CYIL vol. 11 (2020)

CYIL 11 (2020) RESPONSIBILITY OF TRANSNATIONAL CORPORATIONS UNDER THE DRAFT … human rights violations face, in particular, with regard to high costs of conducting legal proceedings, lack of information about companies as the potential perpetrators, and high standards of the burden of proof. If an international consensus were achieved, the proposed treaty could represent a further useful development of the Ruggies Principles. As outlined during the deliberations, three types of internationally binding instruments could be theoretically considered: (i) a detailed treaty with substantive and procedural provisions, (ii) a framework treaty with key principles accompanied by protocols on specific issues, or (iii) an optional protocol to existing human rights treaties that would empower the existing treaty bodies to address corporate human rights abuses. 17 Another difficult question that has not been satisfactorily answered yet is how to regulate the relationship of the proposed treaty with existing instruments and hierarchy of international law. For example, the competing obligations in the fields of international human rights and investment law were specifically debated. Nevertheless, it was concluded that in order to avoid potential clashes state actions appear to be needed to reform existing bilateral investment treaties to include human rights considerations. A general clause to be included in the Draft Treaty stipulating the precedence of human rights over other international obligations would not be viable given the lack of hierarchy of international norms. 18 The Draft Treaty builds on the existing legal landscape but the Zero Draft failed to make any references thereto. Several commentators to the Zero Draft emphasized the importance of a complementarity to the proposed treaty with the existing instruments in order to ensure its smooth implementation 19 and the corresponding desire to outline its foundations in the Preamble. 20 The EU insisted that any further steps, including the treaty process, must be inclusive and rooted in the Ruggies Principles and only on that basis will the EU engage further in the process. 21 The Revised Draft therefore makes an explicit reference to the Ruggies Principles and other international instruments and standards in its Preamble. The ultimate question of whether a binding international treaty to address corporate human rights abuses is desirable or feasible still remains an open issue. 22 Apart from the 17 RIVERA, Humberto C. Negotiating a Treaty on Business and Human Rights: The Early Stages. In UNSW Law Journal, 40, no. 3, 2017, p. 1210. 18 See Report on the Second Session of the Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises and Human Rights. UNDocument A/HRC/34/47, 4 January 2017, pp. 6-8. 19 German Institute for Human Rights, Position Paper OEIGWG has come in from the cold. Will the EU do the same? October 2018, p. 4. Available at < https://www.institut-fuer-menschenrechte.de/fileadmin/user_upload/ Publikationen/POSITION/Position_Paper_OEIGWG_has_come_in_from_the_cold_Will_the_EU_do_the_ same.pdf >. Visited on 1 June 2020. 20 International Federation for Human Rights, Legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises, Preliminary Comment on the “Zero Draft” Convention, October 2018, p. 3. Available at < https://www.fidh.org/IMG/pdf/fidh_ preliminary_comment_vf_web_version.pdf>. Visited on 1 June 2020. 21 Report on the Second Session of the Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises and Human Rights. UN Document A/HRC/34/47, 4 January 2017, p. 19. It is worth noting that the EU started to be engaged in the process after the initial reluctance from the first three sessions, however, it has not acted with a negotiation mandate. 22 As reported by Rivera, businesses represented through International Chamber of Commerce and a number of developed and also developing states are not convinced that an international treaty is convenient. See RIVERA, Humberto C. Negotiating a Treaty on Business and Human Rights: the Early Stages. In UNSW Law Journal, 40,

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