Recommendations from a European Consultation on the Revised Business and Human Rights Treaty Draft

The British Institute of International and Comparative Law hosted a virtual consultation on 1 July 2020 on the revised draft of the proposed business and human rights treaty. The consultation was held on foot of the call by the Chair-Rapporteur of the Open-ended Intergovernmental Working Group on transnational corporations and other business enterprises to organise “consultations at all levels, including in particular at the regional and national level, with a view to exchanging comments and inputs on the revised draft legally binding instrument”.

There were around 90 participants in the consultation, including academics, civil society representatives and other relevant stakeholders. The event was led by Dr Irene Pietropaoli, and the sessions chaired by Professor Nadia Bernaz and Professor Robert McCorquodale. I was very pleased to be invited to participate and make recommendations concerning Article 6 on legal liability and Article 8 on statutes of limitations.

The recommendations from the consultation have now been forwarded to the OEIGWG and can be viewed here. As can be seen, the recommendations propose numerous additions, clarifications, redrafts, as well as some deletions of the existing text. In relation to Article 6, we proposed some structural and substantive changes, and I suggested that a simplification of the existing text might be in order. A ‘less is more’ might prove more agreeable to States in this particular context. Statutes of limitations, addressed in Article 8, have not been especially prominent in the context of business and human rights to date, so some alternative suggestions were made as to how these could be addressed in the proposed instrument.

More concerned with the actors than the acts

The proposed treaty is in many ways a departure from existing human rights treaties, in that it less concerned with clarifying the content of rights or identifying new groups (although the rights of victims are elaborated in Article 4), but rather in spelling out State obligations in relation to those who may negatively impact, violate or harm human rights – specifically business enterprises, particularly those engaged in transnational activities. This treaty therefore can be said to be more concerned with the actors than the acts. This no doubt presents a challenge for the treaty’s drafters and proponents in breaking new ground while trying to balance the desirable with the feasible.

Is it possible to avoid an overly expansive wish-list that might be rejected by States, but without compromising the core objectives behind the development of the treaty? The third draft of the proposed instrument which is due to be published this month will offer further indications of how such tensions are being managed and the direction treaty is headed.

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