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University of New South Wales Law Journal Student Series |
REFINING A BUSINESS AND HUMAN RIGHTS TREATY: A CRITIQUE OF STATE-CENTRIC FACILITATION OF CORPORATE LIABILITY
Longstanding dichotomy between binding human rights enforcement that confines corporate discretion, and voluntary initiatives that lack assured compliance have contested ideological consensus and regulatory certainty. Accordingly, the initiation of the UN Guiding Principles on Business and Human Rights (‘Guiding Principles’) persuaded broader international agreement that corporate responsibility qualifies a specialised human rights doctrine.[1] However, corporate human rights acknowledgement has not entirely moderated enforceability concerns, which support the necessity of a binding treaty. The Revised draft of a legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises (‘Revised Draft’) demonstrates a significant evolution from earlier trepid proposals that intently protected commercial interests, as it attempts to comprehensively institutionalise corporate human rights compliance. Nonetheless, State-centric frameworks of corporate enforcement underestimate the pervasive influence of large international corporations, which inclines a succession of regulatory limitations.
In July 2014, the UN Human Rights Council began to facilitate the development of a treaty to establish corporate responsibility for human rights violations.[2] Consequently, the Human Rights Council directed corporate responsibility enforcement initiatives to employ a synthesis of legally binding provisions and voluntary initiatives. The Guiding Principles establish the broad responsibilities of corporations and governments, and methods to optimise compliance. Voluntary initiatives that omit corresponding accountability frameworks enable corporate transparency, as immunity from prosecution encourages extensive and direct disclosures of internal human rights liabilities. Corporate candour consequently guides the accuracy and innovation of impending enforcement procedures. However, the Guiding Principles do not provide specialised compliance directions for corporations as they lack critical infrastructure to manage compliance. Subsequent limitations significantly constrain practical avenues of corporate accountability and enforcement, which reduces victims’ access to justice.
The Guiding Principles’ non-legally binding character further upholds its weak accountability aptitude, as States retain wide discretion to sustain corporate human rights violations, whilst acquiring accompanying credibility.[3] Moreover, the Guiding Principles’ applicability solely pertains to corporations that voluntarily engage in associated dialogues. Culpable corporations may resultantly avoid scrutiny by intentionally rejecting corporate human rights instruments. Therefore, the Guiding Principles remain incompetent as an exclusive instrument to reliably facilitate human rights compliance. A binding implementation of corporate human rights limits conditional compliance by corporations that demote human rights protections, when commercial interests are successively compromised. However, binding frameworks could reduce multi-stakeholder interaction as States may resultantly justify dismissals of critical voluntary enforcement initiatives. The effectiveness and wide adoption of a treaty requires it to sufficiently prosecute human rights-averse corporations, without a rejection of States’ legitimate commercial pursuits.
Comprehensive protection of corporate human rights requires a treaty to bind States that institutionalise corporate autonomy through insufficient domestic regulation, which negates fundamental protections for vulnerable labour forces. Therefore, governmental tendencies that prioritise economic prosperity promote a legislative conflict of interest, which resultantly justifies the urgency of a treaty to routinely and independently monitor States. Otherwise, corporate transparency is reduced as culpable States may unreservedly reject independent domestic monitoring mechanisms. A binding treaty is additionally necessary, as an instrument to legitimately reduce State sovereignty protections that commercially advantage States with poor human rights protections. Hence a treaty must supplement the Guiding Principles’ limited monitoring capacity. While the Guiding Principles initiate a platform of international consensus on fundamental corporate rights, without binding supervision and enforcement, commitment to the Guiding Principles can be adversely manipulated by States to corroborate superficial commitments. Therefore, the Guiding Principles’ wide enforcement and remedial impracticalities do not rebut the necessity of a treaty, as the prevalence of associated human rights violations has evidently persisted.[4]
The Revised Draft suggests a corresponding progression of corporate human rights awareness in domestic legislative contexts. Accordingly, the gradual implementation of business and human rights principles is institutionalising greater transparency amid extractive industries.[5] In turn, corporate human rights principles are promoting disclosure and transparency requirements for US investment in Myanmar.[6] Discretionary adoption identifies that non-binding instruments are fostering cultural norms and gradual legal reform. However, a treaty remains essential as standardised and widespread corporate compliance is unassured without legally-obliged enforcement.
