Towards a Business and Human Rights Treaty

Abstract

A new wave of international discussion on an international binding instrument on business and human rights was triggered by the proposal for a business and human rights treaty by some states, originally represented by Ecuador and South Africa. Through its resolution A/HRC/RES/26/9 in June 2014, the Human Rights Council decided to establish “an open-ended intergovernmental working group” to elaborate “an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”. Despite the Council mandate, the debate on a binding approach still continues and the necessity of a business human rights treaty remains controversial. This thesis addresses a three-fold research question on the proposal of a business and human rights treaty: 1) What is the state of play in the ongoing debate of a binding proposal? 2) Is it necessary to elaborate a business and human rights treaty? 3) If one is deemed necessary, how should a business and human rights treaty be formulated? The research question is answered by a combination of methods; including empirical research, literature review and legal analysis. The approach of this thesis is both empirical and legal.In Chapter Two, this thesis takes a close observation of the ongoing debate on the proposal of a binding instrument on business and human rights. In Chapter Three, this thesis conducts a comprehensive examination on the necessity of a business and human rights treaty. It evaluates the necessity of a treaty from four significant issues of international legalization in the field of business and human rights. These issues are: the legal need of a business and human rights treaty in international legal framework, the political as well as legal achievability of a treaty on business and human rights, and the potential implications of elaborating a treaty on business and human rights. In Chapter Four, this thesis provides a constructive proposal on the specific legal formulation of a business and human rights treaty. The proposal discusses four general issues including: the duty-bearers, scope, extraterritoriality and function of a business and human rights treaty. The proposal suggests seven of the core provisions of a business and human rights treaty and provides commentaries for each provision.Firstly, it is shown that while the necessity of a business and human rights treaty is still a core concern in the ongoing debate, potential issues have emerged. Further, it is deemed that it is necessary to elaborate a business and human rights treaty. Finally, it is suggested that a binding instrument on business and human rights should be a framework convention on strengthening the state obligation to protect human rights against abuses by businesses.