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doi: 10.5102/rdi.v15i2.5356 The environmental law dimensions of an
international binding treaty on business and
human rights*
As dimensões do direito ambiental de um
tratado internacional vinculante sobre
empresas e direitos humanos
Juan Gabriel Auz Vaca**
AbstrAct
Multinational Corporations are present in virtually every corner of the
world, generating not only economic growth but foremost human rights
abuses linked to environmental degradation. In view of this, the United
Nations Human Rights Council mandated an intergovernmental working
group to draft a binding instrument on business and human rights, poten-
tially drawing obligations for private commercial entities with a transnational
character. In that context, an analysis of the on-going negotiations will be
conducted to identify and discuss the environmental law dimensions em-
bedded therein. A dialogue between the content of the travaux préparatoires
of the treaty’s drafting process - including the ofcial reports of the three
sessions and other relevant documents - and the evolution of international
corporate environmental accountability, will yield some possible pathways
for environmental protection linked to human rights. Furthermore, special
importance will be given to discussions with respect to the obligations of
corporations and its implications for the protection of the environment.
Some ndings will show that the current state of negotiations falls short in
reecting environmental dimensions from a legal perspective, although the
tools that might be developed in the process could be moulded as to inte-
grate them in forthcoming negotiations.
Keywords: International environmental law. Business and human rights.
Binding treaty. Environmental rights. International human rights law.
resumo
As corporações multinacionais estão presentes em praticamente todos
os cantos do mundo, gerando não só o crescimento econômico, mas prin-
cipalmente os abusos dos direitos humanos ligados à degradação ambiental.
Em vista disso, o Conselho de Direitos Humanos das Nações Unidas deter-
minou que um grupo de trabalho intergovernamental redigisse um instru-
mento vinculante sobre as empresas e os direitos humanos, potencialmente
estabelecendo obrigações para entidades comerciais privadas com caráter
transnacional. Nesse contexto, uma análise das negociações em andamento
* Recebido em 14/06/2018
Aprovado em 09/07/2018
** Juan Auz is an Ecuadorean attorney with
experience in human rights and environmental
issues. He is an Alexander von Humboldt Fel-
low at the Potsdam Institute for Climate Impact
Research. Co-Founder of Terra Mater and legal
advisor of Fundación Pachamama. He received
his LL.B. from Universidad de las Americas in
Quito and LL.M. on Global Environment and
Climate Change Law from the University of
Edinburgh. Email: juangauz@gmail.com
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
152
será conduzida para identicar e discutir as dimensões
do direito ambiental nele incorporado. Um diálogo en-
tre o conteúdo dos travaux préparatoires do processo
de elaboração do tratado - incluindo os relatórios o-
ciais das três sessões e outros documentos relevantes - e
a evolução da responsabilidade ambiental corporativa
internacional, trará alguns caminhos possíveis para a
proteção ambiental ligada aos direitos humanos. Além
disso, especial importância será dada às discussões so-
bre as obrigações das empresas e suas implicações para
a proteção do meio ambiente. Algumas descobertas
mostrarão que o estado atual das negociações é insu-
ciente para reetir as dimensões ambientais do ponto
de vista jurídico, embora as ferramentas que possam
ser desenvolvidas no processo possam ser moldadas de
modo a integrá-las nas próximas negociações.
Palavras-chave: Direito ambiental internacional. Em-
presas e direitos humanos. Tratado vinculante. Direitos
ambientais. Direito internacional dos direitos humanos.
1. IntroductIon
Globalization has contributed to the proliferation
of manifold markets around the world, giving rise to
numerous Multinational Corporations (MNCs),1 whose
operations transcend regulatory frameworks and juris-
dictions of any given state,2 concurrently moulding the
values to which our society adheres.3 MNCs accrued
larger revenues than the gures shown in the top eco-
nomies’ GDPs,4 suggesting an important extent of in-
uence in the design and implementation of internatio-
1 UNITED NATIONS. Commentary on the norms on the responsibili-
ties of transnational corporations and other business enterprises with regard to
human rights. UN Doc E/CN4/Sub2/2003/38/Rev2, 2003., para.
20. For the purposes of this document, the term MNC corresponds
to that of Transnational Corporations (TNCs), generically dened
in the Norms as ‘an economic entity operating in more than one
country or a cluster of economic entities operating in two or more
countries - whatever their legal form’.
2 MCBETH, Adam. Human rights in economic globalisation. In:
JOSEPH, Sarah; MCBETH, Adam (Ed.). Research handbook on inter-
national human rights law. Edward Elgar, 2010. p. 139-141.
3 WETTSTEIN, Florian. Multinational corporations and global justice:
human rights obligations of a quasi-governmental institution. Stan-
ford Business Books, 2009. p. 167.
4 TRIVETT, Vincent et al. 25 US mega corporations: where they
rank if they were countries. Available in: Business Insider at: <http://
www.businessinsider.com/25-corporations-bigger-tan-coun-
tries-2011-6>.
nal norms.5
Moreover, while it is unmistakable that MNCs have
stimulated global economic growth, the negative im-
pacts on human rights and the environment generated
directly or indirectly by them should not be overlooked,
especially in a context where their operations are being
outsourced to developing countries, giving rise to a
‘disproportionate impact of lawful pollution’ linked
to their ‘operational policies, decisions, practices and
production activities’,6 being carried out in practically
de-regularized jurisdictions. A quotidian dramatic reali-
ty particularly for local communities highly dependent
upon natural resources.7
Corporate Social Responsibility (CSR), a concept
coined in the 50s, intends to contribute to the ‘well-
-being and progress of individuals and society’8. Howe-
ver, it has not fully embraced a human rights perspec-
tive.9 This has led human rights victims to nd ways
to hold MNCs liable in host10 countries’ jurisdictions;
disentangling sophisticated contracts between pa-
rent companies with multiple suppliers in de-localized
jurisdictions,11 and attempting to lift corporate veils12
to prevent impunity of MNCs domiciled in their home
countries.
These legal challenges are the consequence of a va-
cuum in international law, mainly due to few eviden-
5 WETTSTEIN, Florian. Multinational corporations and global justice:
human rights obligations of a quasi-governmental institution. Stan-
ford Business Books, 2009. p.168.
6 SCHWARTZ, Priscilla. Corporate activities and environmental
justice: perspectives on Sierra Leone’s mining. In: EBBESSON, Jo-
nas; OKOWA, Phoebe (Ed.). Environmental law and justice in context.
Cambridge University Press, 2009. p. 432.
7 K. ANTON, Donald; SHELTON, Dinah. Environmental protec-
tion and human rights. Cambridge University Press, 2011. p. 132.
8 RAMASASTRY, Anita. Corporate social responsibility versus
business and human rights: bridging the gap between responsibility
and accountability. Journal of Human Rights, v. 14, n. 2, p. 237-259,
jun. 2015.
9 RAMASASTRY, Anita. Corporate social responsibility versus
business and human rights: bridging the gap between responsibility
and accountability. Journal of Human Rights, v. 14, n. 2, p. 237-259,
jun. 2015.
10 All along this text, ‘home country’ will be dened as the ter-
ritory or jurisdiction where the parent company is registered or
incorporated, whereas ‘host country’ is where the company, or a
subsidiary, operates outside the jurisdiction or territory of its home
country.
11 MORGERA, Elisa. Multinational corporations and interna-
tional environmental law. In: ALAM, Shawkat et al. (Ed.). Routledge
handbook of international environmental law. Routledge, 2015. p. 190.
12 MORGERA, Elisa. Corporate accountability in international environ-
mental law. United Kingdom: Oxford University Press, 2009. p. 28.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
153
ce of ‘direct liability of corporations when [breaching]
obligations with regard to human rights’13 or internatio-
nal environmental law (IEL),14 ratifying that said duties
are consigned exclusively upon states.
In view of this, the rst attempt to regulate MNCs
through international legislation in a universal and more
stringent fashion was rst initiated in the 70s by the
United Nations Economic and Social Council, which
created a UN Commission on Transnational Corpora-
tions in order to draft a Code of Conduct for Transna-
tional Corporations (UNCCTC);15 an attempt that was
stalled by negotiations collapse in 1992,16 partially due
to the widespread perception that the paradigm sur-
rounding regulation might encumbering businesses’ de-
velopment. Subsequently, ‘partnership approaches’ and
soft-law guidelines17 gave rise to some voluntary initiati-
ves endorsed by intergovernmental organizations, such
as the UN Global Compact (GC) in 2000, an initiative
still in progress aiming to implement ten universal sus-
tainability principles that derive from main international
human rights instruments, with more than 10,000 com-
panies as participants.18
In 1997, the UN Sub-Commission on the Promo-
tion and Protection of Human Rights prepared the
‘Norms on the Responsibilities of Transnational Cor-
porations and Other Business Enterprises with Regard
to Human Rights’ (the Norms),19 an initiative focused in
human rights and environmental direct responsibilities
13 KHAN, Wasima. Corporate power and the protection of hu-
man rights in equilibrium. Security and Human Rights, v. 24, n. 1, p.
29-42, 2013.
14 BIRNIE, Patricia; BOYLE, Alan; REDGWELL, Catherine.
International law and the environment. 3. ed. United Kingdom: Oxford
University Press, 2009. p. 328.
15 BUHMANN, Karin. The development of the “UN frame-
work”: a pragmatic process towards a pragmatic output. In: MARES,
Radu (Ed.). The UN guiding principles on business and human rights: foun-
dations and implementation. Martinus Nijhoff, 2012. p. 87.
16 MORGERA, Elisa. Multinational corporations and interna-
tional environmental law. In: ALAM, Shawkat et al. (Ed.). Routledge
handbook of international environmental law. Routledge, 2015. p. 193.
17 MORGERA, Elisa. The UN and corporate environmental re-
sponsibility: between international regulation and partnerships. Re-
view of European Community and International Environmental Law, v. 15,
n. 1, p. 93-109, 2006.
18 WEISSBRODT, David. Human rights standards concerning
transnational corporations and other business entities. Minnesota
Journal of International Law, v. 23, n. 2, p. 135-171, 2014.
19 LÓPEZ, Carlos. The “ruggie process”: from legal obligations
to corporate social responsibility? In: DEVA, Surya; BILCHITZ,
David (Ed.). Human rights obligations of business. Cambridge University
Press, 2013. p. 62.
for companies, differing in that aspect with the GC.20
However, its anti-hortatory content subtracted political
recognition,21 leading to a decline of endorsement by
the former UN Commission on Human Rights (UN-
CHR) in 2003.22
In order to overcome past political stalemates, in
2005 the UNCHR requested the Secretary-General to
appoint a special representative on the issue of hu-
man rights and transnational corporations and other
business enterprises (SRSG) to submit recommenda-
tions and clarications on the issue.23 Professor John
Ruggie assumed this position, who later developed the
UN Framework on Business and Human Rights (UN-
FBHR) in 200824 and operationalized it through a set
of ‘Guiding Principles’ on business and human rights
(UNGP) in 2011.25 Both initiatives were endorsed una-
nimously by the Human Rights Council (HRC)26 and
rest upon three pillars: ‘Protect, Respect and Remedy’
human rights.27
Despite a diverse range of opinions, it could be said
that today, the UNGP and the OECD Guidelines for
Multinational Enterprises,28 are the most prominent
soft-law instruments that bring corporations and go-
vernments together to respect human rights,29 howe-
20 WEISSBRODT, David. Human rights standards concerning
transnational corporations and other business entities. Minnesota
Journal of International Law, v. 23, n. 2, p. 135-171, 2014.
21 MORGERA, Elisa. Multinational corporations and interna-
tional environmental law. In: ALAM, Shawkat et al. (Ed.). Routledge
handbook of international environmental law. Routledge, 2015. p. 201.
22 LÓPEZ, Carlos. The “ruggie process”: from legal obligations
to corporate social responsibility? In: DEVA, Surya; BILCHITZ,
David (Ed.). Human rights obligations of business. Cambridge University
Press, 2013. p. 62.
23 UN OFFICE OF THE HIGH COMMISSIONER FOR HU-
MAN RIGHTS. Human rights and transnational corporations and other
business enterprises. E/CN.4/RES/2005/69, para. 1, 2005.
24 RUGGIE, John. Protect, respect and remedy: a framework for
business and human rights: report of the special representative of
the secretary-general on the issue of human rights and transnational
corporations and other business enterprises, A/HRC/8/5, 2008.
25 RUGGIE, John. Guiding principles on business and human rights:
implementing the United Nations “protect, respect and remedy”
Framework. A/HRC/17/31, 2011.
26 UNITED NATIONS HUMAN RIGHTS COUNCIL. Hu-
man rights and transnational corporations and other business enter prises. A/
HRC/RES/17/4, para. 1, 2011.
27 RUGGIE, John. Just business: multinational corporations and
human rights. W. W Norton & Company, 2013. p. 6.
28 ORGANISATION FOR ECONOMIC CO-OPERATION
AND DEVELOPMENT. OECD guidelines for multinational enterprises,
2011.
29 RUGGIE, John. Just business: multinational corporations and
human rights. W. W Norton & Company, 2013. p. 84.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
154
ver, since their adoption and further implementation,
several governments and NGOs have been pushing the
HRC’s agenda30 in order to resit discussions on a legally
binding business and human rights treaty (BHRT).
This led to a resolution on 26 June 2014 to esta-
blish an open-ended intergovernmental working group
(OEIGWG) to elaborate a BHRT,31 which had its rst
round of negotiations in 2015, and two yearly consecu-
tive sessions in 2016 and 2017, providing a new forum
where countries could raise concerns about the inclu-
sion of environmental issues therein.32
This process could entail multiple outcomes, such as
contributing at ‘redressing gaps and imbalances in the
international legal order that undermine […] victims of
corporate human right abuses’,33 or on the contrary, it
could be an attempt to repeat history by emulating the
unsuccessful destiny of the Norms or the UNCCTC.
Moreover, the environmental dimensions within
the discussions of an instrument that might regulate
the behaviour of businesses certainly will be taken into
consideration, as humanity is facing multi-faceted chal-
lenges where ecological considerations are ubiquitous in
the Anthropocene epoch,34 which could be explain why
in nearly a third of cases involving corporations around
the world, alleged environmental harms had correspon-
ding impacts on human rights.35
Despite the inextricably link between environmental
harm and human rights violations, law has not entirely
30 RUGGIE, John. The past as prologue?: a moment of truth for
UN business and human rights treaty. Available in: <https://www.
hks.harvard.edu/m-rcbg/CSRI/Treaty_Final.pdf>.
31 LAGOUTTE, Stéphanie. New challenges facing states with-
in the eld of human rights and business. Nordic Journal of Human
Rights, v. 33, n. 2, p. 158-180, 2015.
32 MOHAMADIEH, Kinda; URIBE, Daniel. Business and hu-
man rights: commencing discussions on a legally binding instrument.
South Centre Bulletin. Available in: <http://www.southcentre.int/
wp-content/uploads/2015/11/SB87-88_EN.pdf>.
33 UNITED NATIONS HUMAN RIGHTS COUNCIL. Re-
port on the rst session of the open-ended intergovernmental working group on
transnational corporations and other business enter prises with respect to human
rights, with the mandate of elaborating an international legally binding instru-
ment. A/HRC/31/50, 2016. para. 4.
34 STEFFEN, Will; CRUTZEN, Paul; MCNEILL, John. The
anthropocene: are humans now overwhelming the great forces of
nature? Ambio, v. 36, n. 8, p. 614-621, 2007.
35 RUGGIE, John. Report of the special representative of the secretary-
general on the issue of human rights and transnational corporations and other
business enterprises. Addendum: corporations and human rights: a sur-
vey of the scope and patterns of alleged corporate-related human
rights abuse. A/HRC/8/5/Add.2, 2008. para. 7.
echoed its importance nor made a substantial effort to
understand its underpinnings, since in ‘general acade-
mic treatments of human rights law, […] there is almost
no debate on the relationship between human rights
and the environment’,36 nor an important exploration
of ‘the usefulness of [IEL] in addressing human rights-
-related concerns about corporate conduct’.37 This
spurs a problematic scenario, given that ‘unlike the eld
of human rights, where most violations are committed
by state agents, environmental harm largely stems from
actions of the private sector’38 in general, and MNCs in
particular.39
Overall, the objective of this writing is to examine
the environmental dimensions subtly entrenched within
the prospective BHRT, currently being developed un-
der the auspices of the HRC. Firstly, a brief contextual
introduction on the practical and theoretical inter linka-
ges between international human rights law (IHRL) and
IEL in the context of corporate accountability will be
explored. Secondly, the shortcomings and opportunities
of past initiatives aimed at rendering MNCs accounta-
ble – emphasizing on UN initiatives, will be examined.
Thirdly, some light will be shed on different issues in-
volving the protection of the environment embedded in
the negotiations of the BHRT. By comparing the evolu-
tion of the discussions around corporate accountability
undertaken in the past and simultaneously relying on
IEL instruments, possible pathways for environmental
protection linked to human rights will be spelled out.
Furthermore, special importance will be given to dis-
cussions with respect to duties directly assumed by cor-
porations and its implications for the protection of the
environment.
36 BOYLE, Alan. Human rights and the environment: where
next?. European Journal of International Law, v. 23, n. 3, p. 613-642,
2012.
37 MORGERA, Elisa. Benet-sharing as a bridge between the
environmental and human rights accountability of multinational
corporations. In: Ben Boer (Ed.). Environmental law dimensions of hu-
man rights. United Kingdom: Oxford University Press, 2015. p. 45.
38 K. ANTON, Donald; SHELTON, Dinah. Environmental protec-
tion and human rights. Cambridge University Press, 2011. p. 131.