The establishment of a business and human rights treaty addresses certain enforcement challenges that are integrally associated with voluntary frameworks. Discretional legal compliance by States and corporations has persuaded limited acceptance and implementation of the Guiding Principles.[7] Coherent and broad corporate human rights compliance requires binding legal commitment to comprehensively mitigate commercialised abuse.[8] Moreover, the universality of voluntary standards is susceptible as commercial agendas direct conditional compliance.[9] Therefore, corporate conflict between profit maximisation and strict compliance determines need for standardised provisions that are externally monitored and enforced.[10] The function of competition further incentivises a slippery slope of voluntary compliance, as human rights abuse is normalised amongst widely exploitative industries.[11] A binding international treaty institutionalises procedural symmetry across corporations to ensure that compliant actors are not commercially impaired relative to human rights-averse norms.[12]
John Ruggie urges that an expansive treaty scope ‘would have to be pitched at so high a level of abstraction that it would be of little if any use to real people in real places’.[13] Therefore, an effective treaty requires specialised configuration and controls that distinctly remedy regulatory weaknesses that are otherwise unaddressed.[14] Lacking enforcement infrastructure has enabled a progression of the scale and intensity of corporate human rights abuse. Ruggie proposes a governance structure that develops a spectrum of abuse, which prioritises response to conduct that satisfies a ‘gross’ abuse classification.[15] Gross abuse by corporations accordingly includes internationalised cases of forced labour, slavery and genocide.[16] In turn, the severity of harm infers the disciplinary prioritisation of correlating perpetrators, which enables a continuation of prevalent abuse norms that are demoted through the narrow measurement framework. A hierarchical quantification of abuse inevitably recognises that harm is defined by the degree and form of abuse, rather than victims’ subjective experiences of resultant harm. Pervasive yet low-ranking abuse determinations would subsequently moderate corporate liability and reduce victims’ remedial access. Accordingly, the scope of the Treaty must equitably enable access to justice and specialised determinations that do not arbitrarily classify victims’ multifaceted experiences.
Guiding Principle 17(a) expands corporate due diligence responsibilities past ‘adverse human rights impacts that the business enterprise may cause or contribute to through its own activities, or which may be directly linked to its operations, products or services by its business relationships’.[17] The ‘direct’ association requirement is significant as it requires activities to fall within corporations’ ‘contractual relationships’ which plainly reduces the scope of due diligence. The requirement is impractical and obstructive as critical commercial contracts, such as those between purchasers and suppliers, or other contracts with outsiders would not remain within the scope of corporate due diligence.
Treaty drafters retain discretion to allow companies to exclude subsidiaries from due diligence responsibilities, through a compatible interpretation of ‘contractual’. Nonetheless, the Revised Draft represents a separation from the Guiding Principles by excessively restricting the scope of corporate liability for damages caused by affiliates, when contractual association is refuted. Liability frameworks may struggle to implicate severe human rights violations by subsidiaries, which further emphasizes the weight of a treaty’s interpretation of ‘contractual’.
The contractual requirement also fosters protection exclusions as uncontracted discretion may affect the nature and substance of corporate contracts by culpable companies. Thus employees that fall within uncontracted corporate activities would be additionally vulnerable to human rights abuse, which could foster broader violations against informally subcontracted employees, who lack alternate employment opportunities. The Revised Draft still embraces significant advancement through its amended format which persuades a wider group of prospective signatories, thus identifying its potential to dependably facilitate corporate human rights.
Recent treaty additions respond to criticism of the penultimate Zero Draft that disputes its comprehensive enforcement prospects.[18] Accordingly, the classification of human rights has become inclusive of all human rights abuse, regardless of whether the individual rights in question embrace an international character and consistency with Article 3.3.[19] However, indefinite inclusivity deters the likelihood of treaty acceptance as it does not restrain subsequent corporate liability. Excessive additions of otherwise unenforceable rights challenge a treaty’s compatibility with conventional domestic and international enforcement organisation. While broadness may progress the development of a specialised spectrum of corporate human rights, unmitigated rights protections could exacerbate perceptions that corporate human rights protection and neoliberalism are mutually exclusive.
