CYIL vol. 11 (2020)

MONIKA FEIGERLOVÁ CYIL 11 (2020) transnational corporations and other business enterprises with respect to human rights ”. 10 Such binding treaty shall exist alongside soft law guidelines, e.g. the Ruggies Principles. After three sessions aimed at constructive deliberations, which took place between 2015 and 2017, 11 the intergovernmental working group produced the Zero Draft together with an Optional Protocol which shall establish a national implementation mechanism to promote compliance with, monitoring, and implementation of the treaty at a national level. 12 As reported by Rivera, the debate in the working group was accompanied by a political confrontation between developed states (mainly the Member States of the EU) and developing states over the scope of the instrument and the role of the Ruggies Principles along with their prior implementation before addressing the need for a treaty. The level of engagement of individual states in the deliberations differed with some major players being absent altogether (e.g. United States and Canada) and some states taking an active part only at the later stages (e.g. the EU). 13 Based on further intergovernmental negotiations over the Zero Draft, a new Revised Draft was published in July 2019 and was subsequently commented on by various stakeholders at the 5th session of the intergovernmental working group in October 2019. 14 The Revised Draft is still a work in progress and before the 6th session in October 2020, a further revised draft shall be prepared. Nevertheless, for the purposes of this contribution I will outline the main principles of the proposed regulation on the basis of the Revised Draft. 2. A Binding Treaty The Zero Draft, respectively the Revised Draft (both also referred to below as a Draft Treaty), is not the first initiative in the field of business and human rights as briefly described above. It is, however, the first one that demands a binding effect. 15 The main argument for creating a legally binding instrument lies in the fact that access to a remedy cannot be safeguarded other than by a legally effective and enforceable document. 16 The National Action Plans that government started to adopt in response to the Ruggies Principles do not necessarily need to eliminate obstacles that victims of business related 10 Ibid., p. 2, para 1. 11 For details on the negotiating process, deliberations within the intergovernmental working group, and the position of individual states see RIVERA, Humberto C. Negotiating a Treaty on Business and Human Rights: The Early Stages. In UNSW Law Journal , 40, no. 3, 2017, pp. 1200-1222. 12 Draft Optional Protocol to the Legally Binding Instrument to Regulate in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises. Available at . Visited on June 1, 2020. 13 RIVERA, Humberto C. Negotiating a Treaty on Business and Human Rights: The Early Stages. In UNSW Law Journal , 40, no. 3, 2017, p. 1204. 14 Report on the fifth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights. 09/01/2020, A/HRC/43/55. 15 From the prior initiatives the Draft UN Code of Conduct on Transnational Corporations gained proponents of both its mandatory and voluntary nature. If binding, it would have served as a convention with mechanisms for implementation. If voluntary, it would have served as a set of recommendations. The Code was however never adopted and its legal nature was not established. For further details see e.g. RUBIN, Seymour J. Transnational Corporations and International Codes of Conduct: A Study of the Relationship Between International Legal Cooperation and Economic Development. In American University International Law Review , 10, no. 4, 1995, pp. 1275-1289. 16 Report on the fifth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights. 09/01/2020, A/HRC/43/55, page 4, para. 10.

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