39 NOLLKAEMPER, André. Responsibility of transnational
corporations in international environmental law: three perspectives.
In: WINTER, Gerd (Ed.). Multilevel governance of global environmental
change. United Kingdom: Cambridge University Press, 2006. p. 180.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
155
2. HumAn rIgHts, tHe envIronment And
InternAtIonAl lAw In tHe context of
corporAte AccountAbIlIty
Principle 1 of the Rio Declaration placed human
species at the centre of concerns for sustainable develo-
pment 40, giving rise to the concept of having a healthy
life in harmony with nature;41 as a result, a convergence
of three dimensions emerged: human rights, environ-
mental protection and sustainable development. This
conjunction is reected in several international instru-
ments designed by the interplay of socio-economic dy-
namics and diplomatic efforts, under the overarching
paradigm of globalization,42 where tensions between
economic interests – predominantly identied with
MNCs – and environmental protection are prevalent.43
With that said, this chapter will attempt to briey
explore the interactions of corporations with interna-
tional law related to both: human rights and the envi-
ronment.
2.1. MNCs under international law: an overview
A ‘corporation’ may be dened as a legal ctional
abstraction, separated from the personality of its cons-
tituents and shareholders, of ‘limited liability and licen-
sed by the state for the purpose of conducting prot-
-seeking business activity’.44 Contrariwise, behind the
denition of a MNC lies an intrinsic elusive character,
indicating its highly mutable nature. Although, irres-
pective of this fact, MNCs do share several common
features, like their presence in more than one country
through coordinated subsidiaries motivated by prot
40 FRANCIONE, Francesco. Principle 1: human beings and the
environment. In: VIÑUALES, Jorge (Ed.). The Rio declaration on
environment and development: a commentary. United Kingdom:
Oxford University Press, 2015. p. 94.
41 UNITED NATIONS. Conventions and agreements interna-
tional developments. Commonwealth Law Bulletin, v.19, n. 1, p. 247-
316, 1993.
42 BOYLE, Alan; CHINKIN, Christine. The making of interna-
tional law. United Kingdom: Oxford University Press, 2007. p. 21.
43 DUPUY, Pierre-Marie. International environmental law:
looking at the past to shape the future. In: DUPUY, Pierre-Marie;
VIÑUALES, Jorge (Ed.). Harnessing foreign investment to promote environ-
mental protection: incentives and safeguards. United Kingdom: Cam-
bridge University Press, 2013. p. 19.
44 KRAVIAS, Markos. Corporate obligations under international law.
United Kingdom: Oxford University Press, 2013. p. 4.
earning.45 Part of their diversity lies on their size and
‘multinational spread’;46 paving their way through unres-
tricted markets, and sometimes attracted by new fron-
tiers with less regulated jurisdictions.47
Considering that MNCs are fundamental global
actors, capable of prominently inuencing internatio-
nal law due to their transnational powers – subduing
even the role of several nations, discussions on whether
MNCs are subjects or objects, or have rights and du-
ties under international law, have not been exhausted;
mainly because the state, as the exclusive duty-bearer, is
a paradigm posited as inadequate under current socio-
-economic contexts.48
MNCs outsource their operations onto developing
countries – where most of the times standards are less
stringent, yielding prot not only from the low costs
that those operations involve, but also from the guaran-
tees provided by Bilateral Investment Treaties (BITs),
which in some cases consider human rights and the en-
vironmental domestic law as a risk for foreign invest-
ments.49
International law has not been able to provide ho-
mogenous denitions and categories linked to corpora-
tions’ nature, a lacuna cautiously addressed by the ICJ
in the Barcelona Traction case, stating that municipal law
should supplement any absence of denition in inter-
national law50.
However, municipal law cannot decide if MNCs
have personhood or not under international law. For
instance, if corporations become new subjects of inter-
national law, they would freely amend bilateral treaties,
45 MORGERA, Elisa. Corporate accountability in international environ-
mental law. United Kingdom: Oxford University Press, 2009. p. 59.
46 SHAW, Malcolm. International law. 6. ed. United Kingdom:
Cambridge University Press, 2008. p. 250.
47 SADELEER Nicolas de. Environmental justice and interna-
tional trade law. In: EBBESSON, Jonas; OKOWA, Phoebe (Ed.).
Environmental law and justice in context. United Kingdom: Cambridge
University Press, 2009. p. 448.
48 ZAHARAI, Constantin et al. Transnational corporations, in-
ternational law and human rights. Economics, Management & Financial
Markets, v. 6, n. 4, p. 138-143, 2011.
49 MACLEAY, Fiona. Corporate codes of conduct and the hu-
man rights accountability of transnational corporations: a small
piece of a larger puzzle. In: SCHUTTER, Olivier De (Ed.). Transna-
tional corporations and human rights. Hart Pub, 2006. p. 220.
50 INTERNATIONAL COURT OF JUSTICE. International
Court of Justice Reports of Judgments, Advisory Opinions and Or-
ders. Barcelona traction, light and power company, limited, judgment Belgium
v Spain, 1970. p. 3.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
156
a task classically restricted to interstate relations,51 but
also home states would no longer ‘retain the right to
waive the right of their investors to le a claim’.52
Hence, handing over personhood to corporations –
an scenario not yet crystallized under international law,53
might ‘threaten to remove the element of state control
from such important questions and may threaten the
credibility of international law itself’,54 thus potentially
broadening historic power imbalances.
For the time being, corporations’ identity under in-
ternational law is not carved in stone; and while they
can be referred as key ‘participants’ in the continuous
international law-making process, or dened as subjects
in the sense of its locus standi before specic interna-
tional tribunals,55 the need for improving the design of
corporate accountability measures should not be res-
trained by this on-going debate.
Unquestionably, corporations are subjects of law
under domestic law, and some treaties ratied by their
home states may bestow them human rights,56 or other
category of rights embedded in thousands of BITs,57
conferring them a ‘fair treatment, contract enforcement,
protection against expropriation, and compensation for
violations of their rights’.58
Moreover, the idea of corporate duties or obliga-
tions under IHRL which would allow to render MNCs
directly liable, contradicts the classic doctrine where sta-
tes are the legitimate bearers of said obligation, and not
51 ALVAREZ, Jose. Are corporations “subjects” of international
law? Santa Clara Journal of International Law, v. 9, n. 1, 2011.
52 ALVAREZ, Jose. Are corporations “subjects” of international
law? Santa Clara Journal of International Law, v. 9, n. 1, 2011.
53 SHAW, Malcolm. International law. 6. ed. United Kingdom:
Cambridge University Press, 2008. p. 250.
54 ALVAREZ, Jose. Are corporations “subjects” of international
law? Santa Clara Journal of International Law, v. 9, n. 1, p. 25, 2011.
55 MUCHLINSKI, Peter. Corporations in international law. In:
WOLFRUM, Rudiger (Ed.). Max Planck encyclopaedia of public interna-
tional law. United Kingdom: Oxford University Press, 2014. para. 7.
56 SCHRÖDER, Meinhard. Precautionary approach/principle.
In: WOLFRUM, Rudiger (Ed.). Max Planck encyclopaedia of public in-
ternational law. United Kingdom: Oxford University Press, 2014.
57 UNITED NATIONS CONFERENCE ON TRADE AND
DEVELOPMENT. Global value chains: investment and trade for develop-
ment. 2013. p. 101. In 2013, around 339 International Investment
Agreements and 2857 BITs were concluded.
58 STEPHENS, Beth. Are corporations people?: corporate per-
sonhood under the constitution and international law: an Essay in
honor of professor Roger S. Clark. Rutgers Law Journal, v. 44, n. 1,
p. 1-31, 2013.
private entities.59 This notion is currently widely sup-
ported by the international human rights legal corpus,60
and partly by literature.61
A similar phenomenon is reected in IEL, where pri-
vate actors do not have direct duties;62 and while some
liability regimes regarding pollution do take note of di-
rect liability on private actors,63 its application is only
effective via the will of contracting states,64 resorting
the matter in national jurisdictions. Therefore, currently
there are not international environmental norms65 nor
customary international law66 directly binding upon pri-
vate companies in general and MNCs in particular.
Overall, international law is currently not well-equi-
pped to hold MNCs liable in a direct manner, and even
if these entities could be deemed as subjects of inter-
national law under certain circumstances, its uid per-
sonality allows them to circumvent obligations under
international law. However, given that the legal archi-
tecture of the corporation is similar to that of recogni-
59 NOLAN, Justine. The corporate responsibility to respect hu-
man rights: soft law or not law? In: DEVA, Surya; BILCHITZ, Da-
vid (Ed.). Human rights obligations of business. United Kingdom: Cam-
bridge University Press, 2013. p. 146.
60 KATUOKA, Saulius; DAILIDAITE, Monika. Responsibil-
ity of transnational corporations for human rights violations: de-
ciencies of international legal background and solutions offered by
national and regional legal tools. Jurisprudencija, v. 19, n. 4, p. 1301-
1316, 2012.
61 SCHRÖDER, Meinhard. Precautionary approach/principle.
In: WOLFRUM, Rudiger (Ed.). Max Planck encyclopaedia of public in-
ternational law. United Kingdom: Oxford University Press, 2014. p.
30.
62 MALJEAN-DUBOIS, Sandrine; RICHARD, Vanessa. The
applicability of international environmental law to private enterpris-
es. In: DUPUY, Pierre-Marie; VIÑUALES, Jorge (Ed.). Harnessing
foreign investment to promote environmental protection. United Kingdom:
Cambridge University Press, 2013. p. 94.
63 INTERNATIONAL MARITIME ORGANIZATION. Inter-
national convention on civil liability for oil pollution damage. The
American Journal of International Law, v. 64, n. 2, p. 481, 1970; IN-
TERNATIONAL MARITIME ORGANIZATION. International
convention on the establishment of an international fund for com-
pensation for oil pollution damage: 1971. Environmental Policy and
Law, v. 13, n. 2, p. 61-65, 1984. p. 61-65; COUNCIL OF EUROPE.
Convention on civil liability for damage resulting from activities
dangerous to the environment. International Legal Materials, v. 32, n.
5, p. 1228-1246, 1993.
64 JONGE, Alice de. Transnational corporations and international law:
accountability in the global business environment. Edward Elgar
Pub, 2011. p. 146.
65 MORGERA, Elisa. Corporate accountability in international environ-
mental law. United Kingdom: Oxford University Press, 2009. p. 72.
66 BIRNIE, Patricia; BOYLE, Alan; REDGWELL, Catherine.
International law and the environment. 3. ed. United Kingdom: Oxford
University Press, 2009. p. 326.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
157
zed subjects of international law, such as states, in the
sense that they both share the status of juristic person,
establishing international legal obligations upon them,
should not be considered as an impossible conceptual
legal challenge.67
Thus, it could be said that the state-centred para-
digm of international law has widened a legal chasm
that a new binding treaty might be looking to sew up
in tandem with soft-law initiatives, where direct obliga-
tions for companies could be outlined.
2.2. Human rights violations in relation to
environmental degradation: Corporations
under the spotlight
In 2010, global Foreign Direct Investment (FDI) ex-
ceeded $21,288.5 billion, and the number of MNCs was
estimated at over 100,000.68 Furthermore, the share of
global FDI from MNCs registered in emerging markets
has grown from 10 per cent in 2000 to 40 per cent in
2013,69 denoting a likely impact in new frontiers where
the pressure on the extraction of natural resources has
not yet been consolidated, hence, not only increasing
the chances of FDI opportunities, but most importan-
tly, heightening the risks of human rights violations.70
Thus, the traditional narrative of western MNCs in-
volved in breaches of human rights and environmental
regulations in developing host states is now shifting to
include local companies registered in those very same
developing countries with inchoate institutions and
an incipient rule of law – like MNCs originated from
BRICS.71
67 KRAVIAS, Markos. Corporate obligations under international law.
United Kingdom: Oxford University Press, 2013. p. 7.
68 JAWOREK, Małgorzata; KUZEL, Marcin. Transnational
corporations in the world economy: formation, development and
present position. Copernican Journal of Finance & Accounting, v. 4, n.
1, p. 55-77, 2015.
69 CHEN, Victor; JOHNSON, Lise. Emerging market MNEs
and social responsibility: an institutional pressure perspective. Trans-
national Corporations, v. 22, n. 3, p. 1-4, 2013.
70 COTULA, Lorenzo. Property in a shrinking planet: fault lines
in international human rights and investment law. International Journal
of Law in Context, v. 11, n. 2, p. 113-134, 2015.
71 HOBBES, Michael. The untouchables. Foreign Policy, 2016.
Available in: <https://foreignpolicy.com/2016/04/11/the-un-
touchables-zimbabwe-green-fuel-multinational-corporations/>.;
GRADL, Christina et al. Fast growth and big impacts: how emerg-
ing market multinationals are advancing sustainable development.
Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ), 2011. p. 11.
Although several MNCs from emerging market countries have dem-
Either way, regardless of jurisdiction, a breach of
law by a private actor, amounting to human rights and
environmental malfeasance, is usually generated by the
tension between the right to pursue an economic en-
deavour on the one hand, and the rights of the people
affected by those endeavours on the other.72 This con-
ict of values can theoretically explain the interplay be-
tween human rights and the environment in its various
forms,73 and also be illustrated in several renowned ca-
ses around the world.
The harm on human rights and the environment
caused by MNCs is often determined by the negligence
of the parent company’s supplier or a franchise thereof
at some stage of the supply chain, normally operating in
a developing country that seeks to attract FDI through
lax environmental regulations, weak labour conditions,
an ineffective judiciary system and an unstructured rule
of law.74
Bhopal disaster in India, generated by the MNC
Union Carbide, resulted in a death toll of 2.100 peo-
ple and 200.000 people injured, let alone livestock and
agricultural loss.75 In this case, even if plaintiffs sou-
ght recourse in the US – the jurisdiction of the parent
company, the case was dismissed.76 Moreover, cases like
Bhopal are just a symptom of a pervasive phenome-
non, underlining that the vast majority of victims are
poor communities, highly vulnerable to the practices of
MNCs and their suppliers.77
onstrated good examples of positive impacts on local populations,
indicating that corporate behaviour is not monolithic.
72 AFFOLDER, Natasha. Square pegs and round holes?. In:
BOER, Ben (Ed.). Environmental law dimensions of human rights. United
Kingdom: Oxford University Press, 2015. p. 35.
73 BIRNIE, Patricia; BOYLE, Alan; REDGWELL, Catherine.
International law and the environment. 3. ed. United Kingdom: Oxford
University Press, 2009. p. 271. Three perspectives on environmen-
tal rights are developed: rst, procedural human rights can serve
environmental related purposes; the self-standing right to a healthy
environment as an economic, social and cultural right; and a collec-
tive right to the environment.
74 BAUMANN-PAULY, Dorothée; POSNER, Michael. Making
the business case for human rights: an assessment. In: BAUMANN-
PAULY, Dorothée; NOLAN, Justine (Ed.). Business and human rights:
from principles to practice, Routledge, 2016. p. 12.
75 UNITED STATES OF AMERICA. United States District
Court for the Southern District of New York. In: Re union carbide
corp gas plant disaster at bhopal. 634 f., supp. 842, 2, 1986.
76 UNITED STATES OF AMERICA. United States District
Court for the Southern District of New York. In: Re union carbide
corp gas plant disaster at bhopal. 634 f., supp. 842, 2, 1986.
77 RUGGIE, John. Report of the special representative of the secretary-
general on the issue of human rights and transnational corporations and other
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
158
In addition, emblematic cases around the world,
which share analogous factual features as Bhopal,78 may
entail additional intricacies that reveal the complexity
of the problem: from the violation of environmental
defenders’ right in the context of MNCs’ operations in
collusion with state actors,79 to the potential transboun-
dary human rights violations80 linked to CO2 emissions
from MNCs of fossil fuel industries.81
Clearly, nding a coherent convergence between
IHRL and IEL to tackle corporations’ misconducts is
not a facile task, especially considering that the connec-
tions between human rights and the environment via
IHRL instruments has been surprisingly recent. The
evidence is that seminal human rights treaties, such as
the UDHR and the two core human rights covenants82
business enterprises. Addendum: corporations and human rights: a sur-
vey of the scope and patterns of alleged corporate-related human
rights abuse. A/HRC/8/5/Add.2, 2008. para. 67.
78 UNITED STATES OF AMERICA. United States District
Court for the Northern District of California. Bowoto v Chevron
Corp. ND Cal 481 f., supp. 2d, 1010, 2007.; UNITED STATES
OF AMERICA. United States District Court for the Central dis-
trict of California. Doe v Unocal Cor p. CD California 963 f., supp.
880, 1997.; UNITED STATES OF AMERICA. United States Dis-
trict Court for the Southern District of New York. Flores v Southern
Peru Copper. 253 f., supp. 2d, 510, 2002.; UNITED STATES OF
AMERICA. United States Supreme Court. Kiobel et al v Royal Dutch
Petroleum Co et al. n. 10-1491, 2013.; UNITED KINGDOM. House
of Lords. Lubbe v Cape PLC. UKHL 41, 2000.; UNITED STATES
OF AMERICA. United States District Court for the Southern Dis-
trict of New York. Aguinda v Texaco, Inc. 142 f., supp. 2d, 534, 2001.;
AUSTRALIA. Supreme Court of Victoria at Melbourne. Gagarima-
bu v Broken Hill proprietary co Ltd, VSC 517, 2001.; CANADA. British
Columbia Supreme Court. Garcia v Tahoe resources inc. BCSC 2045,
2015.; CANADA. Québec Canadian Court of Appeal. Bil’in village
council v Park. QCCA 2470, 2008.
