CYIL vol. 11 (2020)

ONDŘEJ SVOBODA

CYIL 11 (2020)

3. Binding Instrument for Business and Human Rights The adoption of the UN Guiding Principles (UNGP) in 2011 did not close the debate on stricter regulation of MNEs behaviour. In 2014, a new process has been initiated at the UN Human Rights Council by countries that are not satisfied with the current development. The divisive vote, which recorded support of 20 of the 47 member States of the Council, led to the establishment of the new Open-ended Intergovernmental Working Group on transnational corporations and other business enterprises with respect to human rights. According to the mandate, the group should envision to draft legally binding instrument on international human rights obligations of transnational corporations. 19 Despite the fact that the project is without direct link to investment protection regime, “it may have certain, albeit, indirect impact on negotiation and interpretation of international investment agreements.” 20 This “single treaty” instrument, as it stands, ambitiously aims to cover complex areas of domestic and international law, which raises serious concerns and resistance from many states. The EU and its member states, as well as Switzerland, Norway, Japan and Australia decided to take part in the sessions as observers. 21 The United States oppose the process and do not participate in any way. 22 The initiative has received also criticism from other stakeholders. At the beginning of negotiations, Ruggie warned of the project was a “dead end, delivering nothing to individuals and communities adversely affected by corporate conduct” and he recommend to focus on more effective implementation of the UNGP. 23 The International Organisation of Employers recommended to rather concentrate efforts in order to ensure, through domestic judicial, administrative, legislative or other appropriate means and expressed its opposition to a binding treaty. 24 On the other hand, a broad alliance of civil society organisations (the Treaty Alliance) has been formed to support the process 25 and the initiative received varied support from parliamentarians, global justice campaigners and some business organisations as well. 26 19 Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights (A/HRC/26/L.22/Rev. 1), 2014. 20 ŠTURMA, P. Human rights and international investment law. In: ŠTURMA, P., MOZETIC, V. A. (eds.) Business and Human Rights . Waldkirchen: rw&w Science & New Media, 2018, p. 21. 21 The EU expressed repeatedly its concerns on content regarding the scope and consistency with the UN Guiding Principles as well as a lack of the participation of most industrialised countries. Therefore, it has concluded that at this stage the process has limited chances of leading to effective redress mechanisms for victims and a level playing field for business. European Parliament: Parliamentary questions: Answer given by Ms Mogherini on behalf of the European Commission, 14 March 2019. 22 U.S. Mission to International Organizations in Geneva: The United States’ Opposition to the Business and Human Rights Treaty Process, 15 October 2018. 23 RUGGIE, J. G. Quo Vadis? Unsolicited Advice to Business and Human Rights Treaty Sponsors, Institute for Human Rights and Business. Institute for Human Rights and Business, 9 September 2014. Available at: https:// www.ihrb.org/other/treaty-on-business-human-rights/quo-vadis-unsolicited-advice-to-business-and-human- rights-treaty-sponsors/?#_edn11 [accessed 22 May 2020]. 24 International Organisation of Employers: Draft Intervention from the floor on Panel I: Overview of the social, economic and environmental impacts related to transnational corporations and human rights, and their legal challenges, 24 October 2016. 25 Treaty Movement, Treaty Alliance. Available at: https://www.treatymovement.com/statement/ [accessed 22 May 2020]. 26 See e.g. Global Interparliamentary Network: Call of People’s Representatives Worldwide. Available at: https:// bindingtreaty.org/ [accessed 3 May 2020]; International Organisation of Employers: UN Treaty Process on Business and Human Rights: Further considerations by the international business community on a way forward, 29 September 2016.

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