Towards Treaty on Business and Human Rights: Key Areas of Agreement

Birģelis, Mārtiņš

doi:10.25143/socr.23.2022.2.156-164

Abstract

Current legal framework does not properly address the impact that transnational corporations have on human rights. In response to that in 2014 the UN Human Rights Council established an open-ended intergovernmental working group with a mandate to elaborate an international legally binding instrument to regulate activities of transnational corporations and other business enterprises. Although this decision was strongly contested and initially there was very little consensus on what such a treaty should entail, much effort has been invested to improve the content of the proposed treaty and gather the necessary support for its adoption.

The aim of this article is to analyse the progress made in negotiating the treaty and to find any essential areas of agreement between different stakeholders. To achieve that aim, historical and analytical research methods have been primarily used. The study finds that two crucial areas of agreement exist – on the regulatory targets and regulatory model – that allows for real negotiations to begin.

References

Amnesty International. (2014). Injustice incorporated: Corporate abuses and the human right to remedy.
Search in Google Scholar Back to article
Bantekas, I. & Stein, M. (2021). The Cambridge Companion to Business and Human Rights Law. Cambridge. Cambridge University Press.
Search in Google Scholar Back to article
Bravo, K. E., Martin, J., & Van Ho, T. L. (2020, April). When Business Harms Human Rights: Affected Communities that Are Dying to Be Heard. Anthem Press.
Search in Google Scholar Back to article
Bilchitz, D. (2017). Corporate Obligations and a Treaty on Business and Human Rights: A Constitutional Law Model? In Building a Treaty on Business and Human Rights: Context and Contours. Edited by Deva, S. & Bilchitz, D. Cambridge. Cambridge University Press.
Search in Google Scholar Back to article
Bilchitz, D. A. (2013). Chasm between ‘Is’ and ‘Ought’? A Critique of the Normative Foundations of the SRSG's Framework and the Guiding Principles. In Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? Edited by Deva, S. & Bilchitz, D. Cambridge. Cambridge University Press.
Search in Google Scholar Back to article
Birģelis, M. (2019). Barriers to Access to Justice in the European Union in Cases of Human Rights Violations Committed by Trasnational Corporations. Protecting values enshrined in Constitution: perspectives of different fields of law. Collection of research papers of the 77th International Scientific Conference of the University of Latvia. Riga: University of Latvia Press.
Search in Google Scholar Back to article
Birģelis, M. (2021). Necessity for a Treaty on Business and Human Rights. Collection of research papers of the 79th International Scientific Conference of the University of Latvia. Riga. University of Latvia Press.
Search in Google Scholar Back to article
Carlos, L. & Shea, B. (2016). Negotiating a Treaty on Business and Human Rights: A Review of the First Intergovernmental Session. Business and Human Rights Journal 1 (1).
Search in Google Scholar Back to article
Cassel, D. (2015, July 12^th). Treaty Process Gets Underway: Whoever Said it Would Be Easy? Business & Human Rights Resource Centre. Available: http://business-humanrights.org/en/treaty-process-gets-underway-whoever-said-it-would-be-easy [rev. 20.02.2022.].
Search in Google Scholar Back to article
Commission on Human Rights. (2006). Interim Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises. UN Doc. E/CN.4/2006/97, 22.02.2006.
Search in Google Scholar Back to article
Delegation of the United States of America. Proposed Working Group Would Undermine Efforts to Implement Guiding Principles on Business and Human Rights: Explanation of Vote: A/HRC/26/L.22/Rev. 1 on BHR Legally-Binding Instrument, Delivered by Stephen Townley. 26.06.2014. Available: https://geneva.usmission.gov/2014/06/26/proposed-workinggroup-would-undermine-efforts-to-implement-guiding-principles-on-business-andhuman-rights/ [reviewed 20.02.2022.]
Search in Google Scholar Back to article
Deva, S. (2017). Scope of the Proposed Business and Human Rights Treaty: Navigating through Normativity, Law and Politics. In Building a Treaty on Business and Human Rights. Context and Contours. Edited by Deva, S. & Bilchitz, D. Cambridge. Cambridge University Press.
Search in Google Scholar Back to article
Draft Optional Protocol to the Legally Binding Instrument to Regulate. In International Human Rights Law, the Activities of Trasnational Corporations and Other Business Enterprises. Available: https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session4/ZeroDraftOPLegally.pdf [rev. 20.02.2022.].
Search in Google Scholar Back to article
Dumberry, P. (2016). The Formation and Identification of Rules of Customary International Law in International Investment Law. In Cambridge Studies in International and Comparative Law. Cambridge. Cambridge University Press.
Search in Google Scholar Back to article
Elements for the Draft Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights. (2017, September 29^th). Available: https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session3/LegallyBindingInstrumentTNCs_OBEs.pdf [rev. 20.02.2022.].
