CYIL vol. 11 (2020)

CYIL 11 (2020) RESPONSIBILITY OF TRANSNATIONAL CORPORATIONS UNDER THE DRAFT … 5. Conclusion The Permanent mission of Ecuador to the United Nations, under whose chairmanship the working group made both drafts available to public, underlined the needs of people affected by business related human rights abuses and the fact that abuses have differential impacts on different groups of rights-holders. The violations of human rights caused by transnational companies and other enterprises engaged in transnational business activities represent a specific category of human rights abuses. The proponents believe that a future treaty would fill the existing gaps in two areas: prevention of human rights violations and access to remedies for those harmed by business activities. The climate of divisiveness around the necessity of a binding treaty and the complete absence of the United States, a country with the largest and most influential multinational corporations, might however predict the repetition of the unsuccessful history of the previous initiatives. The negotiating atmosphere marked with animosity slightly changed when the EU and other states started to take active part in the process three years ago and after the fifth session they expressed an agreement on the continuation of the negotiations. In its current form the document does not impose any direct obligations on transnational corporations and tries to set international standards on business accountability which needs to be reflected by states in their domestic legislation and policies. The Revised Draft has many shortcomings, not only more precision in the formulation in line with the imperative of legal certainty is needed, but some substantive concerns and difficult questions still need to be addressed. The negotiation process itself can contribute to the debate on human rights and business intersections, and principal conceptual issues such as primary and secondary rules of international law, rules of attribution and complicity, a shared responsibility regime between a state and a non-state actor. The drafting process continues and will proceed alongside the developments taking place in the implementation of voluntary initiatives by business enterprises, including the Ruggies Principles. The failure of the working group to reflect on such developments can prove unhelpful for the future of the treaty and its acceptance by the business community. The current discussions fall short of considering issues of climate change and environmental protection and have so far missed the opportunity to clarify what is expected in this respect from businesses not only to operate lawfully but to operate with a so called social license.

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