79 FORST, Michel. Situation of human rights defenders: report of
the special rapporteur on the situation of human rights defenders.
A/70/217, 2015.
80 KNOX, John. Report of the special rapporteur on the issue of human
rights obligations relating to the enjoyment of a safe, clean, healthy and sustaina-
ble environment. A/HRC/31/52, 2016. para. 9; UNITED NATIONS
HUMAN RIGHTS COUNCIL. Elaboration of an international legally
binding instrument on transnational corporations and other business enter prises
with respect to human rights. UN. Doc. A/HRC/RES/26/9, 2014.; OF-
FICE OF THE UNITED NATIONS HIGH COMMISSIONER
FOR HUMAN RIGHTS. Report of the Ofce of the United Na-
tions High Commissioner for Human Rights on the Relationship
between Climate Change and Human Rights. Annual Report A/
HRC/10/61, 2009, para. 78. It is noteworthy to clarify that such
contributions do not constitute a violation of rights in strict rigour.
81 INTERGOVERNMENTAL PANEL ON CLIMATE
CHANGE (Ed.). Climate Change 2014: synthesis report, 2015. p. 5.
Fossil fuel industry contributed with nearly 78% of the total level of
emissions between 1970 and 2010.
82 UNITED NATIONS. Ofcial documents United Nations
human rights covenants: international covenant on economic, so-
do not mention a self-standing right to a healthy envi-
ronment, narrowing the environmental protection as a
‘green’ extension of the rights already recognized the-
rein, 83 even though the right to a healthy environment
is already present in regional treaties around the world,84
and in more than 100 countries’ constitutions.85
The fact is that ‘greening’ human rights has been
successful in connecting environmental degradation
and impairments of substantive (right to life, health,
housing, access to water and private family life), and
procedural rights (access to justice, public participation,
transparency and access to information),86 including
collective rights of indigenous peoples such as the right
to a free, prior and informed consent (FPIC).87 This is
evinced by UN human rights treaty bodies,88 the HRC,89
and even regional human rights bodies, who have es-
tablished the prominence of environmental considera-
tions as essential conditions to the full realization of
human rights. 90
cial and cultural rights, international covenant on civil and political
rights, optional protocol to the international covenant on civil and
political Rrights. American Journal of International Law, v. 61, n. 3, p.
861-890, 1967.
83 KNOX, John. Greening human rights. OpenDemocracy, 14 Jul
2015. Available in: <https://www.opendemocracy.net/openglobal-
rights/john-knox/greening-human-rights>.
84 ORGANIZATION OF AFRICAN UNITY. African charter on
human and peoples’ rights. OAU Doc. CAB/LEG/67/3 rev, 1981. art.
24; ORGANISATION OF AMERICAN STATES. Additional proto-
col to the american convention on human rights in the area of economic, social
and cultural rights, 1988. art. 11; LEAGUE OF ARAB STATES. Arab
charter on human rights, 2004. art. 38; ASSOCIATION OF SOUTH-
EAST ASIAN NATIONS, ASEAN Human Rights Declaration, 2012,
art.28(f); UNITED NATIONS ECONOMIC COMMISSION
FOR LATIN AMERICA AND THE CARIBBEAN. Regional agree-
ment on access to information, participation and justice in environmental matters
in Latin America and the Caribbean. 2018.
85 BOYD, David. Constitutional right to a healthy environment,
the feature: environmental causes and the Law. Law Now, v. 37, n. 4,
p. 9-13, 2012.
86 KNOX, John. Report of the independent expert on the issue of human
rights obligations relating to the enjoyment of a safe, clean, healthy and sustain-
able environment, compilation of good practices. UN Doc. A/HRC/28/61,
2015. para. 25.
87 MORGERA, Elisa. Corporate accountability in international environ-
mental law. United Kingdom: Oxford University Press, 2009. p. 142.
88 UNITED NATIONS. Review of the composition, organization and
administrative arrangements of the sessional working group on the implemen-
tation of the international covenant on economic, social and cultural rights.
E/1982/L.35/Rev.1, 1985.
89 UNITED NATIONS HUMAN RIGHTS COUNCIL. Hu-
man rights and the environment. UN Doc. A/HRC/RES/25/21, 2014.
90 ORELLANA, Marcos; KOTHARI, Miloon; CHAUDHRY,
Shivani. Climate change in the work of the committee on economic, social and
cultural rights. Geneva: Friedrich Ebert Stiftung, 2010. p. 20.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
159
Therefore, dialogic interactions between IEL
and IHRL have had both their drawbacks91 and
opportunities;92 however, it must be noted that both
‘regimes’ formally converge into the state-centred pa-
radigm as obligations to respect, protect and full hu-
man rights and the environment are borne by the state,
despite the fact that both conceive – predominantly in
academic literature – non-state actors in general and bu-
siness enterprises in particular, as fundamental elements
for understanding the reasons behind environmental
degradation and human rights violations. Which begs
the burning question of the necessity, if any, of the
paradigm’s formal contestation under international law.
Perhaps, acknowledging the commonalities linked to
modulating the freedom of action of subjects based on
elements of power exertion, amounting to social and
ecological distortions, might contribute to reshape the
so-called ‘fragmentation of international law’, namely
the ‘loss of an overall perspective on the law’.93
After all, IHRL and IEL are regimes that appeal to
alleged universal values or ‘global concerns’ upon whi-
ch humanity is besought to respond. Thus, harnessing
their ‘hegemonic structure’ vis-à-vis correcting power
imbalances struck by MNCs through international le-
gal obligations, might be an opportunity to solve a legal
impasse by way of interaction and integration,94 which
may be crystallized in a new BHRT.
91 DONALD, Kate. Human rights practice: a means to environ-
mental ends? Oñati Journal of Emergent Socio-Legal Studies, v. 3, n. 5, p.
908-930, 2013. It is argued that human rights fall short in contribut-
ing to the extensive development of environmental law compliance
mechanisms; in addition, human rights focus more on the remedy
rather than preventive measures, as environmental law does.
92 KNOX, John. Human rights, environmental protection, and
the sustainable development goals. Washington International Law Jour-
nal, v. 24, n. 4, p. 517-536, 2015. p. 517. He argues that human rights
law provides effective procedural obligations for states, more ele-
ments to balance diverse societal interests and more protection to
vulnerable groups from environmental harms.
93 UNITED NATIONS INTERNATIONAL LAW COMMIS-
SION. Fragmentation of international law: difculties arising from the
diversication and expansion of international law. Erik Castrén In-
stitute of International Law and Human Rights, 2007. para. 8.
94 KOSKENNIEMI, Martti. Hegemonic regimes. In: YOUNG,
Margaret (Ed.). Regime interaction in international law. United Kingdom:
Cambridge University Press, 2011. p. 324.
3. some strAtegIes for corporAte
AccountAbIlIty
3.1. Civil, criminal and human rights law
versus MNCs: eective tools for environmental
protection?
Whenever a human right abuse linked to an environ-
mental harm occurs between a private actor (a MNC)
against another private actor (a victim or group of
victims), the forum on which the case will be resolved
depends on the jurisdictional rules of a specic legal
system.95 This stems the possibility that proceedings can
be led either in a host or a home country.96
This apparent simplicity is superseded by the convo-
luted issue of ‘fragmentation of jurisdiction’, which is
intimately linked to the nature of holding accountable
a MNC. For instance, the headquarters, the legal incor-
poration, the shareholders, the operations, the workers
and those affected by the operations, can all come from
a different jurisdiction.97
This diversity obliges plaintiffs to be meticulous
about selecting the type of recourse they should enga-
ge with. The options range from administrative, tort or
criminal litigation against MNCs or their subsidiaries.
However, nding proper redress in host states may en-
tail several legal and procedural shortcomings. For ins-
tance, domestic legislation may not enshrine criminal or
civil liability for legal persons; or the domestic judiciary
might not be well-equipped for a highly complex task
such as piercing a corporate veil; or it may be prone to
hamper an independent trial;98 or even if victims were
favoured with a positive domestic judgement, the de-
fendant may not have assets or personnel in the host
country to actually materialize the redress, as exempli-
ed by Aguinda v. Chevron in Ecuador.99 These types of
95 BOYLE, Alan. Globalising environmental liability: the inter-
play of national and international law. Journal of Environmental Law,
v. 17, n. 1, p. 3–26, 2005.
96 BIRNIE, Patricia; BOYLE, Alan; REDGWELL, Catherine.
International law and the environment. 3. ed. United Kingdom: Oxford
University Press, 2009. p. 312.
97 CLAPHAM, Andrew. Human rights obligations of non-state actors.
United Kingdom: Oxford University Press, 2006. p. 200.
98 LAGOUTTE, Stéphanie. New challenges facing states with-
in the eld of human rights and business. Nordic Journal of Human
Rights, v. 33, n. 2, p. 158-180, 2015. p. 172.
99 KIMERLING, Judith. Remarks by Judith Kimerling. Proceed-
ings of the Annual Meeting: american Society of International Law, v.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
160
shortcomings are constantly capitalized by big private
companies, who are in a position to pay top law rms to
effectively make use of substantive and procedural rules
in their favour, thus sidestepping liability.100
These obstacles lead victims to pursue justice in
MNCs’ home states, like in the US, home of thousands
of MNCs.101 There, victims are able to sue US com-
panies under several statutes, including the most re-
nowned, the Alien Tort Claim Statute (ATCA), an 18th
century statute that confers upon the Federal District
Courts original jurisdiction over ‘any civil action by an
alien for a tort only committed in violation of the law
of nations’.102
US jurisdiction provides victims a sense of due pro-
cess, while giving them the chance of publicizing their
case,103 which explains the urge of Burmese victims to
use the ATCA against the oil giant Unocal, allegedly
involved in human rights violations in the context of
the construction of an oil pipeline.104 However, the Fe-
deral Court ruled that the corporations could not be
held liable under international law,105 although the Nin-
th District Court of Appeals subsequently overturned
that previous view.106 In the aftermath, this case along
with others, like Wiwa v. Royal Dutch Petroleum,107 agreed
106, p. 416-419, 2012.
100 MCCONNELL, Lee. Establishing liability for multinational
oil companies in parent/subsidiary relationships case note. Environ-
mental Law Review, v. 16, n. 1, p. 50-59, 2014.
101 COCKBURN, Iain; SLAUGHTER, Matthew. The global lo-
cation of biopharmaceutical knowledge activity: new ndings, new
questions. Innovation Policy and the Economy, v. 10, p. 129-157, 2010. In
2006, there were more that 2000 MNCs registered in the US alone.
102 CLAPHAM, Andrew. Human rights obligations of non-state actors.
United Kingdom: Oxford University Press, 2006. p. 252.
103 KATUOKA, Saulius; DAILIDAITE, Monika. Responsibil-
ity of transnational corporations for human rights violations: de-
ciencies of international legal background and solutions offered by
national and regional legal tools. Jurisprudencija, v. 19, n. 4, p. 1301-
1316, 2012. p. 1309.
104 RAMASASTRY, Anita. Corporate complicity: from Nurem-
berg to Rangoon: an examination of forced labor cases and their im-
pact on the liability of multinational corporations Stefan A. Riesen-
feld symposium 2001. Berkeley Journal of International Law, v. 20, n. 1,
p. 91-159, 2002.
105 RAMASASTRY, Anita. Corporate complicity: from Nurem-
berg to Rangoon: an examination of forced labor cases and their im-
pact on the liability of multinational corporations Stefan A. Riesen-
feld symposium 2001. Berkeley Journal of International Law, v. 20, n. 1,
p. 91-159, 2002. p. 137.
106 CLAPHAM, Andrew. Human rights obligations of non-state actors.
United Kingdom: Oxford University Press, 2006. p. 256.
107 CENTER FOR CONSTITUTIONAL RIGHTS. Wiwa et
al. v. royal dutch petroleum et al. Available in: <https://ccrjustice.org/
node/1505>.
to settle the lawsuit out of court.108
In a related case, Kiobel v. Royal Dutch Petroleum have set
precedents regarding dismissals based on the impossi-
bility of extra-jurisdictional reach of US courts concer-
ning alleged unlawful acts.109 Likewise, US Courts have
repeatedly afforded the doctrine of forum non conveniens,
which gives a court discretion to dismiss the case on the
basis of having a better court to vent the action.110 Ac-
cording to several studies, dismissal on the grounds of
this doctrine ‘is typically outcome determinative – if the
victims are unable to sue in U.S. courts, they are unable
to recover for the violations of their rights’.111
In some European jurisdictions, however, the ar-
gument of forum non conveniens might be less substantial
for national courts, who have jurisdiction over those
corporate defendants domiciled in the territory of EU
Member States in light of the rules of jurisdiction un-
der the so called ‘Brussels system’, composed by some
provisions under the Regulation on Jurisdiction and the
Recognition and Enforcement of Judgments in Civil
and Commercial Matters.112 This is the case of England,
where claimants of environmental nuisance, prompted
by English parent companies or their subsidiaries, have
been able to establish the English jurisdiction as the
adequate one.113 However, cases that discuss the extent
of the alleged damages and a proper redress therein are
quite scarce, as the customary practice is to resort to
108 IROGBE, Kema. Global political economy and the power
of multinational corporations. Journal of Third World Studies, v. 30, n.
2, p. 241, 2013.
109 SCHUTTER, Olivier De; SKINNER, Gwynne; MC-
CORQUODALE, Robert. The third pillar: access to judicial remedies
for human rights violations by transnational business. International
Corporate Accountability Roundtable, 2013. p. 5.
110 FOLEY SMITH, Erin. Right to remedies and the inconven-
ience of forum non conveniens: opening U.S. courts to victims of
corporate human rights abuses. Columbia Journal of Law and Social
Problems, v. 44, n. 2, p. 145-192, 2010.
111 FOLEY SMITH, Erin. Right to remedies and the inconven-
ience of forum non conveniens: opening U.S. courts to victims of
corporate human rights abuses. Columbia Journal of Law and Social
Problems, v. 44, n. 2, p. 145-192, 2010. p. 165.
112 MERINO BLANCO, Elena; PONTIN, Ben. Litigating ex-
traterritorial nuisances under english common law and UK statute.
Transnational Environmental Law, v. 6, n. 2, p. 285-308, 2017.
113 UNITED KINGDOM. England and Wales High Court. The
bodo community and others v shell petroleum development company of Nige-
ria Ltd. EWHC 1973, 2014.; UNITED KINGDOM. United King-
dom House of Lords. Connelly v. RTZ Plc. AC 854, 1998.; UNITED
KINGDOM. United Kingdom House of Lords. Lubbe and Ors v.
Cape Plc. WLR 1545, 2000.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
161
an out-of-court settlement.114 Furthermore, in what mi-
ght be the worst case scenario from the perspective of
claimants when pursuing remedies in the home state’s
jurisdiction, a judge might award the defendants indem-
nity costs borne by plaintiffs soon after not having been
convinced in ascertaining responsibility, as it was the
case in the Pedro Emiro Florez Arroyo v. Equion Energia Li-
mited, related to alleged environmental damages derived
to decient conditions of an Oil pipe in Colombia.115
Conversely, if the weapon of choice were to be in-
ternational criminal law, users might be discouraged
after grasping the two-folded challenge: environmental
crimes are not a priority and corporations as such are
not formal subjects. Usually, international criminal law
‘delegates the criminal protection of the environment
to the State parties to multilateral environmental trea-
ties. The crimes thus prosecuted are, in fact, national
crimes’.116 Also, the Rome Statute of the International
Criminal Court provides limited ‘relevance to the en-
vironment exclusively within the context of the core
crimes falling under the jurisdiction of the Internatio-
nal Criminal Court (ICC)’.117 In this vein, considerable
attention was brought to the publication of a Policy
Paper on Case Selection and Prioritization by the Of-
ce of the Prosecutor of the ICC in September 2016,
to contemplate those crimes committed through, or
resulting in, ‘the destruction of the environment, the
illegal exploitation of natural resources or the illegal
dispossession of land’. However, despite this laudable
development, ‘it does not alter the current framework,
as it merely sets out internal guidelines governing the
exercise of prosecutorial discretion in the selection and
prioritization of cases’.118
114 KRAMER, Xandra. UK court on tort litigation against transna-
tional corporations: conicts of laws. Available in: <http://conicto-
aws.net/2016/uk-court-on-tort-litigation-against-transnational-
corporations/>.
115 UNITED KINGDOM. England and Wales High Court. Pe-
dro Emiro Florez Arroyo & others v Equion Energia Limited [formerly BP
exploration company (Colombia) limited]. EWHC 1699 (TCC), 2016.
116 MISTURA, Alessandra. Is there space for environmental
crimes under international criminal law?: the impact of the ofce of
the prosecutor policy paper on case selection and prioritization on
the current legal framework. Columbia Journal of Environmental Law, v.
43, n. 1, p. 181-226, 2018.
117 MISTURA, Alessandra. Is there space for environmental
crimes under international criminal law?: the impact of the ofce of
the prosecutor policy paper on case selection and prioritization on
the current legal framework. Columbia Journal of Environmental Law, v.
43, n. 1, p. 181-226, 2018. p. 214.
118 MISTURA, Alessandra. Is there space for environmental
crimes under international criminal law?: the impact of the ofce of
Moreover, the Rome Statute excludes legal persons
from its scope, on the basis that corporations do not
have ‘a body to kick and soul to damn’,119 and that there
is no global consensus on the standard for corporate
liability.120 Even though this forum does not have juris-
diction, it can prosecute individuals associated to negli-
gent businesses.
