BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

The attempts to regulate on international level the activities of business enterprises, in particular those of transnational corporations (TNCs), are not of recent vintage. To better understand the current “Zero draft legally binding instrument”, 42 one should also recall previous cycles of negotiating various, generally non-binding instruments on TNCs. It is possible to discern three cycles, called also “high tides”. 43 The first cycle started in the early 1970s when, on the basis of the recommendation to the UN Economic and Social Council, the Commission on Transnational Corporations and the UN Centre on Transnational Corporations (UNCTC) were established (1974). Its work culminated with the 1990 draft of the United Nations Code of Conduct on Transnational Corporations. 44 However, the Draft Code was not officially adopted due to significant differences between developed and developing countries. 45 The 1990 Draft Code sought to deal with both responsibilities of TNCs and their rights (related to the treatment accorded by host States). The second aspect is not present in more recent documents, perhaps due to the proliferation of bilateral investment treaties (BITs) with arbitration clauses that are able to secure better the rights of TNCs. Although human rights were not the primary concern of the Code, its paragraph 14 stated that TNCs “shall respect human rights and fundamental rights and fundamental freedoms in the countries in which they operate”. 46 The second cycle has its origins in 1998 when the Sub-Commission on the Promotion and Protection of Human Rights decided to establish a Working Group on the Working Methods and Activities of Transnational Corporations. The Working Group drafted and presented in 2003 to the Sub-Commission the final draft of the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. This document was adopted by the Sub- Commission (a subsidiary expert body). 47 However, the document provoked criticism from several TNCs and governments. Subsequently, the Human Rights Commission (an intergovernmental body) rejected the Norms in 2004 for having “no legal standing”. 48 Instead, the Commission, during its 2005 session, requested the Secretary General to appoint his Special Representative (SRSG). 42 See Legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises (Zero Draft, 16. 7. 2018), at: www.ohchr.org/documents/ hrbodies/hrcouncil/wgtranscorp/session3/draftlbi.pdf. 43 See DEVA, Surya, Alternative Paths to a Business and Human Rights Treaty. In: LETNAR ČERNIČ, J., CARRILLO-SANTARELLI, N. (eds.), The Future of Business and Human Rights. Theoretical and Practical Considerations for a UN Treaty . Cambridge-Antwerp-Portland: Intersentia, 2018, pp. 17-23. 44 See Draft Code on Transnational Corporations. In: UNCTC, Transnational Corporations, Services and the Uruguay Round, Annex IV (1990), p. 231. 45 MUCHLINSKI, P., Multinational Enterprises and the Law . Oxford: Blackwell Publ., 1999, pp. 593-597. 46 Draft Code on Transnational Corporations. In: UNCTC, op. cit., p. 234, para. 14. Cf. DEVA, S., Alternative Paths to a Business and Human Rights Treaty, op. cit., p. 18. 47 Sub-Commission on the Promotion and Protection of Human Rights. Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights. UN Doc. E/ CN.4/Sub.2/2003/12/Rev.2 (13. 8. 2003). 48 UN Doc. E/CN.4/DEC/2004/116.

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