Draft text for Business and Human Rights Treaty (2)

Abstract

Second draft text for a framework-style business and human rights treaty

Full text

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Draft text for Business and Human Rights Treaty
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Revised version of 14 July 2021
Preamble
The Parties to this Treaty,
Recalling the Charter of the United Nations,
2
Considering that, in accordance with the principles and purposes proclaimed in the Charter of the
United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the world,
3
Recalling further the Universal Declaration of Human Rights, the International Covenant on Civil
and Political Rights and the International Covenant on Economic, Social and Cultural Rights, and
the principles concerning fundamental rights in the eight ILO core conventions as set out in the
Declaration on Fundamental Principles and Rights at Work,
4
Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free
human beings enjoying freedom from fear and want can only be achieved if conditions are created
whereby everyone may enjoy his or her civil, political, economic, social and cultural rights,
5
Recognizing the Protect, Respect and Remedy Framework and Guiding Principles on Business and
Human Rights, and their contribution to advancing respect for human rights in the business sphere,
on which further progress should be made, to contribute to a socially and environmentally
sustainable globalization,
6
Acknowledging that the promotion and protection of human rights, including in the context of
business activities, and the implementation of the 2030 Agenda for Sustainable Development, are
interrelated and must be mutually reinforcing,
7
Recalling States’ existing obligations to respect, protect and fulfil human rights and fundamental
freedoms,
8
and stressing that the obligation and the primary responsibility to promote and protect
human rights and fundamental freedoms lies with the State,
9
Recalling the positive contribution which business enterprises that comply with all applicable laws
and respect human rights can make to economic and social progress and the realization of decent
work for all,
10
1
Cf. Claire Methven O’Brien’s 2020 Draft Text for a Business and Human Rights Treaty.
2
Cf. 2RD Preambular para.1.
3
Cf. ICESCR, Preamble.
4
Cf. UNGPs, Commentary to UNGP 12; OECD Guidelines for MNEs, Ch. IV, para.39. Cf. 2RD preambular paras. 2, 3.
5
Cf. ICESCR, Preamble.
6
Cf. UN Working Group BHR, A/HRC/47/39, 22.04.21.
7
Cf. UN HRC Res. 37/24.
8
Cf. UNGPs p. 1.
9
Cf. HRC Res 17/4, Preamble; 2RD Preambular para. 9.
10
Cf. ILO Tripartite Declaration, para.2; cf. UNGPS p. 1; see also COE Recommendation, Preamble.

2
Recognizing that proper regulation, including through national legislation, of transnational
corporations and other business enterprises, and their responsible operation can contribute to the
promotion, protection and fulfilment of and respect for human rights and assist in channelling the
benefits of business towards contributing to the enjoyment of human rights and fundamental
freedoms,
11
Concerned that weak national legislation and implementation have failed effectively to mitigate the
negative impact of globalization on vulnerable economies, fully realize the benefits of globalization
or derive maximally the benefits of activities of transnational corporations and other business
enterprises, and that therefore efforts to bridge governance gaps at the national, regional and
international levels are necessary,
12
Recalling the need for rights and obligations to be matched to appropriate, effective and accessible
remedies when breached, including where human rights abuses occur in the context of business
activities,
13
Emphasizing the importance of multi-stakeholder dialogue, analysis and capacity building of all
actors better to manage challenges in the area of business and human rights and build on progress
achieved to date,
14
Desiring to clarify and facilitate effective implementation of the obligations of States regarding
business-related human rights abuses and the responsibilities of businesses in that regard
15
; to
prevent the occurrence of human rights abuses in the context of business activities and provide
access to justice and effective remedy to victims of such abuses,
16
Have agreed as follows,
11
Cf. UN HRC 8/7, Preamble; UN HRC 17/4, Preamble.
12
Cf. UN HRC 8/7, Preamble, UN HRC 17/4, Preamble.
13
Cf. UNGPs p. 1.
14
Cf. UN HRC Res. 17/4, para.5; UN HRC 17/4, Preamble.
15
Cf. 2RD, ultimate Preambular para.
16
Cf. 2RD, Art.2.

