any person or group of persons who suffered a human rights abuse
in the context of business activities, irrespective of the nationality or domicile of the victim.
The term “victim” may also include the immediate family members or dependents of the
direct victim. A person shall be considered a victim regardless of whether the perpetrator of
the human rights abuse is identified, apprehended, prosecuted, or convicted.
1.2. “Adverse human rights impact” shall mean a harm which corresponds to a reduction
in or removal of a person’s ability to enjoy an internationally recognized human right.
1.3. “Human rights abuse” shall mean any acts or omissions that take place in connection
with business activities and results in an adverse human rights impact..
1.4. “Business activities” means any economic or other activity, including but not limited
to the manufacturing, production, transportation, distribution, commercialization, marketing
and retailing of goods and services, undertaken by a natural or legal person, including State-
owned enterprises, financial institutions and investment funds, transnational corporations,
other business enterprises, joint ventures, and any other business relationship undertaken
by a natural or legal person. This includes activities undertaken by electronic means.
1.5. “Business activities of a transnational character” means any business activity
described in Article 1.4. above, when:
(a) It is undertaken in more than one jurisdiction or State; or
(b) It is undertaken in one State but a significant part of its preparation, planning,
direction, control, design, processing, manufacturing, storage or distribution, takes
place through any business relationship in another State or jurisdiction; or
(c) It is undertaken in one State but has significant effect in another State or jurisdiction.
1.6. “Business relationship” refers to any relationship between natural or legal persons,
including State and non-State entities, to conduct business activities, including those
activities conducted through affiliates, subsidiaries, agents, suppliers, partnerships, joint
venture, beneficial proprietorship, or any other structure or relationship, including throughout
their value chains, as provided under the domestic law of the State, including activities
undertaken by electronic means.
1.7. “Regional integration organization” shall mean an organization constituted by sovereign
States of a given region, to which its member States have transferred competence in respect
of matters governed by this (Legally Binding Instrument). Such organizations shall declare,
in their instruments of formal confirmation or accession, their level of competence in respect
of matters governed by this (Legally Binding Instrument), and they shall subsequently inform
the depositary of any substantial modification to such competence. References to “States
Parties” in the present (Legally Binding Instrument) shall apply to such organizations within
the limits of their competence.
1.8. “Human rights due diligence” shall mean the processes by which business
enterprises identify, prevent, mitigate and account for how they address their adverse
human rights impacts. While these processes will vary in complexity with the size of a
business enterprise, the risk of severe adverse human rights impacts, and the nature and
context of the operations of that business enterprise, these processes will in every case
comprise the following elements:
(a) identifying and assessing any adverse human rights impacts with which the
business enterprise may be involved through its own activities or as a result of its
business relationships;
(b) taking appropriate measures to prevent and mitigate such adverse human rights
impacts;
(c) monitoring the effectiveness of its measures to address such adverse human rights
impacts; and
(d) communicating how the relevant business enterprise addresses such adverse
human rights impacts regularly and in an accessible manner to stakeholders,
particularly to affected and potentially affected persons.
1.9. “Remedy” shall mean the restoration of a victim of a human rights abuse to the position
they would have been had the abuse not occurred, or as nearly as is possible in the
circumstances. An “effective remedy” involves reparations that are adequate, effective, and
prompt; are gender and age responsive; and may draw from a range of forms of remedy
such as restitution, compensation, rehabilitation, satisfaction, such as cessation of abuse,
apologies, and sanctions), as well as and guarantees of non-repetition.
1.10. “Relevant State agencies” means judicial bodies, competent authorities and other
agencies and related services relevant to administrative supervision and enforcement of the
measures referred to in this (Legally Binding Instrument) to address human rights abuse,
and may include courts, law enforcement bodies, regulatory authorities, administrative
supervision bodies, and other State-based non-judicial mechanisms.
