CYIL vol. 11 (2020)

CYIL 11 (2020) RESPONSIBILITY OF TRANSNATIONAL CORPORATIONS UNDER THE DRAFT … The Revised Draft, thus, does not create a new type of “international human rights obligation” imposed upon companies as a matter of international law or a “world court on business and human rights”. The companies do not become subjects of international law and remain responsible for their conduct under relevant national civil and criminal liability regimes. It is the task of the states to ensure the proper functioning of these national regimes through effective policies, legislation, regulations, and adjudication in their jurisdictions. The Draft Treaty will primarily bind the signatory states in line with the traditional international practice. 40 The Revised Draft is not fully clear in terms of which human rights corporations must respect. The Revised Draft shall cover “ all human rights ”. 41 This is a further shift towards even a vaguer concept compared to the previous category of “ all international human rights and those rights recognized under domestic law ”  42 contained in the Zero Draft. Some commentators voiced concerns of the insufficient clarity of the term and suggested a reference to specific treaties that will apply. 43 According to its stated purpose, the Draft Treaty shall strengthen the protection of human rights in the context of business activities, prevent the occurrence of human rights violations and abuses, and provide an effective access to remedy. 44 Under the Draft Treaty it is the state that must ensure that its domestic legislation requires all persons conducting business activities, including those of a transnational character, in its territory or jurisdiction, to respect human rights and to prevent violations or abuses. 45 The definition of “ human rights violation or abuse ” then covers the behaviour of both states and corporations without further precision. A human rights violation or abuse means in the sense of the Revised Draft “ any harm committed by a State or a business enterprise through acts or omission in the context of business activities, against any person or group of person, individually or collectively, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their human rights, including environmental rights ”. 46 The relationship between “harm” and the concepts of “violation” or “abuse” should be further clarified as there could be situations where a violation or abuse occurred without there necessarily being harm. 47 Among the specific measures that states shall adopt towards all persons conducting business activities in their territory or jurisdiction are those that impose an obligation upon such persons to undertake mandatory human rights due diligence taking into account the 40 For an analysis of the feasibility of an opposite model of a treaty under which non-state actors would be primary addresses of international human rights obligations and on allocation of responsibility see e.g. MCCONNEL, L. Assessing the Feasibility of a Business and Human Rights Treaty. In International and Comparative Law Quarterly , 66, 2017, pp. 143-180. 41 Article 3(3) of the Revised Draft. 42 Article 3(2) of the Zero Draft. 43 See e.g. BIRCHALL, D. Between Apology and Utopia: The Indeterminacies of the Zero Draft Treaty on Business and Human Rights. In Suffolk Transnational Law Review , no. 42, 2019, p. 296.

44 Article 2 of the Revised Draft. 45 Article 5(1) of the Revised Draft. 46 Article 1 of the Revised Draft.

47 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. 24, para. 1. One expert also called for the distinction between “violation” (which refers to a state breach of an obligation) and “abuse” (which can refer to business conduct).

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