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SECTION I.
ARTICLE 1. DEFINITIONS
For the purposes of this treaty:
a) “Human rights” means internationally-recognised human rights, such as those expressed in
the Universal Declaration of Human Rights, the International Covenant on Civil and
Political Rights, and the International Covenant on Economic, Social and Cultural Rights,
and the principles concerning fundamental rights set out in the 1998 International Labour
Organisation Declaration on Fundamental Principles and Rights at Work;
b) “Businesses” means all business enterprises, both transnational and others, regardless of
their size, sector, location, ownership and structure;
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c) “Parties” means, unless the text otherwise indicates, Parties to this Treaty;
d) “Regional economic integration organization” means an organization constituted by
sovereign States of a given region which has competence in respect of matters governed by
this Treaty or its protocols and has been duly authorized, in accordance with its internal
procedures, to sign, ratify, accept, approve or accede to the instruments concerned.
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ARTICLE 2. OBJECTIVES
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The objectives of this Treaty are:
a. To advance the effective implementation of the obligation of states to respect,
promote, protect and fulfil human rights in the context of business activities;
b. To ensure that businesses fulfil their responsibilities to respect human rights;
20
c. To prevent human rights violations and abuses in the context of business activities;
21
d. To ensure access to justice and effective remedy for victims of human rights
violations and abuses in the context of business activities, including through mutual
legal assistance;
22
e. To promote and strengthen international cooperation to prevent and remedy
business-related human rights violations and abuses, and to harmonize measures and
bridge governance gaps at national, regional and international levels towards the
achievement of social and environmental sustainability.
23
17
Cf. UNGPs p. 1.
18
Cf. Ozone Art 1(6), UNFCCC Art 1.
19
Cf. 2RD Art.2.
20
Cf. 2RD Art 2(1)(a).
21
Cf. 2RD Art 2(1)(b); UN Secretary General Prevention Agenda https://www.un.org/sg/en/priorities/prevention.shtml
22
Cf. UNGP 25: “access to effective remedy”; 2RD Art 2(1)(c).
23
Cf. 2RD Art 2(1)(d).

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ARTICLE 3. GENERAL OBLIGATIONS
1. Each Party shall take effective and appropriate measures to achieve this Treaty’s objectives.
2. In implementing this article, each party to this agreement shall have regard to the need:
a. to protect victims of human rights abuses and enhance their access to effective
remedies for business-related violations and abuses,
24
including those of a
transnational character;
25
b. to consider groups or populations that may be at heightened risk of becoming
vulnerable or marginalized, and the different risks that may be faced by women and
men;
26
c. to regulate business enterprises to ensure they respect human rights in practice,
through the application of appropriate and proportionate measures, including due
diligence, as well as incentives and sanctions;
d. to ensure effective respect for human rights in the context of international trade,
investment
27
and finance;
e. to identify emerging risks to human rights from business activities and take
preventive measures as appropriate.
3. To this end the Parties shall,
a. Periodically review their national legislation, policies and practice, including
practices of business enterprises, to evaluate implementation and observance of this
Treaty and its guiding principles;
28
b. Develop, periodically review and update national action plans on business and
human rights,
29
or adapt for this purpose existing strategies, plans or programmes,
30
and ensure, by appropriate means and action, their effective implementation and
wide dissemination amongst competent authorities and stakeholders;
31
c. Co-operate in the formulation of proposed measures, procedures and guidelines for
the implementation of this Treaty, and involve stakeholders as appropriate in this
regard;
32
24
Cf. 2RD Arts. 4 and 5, 7; 2RD Art. 6(3)(c).
25
Cf. 2RD Arts. 4 and 5, 7; 2RD Art. 6(3)(c).
26
Cf. UNGPs, p1.
27
Cf. 2RD Art 14(5).
28
Cf. COE Recommendation, para.1.
29
Cf. COE Recommendation para.2.
30
Cf. CBD Art.6 (a).
31
COE Recommendation para.2.
32
WHO FCTC, Art 5(4).