Another option of remedy has been recurring to re-
gional human rights bodies. Even if these bodies are
deemed as one of the few alternatives to litigate hu-
man rights violations linked to environmental damages
– once domestic remedies are exhausted, ‘they are not
generally enforcing [IEL]’.121 The European (ECHR)
and Inter-American (IACtHR) Court of Human Rights
for instance, have been less willing to ‘hear cases whe-
re environmental issues go beyond immediate human
well-being’.122
In that sense, procedural rights related to the envi-
ronment have been safeguarded before the IACtHR in
cases related to indigenous peoples123 and not-indige-
nous peoples,124 stressing an ‘undeniable link between
the protection of the environment and the enjoyment
of other human rights’.125 This inter-linkage has also
been pointed out in the jurisprudence of the ECHR, by
the prosecutor policy paper on case selection and prioritization on
the current legal framework. Columbia Journal of Environmental Law, v.
43, n. 1, p. 181-226, 2018. p. 225.
119 VAN DER WILT, Harmen. Corporate criminal responsibility
for international crimes: exploring the possibilities. Chinese Journal of
International Law, v. 12, n. 1, p. 43-77, 2013.
120 KREMNITZER, Mordechai. A possible case for imposing
criminal liability on corporations in international criminal law. Journal
of International Criminal Justice, v. 8, n. 3, p. 909-918, 2010.
121 SHELTON, Dinah. Legitimate and Necessary: Adjudicating
Human Rights Violations Related to Activities Causing Environ-
mental Harm or Risk. Journal of Human Rights and the Environment, v.
6, n. 2, p. 139-155, 2015.
122 SHELTON, Dinah. Legitimate and Necessary: Adjudicating
Human Rights Violations Related to Activities Causing Environ-
mental Harm or Risk. Journal of Human Rights and the Environment, v.
6, n. 2, p. 150, 2015.
123 INTER-AMERICAN COURT OF HUMAN RIGHTS. Sar-
amaka people v suriname: preliminary objections, merits, reparations,
and costs). IACtHR Series C No. 172, 2007. para. 147; INTER-
AMERICAN COURT OF HUMAN RIGHTS. Kichwa indigenous
people of Sarayaku v. Ecuador: merits and reparations. IACtHR Series
C, n. 245, 2012. para. 183.
124 INTER-AMERICAN COURT OF HUMAN RIGHTS.
Claude-Reyes et al v Chile: merits, reparations and costs. IACtHR Series
C, n. 15, 2006. para. 73.
125 INTER-AMERICAN COURT OF HUMAN RIGHTS.
Kawas-Fernández v. Honduras: merits, reparations and costs. IACtHR
Series C, n. 196, 2009. para. 148.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
162
underscoring the environmental dimension of the right
to respect for privacy and family.126 The IACtHR has
a ‘collective/public interest-oriented approach to the
adjudication of environmental complaints’,127 a feature
not very developed in the ECHR.
Despite this increasingly progressive stance on con-
necting the environment and human rights, the state-
-centred paradigm is still grained in the aforementioned
bodies. Jurisprudence of said bodies stresses that the
state assumes the obligation to prevent, investigate and
punish human rights violations as due diligence, and
failing to do this may lead to states’ international res-
ponsibility, even if the wrongful act was committed by
a private actor.128 This deferral on the basis of lack of
jurisdiction is the main obstacle to render MNCs liable
before human rights bodies.129
3.2. UN initiatives
In 1977, an Intergovernmental Working Group on
a Code of Conduct was appointed by the UN Com-
mission on Transnational Corporations to elaborate
the UNCCTC. This work started with several disagree-
ments, chiey whether the treaty had to be binding or
not.130 However, they did agree on environmental pro-
tections in its rst round of negotiations, although the
content of the instrument is rather broad and exhorta-
tory.131 Overall, the UNCCTC ensured that MNCs pro-
126 EUROPEAN COURT OF HUMAN RIGHTS. López Ostra v
Spain: merits and just satisfaction. ECHR App no 16798/90, 1994.;
EUROPEAN COURT OF HUMAN RIGHTS. Fadeyeva v Russian
Federation: judgment, merits and just satisfaction. ECHR App No
55723/00, 2005.; EUROPEAN COURT OF HUMAN RIGHTS.
Guerra and others. v Italy: judgment, merits and just satisfaction.
ECHR App No 14967/89, 1998.
127 PAVONI, Riccardo. Environmental jurisprudence of the eu-
ropean and inter-american courts of human rights. In: BOER, Ben
(Ed.). Environmental law dimensions of human rights. United Kingdom:
Oxford University Press, 2015. p. 106.
128 INTER-AMERICAN COURT OF HUMAN RIGHTS.
Velásquez-Rodríguez v Honduras: merits. IACtHR Series C, n. 04, 1988.
para. 72; INTER-AMERICAN COURT OF HUMAN RIGHTS.
International responsibility for the promulgation of laws in violation of the
convention: advisory opinion. IACtHR OC-14/94, 1994. para. 56.
129 KHOURY, Stéfanie. Transnational corporations and the eu-
ropean court of human rights: reexions on the indirect and direct
approaches to accountability. Oñati Journal of Emergent Socio-Legal
Studies, v. 4, n. 1, p. 68-110, 2010.
130 SAUVANT, Karl. The negotiations of the United Nations
code of conduct on transnational corporations: experience and les-
sons learned. The Journal of World Investment & Trade, v. 16, p. 11-87,
2015.
131 MORGERA, Elisa. Corporate accountability in international envi-
vide a ‘stable, predictable, and transparent framework
to [strength] international investments; and to help mi-
nimize [their] negative effects’.132
By the beginning of the 1990s, it was clear that none
of the participants were interested in continuing with
the negotiations, probably due to the shift of priori-
ties towards the encouragement of FDI,133 or because
its all-encompassing approach arose suspicion around
MNCs who refused to be bound by international stan-
dards, heralding the failure of the UNCCTC in 1992.134
In August 2003, the UN Sub-Commission for the
Promotion and Protection of Human Rights adopted
the Norms, a novel and comprehensive list of human
rights standards for MNCs.135 The Norms comprise a
reference to numerous international legal instruments,
namely human rights and environmental treaties, such
as the Convention on Biological Diversity (CBD) and
the Rio Declaration.136
Such standards, however, were criticized due to the
impracticality behind uniformly applying them across
different countries with diverse legal traditions and rea-
lities; and, for including rights that were not still recog-
nized by all states.137 For instance, the Norms envisage
that MNCs shall conduct their operations in accordance
to national and international environmental and human
rights regulations.138
In spite of its ambitious and stringent language, the
ronmental law. United Kingdom: Oxford University Press, 2009. p. 84.
132 MORGERA, Elisa. Corporate accountability in international envi-
ronmental law. United Kingdom: Oxford University Press, 2009. p. 80.
133 SAUVANT, Karl. The negotiations of the United Nations
code of conduct on transnational corporations: experience and les-
sons learned. The Journal of World Investment & Trade, v. 16, p. 11-87,
p. 55, 2015.
134 CARASCO, Emily; SINGH, Jang. Towards holding transna-
tional corporations responsible for human rights. European Business
Review, v. 22, n. 4, p. 432-445, 2010.
135 GELFAND, Jacob. The lack of enforcement in the united
nations draft norms: benet or disadvantage?. In: SCHUTTER, Ol-
ivier De (Ed.). Transnational corporations and human rights. Hart Pub,
2006. p. 314.
136 UNITED NATIONS. Norms on the responsibilities of transna-
tional corporations and other business enter prises with regard to human rights.
E/CN4/Sub2/2003/12/Rev2, 2003. p. 2.
137 GELFAND, Jacob. The lack of enforcement in the united
nations draft norms: benet or disadvantage?. In: SCHUTTER, Ol-
ivier De (Ed.). Transnational corporations and human rights. Hart Pub,
2006. p. 316–318.
138 UNITED NATIONS. Norms on the responsibilities of transna-
tional corporations and other business enter prises with regard to human rights.
E/CN4/Sub2/2003/12/Rev2, 2003.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
163
Norms were not accepted by the Commission on Hu-
man Rights,139 and only reached ‘a level of expert legiti-
macy, but no political endorsement’.140 However, its me-
rit rests on its potential to convey its positive conceptual
array onto other regimes of corporate environmental
and human rights standard-setting,141 like the UNGP
and the BHRT.
As a strategy to ll the void left by hard-law approa-
ches rehearsed in the past, the UN decided to give the
‘partnership approach’ a chance, launching the GC as
a soft-law strategy for ‘leveraging the platform’ of lar-
ge corporations and encouraging socially responsible
corporate behaviour.142 The GC, just like the Norms,
covers broad and exible principles that hinge upon
existing UN documents,143 namely the UDHR and the
Rio Declaration.
However, the GC was not without its critics, who at-
tributed its voluntary nature to a lack of responsiveness
from some MNCs to civil society’s claims regarding
corporate’s human rights abuses;144 and also questioned
those MNCs’ continuance in the initiative.145 Overall,
critics perceive the GC as ‘long on promises, short on
performance, and mostly silent on transparency and
objective reporting’,146 however, it does require from
139 WEISSBRODT, David. Human rights standards concern-
ing transnational corporations and other business entities. Minnesota
Journal of International Law, v. 23, n. 2, p. 135-171, 2014. p. 165.
140 MORGERA, Elisa. Benet-sharing as a bridge between the
environmental and human rights accountability of multinational
corporations. In: Ben Boer (Ed.). Environmental law dimensions of hu-
man rights. United Kingdom: Oxford University Press, 2015. p. 46.
141 MORGERA, Elisa. Benet-sharing as a bridge between the
environmental and human rights accountability of multinational
corporations. In: Ben Boer (Ed.). Environmental law dimensions of hu-
man rights. United Kingdom: Oxford University Press, 2015. p. 46;
WEISSBRODT, David. Human rights standards concerning trans-
national corporations and other business entities. Minnesota Journal of
International Law, v. 23, n. 2, p. 135-171, 2014. p. 167.
142 GHAFELE BASHI, Roya; MERCER, Angus. “Not starting
in sixth gear”. UC Davis Journal of International Law and Policy, v. 17, n.
1, p. 41-61, 2011. p. 41-61.
143 MORGERA, Elisa. The UN and corporate environmental
responsibility: between international regulation and partnerships.
Review of European Community and International Environmental Law, v.
15, n. ,1 p. 93-109, 2006. p. 99.
144 KAMMINGA, Menno. Company responses to human rights
reports: an empirical analysis. Business and Human Rights Journal, v. 1,
n. 1, p. 95-110, 2016.
145 SETHI, S. Prakash; SCHEPERS, Donald H. United Nations
global compact: the promise–performance gap. Journal of Business
Ethics, v. 122, n. 2, p. 193-208, 2013. p. 193-208.
146 SETHI, S. Prakash; SCHEPERS, Donald H. United Nations
global compact: the promise–performance gap. Journal of Business
Ethics, v. 122, n. 2, p. 193-208, 2013. p. 201.
companies the implementation of measures based on
the precautionary approach147 and also have a procedure
to handle egregious abuse of its principles, including
severe environmental damage.148 Thus, it could be said
that the climate of divisiveness around this instrument
may indicate that further and concrete results are yet to
be seen.
3.3 .The UNGP
John Ruggie, the SRSG, made it very clear from the
beginning of his mandate, that he was going to leave
behind the approach taken in the Norms – who dee-
med them as a ‘distraction’, and adopted a ‘principled
pragmatism’ instead, whose legitimacy was reached by
‘consulting with a wide range of stakeholders [while]
keeping businesses and government “on side”’.149
The result of the SRSG’s acclaimed mandate was the
design of the UNFBHR and the UNGP to implement it.
Comprising 31 principles and corresponding commen-
taries, the UNGP clarify legal and policy implications.150
They apply to all states and all business enterprises,151
and encompass all internationally recognized rights,
being the oor the International Bill of Human Rights
and the principles set out in the ILO’s Declaration on
Fundamental Principles and Rights at Work.152 Moreo-
ver, they rest upon three pillars designed for states and
businesses who are called to esh-out mechanisms to
protect individuals from human rights abuses across the
world. The rst one is the duty of states to integrally
protect human rights, the second entails the corporate’s
147 MORGERA, Elisa. Multinational corporations and interna-
tional environmental law. In: ALAM, Shawkat et al. (Ed.). Routledge
handbook of international environmental law. Routledge, 2015. p. 198.
148 MORGERA, Elisa. From corporate social responsibility to
accountability mechanisms. In: DUPUY, Pierre-Marie; VIÑUALES,
Jorge (Ed.). Harnessing foreign investment to promote environmental protec-
tion. United Kingdom: Cambridge University Press, 2013. p. 338.
149 SIMONS, Penelope. International law’s invisible hand and the
future of corporate accountability for violations of human rights.
Journal of Human Rights and the Environment, v. 3, n. 1, p. 5-43, 2012.
150 RUGGIE, John. Report of the special representative of the secretary
general on the issue of human rights and transnational corporations and other
business enterprises. Report submitted before session 17 of the human
rights council. A/HRC/17/31, 2011.
151 RUGGIE, John. A UN business and human rights treaty?. Avail-
able in: <https://www.hks.harvard.edu/m-rcbg/CSRI/UNBusi-
nessandHumanRightsTreaty.pdf>.
152 RUGGIE, John. Report of the special representative of the secretary
general on the issue of human rights and transnational corporations and other
business enterprises. Report submitted before session 17 of the human
rights council. A/HRC/17/31, 2011. p. 13.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
164
application of due diligence aimed at respecting human
rights, and the third pillar underpins the necessity of
effective remedies for human rights victims.153
It is worth noticing that the second pillar within the
UNGP relies on corporate due diligence – a widely applied
concept in environmental protection contexts – which in-
volves ‘(i) impact assessment; (ii) stakeholder involvement
in decision-making; and (iii) life-cycle management’.154
Nonetheless, there is no evidence of synergies between
the UNGP and principles or instruments of IEL.155
The omnipresent nature of the UNGP is undenia-
ble; they are being used by governments, intergovern-
mental organizations, human rights advocate groups,
and foremost, business themselves.156 For instance, the
HRC enacted two157 resolutions on human rights and
the environment, explicitly pointing out the importance
of the UNGP. Furthermore, in the Kaliña and Lokono
Peoples v. Suriname case, the IACtHR took note of the
UNGP, reiterating the obligation of states to ‘pro-
tect against human rights abuses within their territory
and/or jurisdiction by third parties, including business
enterprises’.158 Additionally, the UN Committee on
Economic, Social and Cultural Rights addressed the
role of businesses in the adverse impacts on human ri-
ghts through a General Comment, whereby the UNGP
was considered a pivotal document.159
The UNGP have been received with enthusiasm by
some,160 arguing a global consensus and momentum
153 RUGGIE, John. Just business: multinational corporations and
human rights. W. W Norton & Company, 2013. p. 7.
154 MORGERA, Elisa. Benet-sharing as a bridge between the
environmental and human rights accountability of multinational
corporations. In: Ben Boer (Ed.). Environmental law dimensions of hu-
man rights. United Kingdom: Oxford University Press, 2015. p. 44.
155 MORGERA, Elisa. Multinational corporations and interna-
tional environmental law. In: ALAM, Shawkat et al. (Ed.). Routledge
handbook of international environmental law. Routledge, 2015. p. 204.
156 RUGGIE, John. A UN business and human rights treaty?. Avail-
able in: <https://www.hks.harvard.edu/m-rcbg/CSRI/UNBusi-
nessandHumanRightsTreaty.pdf>.
157 UNITED NATIONS HUMAN RIGHTS COUNCIL. Hu-
man rights and the environment. UN. Doc. A/HRC/RES/19/10, 2012.;
UNITED NATIONS HUMAN RIGHTS COUNCIL. Human rights
and the environment. UN Doc. A/HRC/RES/25/21, 2014.
158 INTER-AMERICAN COURT OF HUMAN RIGHTS.
Kaliña and Lokono peoples v Suriname: merits, reparations and costs).
IACtHR Series C, n. 309, 2015. para. 224.
159 UN COMMITTEE ON ECONOMIC, SOCIAL AND CUL-
TURAL RIGHTS. General comment no. 24 on State obligations under the in-
ternational covenant on economic, social and cultural rights in the context of business
activities. Treaty Body General Comment E/C.12/GC/24, 2017. para 2.
160 SECK, Sara. Canadian mining internationally and the UN
as its major strength, and with scepticism by others,161
underlining an ontological aw entrenched to their
voluntary nature. Overall, it seems that the common
agreement is that a follow-up of the implementation of
the UNGPs shall be undertaken. In this vein, the HRC
established a Working Group on Business and Human
Rights (WGBHR),162 who stressed that information
regarding state protection of human rights from com-
panies is lacking due to the novelty of integrating the
UNGP onto domestic legislation, therefore the need of
a future complete assessment.163 This reafrms Ruggie’s
description of the essence of the UNGP as ‘the end of
the beginning’.164
4. drAftIng tHe bHrt
The proposal to elaborate a BHRT under the aus-
pices of the HRC, led by Ecuador and South Africa,
was passed with 20 votes in favour, 14 against and 13
abstentions,165 a different result to that of the unani-
mously endorsed UNGP just four years before, indi-
cating a contentious future, specially around sensitive
guiding principles for business and human rights. Canadian Yearbook
of International Law, v. 49, p. 51-116, 2011. p. 51-116; ANAYA, James.
Statement by Professor James Anaya special Rrapporteur on the
rights of indigenous peoples. FORUM ON BUSINESS AND HU-
MAN RIGHTS, 2012. Available in: <http://unsr.jamesanaya.org/
statements/forum-on-business-and-human-rights-2012-statement-
by-professor-james-anaya>.
