BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

It is a draft treaty where, for the first time, business actors are explicitly mentioned as having human rights obligations. Nevertheless, it is to be a treaty drafted by States and for States, which means that none of the operative clauses includes direct human rights obligations for business enterprises. 57 They are only mentioned in the preamble where the drafters underline that “all business enterprises, regardless of their size, sector, operational context, ownership and structure shall respect all human rights, including by avoiding causing or contributing to adverse human rights impacts though their own activities and addressing such impacts when they occur”. Otherwise, the Zero Draft is based on inter-governmental cooperation and includes the three main obligations of States. First, States must ensure that “all persons with business activities of transnational character within such State Parties’ territory or otherwise under their jurisdiction or control shall undertake due diligence obligations throughout such business activities, taking into consideration the potential impact on human rights” (Article 9). Second, States have to guarantee the right of victims of human rights violations to “fair, effective and prompt access to justice and remedies in accordance with international law” (Article 8). This provision needs to be read together with the provision on jurisdiction which is broadly defined (Article 5). The competent court will be the one belonging to the State where such violations occurred or in which the alleged abuser has its “statutory seat, or central administration, or substantial business interest, or subsidiary, instrumentality, branch, representative office or the like”. The third requirement focuses on cooperation between States in dealing with transnational human rights cases. 58 The recognition of the principles of sovereign equality of States and of the non-intervention in the domestic affairs (Article 3, para. 1) needs to be balanced by the robust mutual legal assistance (Article 11). Finally, it is worth noting that the Zero Draft addresses its relationship with investment treaties. On the one hand, its draft articles are “without prejudice to any obligation incurred by States under relevant treaties or rules of customary international law” (Article 13.3). On the other hand, investment agreements shall be interpreted in a way that is least restrictive on obligations under this Convention. When it comes to any future trade and investment agreements between States Parties, they “shall not contain any provisions that conflict with the implementation of this Convention” (Article 13.6). 59 At first sight, such provisions seem to have a strong potential impact on the reshaped structure of international investment law. However, the deep division between developing and developed countries as to the need for and the content of a new treaty on business and human rights warrants a more cautious approach. Even if the Zero Draft becomes eventually the binding treaty, it will provide obligations only for its States Parties. In view of the negative attitude of many developed (and capital-exporting) countries, it is not very likely that such new treaty would have derogating or amending effects on at: www.senseandsustainability.net/2018/11/08/the/zero-draft-missed-opportunity-or-the-beginning-of- a-revolution). 57 Ibid., pp. 1-2.

58 Ibid., p. 2. 59 Ibid., p. 3.

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