CYIL vol. 11 (2020)

MONIKA FEIGERLOVÁ CYIL 11 (2020) Revised Draft. The Revised Draft appears to cover both parent companies of transnational groups and companies in the supply chain, however, more precision in the formulation is still needed. 33 3.2 Substantive Obligations for Businesses The next important question arises as whether to establish direct international human rights obligations for corporations or whether to regulate corporations through obligations imposed on states in the traditional way. In each model it must be further determined which human rights the draft treaty shall address, and the substantive obligations of the relevant duty-bearers must be defined. Unfortunately, an in-depth analysis of either of these options was absent in the treaty process. 34 Mainly NGOs and some developing states 35 called for the establishment of direct obligations for corporations under international law together with creating a corresponding tribunal that would have jurisdiction over human rights abuses of corporations. 36 Some commentators also underlined that states are already under a duty to protect human rights from activities of non-state actors, including corporations, under existing universal and regional treaties, 37 and developing a new set of substantive obligations for states could be counterproductive. 38 The Revised Draft refrained from introducing any direct obligations for businesses under international law and adopted the foundational principle recognized in the Ruggies Principles that the primary responsibility to promote, respect, protect, and fulfil human rights and fundamental freedoms lies with the state and that states must protect against human rights abuses within their territory or jurisdiction by third parties, including by corporations. 39 33 E.g. given the extended scope of the Revised Draft to all business activities, the necessity of Article 3(2) defining the transnationality element might be confusing. Further, the term “contractual relationship” contained in Article 1(4) that is intended to encompass supply chains was required from the part of some experts to be replaced by the phrase “business relationship”. See 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, p. 8, paras. 37 and 42. 34 In this context it must be noted that other recent initiatives aimed at articulating obligations of enterprises and investors are based on the belief that future interpretation of current international instruments will tend to develop to infer direct applicability of international and human rights law to enterprises. See e.g. Principles on Climate Obligations of Enterprises, drafted by the Expert Group on Climate Obligations of Enterprises, adopted in 2018. 35 McConnel explains that some developing states are incapable of safeguarding the human rights of their populations due to weak governmental mechanisms and corruption or are unwilling to ensure adherence to human rights at the domestic level due to fears of endangering the flow of foreign direct investment. See MCCONNEL, L. Assessing the Feasibility of a Business and Human Rights Treaty. In International and Comparative Law Quarterly , 66, 2017, p. 143. 36 See RIVERA, Humberto C. Negotiating a Treaty on Business and Human Rights: The Early Stages. In UNSW Law Journal , 40, no. 3, 2017, p. 1214. 37 E.g. International Covenant on Civil and Political Rights (entered into force on 23 March 1976), Convention on the Elimination of All Forms of Discrimination Against Women (adopted on 18 December 1979), Convention for the Protection of Human Rights and Fundamental Freedoms (entered into force 3 September 1953), or the American Convention on Human Rights (entered into force 18 July 1978). 38 See RIVERA, Humberto C. Negotiating a Treaty on Business and Human Rights: The Early Stages. In UNSW Law Journal , 40, no. 3, 2017, p. 1216 and literature referred therein. 39 See Preamble of the Draft Treaty and I.A.1 of the 2011 Guiding Principles.

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