161 WETTSTEIN, Florian. Normativity, ethics, and the UN
gGuiding principles on business and human rights: a critical assess-
ment. Journal of Human Rights, v. 14, n. 2, p. 162-182, 2015; LÓPEZ,
Carlos. The “ruggie process”: from legal obligations to corporate
social responsibility? In: DEVA, Surya; BILCHITZ, David (Ed.).
Human rights obligations of business. Cambridge University Press, 2013.;
BLITT, Robert. Beyond Ruggie’s guiding principles on business and
human rights: charting an embracive approach to corporate human
rights compliance. Texas International Law Journal, v. 48, n. 1, p. 33-62,
2012.
162 UNITED NATIONS HUMAN RIGHTS COUNCIL. Hu-
man rights and transnational corporations and other business enter prises. A/
HRC/RES/17/4, 2011. para. 11.
163 WORKING GROUP ON THE ISSUE OF HUMAN
RIGHTS AND TRANSNATIONAL CORPORATIONS AND
OTHER BUSINESS ENTERPRISES. Report of the working group on
the issue of human rights and transnational corporations and other business
enterprises. UN Doc. A/70/216, 2015. para 3.
164 RUGGIE, John. Just business: multinational corporations and
human rights. W. W Norton & Company, 2013. p. 204.
165 UNITED NATIONS HUMAN RIGHTS COUNCIL. Elab-
oration of an international legally binding instrument on transnational corpora-
tions and other business enterprises with respect to human rights. UN. Doc. A/
HRC/RES/26/9, 2014.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
165
issues – like direct obligations on MNCs. Overall, its
main foreseeable risk, if negotiations are successful, is a
‘diluted standards’ type of instrument.166
Except for China, states that voted against the pro-
position are the ones with the largest and most inuen-
tial MNCs in the world. This is of particular interest
since the resolution is circumscribed to the regulation
of MNCs exclusively, leaving national corporations out
of its scope.167 Another sign of early contention is that
countries who did not support the BHRT, did sponsor a
resolution on the extension for three more years of the
mandate of the WGBHR, whose main task is the study
of the implementation of the UNGP168.
Bearing in mind that the idea of a BHRT is not a
new one, this revised hard-law approach, advocated by
an important number of NGOs, scholars and states
alike,169 might be a political sentiment of restlessness,
probably stirred by the modest results of past initiati-
ves – a sentiment that seeks to level the playing eld
through a diplomatic process. However, what is already
obvious is that this open-ended process will take several
years of negotiations until a treaty is nally adopted,
which is a fair point from the UNGP’s advocates, who
strive for its implementation as an interim pragmatic
measure.170
The HRC in its Resolution 26/9, decided that the
rst two sessions of the OEIGWG ought to be dedica-
ted to conduct ‘constructive deliberations on the con-
tent, scope, nature and form of the future international
instrument’171 and recommended that relevant stake-
166 NOLAN, Justine. A business and human rights treaty. In:
BAUMANN-PAULY, Dorothée; NOLAN, Justine (Ed.). Business
and human rights: from principles to practice. Routledge, 2016. p. 72.
167 GANESAN, Arvid. Towards a business and human rights
treaty?. In: BAUMANN-PAULY, Dorothée; NOLAN, Justine (Ed.).
Business and human rights: from principles to practice. Routledge,
2016. p. 74.
168 UNITED NATIONS HUMAN RIGHTS COUNCIL. Hu-
man rights and transnational corporations and other business enter prises. UN.
Doc. A/HRC/RES/26/22, 2014. para. 10.
169 LAGOUTTE, Stéphanie. New challenges facing states with-
in the eld of human rights and business. Nordic Journal of Human
Rights, v. 33, n. 2, p. 158-180, 2015. p. 178.
170 RUGGIE, John. The past as prologue?: a moment of truth for
UN business and human rights treaty. Available in: <https://www.
hks.harvard.edu/m-rcbg/CSRI/Treaty_Final.pdf>. p. 6.
171 UNITED NATIONS HUMAN RIGHTS COUNCIL. Elab-
oration of an international legally binding instrument on transnational corpora-
tions and other business enterprises with respect to human rights. UN. Doc. A/
HRC/RES/26/9, 2014. para. 2.
-holders should submit inputs on this regard.172 In this
vein, the OEIGWG, chaired by the representative of
Ecuador, had conveyed three sessions up to date in July
2015, October 2016173 and October 2017174 respectively.
In all sessions, the presence of states, intergovernmen-
tal organizations and NGOs that supported the creation
of the group were welcomed and acknowledged,175 who
actively participated in shaping the travaux préparatories176
of the proto-treaty. However, the complete absence of
the United States and the timid presence of the Euro-
pean Union did not go unnoticed.177
Discussions were generally conveyed by general sta-
tements from state’s delegates, which highlighted the
inter-linkage between the environment and human ri-
ghts, such as the delegation of Algeria, who stated that
‘environmental degradation [and] dumping of toxic
wastes […] by [MNCs], affect, marginalise and impo-
verish groups disproportionally and exacerbate existing
human rights concerns’;178 a statement echoed by Indo-
nesia179 and China,180 who noted that despite the leading
172 UNITED NATIONS HUMAN RIGHTS COUNCIL. Elab-
oration of an international legally binding instrument on transnational corpora-
tions and other business enterprises with respect to human rights. UN. Doc. A/
HRC/RES/26/9, 2014. para. 2.
173 UNITED NATIONS HUMAN RIGHTS COUNCIL. Re-
port on the second session of the open-ended intergovernmental working group on
transnational corporations and other business enter prises with respect to human
rights. A/HRC/34/47, 2017.
174 UNITED NATIONS HUMAN RIGHTS COUNCIL. Re-
port on the third session of the open-ended intergovernmental working group on
transnational corporations and other business enter prises with respect to human
rights. A/HRC/37/67, 2018.
175 UNITED NATIONS HUMAN RIGHTS COUNCIL. Re-
port on the rst session of the open-ended intergovernmental working group on
transnational corporations and other business enter prises with respect to human
rights, with the mandate of elaborating an international legally binding instru-
ment. A/HRC/31/50, 2016. para. 6–10.
176 SHAW, Malcolm. International law. 6. ed. United Kingdom:
Cambridge University Press, 2008. p. 935.
177 SHAW, Malcolm. International law. 6. ed. United Kingdom:
Cambridge University Press, 2008. p. 39.
178 MOHAMADIEH, Kinda; URIBE, Daniel. Business and hu-
man rights: commencing discussions on a legally binding instrument.
South Centre Bulletin. Available in: <http://www.southcentre.int/
wp-content/uploads/2015/11/SB87-88_EN.pdf>. p. 6.
179 INDONESIAN DELEGATION. Statement by Indonesian del-
egation at the 1st session of the open-ended intergovernmental working group on
transnational corporations and other business enter prises with respect to human
rights, 2015. Available in: <http://www.ohchr.org/Documents/HR-
Bodies/HRCouncil/WGTransCorp/Session1/GeneralComments/
States/Indonesia1.pdf>. p. 2.
180 MOHAMADIEH, Kinda; URIBE, Daniel. Business and hu-
man rights: commencing discussions on a legally binding instrument.
South Centre Bulletin. Available in: <http://www.southcentre.int/
wp-content/uploads/2015/11/SB87-88_EN.pdf>. p. 7.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
166
role of MNCs in global economic development, they
also could injure human rights and the environment,
which is why the inclusion of these issues in tandem
with development are important.
NGOs’ representatives also made numerous and
relevant remarks about the importance of the envi-
ronment, asserting that depletion of natural resources
had an impact on the right to self-determination and an
adequate standard of living,181 while positing the need
for an international court on climate issues.182 In the-
se lines, some delegations encouraged the inclusion of
environmental principles, like the use of the best tech-
nology, polluter-pay principles (PPP) and FPIC; while
at the same time highlighted the interdependence and
indivisibility of human rights.183 South Africa for instan-
ce, encouraged the inclusion of effective remedies for
environmental damage.184
During the three sessions, several panels of discus-
sion were organized, each of which addressed core ele-
ments of the treaty. 185 Thus, the analysis of the nego-
tiations will be narrowed as to only include the topics
related to direct obligations of MNCs in the context
of environmental damage linked to human rights vio-
lations. The examination will be based on the travaux
préparatoires of the treaty’s drafting process, including
the ofcial reports of the three sessions, the document
181 UNITED NATIONS HUMAN RIGHTS COUNCIL. Re-
port on the rst session of the open-ended intergovernmental working group on
transnational corporations and other business enter prises with respect to human
rights, with the mandate of elaborating an international legally binding instru-
ment. A/HRC/31/50, 2016. para. 32.
182 UNITED NATIONS HUMAN RIGHTS COUNCIL. Re-
port on the third session of the open-ended intergovernmental working group on
transnational corporations and other business enter prises with respect to human
rights. A/HRC/37/67, 2018. para. 23.
183 UNITED NATIONS HUMAN RIGHTS COUNCIL. Re-
port on the third session of the open-ended intergovernmental working group on
transnational corporations and other business enter prises with respect to human
rights. A/HRC/37/67, 2018. para. 23.
184 SOUTH AFRICAN DELEGATION. Opening statement de-
livered by South Africa. Available in: <http://www.ohchr.org/Docu-
ments/HRBodies/HRCouncil/WGTransCorp/Session1/SOUTH-
AFRICAS_Opening_StatementbyAmbMinty_Panel1.pdf>. p. 3.
185 UNITED NATIONS HUMAN RIGHTS COUNCIL. Re-
port on the rst session of the open-ended intergovernmental working group on
transnational corporations and other business enter prises with respect to human
rights, with the mandate of elaborating an international legally binding instru-
ment. A/HRC/31/50, 2016. para. 2. Topics ranged during the last
three sessions can be summarized as follows: general architecture
of the international legally binding instrument; principles to be in-
corporated; scope of application; general obligations; responsibil-
ity and liability; access to justice, effective remedy and international
cooperation.
that sets out the elements for the draft, participants’
submissions and non-ofcial bulletins.
4.1. Principles of the new Treaty
During all the sessions, discussions began to stir on
issues related to the principles that should be rooted
in the treaty via oral addresses from some state delega-
tions, legal experts and NGOs. However, most contri-
butions touched upon a myriad of issues that do not t
neatly into the denition of principles as such, like the
type of corporations that should be regulated,186 or the
range of human rights that should be protected.187
Additionally, the anchoring of the principles within
the treaty, which would allow to understand the inter-
pretation of the context of the treaty, and the poten-
tial crystallization of currently recognized principles of
IEL and their inter-play with general principles of inter-
national law, was largely obviated in the ofcial report
of the rst session, and marginally touched upon in the
subsequent two sessions, an aspect that is mirrored in
the ‘elements of the BHRT’ document, where some wi-
de-ranging principles were laid down,188 none of them
referred to protecting the environment.
Some states, for instance, recommended that the
principles should be included as an operative part of the
instrument in order to facilitate its implementation,189 a
perspective shared by Ecuador, who in addition stated
that hierarchies among principles should be averted.190
186 UNITED NATIONS HUMAN RIGHTS COUNCIL. Re-
port on the rst session of the open-ended intergovernmental working group on
transnational corporations and other business enter prises with respect to human
rights, with the mandate of elaborating an international legally binding instru-
ment. A/HRC/31/50, 2016. para. 44.
187 UNITED NATIONS HUMAN RIGHTS COUNCIL. Re-
port on the rst session of the open-ended intergovernmental working group on
transnational corporations and other business enter prises with respect to human
rights, with the mandate of elaborating an international legally binding instru-
ment. A/HRC/31/50, 2016. para. 46.
188 CHAIRMANSHIP OF THE OEIGWG. Elements for the draft
legally binding instrument on transnational corporations and other business en-
terprises with respect to human rights, 2018. Available in: <https://www.
ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/
Session3/LegallyBindingInstrumentTNCs_OBEs.pdf>. p. 3.
189 BOLIVIAN DELEGATION. Panel I: principios, conceptos
y elementos, 2015. Available in: <http://www.ohchr.org/Docu-
ments/HRBodies/HRCouncil/WGTransCorp/Session1/Panel1/
States/BOLIVIA_PLURINATIOANL_STATE_OF.pdf>.
190 ECUADORIAN DELEGATION. Panel II: ámbito de apli-
cación de un instrumento prospectivo: alcance del instrumento;
empresas transnacionales y otras empresas comerciales, conceptos
y naturaleza jurídica en el derecho internacional, 2015. Available
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
167
Some references were made with regards to the impor-
tance of expressly mentioning the principles within the
future treaty in order to avoid erroneous interpreta-
tions or unnecessary legal voids.191 Contrariwise, it was
also stressed that the principles should be placed in the
preamble of the treaty and reected in the treaty pro-
visions.192
Principles, on this regard, may have three entwined
purposes: the rst one is to interpret the treaty as a who-
le during its implementation; 193 secondly, to interpret it
in the context of legal recourse before a compliance
mechanism set in the treaty or by any other internatio-
nal adjudicative body; and thirdly, to guide and deter-
mine the scope and the wording of specic provisions.
Principles steering a treaty towards a coherent body
of law have been already rehearsed in international
environmental treaties, namely the United Nations
Framework Climate Change Convention (UNFCCC),
where principles like the ‘common but differentiated
responsibilities and respective capabilities’, precaution-
-prevention and sustainable development have been
drawn in an explicit article therein and have been ac-
commodated all through the Convention’s provisions.194
A shared feature with the CBD, where the principle of
prevention of transboundary environmental harm is
stressed.195
Principles of IEL have been developed by vast, di-
verse and even fragmented types of national and in-
ternational instruments,196 demonstrating the key role
in: <http://www.ohchr.org/Documents/HRBodies/HRCouncil/
WGTransCorp/Session1/Panel2/States/ECUADORStatement-
OEIWG-PanelII.pdf>. p. 4.
191 CUBAN DELEGATION. Panel I: principios para un instru-
mento jurídicamente vinculante sobre corporación transnacionales y
otros empresas en relación con los derechos humanos, 2015. Availa-
ble in: <http://www.ohchr.org/Documents/HRBodies/HRCoun-
cil/WGTransCorp/Session1/Panel1/States/CUBA.pdf>. p. 2.
192 MCCORQUODALE, Robert. Principles for an internationally
legally binding instrument on TNC and other business enterprises with respect
to human rights. Available in: <http://www.ohchr.org/Documents/
HRBodies/HRCouncil/WGTransCorp/Session1/McCorquoda-
leIGWGPanel060715.pdf>.
193 UNITED NATIONS. Vienna convention on the law of treaties
(1969). New York: Treaty Series, v. 1155, n. 18232, 1987. p. 331.
194 UNITED NATIONS. United Nations framework convention on
climate change. FCC/INFORMAL/84/Rev1, 1992. art. 3.
195 UNITED NATIONS. United Nations conference on envi-
ronment and development: convention on biological diversity. Inter-
national Legal Materials, v. 31, n. 4, p. 818-841, 1992.
196 SANDS, Philippe. Principles of international environmental law. 2.
ed. Cambridge University Press, 2003. p. 169.
that plays soft-law at embedding principles, such as the
Rio Declaration, greatly endorsed by states197 and fur-
ther included in several treaties. Thus, if environmental
principles are discussed, they will serve as an authorita-
tive way to resolve ambiguities, ll in gaps,198 codify and
progressively develop199 the law that is being resolved
by the treaty.
Outlining general principles as an avenue to provide
evidence of opinio juris and legitimacy,200 is not only con-
ned to the realms of environmental law, but it is also
reected in the process of law making of the internatio-
nal human rights regime.201
Thus, placing different types of principles within the
new treaty is likely to be the approach opted by some
states and NGOs. However, written and oral contribu-
tions during the sessions have been characterised of
being signicantly imprecise and almost gurative, thus
rendering it difcult to predict how exactly those in-
voked principles would be introduced into the text or
how they would shape its content. Still, the fact that
some participants are willing to address the challenges
that the treaty presupposes by means of IEL principles,
is a step forward towards a clarication of the extent of
those principles in the context of corporate accounta-
bility.
For instance, the precautionary principle was speci-
cally invoked during the rst session – although in an
indeterminate manner, by the delegation of Ecuador202
and several international NGOs,203 suggesting that sta-
197 BIRNIE, Patricia; BOYLE, Alan; REDGWELL, Catherine.
International law and the environment. 3. ed. United Kingdom: Oxford
University Press, 2009. p. 27.
198 SHELTON, Dinah. Normative hierarchy in international law.
The American Journal of International Law, v. 100, n. 2, p. 291-323, 2006.
199 BIRNIE, Patricia; BOYLE, Alan; REDGWELL, Catherine.
International law and the environment. 3. ed. United Kingdom: Oxford
University Press, 2009. p. 30.
200 BOYLE, Alan; CHINKIN, Christine. The making of interna-
tional law. United Kingdom: Oxford University Press, 2007. p. 224.
201 BILCHITZ, David. The necessity for a business and human
rights treaty. Business and Human Rights Journal, v. 1, n. 2, p. 203-227,
2016.
202 ECUADORIAN DELEGATION. Panel II: ámbito de apli-
cación de un instrumento prospectivo: alcance del instrumento;
empresas transnacionales y otras empresas comerciales, conceptos
y naturaleza jurídica en el derecho internacional, 2015. Available
in: <http://www.ohchr.org/Documents/HRBodies/HRCouncil/
WGTransCorp/Session1/Panel2/States/ECUADORStatement-
OEIWG-PanelII.pdf>. p. 4.
203 FRIENDS OF THE EARTH INTERNATIONAL. Written
statement submitted by friends of the earth international. OEIWG, 2015.
p. 3; TOXIC WATCH ALLIANCE. Proposals for legally enforceable
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
168
tes should refrain from authorizing, promoting or faci-
litating the operations of MNCs when the likelihood of
an impairment of human rights and the environment
is extant.