Indeterminate scope may also reduce the consistency of enforcement, as abstract claims could challenge normative determination protocols. Resultantly, Article 3.3 challenges State sovereignty if international determinations enforce access to unratified rights.[20] Moreover, companies’ origins of incorporation may distinguish employees’ access to remedy, as nations with extensive human rights protections may be held to higher accountability standards when the international character and adoption of a right does not differentiate alleged violations.
Advocates for a business and human rights treaty propose that its scope ought to broadly enforce human rights compliance by transnational and other commercial organisations.[21] Confined transnational enforcement promotes market advantage to local business by way of human rights violations. Local organisation retains discretion to reduce overheads associated with adequate human rights compliance, which includes fair wages and workplace safety. Therefore, competition would generally incentivise transactions with non-compliant and comparatively inexpensive local business. In response, the Revised Draft’s scope no longer isolates its application to transnational companies, which instead embraces all business enterprises.[22] Abusive local business will no longer be held to a lower standard of accountability, relative to prominent global corporations. The Revised Draft also lessens transnational companies’ discretion to utilise commercial restructuring as a means to reduce regulatory compliance.
The Revised Draft’s compatibility with the Guiding Principles is enhanced via proactive clauses that streamline binding corporate responsibility with domestic and international enforcement norms.[23] Human rights compliance requisites are more comprehensible and accessible because under the Zero Draft, transnational isolation assumed that pertinent corporations preserved greater international legal awareness.[24] Narrow regulatory application to transnational companies demoted treaty support by European states, due to the regulatory ineffectiveness of such limited scope.[25] Furthermore, the distinction competitively disadvantaged companies within the European Union that held corporate premises at a third-party source, as local operators were legally exempt from transnational obligations.[26] The previous transnational condition appears to have held symbolic value rather than genuine protection, as the severity of corporate human rights abuse requires more inclusive contextual criterion.
The US opposed the Zero Draft’s notion that corporations were not deemed viable subjects under international law.[27] Article 6.7 directs liability to corporate ‘legal persons’ when criminality stringently contravenes international law.[28] States that include Argentina and Russia do not acknowledge corporate personhood and oppose provisions that directly hold corporations criminally liable.[29] Corporate personhood promotes enforcement that cohesively addresses systemic corporate abuse, which seems expedient relative to procedures that gradually address individual culpability within corporations. Large corporations that rampantly violate human rights justify need for cohesive enforcement frameworks, to ensure that compliance is not frustrated by abusive norms that enable extensive individual violations. Therefore, the inclusion of Article 6 suggests a significant enforcement progression, which correspondingly reforms earlier iterations that presented ambiguity regarding adherence to the principle of legality. However, Article 6’s convincing liability aptitude does not mitigate compliance uncertainty by States that do not acknowledge corporate ‘legal persons’, which would subsequently limit universal standards of corporate liability.
The Revised Draft attempts to address critical limitations shared by voluntary initiatives and the preceding Zero Draft. Its projected scope reiterates States’ existing obligations regarding national corporations that operate within their home jurisdictions. In turn, the Revised Draft predominantly reaffirms duties that affect the conduct of non-State players, though it varies from the Zero Draft by definitively clarifying the nature and substance of such duties. The Revised Draft presents significant contrast by establishing additional duties to manage transnational corporate conduct and safeguard trans-jurisdictional liability and remediation, which will significantly encourage victims’ access to justice.[30] This feature of the Revised Draft rectifies a key loophole across normative international organisation, thus enhancing the expediency of international law. Nonetheless, discretionary prospects appear to persuade commitment from ordinarily sceptical States.