Article 2. Statement of Purpose
The purpose of this (Legally Binding Instrument) is:
(a) To clarify and facilitate effective implementation of the obligation of States to
respect, protect, fulfill and promote human rights in the context of business activities,
particularly those of transnational character;
(b) To clarify and ensure respect and fulfillment of the human rights responsibilities of
business enterprises;
(c) To prevent the occurrence of human rights abuses in the context of business
activities by effective mechanisms for monitoring, enforceability and accountability;
(d) To ensure access to gender-responsive, child-sensitive and victim-centred justice
and effective, adequate and timely remedy for victims of human rights abuses in the
context of business activities;
(e) To facilitate and strengthen mutual legal assistance and international cooperation
to prevent and mitigate human rights abuses in the context of business activities,
particularly those of transnational character, and provide access to justice and
effective, adequate, and timely remedy for victims.
Article 3. Scope
3.1. This (Legally Binding Instrument) shall apply to all business activities, including
business activities of a transnational character.
3.2. Notwithstanding Article 3.1. above, when imposing prevention obligations on business
enterprises under this (Legally Binding Instrument), States Parties may establish in their law,
a non-discriminatory basis to differentiate how business enterprises discharge these
obligations commensurate with their size, sector, operational context or the severity of
impacts on human rights.
3.3. This (Legally Binding Instrument) shall cover all internationally recognized human rights
and fundamental freedoms binding on the State Parties of this (Legally Binding Instrument).
Article 4. Rights of Victims
4.1. Victims of human rights abuses in the context of business activities shall enjoy all
internationally recognized human rights and fundamental freedoms.
4.2. Without prejudice to Article 4.1. above, victims shall:
(a) be treated with humanity and respect for their dignity and human rights, and their
safety, physical and psychological well-being and privacy shall be ensured;
(b) be guaranteed the right to life, personal integrity, freedom of opinion and
expression, peaceful assembly and association, and free movement;
(c) be guaranteed the right to fair, adequate, effective, prompt, non-discriminatory,
appropriate and gender-sensitive access to justice, individual or collective reparation
and effective remedy in accordance with this (Legally Binding Instrument) and
international law, such as restitution, compensation, rehabilitation, reparation,
satisfaction, guarantees of non-repetition, injunction, environmental remediation, and
ecological restoration;
(d) be guaranteed the right to submit claims, including by a representative or through
class action in appropriate cases, to courts and non-judicial grievance mechanisms of
the States Parties to this (Legally Binding Instrument);
(e) be protected from any unlawful interference against their privacy, and from
intimidation, and reprisals, before, during and after any proceedings have been
instituted, as well as from re-victimization in the course of proceedings for access to
effective, prompt and adequate remedy, including through appropriate protective and
support services that are gender and age responsive;
(f) be guaranteed access to information, provided in relevant languages and accessible
formats to adults and children alike, including those with disabilities, held by business
enterprises or relevant State agencies, and legal aid relevant to pursue effective
remedy; and
(g) be guaranteed full participation, transparency, and independence in reparation
processes, which take into account the differentiated impacts of human rights abuses
on specific groups of people and respond adequately to these impacts and their
particular needs.
4.3. Nothing in this provision shall be construed to derogate from any higher level of
recognition and protection of any human rights of victims or other individuals under
international, regional, or national law.
4.4. Victims shall have the right to request State Parties, pending the resolution of a case,
to adopt precautionary measures related to urgent situations that present a serious risk of
or an ongoing human rights abuse.
Article 5. Protection of Victims
5.1. States Parties shall protect victims, their representatives, families, and witnesses from
any unlawful interference with their human rights and fundamental freedoms, including prior,
during and after they have instituted any proceedings to seek access to effective, prompt,
and adequate remedy, as well as from re-victimization in the course of these proceedings.
5.2. States Parties shall take adequate and effective measures to guarantee a safe and
enabling environment for persons, groups and organizations that promote and defend
human rights and the environment, so that they are able to exercise their human rights free
from any threat, intimidation, violence, insecurity, harassment, or reprisals.
5.3. States Parties shall investigate human rights abuses covered under this (Legally
Binding Instrument), effectively, promptly, thoroughly, and impartially, and where
appropriate, take action against those natural or legal persons responsible, in accordance
with domestic and international law.
5.4. States Parties, pending the resolution of a case, shall adopt, either ex officio or on
request by the victim, precautionary measures related to urgent situations that present a
serious risk of or an ongoing human rights abuse.
