12:00 AM, September 08, 2020 / LAST MODIFIED: 12:47 AM, September 08, 2020

https://www.thedailystar.net/law-our-rights/news/analysing-the-draft-un-treaty-business-and-human-rights-1957689

RIGHTS ADVOCACY

Analysing the Draft UN Treaty on business and human rights

M S Siddiqui

Multinational enterprises (MNEs) are active in some of the most dynamic sectors of national

economies with the capacity to assert a positive influence in fostering development. Some of

those enterprises make real efforts to achieve international standards by improving working

conditions and raising local standards of living conditions.

Some MNEs, however, do not respect international human rights standards and can thus be

implicated for abuses such as employing child labourers, discriminating against certain

groups of employees, failing to provide safe and healthy as well as just and favourable

conditions of work.

The international community is trying to enforce more rigorous scrutiny of MNEs' negative

impact on human rights and on the environment. The United Nations initiated a study and the

report came out in 2008 entitled "Protect, Respect and Remedy: A Framework for Business

and Human Rights". The study proposed a Framework based on three pillars: (a) the

obligation of the state to protect, (b) the corporate responsibility to respect, and (c) the access

to remedies for victims of human rights violations.

Based on report, the UN Human Rights Council (HRC) adopted Resolution 26/9 (2014) on

the "Elaboration of an international legally binding instrument on transnational corporations

and other business enterprises with respect to human rights". It has elaborated an

international legally binding instrument on transnational corporations and other business

enterprises with respect to human rights.

The Resolution also establishes the Intergovernmental Working Group, and in order to

organise the Working Group, the sessions devoted to constructive deliberations on the

content, scope, nature and form of the future international instruments. The report has been

updated and revised in third and fourth sessions in 2018. More than 200 civil society

members also gave their opinion.

In July 2019, the Working Group released a new revised version of the draft treaty on

business and human rights on the basis of those working sessions and on the basis of the

comments and suggestions presented orally or in writing by states, as well as through

informal consultations with governments, international organisations, civil society and other

interest groups, which took place in June 2019. The revised draft treaty maintains the four

pillars on which the future instrument will base. These are: (a) the prevention of human rights

abuses, (b) the right of victims to access justice and effective remedies, (c) the international

cooperation for the effective implementation of the instrument, and (d) the monitoring

mechanisms.

States and civil society organisations (CSOs) agree that prevention is a fundamental element

of the future instrument to avoid the costs of complex litigation and, above all, to avoid the

suffering of victims particularly women, children, people with disabilities, indigenous

peoples, migrants, refugees and internally displaced persons and the financial guarantees to

deal with possible compensation claims.

The revised draft treaty proposes that subject to their domestic law, states parties shall ensure

that their domestic legislation provides for criminal, civil or administrative liability of legal

persons for the following offences, among others: war crimes, crimes against humanity and

genocide; torture, cruel, inhuman or degrading treatment; enforced disappearance;

extrajudicial execution; forced labour; the use of child soldiers; forced eviction; slavery and

slavery-like offences; forced displacement of people; human trafficking, including sexual

exploitation; and sexual and gender-based violence. The revised draft treaty is a crucial step

forward in the process of establishing a legally binding instrument in the field of business and

human rights.

THE WRITER IS A LEGAL ECONOMIST.