The Revised Draft significantly reforms corporate legal liability by clarifying procedural frameworks to support Zero Draft provisions, which advances pragmatic enforcement against culpable corporate actors. Article 6.1 compels State parties to enforce domestic laws that enable ‘comprehensive and adequate system of legal liability for human rights violations or abuses in the context of business activities, including those of transnational character’.[31] Hence the broadness of this article promotes criminal and civil remedial access, which commercially disincentivises and deters corporate human rights violations. Proposed access to procedures that enable compensatory and punitive damages recognises that victims’ income requirements create reporting barriers.
Article 6.7 further fosters victims’ access to financial damages as a viable remedial mechanism of corporate liability.[32] However, the adjacent Article 6 provision narrowly frames criminal offences in respect to State parties’ domestic laws. Therefore, vast domestic inconsistencies prospectively endorse variable enforcement, which additionally provokes States to reform laws to alleviate corporate compliance. Accordingly, corporations within States that administer aptly lax criminal liability may retain greater commercial advantage through lower compliance requirements. Yet Article 6.7 simultaneously encourages enforcement through its inclusive reference to offences that violate international criminal law.[33] The provision conveys a spectrum of offences, which promotes a supplementary deterrence function, as it permits increased penalties for States and corporations that seriously violate the Treaty. However, specific sentencing guidelines have not been concurrently established.
The second Guiding Principle determines that States ought to establish uniform protocol to ensure that ‘business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations’.[34] Respective commentary clarifies that extraterritorial jurisdiction is permissible yet unrequired under international human rights law.[35] Consequently, the Treaty has discretion to implement a extraterritorial jurisdiction requirement since its designated rejection would repudiate victims’ access to operative remedy.[36] Nonetheless, effective extraterritorial jurisdiction challenges the Treaty’s adoption and compliance prospects, as it particularly deters acceptance by dominant States with poor corporate human rights records that host large, cross-border operations.
Ruggie suggests that resistance to extraterritorial jurisdiction surrounds its comprehensive imposition of internationally affirmed human rights.[37] Consequently, treaty proponents are significantly challenged by the extraterritorial implementation and enforcement of international human rights law.[38] International law permits States to operate jurisdiction in regard to domiciled corporations in external States. Therefore, a proposed treaty may plainly consent to or oblige a compatible extraterritorial jurisdiction, upon a determination that jurisdictional standards compatibly apply its specialised scope and function. Otherwise, the Treaty may enable legislative or judicial discretion to independently determine extraterritorial jurisdiction applications under applicable international law.[39]
Though States maintain an ability to exercise extraterritorial jurisdiction, its operation has been dissuaded in business and human rights settings by large corporate actors that seek to implement transnational liability restraints.[40] The Revised Draft determines a wide notion of extraterritorial jurisdiction, which does not adequately guide corporate liability as corresponding legal doctrines are undetermined. When a violation occurs, the Revised Draft qualifies the corresponding jurisdiction of a transnational corporation’s home State, if commercial activity operates in a different State. Jurisdiction additionally extends in other States where corporations retain ‘substantial business interests’, a term that is not defined by Revised Draft.[41] Wide interpretative uncertainty further reduces commercial support for the Revised Draft as the margins of corporate liability are cumulatively abstracted.
Jurisdictional precincts are further obscured, as the Revised Draft does not limit its authority to oversee ‘business activities’, respectively ‘any economic activity... undertaken by a natural or legal person, including activities undertaken by electronic means’.[42] Moreover, indiscriminate reference to electronic regulation immensely extends its discretionary ability by consciously encompassing all technological platforms. Therefore, corporate privacy concerns are promoted though a significantly unregulated jurisdictional scope, which further dissuades adoption due to its exposure of data.[43]
The Revised Draft enables an application of diverse adjudicative frameworks in order to prosecute corporate human rights violations. This authorises an assortment of laws that govern transnational corporations’ operative host States, homes States or the domestic laws where corporations preserve ‘substantial business interests’.[44] Consequently, the Revised Draft empowers legal proceedings that dubiously amalgamate interjurisdictional principles, to optimise corporate conviction prospects. Additional aptitude barriers are established as witnesses and jurists may be required to join complex legal proceedings that indeterminately fuse incompatible domestic laws and doctrines. The Revised Draft’s relatively undetermined scope and lacking delineation of a universal jurisdiction disincentivises its adoptive prospects, as it may be construed to undermine free market principles, territorial limits and State sovereignty.