Article 6. Prevention
6.1. States Parties shall regulate effectively the activities of all business enterprises within
their territory, jurisdiction, or otherwise under their control, including transnational
corporations and other business enterprises that undertake activities of a transnational
character.
6.2. State Parties shall adopt appropriate legislative, regulatory, and other measures to:
(a) prevent the involvement of business enterprises in human rights abuse;
(b) ensure respect by business enterprises for internationally recognized human
rights and fundamental freedoms;
(c) ensure the practice of human rights due diligence by business enterprises; and,
(d) promote the active and meaningful participation of individuals and groups, such
as trade unions, civil society, non-governmental organizations, indigenous peoples,
and community-based organizations, in the development and implementation of laws,
policies and other measures to prevent the involvement of business enterprises in
human rights abuse.
6.3. State Parties shall ensure that competent authorities relevant to the implementation of
Article 6.2 have the necessary independence, in accordance with its legal system, to enable
such authorities to carry out their functions effectively and free from any undue influence.
6.4. Measures to achieve the ends referred to in Article 6.2 shall include legally enforceable
requirements for business enterprises to undertake human rights due diligence as well as
such supporting or ancillary measures as may be needed to ensure that business
enterprises while carrying out human rights due diligence:
(a) undertake and publish on a regular basis human rights impact assessments prior
and throughout their operations;
(b) integrate a gender and age perspective, and takes full and proper account of the
differentiated human rights-related risks and adverse human rights impacts
experienced by women and girls;
(c) take particular account of the needs of those who may be at heightened risks of
vulnerability or marginalization;
(d) meaningful consult with potentially affected groups and other relevant
stakeholders;
(e) protect the safety of human rights defenders, journalists, workers, members of
indigenous peoples, among others, as well as those who may be subject to retaliation;
and
(f) insofar as engagement with indigenous peoples takes place, undertake such
process in accordance with the internationally recognized standards of free, prior, and
informed consent.
6.5. Each Party shall take necessary measures to ensure that business enterprises take
appropriate steps to prevent human rights abuse by third parties where the enterprise
controls, manages or supervises the third party, including through the imposition of a legal
duty to prevent such abuse in appropriate cases.
6.6. State Parties shall periodically evaluate the legislative, regulatory, and other measures
referred to in Article 6.2 and with a view to determining their adequacy for meeting the aims
set out in that Article and shall revise and extend such measures as appropriate.
Article 7. Access to Remedy
7.1. States Parties shall provide their relevant State agencies, with the necessary
competence in accordance with this (Legally Binding Instrument) to enable victims’ access
to adequate, timely and effective remedy and access to justice, and to overcome the specific
obstacles which women and groups in vulnerable or marginalized situations face in
accessing such mechanisms and remedies.
7.2. State Parties shall, consistent with its domestic legal and administrative systems:
(a) develop and implement effective policies to promote the accessibility of its
relevant State agencies to victims and their representatives, taking into account the
particular needs and interests of those victims who may be at risk of vulnerability or
marginalization;
(b) progressively reduce the legal, practical, and other relevant obstacles that,
individually or in combination, hinder the ability of a victim from accessing such State
agencies for the purposes of seeking an effective remedy; and
(c) ensure that relevant State agencies can either deliver, or contribute to the
delivery of, effective remedies.
7.3. The policies referred to in Article 7.2 (a) shall address, to the extent applicable to the
State agency in question:
(a) the need to ensure that procedures and facilities for accessing and interacting
with such agencies are responsive to the needs of the people for whose use they are
intended, including by providing appropriate, adequate, and effective legal aid
throughout the legal process;
(b) the need to ensure that victims have ready access to reliable sources of
information, in relevant languages and accessible formats to adults and children alike,
including those with disabilities, for victims and their representatives, about their
human rights, the role and capacity of relevant State agencies in relation to helping
victims obtain an effective remedy, the status of their claims, and appropriate support
to enable them to participate effectively in all relevant processes, including by
facilitating requests for disclosure of relevant information of business-related activities
or relationships linked to a human rights abuse;
8.2. Subject to the legal principles of the State Party, the liability of legal and natural
persons referred to in this Article shall be criminal, civil, or administrative, as appropriate to
the circumstances. Each State Party shall ensure, consistent with its domestic legal and
administrative systems, that the type of liability established under this article shall be:
(a) responsive to the needs of victims as regards remedy; and
(b) commensurate to the gravity of the human rights abuse.