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d. Cooperate with competent international and regional intergovernmental
organisations, regional economic integration organizations and stakeholders to
achieve the objectives of this Treaty.
33
4. Under this article, the parties will have regard to the role and value of:
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i. Technical cooperation and capacity-building among policy makers, national
human rights institutions, and operators, as well as users of domestic,
regional and international grievance mechanisms;
ii. Sharing experiences, good practices, challenges, information and training
programs on the implementation of the present agreement;
iii. Raising awareness about the rights of victims of business-related human
rights abuses and the obligations of States and responsibilities of businesses
in relation to this agreement;
iv. Facilitating cooperation in research and studies on the challenges, good
practices and experiences in preventing human rights abuses in the context of
business activities, including those of a transnational character.
v. Additional Protocols, Annexes, Guidelines, Recommendations or other
instruments adopted under this Treaty, in advancing its objectives.
ARTICLE 4. GENERAL PRINCIPLES
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1. In their actions to achieve the objectives of this Treaty and to implement its provisions, the
Parties shall be guided by the UN Framework and Guiding Principles on Business and
Human Rights, as set out in Annex I to this Treaty.
2. The participation of stakeholders, such as businesses, business associations, labour and
workers’ associations, civil society organisations, rights-holders and their representatives,
and human rights defenders is essential in achieving the objectives of this treaty.
36
33
WHO FCTC, Art 5(5).
34
Cf. 2RD Art.13.
35
Cf. UNFCCC Art 3, CBD Art 3, WHO FCTC Art 4.
36
Cf. WHO FCTC Art. 4(7).

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ARTICLE 5. RELATIONSHIP BETWEEN THIS TREATY AND OTHER AGREEMENTS
AND LEGAL INSTRUMENTS
1. In order to promote the achievement of this Treaty’s objectives, Parties are encouraged to
implement measures beyond those required by this Treaty, and nothing in this Treaty shall
prevent a party from imposing stricter requirements that are consistent with this Treaty and
in accordance with international law.
37
2. The provisions of this Treaty shall in no way affect the right of Parties to enter into bilateral
or multilateral agreements, including regional or sub-regional agreements, on issues relevant
or additional to this Treaty, provided that such agreements are compatible with their
obligations under this Treaty.
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ARTICLE 6. JURISDICTIONAL SCOPE
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1. States Parties shall carry out their obligations under this Treaty in a manner consistent with
the principles of sovereign equality and territorial integrity of States and that of non-
intervention in the domestic affairs of other States.
40
2. Nothing in this Treaty shall entitle a State Party to undertake in the territory of another State
the exercise of jurisdiction and performance of functions that are reserved exclusively for
the authorities of that other State by its domestic law or international law.
41
3. Without prejudice to Articles 6 (1) and (2), this Treaty does not exclude the exercise of any
jurisdiction established by a State Party under its domestic or international law.
37
Cf. WHO FCTC Art 2(1); Istanbul Convention Art. 71(1).
38
Cf. WHO FCTC Art 2(2); Istanbul Convention Art 71(1).
39
Cf. RD Art. 12 Consistency with International Law and Art 7 Adjudicative Jurisdiction
40
Cf. Palermo Convention, Art. 4(1).
41
Cf. Palermo Convention, Art 4(2).