The Revised Draft’s interpretation of extraterritorial jurisdiction is widely incompatible with international law, which conventionally rebuts its assumed application.[45] Workers may remain vulnerable until a treaty draft adequately defines associated corporate liability implications. Nonetheless, its adoption would widely promote conviction prospects for rampant human rights violators due to its structural and legislative inclusivity. The Revised Draft’s broad discretionary scope suggests that adoptive States may be required to prioritise the protection of corporate human rights over neoliberal doctrines. Ostensible ideological conflict urges a simultaneous progression of proactive cultural and economic reforms, to encourage the Revised Draft’s inclusive adoption or subsequent reform.
A 2018 report by Corporate Human Rights Benchmark scored the remedies and grievance procedures of 100 key international corporations at a low average of 15 percent.[46] Therefore, an overwhelming portion of corporate human rights victims lack practical access to justice and consequent remedy. Extensive remedial access concerns are amplified by inadequate corporate transparency requirements, which enable management to revoke legal responsibility for subsidiary violations that subsequently generate acute human rights repercussions.[47] Hence a functional treaty needs to increase extraterritorial and domestic avenues to remedy.
The Revised Draft identifies significant improvement through its reevaluated focus towards the protection of corporate human rights victims. Increased corporate enforcement and legal accountability procedures identify the Revised Draft’s reassessment of corporations’ duties, through a multidisciplinary integration of human rights and international criminal legal principles.[48] Therefore, a treaty supports the advancement of voluntary initiatives, which offer practical access to remedy. The Revised Draft additionally enforces critical requirements for States to implement laws that mandate corporate human rights due diligence, thus compelling corporations to ‘take appropriate actions to prevent human rights violations or abuses in the context of its business activities’.[49]
The Revised Draft maintains inconsistencies between proactive abuse prevention and mechanisms that remedy harm. Article 5 consolidates definitions regarding corporate human rights due diligence with the Guiding Principles.[50] However, reference to prevention in Article 5 broadly addresses corporate due diligence requirements, which reduces consideration toward supplementary prevention methods. Interpretations may alleviate States’ duties as the principal actors that implement practical harm prevention measures. Alternately, a treaty ought to enforce essential procedural participation by diverse stakeholders to ensure that access to justice is collaboratively defined and instituted in corporate contexts.
Collective decision-making and direct consultation efforts proactively inform corporate policy, which promotes accessible compliance. Moreover, multi-stakeholder discourse mitigates a prescription of incompatible remedies that do not account for victims’ specialised circumstances. Accordingly, the Revised Draft’s sole reference to consultation in a corporate due diligence capacity reduces requirements for States and corporations to effectively engage vulnerable stakeholders, who are otherwise widely excluded throughout decision-making frameworks. Additionally, the Revised Draft’s reference to Indigenous participatory rights requires a standard of consultation, which denies requisite consent and exacerbates Indigenous peoples’ institutionalised exposure.[51] Therefore, comprehensive harm prevention requires freedom of information entitlements and access to protective procedural processes, to ensure that prospective abuse or situational decline is managed.
The Revised Draft does not expressly define the specialised duties of States to defend and observe corporate human rights, which reduces victims’ and observers’ authority to report State-facilitated contraventions. Moreover, critical reliance on remediation promotes enforcement that requires victims to identify and report abuse. Consequently, victims facing the most severe corporate human rights abuse retain a greater obligation to participate in legal proceedings. Whereas inexplicit and or small-scale abuse may be more difficult for victims and legislative provisions to identity. A treaty must expressly provide a pre-emptive enforcement framework throughout commercial contexts, that is independently facilitated and monitored. Nonetheless, States retain strong capacities to thoroughly regulate and avert abuse beyond a treaty realm, which would ensure greater access to justice prior the finalisation of a treaty.
