BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

The SRSG John Ruggie then took a different approach called by him a “principled pragmatism”. The new approach proved to be more successful, as the final, non-binding document, called the UN Guiding Principles on Business and Human Rights, was adopted by the UN Human Rights Council in 2011. 49 The principles include three pillars, restating first the obligations of States to protect individuals from violations of human rights by business enterprises (Pillar 1). Next, Principles also include responsibilities of corporations to protect human rights in their business activities, including human rights due diligence (Pillar 2). Finally, the Pillar 3 includes access of individuals to effective remedies for human rights violations. The Guiding Principles are currently the most authoritative statement on responsibilities in the area of business and human rights. 50 Nevertheless, they are just a non-binding “soft law” instrument. It was critically pointed out that the Guiding Principles lacked any enforcement mechanism or accountability for either States or corporations, having thus limited practical impact for victims. 51 In other words, the practical impact relies on the commitment of States to operationalize the Principles through their domestic policies and regulations. The main tool for implementation of the Guiding Principles is the adoption of National Option Plans (NAPs). 52 Such NAPs have been adopted, apart from US and Colombia, mostly in the EU countries, including the Czech Republic. 53 However, the Guiding Principles were considered insufficient by a number of States, mostly developing. This brings us to the third high tide of negotiation. It started in June 2014 when the Human Rights Council adopted Resolution 29/9 to establish an open-ended intergovernmental working group (IGWG) with the mandate to develop a binding instrument to regulate business activities with respect to human rights. 54 The resolution, drafted by Ecuador and South Africa and sponsored by Bolivia, Cuba and Venezuela, was adopted by 22 votes in favour, 14 against and 13 abstentions. It revealed a division between developing and emerging countries, on one side, and developed countries, on the other. 55 Without going to details, it suffices to note that, in July 2018, the IGWG released the so-called “zero draft legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”. 56 50 VAN HO, T. L., ‘Band-Aids Don’t Fix Bullet Holes’: In Defence of a Traditional State-Centric Approach. In: LETNAR ČERNIČ, J., CARRILLO-SANTARELLI, N. (eds.), The Future of Business and Human Rights , op. cit., p. 114. 51 Ibid., p. 116. 52 MACCHI, C., ATreaty on Business andHuman Rights: Problems and Prospects. In: LETNARČERNIČ, J., CARRILLO-SANTARELLI, N. (eds.), The Future of Business and Human Rights , op. cit., p. 65. 53 See ARCHALOUS, M., Czech National Action Plan for Business and Human Rights, infra , in this volume, 168 ff. 54 UN Doc. A/HRC/26/L.22/Rev.1 (25. 6. 2014). 55 See MACCHI, C., A Treaty on Business and Human Rights: Problems and Prospects, op. cit., p. 64. It is worth noting that the Czech Republic (as well as other EU countries) voted against, Brazil (as well as Argentina, Chile, Costa Rica, Mexico and Peru) abstained. 56 Cf. PIAZZA, M., The “Zero Draft”: Missed Opportunity or the Beginning of a Revolution? (available 49 Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, UN Doc. A/HRC/17/31 (17. 3. 2011).

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