8.3. Subject to the legal principles of the State Party, the liability of legal and natural
persons shall be established for:
(a) conspiring to commit human rights abuse; and
(b) aiding, abetting, facilitating, and counselling the commission of human rights
abuse.
8.4. Each State Party shall adopt such measures as may be necessary, and consistent with
its domestic legal and administrative systems, to ensure that, in cases concerning the liability
of legal or natural persons in accordance with this article:
(a) the liability of a legal person is not contingent upon the establishment of liability
of a natural person;
(b) the criminal liability, or its functional equivalent, of a legal or natural person is not
contingent upon the establishment of the civil liability of that person, and vice versa;
and
(c) the liability of a legal or natural person on the basis of Article 8.3 is not contingent
upon the establishment of the liability of the main perpetrator for that unlawful act.
8.5. Each State Party shall ensure, consistent with its domestic legal and administrative
systems, an appropriate allocation of evidential burdens of proof in judicial and
administrative proceedings that takes account of differences between parties in terms of
access to information and resources, including through the measures referred to in Article
7.4 (d), as appropriate to the circumstances.
8.6. Each State Party shall ensure that legal and natural persons held liable in accordance
with this Article shall be subject to effective, proportionate, and dissuasive penalties or other
sanctions.
Article 9. Jurisdiction
9.1. State Parties shall take such measures as may be necessary to establish its jurisdiction
in respect of human rights abuse in cases where:
(a) the human rights abuse took place, in whole or in part, within the territory or
jurisdiction of that State Party;
(b) the relevant harm was sustained, in whole or in part, within the territory or
jurisdiction of that State Party;
(c) the human rights abuse was carried out by either
i. a legal person domiciled in the territory or jurisdiction of that State Party; or
ii. a natural person who is a national of, or who has his or her habitual
residence in the territory or jurisdiction of, that State Party; and
(d) a victim seeking remedy through civil law proceedings is a national of, or has his
or her habitual residence in the territory or jurisdiction of, that State Party.
9.2. For the purposes of Article 9.1, a legal person is considered domiciled in any territory
or jurisdiction in which it has its:
(a) place of incorporation or registration;
(b) principal assets or operations;
(c) central administration or management; or
(d) principal place of business or activity.
9.3. State Parties shall take such measures as may be necessary, and consistent with its
domestic legal and administrative systems, to ensure that decisions by relevant State
agencies relating to the exercise of jurisdiction in the cases referred to in Article 9.1 shall
respect the rights of victims in accordance with Article 4, including with respect to:
(a) the discontinuation of legal proceedings on the grounds that there is another,
more convenient or more appropriate forum with jurisdiction over the matter; or
(b) the coordination of actions as contemplated in Article 9.4.
9.4. If a State Party exercising its jurisdiction under this Article has been notified, or has
otherwise learned, of judicial proceedings taking place in another State Party relating to the
same human rights abuse, or any aspect of such human rights abuse, the relevant State
agencies of each State shall consult one another with a view to coordinating their actions.
Article 10. Statute of limitations
10.1. State Parties shall adopt such measures as may be necessary to ensure that no
limitation period shall apply in relation to the commencement of legal proceedings in relation
to human rights abuses which constitute the most serious crimes of concern to the
international community as a whole, including war crimes, crimes against humanity or crimes
of genocide.
10.2. In legal proceedings regarding human rights abuse not falling within the scope of
Article 10.1, each State Party shall adopt such measures as may be necessary to ensure
that limitation periods for such proceedings:
(a) are of a duration that is appropriate in light of the gravity of the human rights
abuse;
(b) are not unduly restrictive in light of the context and circumstances, including the
location where the relevant human rights abuse took place or where the relevant harm
was sustained, and the length of time needed for relevant harms to be identified; and
(c) are determined in a way that respects the rights of victims in accordance with
Article 4.