The progression towards an effective treaty provides outcomes that protect workers and surrounding communities from systemic corporate abuse. The Revised Draft extends the scope of corporate liability by embracing an inclusion of all business enterprises. However, it assumes State-centric enforcement procedures, which do not entirely mitigate the pervasiveness of corporate authority across human rights enforcement. Strategic negotiations that manoeuvre liability may compel broader consensus by corporations and States. However, resultant enforcement uncertainty compromises victims’ access to justice and remedy. Business and human rights discourse requires a concurrent progression of initiatives that practically disseminate the Guiding Principles.
A treaty will assist surrounding corporate human rights organisation if it obliges constructive human rights due diligence, mechanisms for corporate transparency and pragmatic lability for non-compliance by State parties and corporations. Compatible domestic frameworks must balance the enforcement of collective corporate duties and legislative distinctions that address specialised variables across industries. Treaty endeavours that are unsupported by voluntary human rights frameworks limit practical abuse prevention and access to justice, as corporate actors wield extensive leverage throughout international legal frameworks. A treaty could viably support diverse stakeholders by imposing regular advisory conferences with local actors, to practically outline corporations’ specialised legal obligations. Consequently, a treaty may seek to implement incentives that initially reward human rights adherence, until comprehensive compliance is unanimously normalised throughout corporate culture.
[1] Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, UN Human Rights Council, 17th sess, Agenda Item 3, A/HRC/17/31 (21 March 2011) (‘Guiding Principles’).
[2] Human Rights Council, Elaboration of an Internationally Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, UN Doc. A/HRC/26/L.22/Rev.1 (25 June 2014).
[3] Arvind Ganesan, ‘Dispatches: A Treaty to End Corporate Abuses?’, Human Rights Watch (Web Page, 1 July 2014) <https://www.hrw.org/news/2014/07/01/dispatches-treaty-end-corporate-abuses>.
[4] Steven Bittle and Laureen Snider, ‘Examining the Ruggie Report: Can Voluntary Guidelines Tame Global Capitalism?’ (2013) 21 Critical Criminology 177, 189; Justine Nolan, ‘Mapping the Movement: the Business and Human Rights Regulatory Framework’ in Dorothée Baumann-Pauly and Justine Nolan (eds), Business and Human Rights: From Principles to Practice (Routledge UK, 2016) 32-51.
[5] Anthony Ewing, ‘Mandatory Human Rights Reporting’ in Dorothée Baumann-Pauly and Justine Nolan (eds), Business and Human Rights: From Principles to Practice (Routledge UK, 2016) 286.
[6] Marco Bünte, ‘Building Governance from Scratch: Myanmar and the Extractive Industry Transparency Initiative’ (2018) 48(2) Journal of Contemporary Asia 241.
[7] John Ruggie, Life in the Global Public Domain: Response to Commentaries on the UN Guiding Principles and the Proposed Treaty on Business and Human Rights (Harvard Kennedy School, 2015) 2.
[8] Surya Deva, ‘Corporate Human Rights Abuses and International Law: Brief Comments’, James G Stewart (Blog Post, 28 January 2015) <http://jamesgstewart.com/corporatehuman-rights-abuses-and-international-law-brief-comments> .
[9] William Dodge, ‘Business and Human Rights Litigation in US Courts Before and After Kiobel’ in Dorothée Baumann-Pauly and Justine Nolan (eds), Business and Human Rights: From Principles to Practice (Routledge UK, 2016) 245.
[10] OHCHR, Accountability and Remedy Project Improving accountability and access to remedy in cases of business involvement in human rights abuses Phase III: Enhancing the effectiveness of non-State-based grievance mechanisms Scope and Programme of Work (Report, 1 November 2018).
[11] Daniel Uribe and Kinda Mohamadieh, ‘Building a Binding Instrument on Business and Human Rights’, Business and Human Rights Resource Centre (Web Page) <https://www.business-humanrights.org/en/building-a-binding-instrument-on-business-and-human-rights>.
[12] John Ruggie, ‘Business and Human Rights: The Evolving International Agenda’ (2007) 101 American Journal of International Law 819, 824.
[13] John Ruggie, ‘The Past as Prologue? A Moment of Truth for UN Business and Human Rights Treaty, Institute for Human Rights and Business’, Institute for Human Rights and Business (Web Page, 8 July 2014) <http://www.ihrb.org/commentary/pastas- prologue.html> .