Said formulation poses a number of questions re-
garding the implications of how the precautionary prin-
ciple will be developed, essentially because the scope
of the denition of the principle under international
law is still unclear,204 and secondly because the propo-
sals, as were submitted, tend to overlap the principle of
prevention and precaution, a conceptual slip that poten-
tially could become a bottleneck for future discussions.
Though, what it is clear is that the stakeholders’ pro-
posals do suggest a ‘strong’ interpretation of the princi-
ple, analogous to that of the World Charter for Nature,
which envisages stymieing the activities which are likely
to cause irreversible damage to nature or to recede the
activities if a probable adverse effect to the environ-
ment is not fully understood.205
Moreover, it opens the question on who exactly is
providing the evidence to determine whether the ope-
rations are innocuous to human rights and the environ-
ment: will it be the enterprise - thus implying a reverse
of the burden of proof,206 or the state? The former im-
plies that the treaty might offer the mechanisms where-
by MNCs should comply in accordance to the spirit of
the principle, including the performance of an environ-
mandatory treaty on transnational cor porations, banks, other business enter-
prises, human rights and its historical context. OEIWG, 2015. Available
in: <http://www.ohchr.org/Documents/HRBodies/HRCouncil/
WGTransCorp/Session1/TWAProposals_for_Legally_Enforce-
able_Mandatory_Treaty_on_TNCs_Banks_other_BusinessEn-
terprisesHumanRights.pdf>. p. 2; GLOBAL CAMPAIGN TO
DISMANTLE CORPORATE POWER AND STOP IMPUNI-
TY. Eight proposals for the new legally binding international instrument on
transnational corporations and human rghts. OEIWG, 2015. Available
in: <http://www.ohchr.org/Documents/HRBodies/HRCouncil/
WGTransCorp/Session1/Global_Campaign_to_Dismantle_Cor-
porate_Power_andStop_Impunity_June-2015_en.pdf>. p. 3; FIAN
INTERNATIONAL. Written submission by FIAN international. OE-
IWG, 2015. Available in: <http://www.ohchr.org/Documents/
HRBodies/HRCouncil/WGTransCorp/Session1/FIAN_Interna-
tional.doc>. p. 8.
204 FITZMAURICE, Malgosia. Contemporary issues in international
environmental law. Edward Elgar, 2009. p. 27.
205 UNITED NATIONS. World charter for nature. Environmen-
tal Policy and Law, v. 10, n. 2, p. 34-41, 1983. p. 34-41.
206 SCHRÖDER, Meinhard. Precautionary approach/principle.
In: WOLFRUM, Rudiger (Ed.). Max Planck encyclopaedia of public in-
ternational law. United Kingdom: Oxford University Press, 2014. p.
10.
mental impact assessment,207 as it was suggested during
the sessions and in the ‘elements of the BHRT’ docu-
ment as a State’s obligation to regulate due diligence for
parent companies and their supply chains.208
This has already been explored not only in the GC,
where ‘companies are expected to carry out assessments
of their environmental impacts and environmental
risks’,209 but also in the Norms, where it is stressed that
enterprises should respect the precautionary principle
when risk assessments are implemented.210
On the contrary, if the states are the ones that should
shoulder the onus of proof, then the treaty might dene
the risks involved in MNCs’ operations, and explicitly
mention the effective or proportional measures to be
taken in order to mitigate them. This specic formula-
tion could inhibit cases like Tătar v. Romania, where des-
pite the fact that the ECtHR did signal the importance
of the precautionary principle211 as binding European
law, 212 it relied on assorted domestic and international
sources.213 Therefore, the BHRT may be a possible way
to codify and clarify the precautionary principle on this
regard.
207 UNITED NATIONS INTERNATIONAL LAW COM-
MISSION. Yearbook of the international law commission 2000. Geneva:
United Nations, v. 2, part. 2, para. 716, 2005. para. 716.
208 UNITED NATIONS HUMAN RIGHTS COUNCIL. Re-
port on the third session of the open-ended intergovernmental working group on
transnational corporations and other business enter prises with respect to human
rights. A/HRC/37/67, 2018., para. 26; UNITED NATIONS HU-
MAN RIGHTS COUNCIL. Report on the rst session of the open-ended
intergovernmental working group on transnational corporations and other busi-
ness enterprises with respect to human rights, with the mandate of elaborating an
international legally binding instrument. A/HRC/31/50, 2016.; CHAIR-
MANSHIP OF THE OEIGWG. Elements for the draft legally binding
instrument on transnational corporations and other business enter prises with
respect to human rights, 2018. Available in: <https://www.ohchr.org/
Documents/HRBodies/HRCouncil/WGTransCorp/Session3/Le-
gallyBindingInstrumentTNCs_OBEs.pdf>. p. 7.
209 MORGERA, Elisa. The UN and corporate environmental
responsibility: between international regulation and partnerships.
Review of European Community and International Environmental Law, v.
15, n. ,1 p. 93-109, 2006. p. 105.
210 UNITED NATIONS. Commentary on the norms on the responsi-
bilities of transnational corporations and other business enterprises with regard
to human rights. UN Doc E/CN4/Sub2/2003/38/Rev2, 2003.
211 EUROPEAN COURT OF HUMAN RIGHTS. Tătar c
Roumanie. ECHR App. No. 67021/01, 2009. para. 120.
212 SHELTON, Dinah; BEDERMAN, David. Tătar C. Roum-
anie. The American Journal of International Law, v. 104, n. 3, p. 247-252,
2010.
213 SHELTON, Dinah; BEDERMAN, David. Tătar C. Roum-
anie. The American Journal of International Law, v. 104, n. 3, p. 247-252,
2010.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
169
It is noteworthy that if the precautionary principle is
inserted as an open-to-interpretation provision, it might
widen the margin of appreciation that an international
court could afford in a ruling as a result of a conten-
tious case; precluding the development of a subsidiari-
ty role of the international courts and law-makers,214 a
useful feature specially in environmental related cases.215
Therefore, exible rules for states, may confer them an
ample range of options to justify the breach of an obli-
gation.216
The precautionary principle could be designed to be
an obligation of conduct, result, or a mix of the two.
The rst one will provide broad guidelines, as revealed
in the context of social, economic and cultural rights;217
while the second one will set specic, measurable and
objective processes, emulating unambiguous provisions
found in some international environmental instruments,
like the Protocol of Environmental Protection to the
Antarctic Treaty, prohibiting the extraction of mine-
rals.218 The third one could be inspired by the Cartagena
Protocol on Biosafety to the CBD, which broadly in-
vokes the precautionary principle to justify the rationale
of the instrument,219 and contemplates a scientically
sound risk assessment whose costs shall be borne by
the exporting country;220 just like the Draft Articles on
Prevention of Transboundary Harm from Hazardous
214 SAUL, Matthew. The european court of human rights’ mar-
gin of appreciation and the processes of national parliaments. Hu-
man Rights Law Review, v. 15, n. 4, p. 745-774, 2015.
215 MÜLLEROVÁ, Hana. Environment playing short-handed:
margin of appreciation in environmental jurisprudence of the eu-
ropean court of human rights: environment playing short-handed.
Review of European, Comparative & International Environmental Law, v.
24, n. 1, p. 83-92, 2015.
216 SHANY, Yuval. Toward a general margin of appreciation
doctrine in international law? European Journal of International Law, v.
16, n. 5, p. 907-940, 2005.
217 WOLFRUM, Rüdiger. Obligation of result versus obligation
of conduct: some thoughts about the implementation of interna-
tional obligations. In: ARSANJANI, Mahnoush et al. (Ed.). Looking
to the Future. Brill, 2010. p. 367.
218 WOLFRUM, Rüdiger. Obligation of result versus obligation
of conduct: some thoughts about the implementation of interna-
tional obligations. In: ARSANJANI, Mahnoush and others (Ed.).
Looking to the Future. Brill, 2010. p. 369.
219 SECRETARIAT OF THE CONVENTION ON BIOLOG-
ICAL DIVERSITY (Ed.). Cartagena protocol on biosafety to the convention
on biological diversity: text and annexes, 2000. Duty of care around liv-
ing modied organisms that may pose a risk on biological diversity
and human health.
220 SECRETARIAT OF THE CONVENTION ON BIOLOG-
ICAL DIVERSITY (Ed.). Cartagena protocol on biosafety to the convention
on biological diversity: text and annexes, 2000.
Activities, where the operator bears the costs of pre-
vention and the state of origin undertakes the necessary
expenditure to put in place administrative, nancial and
monitoring mechanisms.221
If a hybrid logic were to be transposed onto the con-
text of the precautionary principle within the BHRT,
perhaps requiring a risk assessment of MNCs’ opera-
tions in host countries could be an obligation of con-
duct; but at the same time, offsetting its costs onto the
home state, an obligation of result. Concomitantly, do-
mestic legislation could oblige locally registered MNCs
to fund those risk assessments, placing the obligation
of this matter on corporations as an extension of states’
obligation of conduct.
Additionally, it may be useful to rely on previous
efforts in order to esh out standards that might not
only protect biodiversity, but also the rights of local
communities that may be affected by extractive MNCs.
For this, the Akwé: Kon Voluntary Guidelines provide
suitable insights on environmental and social impact as-
sessments.222
Furthermore, other principles related to the envi-
ronment were also pointed out during discussions; for
example, the ‘reversal of the burden of proof’223 and
the PPP.224 However, given the lack of a depth and tho-
rough debate about the implications of those proposals,
it is still too precipitous to extrapolate their outcome,
although from the businesses perspective, reversing
the burden of proof would entail an alteration of due
process.225 Moreover, it may be inaccurate to dene as
221 UNITED NATIONS INTERNATIONAL LAW COM-
MISSION. Yearbook of the international law commission 2001. New
York: United Nations, v. 2, 2007. p. 155.
222 SECRETARIAT OF THE CONVENTION ON BIOLOG-
ICAL DIVERSITY. Akwé Kon: voluntary guidelines for the conduct
of cultural, environmental, and social impact assessments regarding
developments proposed to take place on, or which are likely to im-
pact on, sacred sites and on lands and waters traditionally occupied
or used by indigenous and local communities, 2004. para. 61.
223 CHAIRMANSHIP OF THE OEIGWG. Elements for the draft
legally binding instrument on transnational corporations and other business en-
terprises with respect to human rights, 2018. Available in: <https://www.
ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/
Session3/LegallyBindingInstrumentTNCs_OBEs.pdf>. p. 10.
224 UNITED NATIONS HUMAN RIGHTS COUNCIL. Re-
port on the rst session of the open-ended intergovernmental working group on
transnational corporations and other business enter prises with respect to human
rights, with the mandate of elaborating an international legally binding instru-
ment. A/HRC/31/50, 2016. para. 51.
225 UNITED NATIONS HUMAN RIGHTS COUNCIL. Re-
port on the third session of the open-ended intergovernmental working group on
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
170
a self-standing principle the ‘shift of the burden of
proof’, since it could already be implied depending on
the interpretation given to the precautionary principle.
As for the PPP, its scope will be discussed further in the
section of corporate liability.
To conclude, the environmental principles that were
mentioned, even if invoked in an undened manner,
shows the will to accept the conceptual and practical
challenges of adapting their scope into the context of a
human rights treaty, an area of international law where
such principles may be deemed as ‘alien’.226 However,
for forthcoming sessions, it may be relevant to addi-
tionally discuss the scope of other principles instilled
in treaties such as the UNFCCC, like the principle of
‘common but differentiated responsibilities’, mostly be-
cause it could be helpful to understand that the costs
linked to social and environmental risk assessments, ei-
ther borne by states or MNCs, should consider each
country’s special circumstances, a measure that could
level the playing eld for developing countries and their
MNCs.227
4.2. Ratione Personae: what enterprises should
be included?
According to HRC Resolution 26/9, the scope of
regulation had initially been constrained to MNCs and
‘other business enterprises’. The latter is a category ex-
plained in a footnote within the same resolution indica-
ting only ‘business enterprises that have a transnational
character in their operational activities, and does not
apply to local businesses registered in terms of relevant
domestic law’.228
Firstly, it is still unclear whether a footnote has equi-
valent normative authority as the core of the resolution,
or is just a exible reference, subject to further inter-
transnational corporations and other business enter prises with respect to human
rights. A/HRC/37/67, 2018. para 52.
226 MORGERA, Elisa. Benet-sharing as a bridge between the
environmental and human rights accountability of multinational
corporations. In: BOER, Ben (Ed.). Environmental law dimensions of
human rights. United Kingdom: Oxford University Press, 2015. p. 49.
227 NOLLKAEMPER, André. Sovereignty and environmen-
tal justice in international law. In: EBBESSON, Jonas; OKOWA,
Phoebe (Ed.). Environmental law and justice in context. United Kingdom:
Cambridge University Press, 2009. p. 260.
228 UNITED NATIONS HUMAN RIGHTS COUNCIL. Elab-
oration of an international legally binding instrument on transnational corpora-
tions and other business enterprises with respect to human rights. UN. Doc. A/
HRC/RES/26/9, 2014. para. 1.
pretation or modication.229 The former compartmen-
talizes only enterprises with a transnational character,
clashing with those who pursued a broader interpreta-
tion encompassing all business enterprises - even local
companies,230 which is underpinned by the UNGP231
and echoed by certain states and NGOs alike.232 Con-
trariwise, some states asserted, in a generic fashion, that
MNCs should be the only ones to be regulated, claiming
that the impacts of human rights are directly linked to
the size and structure of MNCs, and that the spirit of
the treaty should address the current gap created by un-
dened MNCs.233
One commentator emphasized that legally binding
all businesses to comply with all forms of human ri-
ghts standards would alter the objective of the BHRT.234
Whereas regulating only MNCs would imply esta-
blishing their denitions either within the treaty or later
in domestic legislation.235 The formula retrieved in the
‘elements for the BHRT’ document emphasized that ‘a
legal denition of MNCs and other businesses is not
required, since the determinant factor is the activity un-
dertaken, particularly if such activity has a transnational
character’.236 Furthermore, it has been indicated in that
229 LOPEZ, Carlos; SHEA, Ben. Negotiating a treaty on busi-
ness and human rights: a review of the rst intergovernmental ses-
sion. Business and Human Rights Journal, v. 1, n. 1, p. 111-116, 2016.
230 MOHAMADIEH, Kinda; URIBE, Daniel. Business and hu-
man rights: commencing discussions on a legally binding instrument.
South Centre Bulletin. Available in: <http://www.southcentre.int/
wp-content/uploads/2015/11/SB87-88_EN.pdf>. p. 12.
231 RUGGIE, John. Guiding principles on business and human rights:
implementing the United Nations “protect, respect and remedy”
Framework. A/HRC/17/31, 2011. p. 13.
232 NAMIBIAN DELEGATION. Panel III. OEIGWG, 2015.
Available in: <http://www.ohchr.org/Documents/HRBodies/HR-
Council/WGTransCorp/Session1/Panel3/States/Namibia.pdf>.
233 UNITED NATIONS HUMAN RIGHTS COUNCIL. Re-
port on the rst session of the open-ended intergovernmental working group on
transnational corporations and other business enter prises with respect to human
rights, with the mandate of elaborating an international legally binding instru-
ment. A/HRC/31/50, 2016. para. 58.
234 MOHAMADIEH, Kinda; URIBE, Daniel. Business and hu-
man rights: commencing discussions on a legally binding instrument.
South Centre Bulletin. Available in: <http://www.southcentre.int/
wp-content/uploads/2015/11/SB87-88_EN.pdf>. p. 14.
235 MOHAMADIEH, Kinda; URIBE, Daniel. Business and hu-
man rights: commencing discussions on a legally binding instrument.
South Centre Bulletin. Available in: <http://www.southcentre.int/
wp-content/uploads/2015/11/SB87-88_EN.pdf>. p. 14.
236 CHAIRMANSHIP OF THE OEIGWG. Elements for the draft
legally binding instrument on transnational corporations and other business en-
terprises with respect to human rights, 2018. Available in: <https://www.
ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/
Session3/LegallyBindingInstrumentTNCs_OBEs.pdf>. p. 4.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
171
same document that the instrument should apply to hu-
man rights abuses resulting from any business activity
with a transnational character, including entities directly
or indirectly controlled by them.237
The quandary regarding the denition of MNCs in
a treaty is redolent of the times when the Norms were
drafted, 238 whose nal outcome did envisage a vague
denition of MNCs,239 including ‘all business entities,
regardless of their stated corporate form or the interna-
tional or domestic scope of their business’.240 A ‘broad
and inclusive’ formula is also present in the GC241 and
the ILO Tripartite Declaration on Multinational Enter-
prises and Social Policy,242 indicating that the OEIGWG
has a range of multifaceted and rehashed options to
choose from.
Moreover, some NGOs’ delegates proposed a ‘hy-
brid option’, upon which no type of businesses should
be excluded from regulation, while simultaneously
drawing provisions addressing specic challenges for
MNCs only.243 They argued that the footnote in Reso-
lution 26/9 is not entirely clear, assuming that a clear-
-cut denition of MNCs in the treaty will not only be
problematic with respect to overlooking variables that
dene their ‘transnational’ character, but also may con-
tribute to the creation of loopholes.244 In a similar vein,
237 CHAIRMANSHIP OF THE OEIGWG. Elements for the draft
legally binding instrument on transnational corporations and other business en-
terprises with respect to human rights. 2018. Available in: <https://www.
ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/
Session3/LegallyBindingInstrumentTNCs_OBEs.pdf>. p. 5.
238 WEISSBRODT, David; KRUGER, Muria. Norms on the
responsibilities of transnational corporations and other business en-
terprises with regard to human rights current developments. Ameri-
can Journal of International Law, v. 97, n. 4, p. 901-922, 2003.