Article 11. Applicable Law
11.1. All matters of procedure regarding claims before the competent court which are not
specifically regulated in the (Legally Binding Instrument) shall be governed by the law of that
court seized on the matter.
11.2. All matters of substance which are not specifically regulated under this (Legally Binding
Instrument) may, upon the request of the victim, be governed by the law of another State
where:
(a) the acts or omissions have occurred or produced effects; or
(b) the natural or legal person alleged to have committed the acts or omissions is
domiciled.
Article 12. Mutual Legal Assistance
12.1. States parties shall afford one another the greatest measure of assistance in
connection with criminal, civil and administrative proceedings relevant to the enforcement of
the measures referred to in Articles 6-8, including assistance to expedite requests from
private parties for the transmission and service of documents and for the taking of evidence
in civil proceedings.
12.2. States Parties shall carry out their obligations under Article 12.1 in conformity with any
treaties or other arrangements on mutual legal assistance that may exist between them.
12.3. States Parties shall cooperate closely with one another to enhance the enforcement of
the measures referred to in Articles 6-8. States Parties shall, in particular, take the necessary
steps:
(a) to establish, maintain and enhance channels of communication between their
relevant State agencies and their counterparts in other States Parties in order to
i. facilitate the secure and rapid exchange of information concerning all
aspects of the enforcement of the measures referred to in Articles 6-8, including
for the purposes of the early identification of breaches of such measures; and
ii. share information concerning issues, challenges, and lessons learned
in the prevention of business involvement in human rights abuse, including with
a view to enhancing the effectiveness of competent authorities, agencies and
services; and
(b) to facilitate effective coordination between their relevant State agencies and to
promote the exchange of personnel and other experts, including, subject to bilateral
agreements or arrangements between the States Parties concerned, the posting of
liaison officers.
12.4. For the purposes of meeting their obligations under this article, each State Party shall:
(a) ensure that its relevant State agencies have access to the necessary information,
support, training and resources to enable personnel to make effective use of the
treaties and arrangements referred to in Article 12.2; and
(b) consider entering into or enhancing bilateral or multilateral agreements or
arrangements aimed at improving the ease with which and speed at which
i. requests for mutual legal assistance can be made and responded to;
and
ii. information can be exchanged between relevant State Agencies for
the purposes of enforcement of the measures referred to in Articles 6-8, including
through information repositories that provide clarity on points of contact, core
process requirements and systems for updates on outstanding requests.
Article 13. International Cooperation
13.1. States Parties shall cooperate in good faith to enable the implementation of their
obligations recognized under this (Legally Binding Instrument) and the fulfillment of the
purposes of this (Legally Binding Instrument).
13.2. States Parties recognize the importance of international cooperation, including
financial and technical assistance and capacity building, for the realization of the purpose of
the present (Legally Binding Instrument) and will undertake appropriate and effective
measures in this regard, between and among States and, as appropriate, in partnership with
relevant international and regional organizations and civil society. Such measures include,
but are not limited to:
(a) promoting effective technical cooperation and capacity-building among policy
makers, parliaments, judiciary, national human rights institutions, business enterprises
and operators, as well as users of domestic, regional and international grievance
mechanisms;
(b) sharing experiences, good practices, challenges, information and training
programs on the implementation of the present (Legally Binding Instrument);
(c) raising awareness about the rights of victims of business-related human rights
abuses and the obligations of States under this (Legally Binding Instrument);
(d) facilitating cooperation in research and studies on the challenges, good practices
and experiences in preventing human rights abuses in the context of business
activities, including those of transnational characters;
(e) contribute, within their available resources, to the International Fund for Victims
referred to in Article 15.7 of this (Legally Binding Instrument).
Article 14. Consistency with International Law
14.1. States Parties shall carry out their obligations under this (Legally Binding Instrument)
in a manner consistent with, and fully respecting, the principles of sovereign equality and
territorial integrity of States.
14.2. Notwithstanding Article 9, nothing in this (Legally Binding Instrument) entitles 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’s
jurisdiction.