[14] John Ruggie, ‘A UN Business and Human Rights Treaty? An Issues Brief by John G. Ruggie’ Business & Human Rights Resource Centre (Web Page, 28 January 2014) <https://www.business-humanrights.org/sites/default/files/media/documents/ruggie-on-un-business-human-rights-treaty-jan-2014.pdf>.
[15] David Bilchitz, ‘The Necessity for a Business and Human Rights Treaty’ (2016) 2(1) Business and Human Rights Journal 226.
[16] Ruggie (n 7) 3.
[17] Guiding Principles (n 1) principle 17(a).
[18] Giorgia Papalia, ‘Doing Business Right: The Case for a Business and Human Rights Treaty’ (2018) 3 Perth International Law Journal 112.
[19] Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises With Respect to Human Rights, Revised draft of a legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises, 16 July 2019, art 3.3 (‘Revised Draft’).
[20] Ibid.
[21] Bilchitz (n 15) 220-221.
[22] Revised Draft (n 19) art 3.1.
[23] Ibid art 12.
[24] Working Group on Business and Human Rights, Legally Binding Instrument To Regulate, In International Human Rights Law, The Activities Of Transnational Corporations And Other Business Enterprises, Zero Draft, 16 July 2018, art 3 (‘Zero Draft’).
[25] Bilchitz (n 15) 204.
[26] Olivier De Schutter, ‘Towards a New Treaty on Business and Human Rights’ (2016) 1 Business and Human Rights Journal 55.
[27] Daniel Uribe, ‘Setting the Pillars to Enforce Corporate Human Rights Obligations Stemming from International Law’, South Centre (Policy Brief, No. 56 October 2018) <https://www.southcentre.int/wp-content/uploads/2018/10/PB56_Setting-the-pillars-to-enforce-corporate-human-rights-obligations-stemming-from-international-law_EN.pdf>.
[28] Revised Draft (n 19) art 6.7.
[29] Carlos Lopez, ‘The Revised Draft of a Treaty on Business and Human Rights: A Big Leap Forward’, OpinoJuris (Blog Post, 15 August 2019) <http://opiniojuris.org/2019/08/15/the-revised-draft-of-a-treaty-on-business-and-human-rights-a-big-leap-forward/> .
[30] Revised Draft (n 19) art 3.2.
[31] Ibid art 6.1.
[32] Ibid art 6.7.
[33] Ibid.
[34] Guiding Principles (n 1) principle 2.
[35] John Knox, ‘The Ruggie Rules: Applying Human Rights Law to Corporations’ in Radu Mares (ed), The UN Guiding Principles on Business and Human Rights (Martinus Nijhoff, 2012) 60.
[36] De Schutter (n 26) 41, 43; Bilchitz (n 15) 203, 212.
[37] Ruggie (n 14).
[38] De Schutter (n 26) 41, 43; Bilchitz (n 15) 203, 212.
[39] Douglass Cassel and Anita Ramasastry, ‘White Paper: Options for a Treaty on Business and Human Rights’ (2016) 6 Notre Dame Journal of International and Comparative Law 46.
[40] Dodge (n 9) 245.
[41] Revised Draft (n 19) art 7.2(d).
[42] Ibid art 1.3.
[43] Alessandro Mantelero, ‘AI and Big Data: A Blueprint for a Human Rights, Social and Ethical Impact Assessment’ (2018) 34(4) Computer Law & Security Review 754-772.
[44] Revised Draft (n 19) art 7.2(d).
[45] Olivier De Schutter et al., ‘Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights’ (2012) 34 Human Rights Quarterly 1084.
[46] Corporate Human Rights Benchmark, 2018 Key Findings: Apparel, Agricultural Products and Extractive Companies (Report, 12 November 2018) 33.
[47] Cassel and Ramasastry (n 39) 48.
[48] Lopez (n 29).
[49] Revised Draft (n 19) art 5.
[50] Ibid.
[51] Ibid art 5.3(b).
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