CYIL vol. 11 (2020)

MONIKA FEIGERLOVÁ CYIL 11 (2020) interventions by the EU, represented by its delegation to the UN in Geneva, the Czech Republic did not submit any separate written submissions or oral statements during the sessions of the intergovernmental panel. 23 3. The Main Principles of the Draft Treaty The Ecuadorian delegation 24 referred to the Draft Treaty as victim-oriented and the rights of victims and effective remedial system represent the heart of the proposed document. The core legal issues nevertheless relate to the scope of the biding instrument, that is, what corporations and what rights shall be covered, and the criteria to determine corporate liability. After discussing each in turn, the final section will briefly examine the Draft Treaty with regard to environmental rights and climate change issues. Given the limited scope of this article I will not deal with the complex questions of access to justice, encompassing rules on the establishment of (extraterritorial) jurisdiction of domestic courts, application of law favourable to the victim, minimal procedural conditions, burden of proof, access to information, and enforcement and implementation mechanisms. 3.1 The Scope of the Application Ratione Personae One of the key questions for the drafters was what the personal scope of the application of the proposed treaty should be. Defining the range of companies to regulate is essential for the successful application of the treaty as human rights violations are linked to activities of all kinds of companies. This is confirmed in the Preamble of the Revised Draft which underlines that “ all business enterprises, regardless of their size, sector, operational context, ownership, and structure shall respect all human rights …”. The drafters decided to determine the scope of application by the nature of the activity carried out by the relevant entity or entrepreneur rather than through the definition of the actors. It was noted that a transnational company does not exist as a legal category and that every company has its nationality and is subject to certain jurisdictions. The Zero Draft was originally suggested to apply over any business activity of a transnational character undertaken by a natural or legal person. 25 Based on the criticism of experts and no. 3, 2017, p. 1212. See also PAPALIA, G. Doing Business Right: The Case for a Business and Human Rights Treaty. In Perth International Law Journal, vol. 3, 2018, pp. 96-113; and BIRCHALL, D. Between Apology and Utopia: The Indeterminacies of the Zero Draft Treaty on Business and Human Rights. In Suffolk Transnational Law Review, vol. 42, 2019, pp. 289-325. Contrary, the European Parliament is supporter of the binding treaty. See European Parliament resolution of 4 October 2018 on the EU’s input to a UN Binding Instrument on transnational corporations and other business enterprises with transnational characteristics with respect to human rights (2018/2763(RSP)). Available at < https://www.europarl.europa.eu/doceo/document/TA-8-2018- 0382_EN.html >. Visited on 1 June 2020. 23 On 23 October 2017 the Czech Republic approved its first National Action Plan on Business and Human Rights, which implements the Ruggies Principle. The document predates the release of the Zero Draft and does not make any reference to a potential adoption of a legally binding instrument in this field and Czech Republic’s position thereon. Available at < https://www.vlada.cz/cz/ppov/rlp/aktuality/vlada-prijala-prvni-narodni-akcni- plan-pro-byznys-a-lidska-prava-161702>. Visited on 1 June 2020. 24 The motivation of Ecuador can be explained by Ecuador’s bitter experience with a number of long-standing environmental lawsuits that Ecuador led with Texaco/Chevron over dumping toxic wastewater and polluting the Ecuadorian rainforest during the oil company’s operations. 25 Article 2 of the Zero Draft: “ This Convention shall apply to human rights violations in the context of any business activities of transnational character .”

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