14.3. Nothing in the present (Legally Binding Instrument) shall affect any provisions in the
domestic legislation of a State Party or in any regional or international treaty or agreement
that is more conducive to the respect, protection, fulfillment and promotion of human rights
in the context of business activities and to guaranteeing the access to justice and effective
remedy to victims of human rights abuses in the context of business activities, including
those of transnational character.
14.4. This (Legally Binding Instrument) shall not affect the rights and obligations of the
States Parties under the rules of general international law with respect to State immunity
and the international responsibility of States. Earlier treaties relating to the same subject
matter as this (Legally Binding Instrument) shall apply only to the extent that their provisions
are compatible with this (Legally Binding Instrument), in accordance with Article 30 of the
Vienna Convention on the Law of Treaties.
14.5. All existing bilateral or multilateral agreements, including regional or sub-regional
agreements, on issues relevant to this (Legally Binding Instrument) and its protocols,
including trade and investment agreements, shall be interpreted and implemented in a
manner that does not undermine or restrict their capacity to fulfill their obligations under this
(Legally Binding Instrument) and its protocols, if any, as well as other relevant human rights
conventions and instruments.
Article 15. Institutional Arrangements
Committee
15.1. There shall be a Committee established in accordance with the following procedures:
(a) The Committee shall consist of, at the time of entry into force of the present (Legally
Binding Instrument), (12) experts. After an additional sixty ratifications or accessions
to the (Legally Binding Instrument), the membership of the Committee shall increase
by six members, attaining a maximum number of (18) members. The members of the
Committee shall serve in their personal capacity and shall be of high moral standing
and recognized competence in the field of human rights, public international law or
other relevant fields.
(b) The experts shall be elected by the States Parties, consideration being given to
equitable geographical distribution, the differences among legal systems, gender and
age balanced representation and ensuring that elected experts are not engaged,
directly or indirectly, in any activity which might adversely affect the purpose of this
(Legally Binding Instrument).
(c) The members of the Committee shall be elected by secret ballot from a list of
persons nominated by States Parties. They shall be elected for a term of 4 years and
can be re-elected for another term. Each State Party may nominate one person from
among its own nationals.
(d)Elections of the members of the Committee shall be held at the Conference of States
Parties by majority present and voting. At least four months before the date of each
election, the Secretary-General of the United Nations shall address a letter to the
States Parties inviting them to submit their nominations within two months. The
Secretary-General shall prepare a list in alphabetical order of all persons thus
nominated, indicating the State Party which has nominated them, and shall submit it
to the States Parties.
(e) The initial election shall be held no later than six months after the date of the entry
into force of this (Legally Binding Instrument). The term of six of the members elected
at the first election shall expire at the end of two years; immediately after the first
election, the names of these six members shall be chosen by lot by the chairperson of
the meeting referred to in this Article.
(f) If a member of the Committee dies or resigns or for any other cause can no longer
perform his or her Committee duties, the State Party which nominated him or her shall
appoint another expert from among its nationals to serve for the remainder of his or
her term, subject to the approval of the majority of the States Parties.
(g) The Committee shall establish its own rules of procedure and elect its officers for a
term of two years. They may be re-elected.
(h) The Secretary-General of the United Nations shall provide the necessary staff and
facilities for the effective performance of the functions of the Committee under this
(Legally Binding Instrument). The Secretary-General of the United Nations shall
convene the initial meeting of the Committee. After its initial meeting, the Committee
shall meet at such times as shall be provided in its rules of procedure.
(i) With the approval of the General Assembly, the members of the Committee
established under the present (Legally Binding Instrument) shall receive emoluments
from United Nations resources on such terms and conditions as the Assembly may
decide through the established procedures.
15.2. States Parties shall submit to the Committee, through the Secretary-General of the
United Nations, reports on the measures they have taken to give effect to their undertakings
under this (Legally Binding Instrument), within one year after the entry into force of the
(Legally Binding Instrument) for the State Party concerned. Thereafter the States Parties
shall submit supplementary reports every four years on any new measures taken and such
other reports as the Committee may request.
15.3. The Secretary-General of the United Nations shall transmit the reports to all States
Parties.