239 UNITED NATIONS. Norms on the responsibilities of transna-
tional corporations and other business enter prises with regard to human rights.
E/CN4/Sub2/2003/12/Rev2, 2003.
240 WEISSBRODT, David; KRUGER, Muria. Norms on the
responsibilities of transnational corporations and other business en-
terprises with regard to human rights current developments. Ameri-
can Journal of International Law, v. 97, n. 4, p. 901-922, 2003. p. 909.
241 WEISSBRODT, David. Human rights standards concern-
ing transnational corporations and other business entities. Minnesota
Journal of International Law, v. 23, n. 2, p. 135-171, 2014. p. 140.
242 INTERNATIONAL LABOUR ORGANIZATION - ILO.
Tripartite declaration of principles concerning multinational enter-
prises and social policy. International Legal Materials, v. 41, n. 1, p.
184-201, 2002. para 6.
243 TREATY ALLIANCE. Panel II: scope. OEIGWG, 2015.
Available in: <http://www.ohchr.org/Documents/HRBodies/HR-
Council/WGTransCorp/Session1/Panel2/Others/SOMOJoint-
Statement.pdf>. p. 1.
244 TREATY ALLIANCE. Panel II: scope. OEIGWG, 2015.
other NGOs decried the ‘one-size-ts-all’ approach by
underscoring the irrelevance of the structure of the en-
terprise in the milieu of human rights encroachments,
recommending the establishment of exible rules that
take into account the size, context and type of business
enterprises.245
Finally, it might sound tempting, from an environ-
mental protection perspective, to regulate more thorou-
ghly MNCs that prot from the most pollutant activities
deployed specially in developing countries. However,
the reality is that human rights violations alleged in the
context of environmental hazards, have been correlated
with all business sectors.246 Thus, regulating a segment
of MNCs would contradict the universality and non-
-hierarchical denition of human rights, an aspirational
tenet in the treaty. Notwithstanding, if all types of bu-
siness enterprises were to be included in the treaty, it
could be an opportunity to expand environmental pro-
tection standards in all supply chains, which may lead to
take into consideration climate change related policies
or biodiversity protection mechanisms, as already stres-
sed in the OECD Guidelines.247
4.3. Ratione Materiae: what rights should be
included?
The ‘subject matter’ of the BHRT should bridge
the historical chasm between civil and political rights
on the one hand, and economic, social and cultural ri-
ghts on the other, according to a commentator,248 while
drawing three potential options that should be analy-
Available in: <http://www.ohchr.org/Documents/HRBodies/HR-
Council/WGTransCorp/Session1/Panel2/Others/SOMOJoint-
Statement.pdf>. p. 2.
245 INTERNATIONAL NETWORK FOR ECONOMIC, SO-
CIAL AND CULTURAL RIGHTS. Joint oral statement on the scope
of the legally binding instrument: TNCs and other business enterprises.
OEIGWG, 2015. Available in: <http://www.ohchr.org/Docu-
ments/HRBodies/HRCouncil/WGTransCorp/Session1/Panel3/
Others/ESCR-NET_Joint_Statement.pdf>. p. 2.
246 MORGERA, Elisa. Benet-sharing as a bridge between the
environmental and human rights accountability of multinational
corporations. In: BOER, Bem. (Ed.). Environmental law dimensions of
human rights. United Kingdom: Oxford University Press, 2015. p. 41.
247 ORGANISATION FOR ECONOMIC CO-OPERATION
AND DEVELOPMENT. OECD guidelines for multinational enterprises,
2011. p. 43.
248 DEVA, Surya. Scope of the proposed instrument: what human
rights to be covered?. OEIGWG, 2015. Available in: <http://www.
ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/
Session1/Panel4/Surya_Deva.pdf>. p. 1.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
172
sed with regards to the breadth of human rights that
should be protected: the rst one should only address
‘gross’ human rights abuses; the second should only re-
fer to the ‘core’ human rights treaties; and the third one
is to embrace all human rights instruments while esta-
blishing specic provisions with more severe sanctions
for ‘gross’ abuses.249
The rst option was largely discredited by virtually
all stakeholders, while the second was considered too
narrow, even if it resonates with the minimum set of
rights in Principle 12 of the UNGP.250 The third option
reconciles with the stance of countries like Bolivia,251
Cuba,252 Ecuador253 and South Africa,254 whose views
underscore the importance of not omitting environ-
mental rights, the rights of indigenous peoples and
even the right to development, invoking the universality
of rights enshrined in the Vienna Declaration and Pro-
gramme of Action.255 Nearly all NGOs followed said
stance, while adding the right to food and nutrition,256
249 DEVA, Surya. Scope of the proposed instrument: what human
rights to be covered?. OEIGWG, 2015. Available in: <http://www.
ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/
Session1/Panel4/Surya_Deva.pdf>. p. 2.
250 RUGGIE, John. Report of the special representative of the secretary
general on the issue of human rights and transnational corporations and other
business enterprises. Report submitted before session 17 of the human
rights council. A/HRC/17/31, 2011. p. 13.
251 BOLIVIAN DELEGATION. Panel IV: derechos humanos
a ser cubiertos bajo el instrumento con respecto a las actividades
de las empresas transnacionales y otras empresas. OEIGWG, 2015.
Available in: <http://www.ohchr.org/Documents/HRBodies/HR-
Council/WGTransCorp/Session1/Panel4/States/Bolivia_Plurina-
tional_State_of.pdf>.
252 CUBAN DELEGATION. Panel IV: qué violaciones a los
derechos humanos deben estar cubiertas bajo el instrumento sobre
las empresas transnacionales y otras empresas comerciales?. OE-
IGWG, 2015. Available in: <http://www.ohchr.org/Documents/
HRBodies/HRCouncil/WGTransCorp/Session1/Panel4/States/
Cuba.pdf>. p. 1.
253 ECUADORIAN DELEGATION. Panel IV: qué derechos
humanos a ser cubiertos bajo el instrumento sobre las empresas
transnacionales y otras empresas de negocios? OEIGWG, 2015
<http://www.ohchr.org/Documents/HRBodies/HRCouncil/
WGTransCorp/Session1/Panel4/States/Ecuador.pdf>. p. 2.
254 SOUTH AFRICAN DELEGATION. Panel IV: human
rights to be covered under the instrument with respect to activities
of TNCs and other business enterprises? OEIGWG, 2015. Available
in: <http://www.ohchr.org/Documents/HRBodies/HRCouncil/
WGTransCorp/Session1/Panel4/States/SouthAfrica.doc>. p. 1.
255 UNITED NATIONS. United Nations world conference on
human rights: Vienna declaration and programme of action. Interna-
tional Legal Materials, v. 32, n. 6, p. 1661-1687, 1993.
256 FIAN INTERNATIONAL. Oral statement of FIAN interna-
tional: panel IV. OEIGWG, 2015. Available in: <http://www.ohchr.
org/Documents/HRBodies/HRCouncil/WGTransCorp/Ses-
sion1/Panel4/Others/FoodFirst_Information_and_Action_Net-
the rights of environmental defenders,257 the eradica-
tion of poverty and a gender-based perspective.258
If the afore mentioned stance nds consensus, the
obvious question is what will happen to those rights
underpinned in international instruments that have no
universal recognition, such as regional human rights ins-
truments.
Accordingly, should all types of human rights be in-
cluded, then both, a self-standing right to a healthy envi-
ronment as well as procedural and substantive rights re-
lated to environmental protection, would automatically
be annexed into the BHRT. This includes instruments
that protect an autonomous right to a healthy or decent
environment, like the recently adopted Escazú Conven-
tion on Environmental Rights;259 but also the Aarhus
Convention, deemed as ‘an important extension of en-
vironmental rights and of the corpus of human rights
law’,260 which acknowledges the importance of the envi-
ronment to the enjoyment of basic human rights261 and
mentions private actors262 when contravening national
environmental law.263 Likewise, the 169 ILO Conven-
tion on Indigenous and Tribal Peoples, which protects
the FPIC of indigenous peoples in projects that may
workFIAN.pdf>. p. 2.
257 FIDH. Panel IV: Scope/Human rights to be covered under
the instrument with respect to activities of TNCs and other busi-
ness enterprises?. OEIGWG, 2015. Available in: <http://www.
ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/
Session1/Panel4/Others/International_Federation_for_Human_
Rights_Leagues_FIDH.pdf>. p. 1.
258 CENTRE FOR APPLIED LEGAL STUDIES. Panel
IV: human rights to be included. OEIGWG, 2015. Available in:
<http://www.ohchr.org/Documents/HRBodies/HRCouncil/
WGTransCorp/Session1/Panel4/Others/Center_for_Applied_Le-
gal_Studies.pdf>.
259 UNITED NATIONS ECONOMIC COMMISSION FOR
LATIN AMERICA AND THE CARIBBEAN. Regional agreement
on access to information, participation and justice in environmental matters in
Latin America and the Caribbean. 2018.
260 BOYLE, Alan. Human rights and the environment: where
next?. European Journal of International Law, v. 23, n. 3, p. 613-642,
2012. p. 624.
261 UNITED NATIONS ECONOMIC COMMISSION FOR
EUROPE. Convention on access to information, public participa-
tion in decision-making and access to justice in environmental mat-
ters. International Legal Materials, v. 38, n. 3, p. 517-533, 1999.
262 LAVRYSEN, Luc. The Aarhus Convention: between en-
vironmental protection and human rights. In : MARTENS, Paul;
MELCHIOR, Michel (Ed.). Liège, Strasbourg, Bruxelles: parcours des
droits de l’homme, Anthémis, 2010. p. 655.
263 UNITED NATIONS ECONOMIC COMMISSION FOR
EUROPE. Convention on access to information, public participa-
tion in decision-making and access to justice in environmental mat-
ters. International Legal Materials, v. 38, n. 3, p. 517-533, 1999. p. 524.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
173
directly affect them, and sets the obligation of carrying
out social and environmental impact assessments264 -a
legal tool in several cases before regional human rights
bodies,265 might also be included.
With that said, including rights related to the envi-
ronment into the BHRT, might be a good opportunity
to convey environmental protection in human rights
rhetoric, coalescing in a harmonious manner with cur-
rent IEL.266 However, due to a lack of universal state
support of said rights in international law – due to te-
chnical and political components better resolved in do-
mestic fora,267 it will be interesting to witness how these
discussions evolve within this drafting process.
4.4. Responsibility and obligations of
corporations: revisiting pillar two of the UNGP
Pillar two of the UNGP and its role in the BHRT’s
drafting process was pivotal in this discussion. Accor-
ding to some delegates, ‘responsibility’, in the context
of corporations, should be differentiated from conno-
tations found in the UNGP on the one hand, and in
CSR contexts on the other.268
Cuba proposed that companies shall disclose all the
information regarding preventive plans of human rights
protection and other due diligence procedures.269 The
Ecuadorian delegation stressed that direct obligations
for corporations can be found already in several instru-
264 INTERNATIONAL LABOUR ORGANIZATION - ILO.
Convention concerning indigenous and tribal peoples in independ-
ent countries. International Legal Materials, v. 28, n. 6, p. 1382-1392,
1986.
265 COURTIS, Christian. Notes on the implementation by latin
american courts of the ILO convention 169 on indigenous peoples.
International Journal on Minority and Group Rights, v. 18, n. 4, p. 433-460,
2011.
266 BOYLE, Alan. Human rights and the environment: where
next?. European Journal of International Law, v. 23, n. 3, p. 613-642,
2012. p. 633.
267 HANDL, Günter. Human rights and the protection of the
environment. In: EIDE, Asbjørn; KRAUSE, Catarina; ROSAS, Al-
lan (Ed.). Economic, social & cultural rights: a textbook. 2. ed. M Ni-
jhoff Publishers, 2001. p. 305.
268 MOHAMADIEH, Kinda; URIBE, Daniel. Business and hu-
man rights: commencing discussions on a legally binding instrument.
South Centre Bulletin. Available in: <http://www.southcentre.int/
wp-content/uploads/2015/11/SB87-88_EN.pdf>. p. 25.
269 CUBAN DELEGATION. Panel VI: aumentando la respon-
sabilidad de las empresas transnacionales y otras empresas. OE-
IGWG, 2015. Available in: <http://www.ohchr.org/Documents/
HRBodies/HRCouncil/WGTransCorp/Session1/Panel6/States/
Cuba.pdf>. p. 2.
ments of international law, namely the Convention on
Civil Liability for Oil Pollution Damage, which might
inspire the design of direct obligations upon companies
in the treaty.270 The South African delegation deemed
that the UNGP should set the ground for liability and
accountability for corporations in international human
rights.271
NGOs proposed the collective responsibility of
MNCs with respect to their subsidiaries.272 Moreover,
it was advised that states should pass national legisla-
tion aiming to dene obligations for MNCs to abstain
from any activity that could cause ecological harm; to
conduct independent ex ante and ex post human rights
and environmental impact assessments; to put in place
access to information mechanisms for individuals and
communities potentially affected by MNCs’ operations;
to implement on-going human rights and environmen-
tal monitoring systems; and to comply with judiciary
and administrative decisions.273
According to some participants, the standard where-
by business enterprises would certainly be bound to, is
human rights due diligence, which would include seve-
ral elements – like FPIC of indigenous peoples,274 and
whose denition and implementation should be left to
states looking to regulate companies operating at home
or abroad, while taking due consideration of their sup-
ply chains.275
270 ECUADORIAN DELEGATION. Panel IV: qué derechos
humanos a ser cubiertos bajo el instrumento sobre las empresas
transnacionales y otras empresas de negocios? OEIGWG, 2015
<http://www.ohchr.org/Documents/HRBodies/HRCouncil/
WGTransCorp/Session1/Panel4/States/Ecuador.pdf>. p. 2.
271 SOUTH AFRICAN DELEGATION. Panel VI: enhancing
the responsibility of transnational corporations and other business
enterprises to respect human rights, including prevention, mitiga-
tion and remediation. OEIGWG, 2015. Available in: <http://www.
ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/
Session1/Panel6/States/South_Africa.pdf>. p. 2.
272 CETIM. Panel VI. OEIGWG, 2015. Available in:
<http://www.ohchr.org/Documents/HRBodies/HRCouncil/
WGTransCorp/Session1/Panel6/Others/CETIM.pdf>.
273 FIAN INTERNATIONAL. Oral statement of FIAN interna-
tional: panel VI. OEIGWG, 2015. Available in: <http://www.ohchr.
org/Documents/HRBodies/HRCouncil/WGTransCorp/Ses-
sion1/Panel6/Others/FoodFirst_Information_and_Action_Net-
work_FIAN.pdf>. p. 1.
274 UNITED NATIONS HUMAN RIGHTS COUNCIL. Re-
port on the rst session of the open-ended intergovernmental working group on
transnational corporations and other business enter prises with respect to human
rights, with the mandate of elaborating an international legally binding instru-
ment. A/HRC/31/50, 2016. para. 86.
275 FIDH. Panel VI: enhancing the responsibility of TNCs and
other business enterprises to respect human rights, including pre-
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
174
In the document of the ‘elements for a BHRT’,
it was stated that MNCs shall have both positive and
negative obligations. The former is related to creating,
implementing and monitoring internal policies aligned
with internationally recognized human rights standards;
while the latter is connected to refraining from activities
that would undermine the rule of law.276
In this vein, it was suggested to ponder the relevance
of the UNFCCC, the Vienna Convention for the Pro-
tection of the Ozone Layer and its Montreal Protocol
on Substances that Deplete the Ozone Layer, as instru-
ments that set out compliance mechanisms and annexes
subject of modication at the meeting of the parties to
ensure precision and exibility as a strategy for enhan-
cing compliance and establish due diligence gauges.277
It is worth clarifying that during the discussions,
stakeholders were mostly using the denition of ‘res-
ponsibility’ as an obligation rather than as a breach the-
reto.278 With this in mind, two conicting postures aro-
se: direct obligations for MNCs on the one hand, and
indirect obligations through states on the other. Howe-
ver, in-depth debate about the implications of either of
those positions was notoriously absent.
The ‘direct-obligation’ approach is based on the need
that corporations – as power-holders, shall also protect
human rights, thus striking a balance under internatio-
nal law between the rights of corporations enshrined in
BITs, and human rights embedded in the BHRT, provi-
ded that both are anchored in international agreements,
thus granting them equal value.279 Its main shortcoming,
however, is that it overlooks fundamental distinctions
vention, mitigation and remediation. OEIGWG, 2015. Available
in: <http://www.ohchr.org/Documents/HRBodies/HRCouncil/
WGTransCorp/Session1/Panel6/Others/International_Federa-
tion_for_Human_Rights_Leagues_FIDH.pdf>. p. 1.
276 CHAIRMANSHIP OF THE OEIGWG. Elements for the draft
legally binding instrument on transnational corporations and other business en-
terprises with respect to human rights, 2018. Available in: <https://www.
ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/
Session3/LegallyBindingInstrumentTNCs_OBEs.pdf>. p. 6.
277 UNITED NATIONS HUMAN RIGHTS COUNCIL. Re-
port on the third session of the open-ended intergovernmental working group on
transnational corporations and other business enter prises with respect to human
rights. A/HRC/37/67, 2018. paras. 97, 98.
278 NOLLKAEMPER, André. Responsibility of transnational
corporations in international environmental law: three perspectives.
In: WINTER, Gerd (Ed.). Multilevel governance of global environmental
change. United Kingdom: Cambridge University Press, 2006. p. 182.
