Towards a Legally Binding Instrument on Business and Human Rights

Abstract

This paper examines key options for the negotiation of a new "internationally legally binding instrument on Transnational Corporations (TNCs) and Other Business Enterprises with respect to human rights", in accordance with the terms of resolution 26/9 of the UN Human Rights Council adopted in June 2014. It first recalls the historical background of the debate (Part II). It then reviews four options for the negotiation of such an instrument (Part III). The first option is for the new instrument to define in greater detail the content of the States' duty to protect human rights by regulating transnational corporations. A new instrument could usefully clarify certain implications of this obligation of States concerning extraterritorial obligations, the parent-subsidiary and business (contractual) relationship and the right of victims to have access to justice. The second option is for the new legally binding instrument to take the form of a Framework Convention on Business and Human Rights, imposing on States to adopt national action plans or strategies on business and human rights, and to report on the progress made in this regard. These first two first options essentially aim to strengthen the Guiding Principles on Business and Human Rights endorsed by the Human Rights Council in 2011, by transforming the recommendations they contain into binding legal obligations. In contrast, the third and fourth options appear more ambitious. Yet, they too build on existing precedents in international law. The third option would be to directly address corporate behaviour, beyond what is already achieved in this regard through the Special Procedures of the Human Rights Council (including the Working Group on Business and Human Rights). This could be done by providing that States bound under the new instrument accept that the corporations operating under their jurisdiction can be attributed human rights wrongs where the domestic remedies available to victims have proven insufficient to remedy such harms. It could also be achieved by providing that corporations under the jurisdiction of the State concerned can be prosecuted for serious human rights violations or violations of humanitarian law amounting to international crimes, where national jurisdictions have failed to address such international crimes.Finally, the fourth option is that of a new instrument on business and human rights that would provide for legal mutual assistance between States. One major source of impunity for transnational corporations which commit human rights violations is that the States concerned generally do not lend themselves such assistance, for instance in order to take evidence, to perform searches and seizures, to freeze or to recover assets following a judgment favorable to the victims. An instrument focused on legal mutual assistance would aim to fill this gap. Such an instrument would have a strong added value. It would also seem to have the support of a wide range of States, from the different regional groups. It would present the advantage of being easy to defend on the ground that the transnational nature of the activity of corporations poses specific challenges that this instrument would seek to address.These four options are not necessarily mutually exclusive. Any internationally legally binding instrument in the area of business and human rights could contain elements of each. Part IV of the paper concludes by illustrating which combination of these various items could achieve the best balance between the need to improve the protection of victims, and the need to move towards proposals that are politically achievable.