15.4. The Committee shall have the following functions:
(a) Make general comments and normative recommendations on the understanding
and implementation of the (Legally Binding Instrument) based on the examination of
reports and information received from the States Parties and other stakeholders;
(b) Consider and provide concluding observations and recommendations on reports
submitted by States Parties as it may consider appropriate and forward these to the
State Party concerned that may respond with any observations it chooses to the
Committee. The Committee may, at its discretion, decide to include these suggestions
and general recommendations in the report of the Committee together with comments,
if any, from States Parties;
(c) Provide support to the States Parties in the compilation and communication of
information required for the implementation of the provisions of the (Legally Binding
Instrument);
(d) Submit an annual report on its activities under this (Legally Binding Instrument) to
the States Parties and to the General Assembly of the United Nations;
(e) The Committee may recommend to the General Assembly to request the Secretary-
General to undertake on its behalf studies on specific issues relating to the present
(Legally Binding Instrument).
Conference of States Parties
15.5. The States Parties shall meet regularly in a Conference of States Parties in order to
consider any matter with regard to the implementation of the (Legally Binding Instrument),
including any further development needed towards fulfilling its purposes.
15.6. No later than six months after the entry into force of the present (Legally Binding
Instrument), the Conference of the States Parties shall be convened by the Secretary-
General of the United Nations. The subsequent meetings shall be convened by the
Secretary-General of the United Nations biennially or upon the decision of the Conference
of States Parties.
International Fund for Victims
15.7. States Parties shall establish an International Fund for Victims covered under this
(Legally Binding Instrument), to provide legal and financial aid to victims, taking into account
the additional barriers faced by women, children, persons with disabilities, Indigenous
peoples, migrants, refugees, internally displaced persons, and other vulnerable or
marginalized persons or groups in seeking access to remedies. This Fund shall be
established at most after (X) years of the entry into force of this (Legally Binding Instrument).
The Conference of States Parties shall define and establish the relevant provisions for the
functioning of the Fund.
Article 16. Implementation
16.1. States Parties shall take all necessary legislative, administrative or other action
including the establishment of adequate monitoring mechanisms to ensure effective
implementation of this (Legally Binding Instrument).
16.2. Each State Party shall furnish copies (including in electronic form or online links) of its
laws and regulations that give effect to this (Legally Binding Instrument) and of any
subsequent changes to such laws and regulations or a description thereof, within [6 months]
of their enactment, to the Secretary-General of the United Nations, which shall be made
publicly available.
16.3. Special attention shall be undertaken in the cases of business activities in conflict-
affected areas including taking action to identify, prevent and mitigate the human rights-
related risks of these activities and business relationships and to assess and address the
heightened risks of abuses, paying special attention to both gender-based and sexual
violence, the use of child soldiers and the worst forms of child labour, including forced and
hazardous child labour.
16.4. In implementing this (Legally Binding Instrument), States Parties shall address the
specific impacts of business activities on while giving special attention to those facing
heightened risks of human rights abuse within the context of business activities, such as,
but not limited to, women, children, persons with disabilities, indigenous peoples, people of
African descent, older persons, migrants, refugees and internal displaced persons.
16.5. The application and interpretation of these Articles shall be consistent with
international law, including international human rights law and international humanitarian
law, and shall be without any discrimination of any kind or on any ground, without exception.
16.6. In implementing this Legally Binding Instrument, State Parties shall protect public
policies and decision making spaces from undue political influence by businesses.
Article 17. Relations with Protocols
17.1. This (Legally Binding Instrument) may be supplemented by one or more protocols.
17.2. In order to become a Party to a protocol, a State or a regional integration organization
must also be a Party to this (Legally Binding Instrument).
17.3. A State Party to this (Legally Binding Instrument) is not bound by a protocol unless it
becomes a Party to the protocol in accordance with the provisions thereof.
17.4. Any protocol to this (Legally Binding Instrument) shall be interpreted together with this
(Legally Binding Instrument), taking into account the purpose of that protocol.
Article 18. Settlement of Disputes
18.1. If a dispute arises between two or more States Parties about the interpretation or
application of this (Legally Binding Instrument), they shall seek a solution by negotiation or
by any other means of dispute settlement acceptable to the parties to the dispute.