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SECTION II.
ARTICLE 7. CONFERENCE OF THE PARTIES
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1. A Conference of the Parties is hereby established.
2. The Conference of the Parties shall promote the development, implementation, evaluation
43
and harmonization of measures to advance the objectives of this Treaty and its observance
by businesses as well as Parties.
3. To this end, the Conference of the Parties shall:
a. Keep under regular review the implementation and observance, including by
businesses, of this Treaty and any related legal instruments that the Conference of
the Parties may adopt;
b. Take, within its mandate, the decisions necessary to promote the effective
implementation and observance of this Treaty;
c. Develop and adopt, as appropriate, Guidelines and Recommendations relating to the
implementation of this Treaty;
44
a. Promote and facilitate the exchange of information;
45
b. Establish such subsidiary, expert or technical bodies as it deems necessary for the
implementation of this Treaty;
46
c. Consider and adopt, as appropriate, protocols to this treaty;
d. Seek, where appropriate, the services of competent international bodies, regional
organisations and other stakeholders, in activities pertinent to the objectives of this
Treaty, and make use as appropriate of information from these bodies and actors;
e. Consider and undertake any additional action that may be required for the
achievement of the objectives of this Treaty.
4. The Conference of the Parties shall by consensus agree upon and adopt rules of procedure
and financial rules for itself and of any subsidiary bodies it may establish.
5. The Conference of the Parties may establish a secretariat to perform such functions as may
be determined by the Conference of the Parties.
42
Cf. UNFCCC, Art 7, CBD Art 23, WHO FCTC Art 23; 2RD Art 15 (5), (6).
43
WHO FCTC, Art 23(5)(c).
44
Various guidelines have been developed and formulated under the WHO FCTC:
https://www.who.int/fctc/treaty_instruments/adopted/en/ . Such guidelines under a BHR treaty could address e.g.
- Remedy, drawing on OHRHC ARP project
- Measures to promote HRDD
- Measures to promote HR reporting
- Human rights impact assessment
- Children’s rights – could build on UNCRC General Comment No.16
- Sector specific issues, building on e.g. OECD sector guidance
- Effective multi-stakeholder initiatives.
45
Cf. WHO FCTC, Art 23(5)(a).
46
Cf. UNFCCC, Art. 7.

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6. The Conference of the Parties may establish an international fund to support the
achievement of the objectives of this agreement.
47
7. No later than six months after the entry into force of the present (Legally Binding
Instrument), the Conference of the Parties shall be convened by the Secretary-General of the
United Nations. The subsequent meetings shall be convened by the Secretary-General of the
United Nations biennially or upon the decision of the Conference of Parties.
48
ARTICLE 8. ADOPTION OF PROTOCOLS
49
1. The Conference of the Parties may adopt protocols pursuant to Article 7.
2. The text of any proposed protocol shall be communicated to the Parties by the secretariat at
least six months before such a meeting.
3. The requirements for the entry into force of any protocol shall be established by that
instrument.
4. Only Parties to this Treaty may be Parties to a protocol.
5. Decisions under any protocol shall be taken only by the Parties to the protocol concerned.
ARTICLE 9. SETTLEMENT OF DISPUTES
50
1. If a dispute arises between two or more State Parties about the interpretation or
application of this agreement, they shall seek a solution by negotiation or by any other
means of dispute settlement acceptable to the parties to the dispute.
2. When signing, ratifying, accepting, approving or acceding to this agreement, or at any
time thereafter, a State Party may declare in writing to the Depositary that, for a dispute not
resolved in accordance with paragraph 1 of this article, it accepts one or both of the
following means of dispute settlement as compulsory in relation to any State Party accepting
the same obligation:
(a) Submission of the dispute to the International Court of Justice;
(b) Arbitration in accordance with the procedure and organization mutually agreed by both
State Parties.
3. If the State Parties to the dispute have accepted both means of dispute settlement referred to in
paragraph 2 of this article, the dispute may be submitted only to the International Court of Justice,
unless the State Parties agree otherwise.
47
Cf. 2RD, Art.15(7).
48
2RD Art. 15(6).
49
UN FCCC Art. 17. Cf. 2RD Art 17.
50
Cf. 2RD Art 18.