279 BILCHITZ, David. The necessity for a business and human
rights treaty. Business and Human Rights Journal, v. 1, n. 2, p. 203-227,
2016. p. 216.
between the private and the public realms, misconcei-
ving or overlapping each dimensions’ essential roles,280
and giving free rein to private entities to ‘capture’ an
international regime designed to protect individuals, as
was underscored by some NGOs.281
Furthermore, it is still unclear how exactly those ‘di-
rect obligations’ will be executed, or how they are going
to abate the inconsistency that stems from the imposi-
tion of obligations for ‘private subjects of international
law’ who will likely refrain to be bound by a norm that
opposes their interests. The options to deal with this
is that either MNCs become also part of the treaty or
– as in the international humanitarian law regime with
respect to rebel groups – they are bound by default to
the treaty.282
Contrariwise, the ‘indirect obligations’ approach is
already an existent paradigm, where states are the means
for MNCs’ compliance of human rights obligations,
therefore, adding an environmental dimension therein
should be less complex. Then again, since it entrusts
human rights protection exclusively upon the state, it
falls short in recognizing a universal duty of protec-
tion.283
A good example of the ‘direct obligation’ approach
is Section 1502 of the Dodd-Frank Act, a US domestic
law that seeks to raise investors and consumers’ aware-
ness through transparency ‘on potential corporate com-
plicity in human rights abuses, primarily in the Demo-
cratic Republic of the Congo’.284 Domestic and foreign
companies, as a form of due diligence, must report the
origin of certain minerals in their products in order to
280 BILCHITZ, David. Corporations and the limits of state-
based models for protecting fundamental rights in international law.
Indiana Journal of Global Legal Studies, v. 23, n. 1, p. 143-170, 2016.
281 FIAN INTERNATIONAL. Written submission by FIAN in-
ternational. OEIWG, 2015. Available in: <http://www.ohchr.org/
Documents/HRBodies/HRCouncil/WGTransCorp/Session1/
FIAN_International.doc>. p. 9–10.
282 NOLLKAEMPER, André. Responsibility of transnational
corporations in international environmental law: three perspectives.
In: WINTER, Gerd (Ed.). Multilevel governance of global environmental
change. United Kingdom: Cambridge University Press, 2006. p. 195.
283 BILCHITZ, David. Corporations and the limits of state-
based models for protecting fundamental rights in international law.
Indiana Journal of Global Legal Studies, v. 23, n. 1, p. 143-170, 2016. p.
166.
284 NARINE, Marcia. From Kansas to the Congo: why naming
and shaming corporations through the Dodd-Frank act’s corporate
governance disclosure won’t solve a human rights crisis emerging
issues in social enterprise. Regent University Law Review, v. 25, p. 351-
401, 2012.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
175
avoid the funding of local groups linked to human ri-
ghts violations.
Although the cited example is conned to national
jurisdiction and does not incorporate a direct environ-
mental component, it nonetheless evinces the positive
impact behind drawing obligations for companies as a
mandatory due diligence requirement to operate. In that
vein, states under the treaty could esh out due diligen-
ce obligations that not only touches upon human rights,
but also environmental protection.
Principle 17 of the UNGP contemplates corpora-
te due diligence as a way to identify, prevent, mitigate
and account for adverse human rights impacts, inclu-
ding current and potential ones.285 In that regard, the
Norms,286 as a way to materialize the concept of due
diligence, enshrined the need to carry out social and
environmental assessments before and during the life
cycle of the operation, ensuring ‘that the burden of the
negative environmental consequences does not fall on
vulnerable racial, ethnic and socioeconomic groups’.287
Therefore, corporate due diligence could be delineated
taking into account existent standards of environmental
and social impact assessments intertwined with nascent
standards on human rights impact assessments.288
Regardless of the approach taken by the OEIWG
with respect to direct or indirect obligations for MNCs,
xing binding standards of corporate due diligence is
arguably a step forward towards lling international law
lacuna; additionally, it is a good opportunity to merge
standards from two different law regimes, a challenge
that may nd insights in current national and internatio-
nal law, as was demonstrated. Said examples could also
be transposed onto state-run companies, a category ba-
rely mentioned during the discussions and whose grey
areas could ignite further contention, even if Principle
4 of the UNGP takes due notice of their importance.289
285 RUGGIE, John. Guiding principles on business and human rights:
implementing the United Nations “protect, respect and remedy”
Framework. A/HRC/17/31, 2011. p. 16.
286 WEISSBRODT, David. Human rights standards concern-
ing transnational corporations and other business entities. Minnesota
Journal of International Law, v. 23, n. 2, p. 135-171, 2014. p. 153.
287 MORGERA, Elisa. Corporate accountability in international en-
vironmental law. United Kingdom: Oxford University Press, 2009. p.
180.
288 MASSARANI, Tarek; TATGENHORST DRAKOS, Margo;
PAJKOWSKA, Joanna. Extracting corporate responsibility: towards
a human rights impact assessment. Cornell International Law Journal, v.
40, n. 1, p. 135-169, 2007.
289 RUGGIE, John. Guiding principles on business and human rights:
4.5. Liability for businesses
Delegates highlighted that the treaty should address
frequent litigation obstacles to render MNCs accounta-
ble, like complex corporate structures or the doctrine
of forum non conveniens.290 Moreover, it was claimed that
standards should adapt to different civil and criminal
liability contexts or diverse legal systems and traditions,
while also allowing inter-state cooperation for legal en-
forcement and liability for all stages in the supply chain.
In addition, the level of liability could be proportional
to the level of due diligence measures taken from a pa-
rent company vis-à-vis its subsidiaries, implying that ru-
les should be adjusted on a case-by-case basis.291
Conversely, a delegate from an employers’ organi-
zation proposed that instead of focusing on standar-
ds, the treaty should have an approach where specic
conducts should be penalized and a pragmatic victim-
-oriented approach should be embraced.292 Moreover,
dening the jurisdiction where the harmful conduct
took place and sanctioning them based on the level of
damage inicted should be the focus.293
Bolivia and Cuba stressed that impairments of hu-
man rights perpetrated by parent companies and/or
their subsidiaries should amount to the executives’ lia-
bility.294 To this, Venezuela proposed a list of harmful
conducts and their corresponding sanctions therein.295
implementing the United Nations “protect, respect and remedy”
Framework. A/HRC/17/31, 2011. p. 9.
290 DEVA, Surya. Legal liability of TNCs and other business enter-
prises: what standards and for which conducts?. OEIGWG, 2015.
Available in: <http://www.ohchr.org/Documents/HRBodies/HR-
Council/WGTransCorp/Session1/Panel7/Surya_DevaVII.pdf>.
p. 1.
291 DEVA, Surya. Legal liability of TNCs and other business enter-
prises: what standards and for which conducts?. OEIGWG, 2015.
Available in: <http://www.ohchr.org/Documents/HRBodies/HR-
Council/WGTransCorp/Session1/Panel7/Surya_DevaVII.pdf>.
p. 2.
292 SUAREZ, Roberto. Legal liability of transnational corporation.
OEIGWG, 2015. Available in: <http://www.ohchr.org/Docu-
ments/HRBodies/HRCouncil/WGTransCorp/Session1/Panel7/
Roberto_Suarez.pdf>. p. 3.
293 MOHAMADIEH, Kinda; URIBE, Daniel. Business and hu-
man rights: commencing discussions on a legally binding instrument.
South Centre Bulletin. Available in: <http://www.southcentre.int/
wp-content/uploads/2015/11/SB87-88_EN.pdf>. p. 31.
294 BOLIVIAN DELEGATION. Panel VII: responsabilidad
legal de las empresas transnacionales. OEIGWG, 2015. Available
in: <http://www.ohchr.org/Documents/HRBodies/HRCouncil/
WGTransCorp/Session1/Panel7/States/Bolivia_Plurinational_
State_ofVII.pdf>.
295 MOHAMADIEH, Kinda; URIBE, Daniel. Business and hu-
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
176
Ecuador recommended setting a nationality test in or-
der to lift the corporate veil, which may include, inter
alia, the country where the company is domiciled, the
jurisdiction where its operations take place or the natio-
nality of their shareholders.296
An NGO cited the Australian criminal code regar-
ding ‘fault elements other than negligence’, whereby it
is stated, inter alia, that either the body corporate’s board
of directors or a high managerial agent could be held
liable if expressly, tacitly or impliedly authorised or per-
mitted the commission of an offence.297 Furthermore,
shared liability of MNCs for the ‘activities of their sub-
sidiaries, suppliers, licensees and subcontractors’, was
also stressed.298
Moreover, the need of drawing legal liability provi-
sions to shift the burden of proof from the claimant
to the defendant was proposed by an NGO, since ‘tho-
se affected by corporate injustice, the complex organi-
sational processes within a company and its business
relationships are extremely difcult to determine and
prove’.299
All this begs the question of whether due diligen-
ce could be considered a measure that attenuates or
exempts liability of MNCs and their subsidiaries, or not.
The outcome of this question will depend on whether
the PPP, if included in the treaty, will be extensive to
the parent company and its subsidiaries or restrictive to
each supplier in the value chain. In this sense, interna-
tional liability regimes are mostly designed around the
man rights: commencing discussions on a legally binding instrument.
South Centre Bulletin. Available in: <http://www.southcentre.int/
wp-content/uploads/2015/11/SB87-88_EN.pdf>. p. 33.
296 ECUADORIAN DELEGATION. Panel VII: responsabili-
dad legal de las empresas transnacionales y de otras empresas: qué
estándares para la responsabilidad legal corporativa y para qué tipo
de conducta? OEIGWG, 2015. Available in: <http://www.ohchr.
org/Documents/HRBodies/HRCouncil/WGTransCorp/Ses-
sion1/Panel7/States/Ecuador.pdf>.
297 ESCR-NET. Intervention from the oor during panel VII. OE-
IGWG, 2015. Available in: <http://www.ohchr.org/Documents/
HRBodies/HRCouncil/WGTransCorp/Session1/Panel7/Others/
ESCRNet.pdf>.
298 FRIENDS OF THE EARTH INTERNATIONAL. Oral
statement FoEI at panel VII on legal liability of TNCs and other business
enterprises. OEIGWG, 2015. Available in: <http://www.ohchr.org/
Documents/HRBodies/HRCouncil/WGTransCorp/Session1/
Panel7/Others/Friends_of_the_Earth_International.pdf>.
299 CIDSE. Panel VII: content: standards for legal account-
ability TNCs and what conduct?. OEIGWG, 2015. Available in:
<http://www.ohchr.org/Documents/HRBodies/HRCouncil/
WGTransCorp/Session1/Panel7/Others/CIDSE_Joint_State-
ment.pdf>.
concept of strict limited liability for private operators
in specic high risk activities,300 like the movement of
ultra-hazardous substances, where private due diligence
is unknown, and paradoxically an integral implementa-
tion of the PPP is yet to be consolidated.301
If the BHRT includes the PPP, there should be a
balance between the strict liability standard and the im-
plications of implementing MNCs due diligence, whi-
ch may be used as a potential defence argument should
they commit wrongful acts. It is noteworthy that the
SRSG indicated that human rights due diligence, by it-
self, should not absolve a company from liability;302 a ca-
veat that resonates with the formula in the Convention
on Civil Liability for Damage Resulting from Activities
Dangerous to the Environment, whereby an operator is
exempted from liability, inter alia, if the act was caused
by a third party intending to cause damage, and having
implemented safety measures rst.303
Perhaps the rst step to implement the PPP under
this new treaty is to identify the polluter or the human
rights transgressor, to whom a nationality test could be
applied, and depending on the size of the company, de-
termine whether home states should assume part of the
burden as ‘residual sources of redress’.304 This could be
seen as a progressive implementation of principles 13
and 16 of the Rio Declaration, with respect to liability
and compensation for adverse effects of environmen-
tal damage, and the internalization of environmental
costs.305
300 LUPPI, Barbara; PARISI, Francesco; RAJAGOPALAN,
Shruti. The rise and fall of the polluter-pays principle in develop-
ing countries. International Review of Law and Economics, v. 32, n. 1, p.
135-144, 2012.
301 MORGERA, Elisa. Corporate accountability in international en-
vironmental law. United Kingdom: Oxford University Press, 2009. p.
40–41; BIRNIE, Patricia; BOYLE, Alan; REDGWELL, Catherine.
International law and the environment. 3. ed. United Kingdom: Oxford
University Press, 2009. p. 325.
302 RUGGIE, John. Business and human rights: further steps toward
the operationalization of the “protect, respect and remedy” frame-
work: report of the special representative of the secretary general
on the issue of human rights and transnational corporations and
other business enterprises. UN Doc. A/HRC/14/27, 2010. para. 86.
303 COUNCIL OF EUROPE. Convention on civil liability for
damage resulting from activities dangerous to the environment. In-
ternational Legal Materials, v. 32, n. 5, p. 1228-1246, 1993. p. 1234.
304 BOYLE, Alan. Globalising environmental liability: the inter-
play of national and international law. Journal of Environmental Law, v.
17, n. 1, p. 3–26, 2005. p. 8.
305 UNITED NATIONS. Conventions and agreements interna-
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VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
177
5. conclusIons
It is clear that since 2006, the prolic role of the HRC
in bolstering the human rights regime is undeniable,306
a contribution that certainly extends to the current
endeavour of crafting a BHRT, which indubitably is
a new opportunity to keep developing a vital service
for humanity. In that sense, a new BHRT is feasible,
although it entails colossal challenges that will have to
be dealt with caution, without repeating mistakes from
the past;307 and a way to do it, is by understanding that
law making processes are frequently diplomatic facades,
veiling each country’s political agendas.308 That is why,
the drafters of the BHRT should consider the risks of
paucity of precision when assigning direct duties to
MNCs and other businesses; namely a potential distor-
tion of the human rights regime by consigning states’
obligations to non-state actors309. This risk may increase
taking into consideration that the main proponents and
supporters of the treaty are countries not particularly
deemed as democratic,310 demonstrating the importance
of legislative rigour and a vibrant diversity of voices in
the HRC.
To illustrate the previous point, almost every
stakeholder that was present in all three sessions had
similar views on nearly all the basic structure of the
BHRT, except for the contended point regarding the
scope of regulation. States were keen on regulating only
MNCs, while NGOs and experts suggested to extend it
to all types of businesses. Fortunately, an understanding
was reached as to regulate all businesses entities with
a transnational character, avoiding a potential collapse
that might stalled subsequent negotiations. This goes
without mentioning the absence of key actors, like the
US, which without them, thwarting the adoption of a
nal outcome is a foreseeable scenario, analogous to
the unsuccessful experience of the UNCCTC and the
Norms.
306 RAMCHARAN, Bertrand. The law, policy and politics of the UN.
Brill Nijhoff, 2015. p. 164.
307 RUGGIE, John. A UN business and human rights treaty?. Avail-
able in: <https://www.hks.harvard.edu/m-rcbg/CSRI/UNBusi-
nessandHumanRightsTreaty.pdf>. p. 3.
308 BOYLE, Alan; CHINKIN, Christine. The making of interna-
tional law. United Kingdom: Oxford University Press, 2007. p. 103.
309 KNOX, John. Horizontal human rights law. The American
Journal of International Law, v. 102, n. 1, p. 1-47, 2008. p. 1-47.
310 CAMPBELL, David et al. Key ndings of the democracy ranking
2015. Available in: <http://democracyranking.org/ranking/2015/
data/Scores_of_the_Democracy_Ranking_2015_A4.pdf>. p. 3.
Evidently, it is difcult to assess, at least at this early
stage of drafting, what the substantive content, opera-
tive procedures, or practical shortcomings the BHRT
will entail, specially for environmental considerations;
however, the chances for environmental protection
are multiple if drafters start discussing them in subse-
quent drafting stages. What may spark further debate
on environmental dimensions are the broad assertions
regarding environmental principles that stakeholders
made during the rst three sessions. But again, vaguely
worded declarations might be interpreted as an attempt
to internationalize domestic standards, an ambitious en-
deavour that should be meticulously examined.
Notwithstanding, it is worth of notice that several
IEL instrument were mentioned during the sessions;
signalling an attempt of cross-fertilization between dis-
tinct areas of law during these stages of the drafting,
and to that end, there is a multiple array of IEL tools
that could be useful in the future. Needles to say, the
HRC is a human rights body, not a conference of the
parties of an environmental agreement; and from what
was perceived at this early stage, the chasm that divides
both regimes, has not yet been bridged.
Ostensibly, the UNGP and other voluntary initiati-
ves designed to provide guidance on corporate human
rights responsibility, will keep developing and be pro-
gressively inserted onto global law and policy, conco-
mitantly with the negotiations of the BHRT, however,
if an honest and useful addition of environmental di-
mensions within these initiatives are intended to be in-
cluded, it is ‘still necessary to identify the relationship
between human rights obligations and environmental
protection in order to determine what environmental
responsibilities we expect corporations to respect’.311
Considering that this document has mainly addres-
sed the question of corporations’ responsibility to res-
pect human rights and the environment – or the second
pillar in UNGP’s vernacular, the plethora of ramica-
tions around these discussions are still ill-explored; and
it hints the need to keep examining the way in which
the rest of the pillars interweave with other phenomena
that might be slightly out of the scope of the HRC.
That path must be followed in order to clinch this hea-
ted and elongated debate. Of course, the focus of this
311 BOYLE, Alan. Human rights and the environment: where
next?. European Journal of International Law, v. 23, n. 3, p. 613-642,
2012. p. 621.
VACA, Juan Gabriel Auz. The environmental law dimensions of an international binding treaty on business and human rights. Revista de Direito Internacional, Brasília, v. 15, n. 2, 2018 p. 150-188
178
unresolved matter should always be the global victims,
and in that category, it might be wise to make room for
the environment.
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