18.2. When signing, ratifying, accepting, approving or acceding to this (Legally Binding
Instrument), or at any time thereafter, a State Party may declare in writing to the Depositary
that, for a dispute not resolved in accordance with paragraph 1 of this article, it accepts one
or both of the following means of dispute settlement as compulsory in relation to any State
Party accepting the same obligation:
(a) Submission of the dispute to the International Court of Justice;
(b) Arbitration in accordance with the procedure and organization mutually agreed by
both States Parties.
18.3. If the States Parties to the dispute have accepted both means of dispute settlement
referred to in paragraph 2 of this article, the dispute may be submitted only to the
International Court of Justice, unless the States Parties agree otherwise.
Article 19. Signature, Ratification, Acceptance, Approval and Accession
19.1. The present (Legally Binding Instrument) shall be open for signature by all States and
by regional integration organizations at United Nations Headquarters in New York as of
(date).
19.2. The present (Legally Binding Instrument) shall be subject to ratification, acceptance or
approval by signatory States and to formal confirmation by signatory regional integration
organizations. It shall be open for accession by any State or regional integration organization
which has not signed the (Legally Binding Instrument).
19.3. This (Legally Binding Instrument) shall apply to regional integration organizations
within the limits of their competence; subsequently they shall inform the depositary of any
substantial modification in the extent of their competence. Such organizations may exercise
their right to vote in the Conference of States Parties with a number of votes equal to the
number of their member States that are Parties to this (Legally Binding Instrument). Such
right to vote shall not be exercised if any of its member States exercises its right, and vice
versa.
Article 20. Entry into Force
20.1. The present (Legally Binding Instrument) shall enter into force on the thirtieth day after
the deposit of the [---] instrument of ratification or accession.
20.2. For each State or regional integration organization ratifying, formally confirming or
acceding to the (Legally Binding Instrument) after the deposit of the [---] such instrument,
the (Legally Binding Instrument) shall enter into force on the thirtieth day after the deposit of
its own such instrument.
Article 21. Amendments
21.1. Any State Party may propose an amendment to the present (Legally Binding
Instrument) and submit it to the Secretary-General of the United Nations. The Secretary-
General shall communicate any proposed amendments to States Parties, with a request to
be notified whether they favour a conference of States Parties for the purpose of considering
and deciding upon the proposals. In the event that, within four months from the date of such
communication, at least one-third of the States Parties favour such a conference, the
Secretary-General shall convene the conference under the auspices of the United Nations.
Any amendment adopted by a majority of two-thirds of the States Parties present and voting
in the Conference of the States Parties shall be submitted by the Secretary-General to all
States Parties for acceptance.
21.2. An amendment adopted and approved in accordance with this Article shall enter into
force on the thirtieth day after the number of instruments of acceptance deposited reaches
two-thirds of the number of States Parties at the date of adoption of the amendment.
Thereafter, the amendment shall enter into force for any State Party on the thirtieth day
following the deposit of its own instrument of acceptance. An amendment shall be binding
only on those States Parties which have accepted it.
21.3. If so decided by the Conference of States Parties by consensus, an amendment
adopted and approved in accordance with this Article which relates exclusively to the
establishment of the Committee or its functions, and the Conference of States Parties shall
enter into force for all States Parties on the thirtieth day after the number of instruments of
acceptance deposited reaches two-thirds of the number of States Parties at the date of
adoption of the amendment.
Article 22. Reservations
22.1. Reservations incompatible with the object and purpose of the present (Legally Binding
Instrument) shall not be permitted.
22.2. Reservations may be withdrawn at any time.
Article 23. Denunciation
A State Party may denounce the present (Legally Binding Instrument) by written notification
to the Secretary-General of the United Nations. The denunciation shall become effective
one year after the date of receipt of the notification by the Secretary-General.
Article 24. Depositary and Languages
24.1. The Secretary-General of the United Nations shall be the depositary of the present
(Legally Binding Instrument).
24.2. The Arabic, Chinese, English, French, Russian and Spanish texts of the present
(Legally Binding Instrument) shall be equally authentic.
In witness thereof the undersigned plenipotentiaries, being duly authorized thereto by
their respective Governments, have signed the present (Legally Binding Instrument):
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