Search in Google Scholar Back to article
European Coalition for Corporate Justice. (2021, October 29^th). UN treaty negotiations: It all comes down to political will. Available: https://corporatejustice.org/news/un-treaty-negotiations-it-all-comes-down-to-political-will/ [reviewed 20.02.2021.].
Search in Google Scholar Back to article
Ford, J. (2015). Regulating Business for Peace: The United Nations, the Private Sector, and Post-Conflict Recovery. Cambridge. Cambridge University Press.
Search in Google Scholar Back to article
Henkin, L. (1999). The Universal Declaration at 50 and the Challenge of Global Markets. Brooklyn Journal of International Law, 25.
Search in Google Scholar Back to article
HRC. (2014). Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights. UN Doc. A/HRC/RES/26/9. 14.07.2014.
Search in Google Scholar Back to article
HRC. (2016). Report on the first session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, with the mandate of elaborating an international legally binding instrument. UN Doc. A/HRC/31/50. 5.02.2016.
Search in Google Scholar Back to article
HRC. (2017). Report on the second session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights. UN Doc. A/HRC/34/47. 4.01.2017.
Search in Google Scholar Back to article
HRC. (2018). Report on the third session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights. UN Doc. A/HRC/37/67. 24.01.2018.
Search in Google Scholar Back to article
International Commission of Jurists. (2015, May). The Scope of a Legally Binding Instrument on Business and Human Rights: Transnational Corporations and Other Business Enterprises. Available: http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2015/07/Global-Report-ScopeBusinessTreaty-2015.pdf [rev. 20.02.2022.].
Search in Google Scholar Back to article
International Council on Human Rights Policy. (2002, February). Beyond Voluntarism: Human Rights and the Developing International Legal Obligations of Companies.
Search in Google Scholar Back to article
Joseph, S. (2004). Corporations and Transnational Human Rights Litigation. Oxford. Hart Publishing.
Search in Google Scholar Back to article
Kinley, D. (2009). Human Rights and Corporation. New York. Ashgate Publishing.
Search in Google Scholar Back to article
Knox, J. H. (2008). Horizontal Human Rights Law. American Journal of International Law, 102.
Search in Google Scholar Back to article
Latorre, L., & Felipe, A. (2020). In Defence of Direct Obligations for Businesses Under International Human Rights Law. Business and Human Rights Journal, 5(1).
Search in Google Scholar Back to article
Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Trasnational Corporations and Other Business Enterprises. (2018, July 16^th). Zero Draft. Available: https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session3/DraftLBI.pdf [rev. 20.02.2022.].
Search in Google Scholar Back to article
Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Trasnational Corporations and Other Business Enterprises. (2019, July 16^th). Revised Draft. Available: https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/OEIGWG_RevisedDraft_LBI.pdf [rev. 20.02.2022.].
Search in Google Scholar Back to article
Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Trasnational Corporations and Other Business Enterprises. (2020, August 6^th). Second Revised Draft. Available: https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session6/OEIGWG_Chair-Rapporteur_second_revised_draft_LBI_on_TNCs_and_OBEs_with_respect_to_Human_Rights.pdf [rev. 20.02.2022.]
Search in Google Scholar Back to article
Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Trasnational Corporations and Other Business Enterprises. (2021, August 17^th). Third Revised Draft. Available: https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session6/LBI3rdDRAFT.pdf [rev.d 20.02.2022.]
Search in Google Scholar Back to article
Lopez, C. (2021). The Third Revised Draft of a Treaty on Business and Human Rights: Modest Steps Forward, But Much of the Same. Available: http://opiniojuris.org/2021/09/03/the-third-revised-draft-of-a-treaty-on-business-and-human-rights-modest-steps-forward-but-much-of-the-same/ [rev. 20.02.2022.]
Search in Google Scholar Back to article
Muchlinski, P. (2021). The Impact of the UN Guiding Principles on Business Attitudes to Observing Human Rights. Business and Human Rights Journal 6 (2).
Search in Google Scholar Back to article
OECD. (2011). OECD Guidelines for Multinational Enterprises. OECD Publishing. Available: http://dx.doi.org/10.1787/9789264115415-en [rev. 20.02.2022.].
Search in Google Scholar Back to article
Ruggie, J. (2015). Get Real, or We'll Get Nothing: Reflections on the First Session of the Intergovernmental Working Group on a Business & Human Rights Treaty. Available: www.hks.harvard.edu/index.php/content/download/77052/1729783/version/1/file/GET+REAL_Ruggie.pdf [rev. 20.02.2022.].
Search in Google Scholar Back to article
Sub-Commission on the Protection and Promotion of Human Rights. (2003). UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. UN Doc. E/CN.4/Sub.2/2003/12/Rev. 2, 26.08.2003.
Search in Google Scholar Back to article

Towards Treaty on Business and Human Rights: Key Areas of Agreement

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