2-page Information Note on Business and Human Rights Framework Treaty 261021

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25 October 2021
A business and human rights framework treaty: Information note
The Seventh session of the United Nations’ open-ended intergovernmental working group on transnational
corporations and other business enterprises with respect to human rights (OEIGWG) is taking place from 25-
29 October 2021. Participating in this process for the first time, the United States, in its opening statement
delivered on Monday 25 October 2021, expressed its openness to exploring alternatives to the 3rd Revised
Draft Legally Binding Instrument to Regulate, in international human rights law, the activities of transnational
corporations and other business enterprises, including specifically “a legally binding framework agreement”
that would build on the 2011 UN Guiding Principles on Business and Human Rights (UNGPs).
In June 2020, after several years of closely monitoring the OEIGWG process, I developed and published a
Preliminary draft framework treaty on business and human rights, building on the UNGPs. In July 2021, I
published a Revised framework busines and human rights treaty text, to illustrate how a framework treaty
could integrate elements reflecting the objectives and concerns of the OEIGWG’s 2nd Revised Draft. In
October 2021, I published a set of line edits to demonstrate how the OEIGWG 3rd Revised Draft could be
amended in line with a framework treaty approach.
Supplementing these texts, and other analyses I have published on the topic, this short note aims to provide
information to introduce and explain some of the main characteristics that might be associated with a
framework-style binding treaty on business and human rights.
1. What is a framework treaty?
A framework convention, or framework treaty, is a legally binding international agreement. Such agreements
have a legal status equal to other international treaties.
The key features of framework treaties include: the formulation of key objectives of the agreement; a set of
broad commitments by states parties to implement the objectives specified; and a governance regime to
promote and facilitate implementation of treaty commitments (e.g., meetings of state parties). Typically,
framework treaties also establish a mechanism (or mechanisms) by which more detailed rules on specific topics
can be developed and adopted by states parties over time.
2. What framework treaties have previously been adopted by states, and why?
Existing framework treaties include the UN Framework Convention on Climate Change (1992), the
Convention on Biological Diversity (1992), the World Health Organization Framework Convention on
Tobacco Control (2003), and the Vienna Convention on the Protection of the Ozone Layer (1985). Some
framework treaties have been adopted by regional organisations (e.g. Council of Europe Framework
Convention for the Protection of National Minorities). While they vary in their level of detail, they all commit
states to certain principles and processes without locking them in to one formula to meet those goals.
In addition, existing human rights treaties within the UN and regional systems of human rights protection
exhibit some characteristics of framework treaties, in that they articulate broad-ranging rights, and by
implication broad state duties, without specifying detailed means of implementation at the outset. Rather, the
content of states’ human rights duties is concretised over time, via supplementary guidance provided by
international expert bodies, the jurisprudence of judicial or quasi-judicial bodies, and also with reference to
national laws, policies and practices.
Why have states have pursued framework-style agreements in some policy areas, but not others? Researchers
have found that framework instruments are used to address policy areas that are characterised by: i) a strong
consensus on the importance of international action to address an issue, but only ‘thin’ political consensus on
specific approaches to be applied, including enforcement; ii) complexity of the subject matter; iii) breadth of

25 October 2021
the subject matter, i.e., going beyond one specific legal domain; iv) dynamism of the subject matter, i.e., the
frequently changing nature of the practice to be regulated and the need to take into account evolving policy
approaches; v) a need to bring in stakeholders beyond the state, because they have knowledge, resources,
expertise and impacts relevant to solving the problem at hand.
3. What might be key elements of a BHR framework treaty aligned with the UN Framework and UNGPs?
Core elements of a BHR framework treaty could include:
a) Overall objective(s): The treaty’s objectives could be based on the 2008 UN ‘protect, respect, remedy’
Framework on BHR. They could however include additional elements reflecting the concerns of the 3rd
RD.
b) General state obligations under the treaty: These should at minimum oblige states to take steps to achieve
the treaty’s core objectives. Specific procedural measures, such as periodic reporting, as well as the
development and adoption of BHR national action plans or strategies could also be included. Likewise,
some additional substantive obligations might be addressed in this section.
c) Guiding principles for further normative developments: These could include the 2011 UNGP, but could
also incorporate additional principles relating e.g. stakeholder participation.
d) Mechanisms to facilitate further normative developments: These would include, for instance, a
Conference of States Parties to permit the adoption of more issue-specific legal instruments, including
additional protocols (e.g. on national due diligence legislation, or legal accountability for business
involvement in abuses in conflict-affected areas); as well as nonbinding guidelines (e.g. on national remedy
regimes; human rights impact assessment; and corporate human rights reporting).
4. What advantages might a BHR framework treaty have?
The OEIGWG 3rd Revised Draft contains wide-ranging detailed rules on how states should regulate business
at the national level and on remediation of business-related abuses, including via transnational private and
criminal litigation. National laws and judicial practices currently exhibit considerable diversity in such areas;
Equally important, states are still experimenting with new approaches to regulating issues such as corporate
due diligence and human rights reporting. The emergence of best practices suggests that a one-size fits all
approach at best premature and at worst is ill-advised.
Such national diversity and regulatory dynamism presents also technical and diplomatic hurdles for the 3rd
Revised Draft. The more extensive and specific the provisions of any treaty, the smaller becomes the group of
states that can or will accept it, particularly where the instrument’s scope is broad. Besides, the threshold of
corporate “human rights abuse” remains unclear, as does the consistency of this approach with principles of
subsidiarity and exhaustion of domestic remedies.
By contrast, a BHR framework treaty would establish new, binding BHR duties on states, including to regulate
business effectively and to ensure effective remediation of BHR abuses for victims. It would consolidate the
existing consensus in support of the UNGPs and leverage a decade of investments made by states, businesses,
human rights actors and NGOs in UNGPs implementation. It would be inclusive of a wider range of states,
broadening its reach and impact, consistent with the universality of human rights. Finally, via a range of
mechanisms allowing the adoption, on a continuing basis, of a range of kinds of standards and guidance, a
framework treaty could respond agilely to the complex, diverse, and fast-changing BHR challenges.
Dr. Claire Methven O’Brien
Lecturer in Law, University of Dundee
Senior Researcher and Chief Adviser, Danish
Institute for Human Rights