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ARTICLE 10. SIGNATURE, RATIFICATION, ACCEPTANCE, APPROVAL AND
ACCESSION
51
1. The present agreement shall be open for signature by all States and regional integration
organizations at United Nations Headquarters in New York as of [date].
2. The present agreement shall be subject to ratification, acceptance or approval by signatory States
and to formal confirmation by signatory regional integration organizations. It shall be open for
accession by any State or regional integration organization which has not signed the agreement.
3. This agreement shall apply to regional integration organizations within the limits of their
competence; subsequently they shall inform the depositary of any substantial modification in the
extent of their competence. Such organizations may exercise their right to vote in the Conference of
States Parties with a number of votes equal to the number of their member States that are Parties to
this treaty. Such right to vote shall not be exercised if any of its member States exercises its right,
and vice versa.
ARTICLE 11. ENTRY INTO FORCE
1. The present agreement shall enter into force on the thirtieth day after the deposit of the [---]
instrument of ratification or accession.
2. For each State or regional integration organization ratifying, formally confirming or acceding to
the agreement after the deposit of the [---] such instrument, the agreement shall enter into force on
the thirtieth day after the deposit of its own such instrument.
ARTICLE 12. AMENDMENTS
52
1. Any State Party may propose an amendment to the present agreement and submit it to the
Secretary-General of the United Nations. The Secretary-General shall communicate any
proposed amendments to States Parties, with a request to be notified whether they favour a
conference of States Parties for the purpose of considering and deciding upon the proposals.
2. In the event that, within four months from the date of such communication, at least one third
of the States Parties favour such a conference, the Secretary-General shall convene the
conference under the auspices of the United Nations. Any amendment adopted by a majority
of two-thirds of the State Parties present and voting in the Conference of the Parties shall be
submitted by the Secretary-General to all State Parties for acceptance.
51
Cf. 2RD Art.19.
52
Cf. 2RD Art.21

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ARTICLE 13. RESERVATIONS
53
1. Reservations incompatible with the object and purpose of the present agreement shall not be
permitted.
2. Reservations may be withdrawn at any time.
ARTICLE 14. DENUNCIATION
54
[WITHDRAWAL]
A State Party may denounce the present agreement by written notification to the Secretary-General
of the United Nations. The denunciation shall become effective one year after the date of receipt of
the notification by the Secretary-General.
ARTICLE 15. DEPOSITARY AND LANGUAGES [AUTHENTIC TEXTS]
1. The Secretary-General of the United Nations shall be the depositary of the present agreement.
2. The Arabic, Chinese, English, French, Russian and Spanish texts of the present agreement shall
be equally authentic.
In witness thereof the undersigned plenipotentiaries, being duly authorized thereto by their
respective Governments, have signed the present [treaty].
ARTICLE [X]. INTERIM ARRANGEMENTS
ARTICLE [X]. ADOPTION AND AMENDMENT OF ANNEXES TO THE TREATY
ARTICLE [X]. COMMUNICATION OF INFORMATION RELATED TO IMPLEMENTATION
ARTICLE [X]. COMMITTEE OF EXPERTS/WORKING GROUP
ARTICLE [X]. FINANCIAL MECHANISM
53
Cf. 2RD Art.22.
54
Cf. 2RD Art.23.

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ANNEX I. GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS
DRAFT GUIDELINES OF THE CONFERENCE OF STATES PARTIES
I. DRAFT GUIDELINES FOR IMPLEMENTATION OF PILLAR III OF THE UN
FRAMEWORK AND UNGPS: RIGHTS AND PROTECTION OF VICTIMS OF
BUSINESS-RELATED HUMAN RIGHTS VIOLATIONS AND ABUSES
55
II. DRAFT GUIDELINES FOR IMPLEMENTATION OF PILLAR III OF THE UN
FRAMEWORK AND UNGPS: ACCESS TO REMEDY FOR BUSINESS-RELATED
HUMAN RIGHTS VIOLATIONS AND ABUSES
56
III. DRAFT GUIDELINES ON NATIONAL MEASURES TO PROMOTE COROPORATE
HUMAN RIGHTS DUE DILIGENCE
57
55
Cf. 2RD Arts. 4 & 5.
56
Cf. 2RD Art.7-12
57
Cf. 2RD Art.6.