BRIEFING
EPRS | European Parliament Research Service
Author: Ionel Zamfir
Members’ Research Service
PE 620.229 – April 2018
EN
Towards a binding international treaty
on business and human rights
SUMMARY
With its extended value chains, economic globalisation has provided numerousopportunities, while
also creating specific challenges, including in the area of human rights protection. The recent history
of transnational corporations contains numerous examples of human rights abuses occurring as a
result of their operations. Such corporations are known to have taken advantage of loose regulatory
frameworks in developing countries, corruption, or lack of accountability resulting from legal rules
shielding corporate interests.
This situation has created a pressing need to establish international norms regulating business
operations in relation to human rights. So far, the preferred approach has been 'soft', consisting of
the adoption of voluntary guidelines for businesses. Several sets of such norms exist at international
level, the most notable being the UN Guiding Principles on Business and Human Rights.
Nevertheless, while such voluntary commitments are clearly useful, they cannot entirely stop gross
human rights violations (such as child labour, labour rights violations and land grabbing) committed
by transnational corporations, their subsidiaries or suppliers. To address the shortcomings of the
soft approach, an intergovernmental working group was established within the UN framework in
June 2014, with the task of drafting a binding treaty on human rights and business.
After being reluctant at the outset, the EU has become involved in the negotiations, but has insisted
that the future treaty's scope should include all businesses, not only transnational ones. The EU's
position on this issue has been disregarded by the UN intergovernmental working group until now,
which raises some questions about the fairness of the process. The European Parliament is a staunch
supporter of this initiative and has encouraged the EU to take a positive and constructive approach.
This is an updated edition of a briefing published in July 2017: PE 608.636.
In this Briefing
Background
The need for a binding international instrument: a
complex debate
The proposed business and human rights treaty – key
content and controversial issues
Binding legal initiatives at EU and Member State level
Stakeholders' positions
European Union position
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List of acronyms used
ILO International Labour Organization
OBE Other business enterprises
OECD Organisation for Economic Co-operation and Development
OEIWG Open-ended intergovernmental working group
TNCs Transnational corporations
UNGPs United Nations Guiding Principles on business and Human Rights
UNHRC UN Human Rights Council
Background
Human rights abuses committed by businesses
have been a cause of serious public concern for
decades. Examples of such abuses include: use of
forced and child labour, lack of respect for labour
rights, including the right to associate and form
unions, poor safety and health conditions at work,
land grabbing, including from indigenous
communities, unlawful violence perpetrated by
private security staff, pollution and destruction of
the environment, including of water sources, to
name but a few.
What makes such abuses particularly problematic
is that access to justice and means of redress are
often insufficient, due to multiple factors.
Identifying the competent court the victims should
address is particularly problematic when dealing
with transnational corporations (TNCs). Another
aggravating factor is the lack of codification of
certain human rights abuses in penal codes. Many
obstacles to access to justice persist, particularly
when victims search for justice abroad, such as the
high costs for representationor the complexity and
length of proceedings. In developing countries,
corruption among state officials can undermine
legal proceedings. Victims and the defendants of
their rights can face intimidation, violence and
even murder, commissioned by the businesses
involved, with the acquiescence of corrupt state
authorities. Appropriate non-judicial remedies are
also of crucial importance, but are often lacking. As
recognised in a recent opinion issued by the EU
Agency for Fundamental Rights, many obstacles
also persist in EU's single market, where 'it is harder
for victims to seek redress from companies based
elsewhere or when rights violations happen
abroad'. To remedy the situation, numerous
international, regional and national-level initiatives
have been launched, which have privileged a soft
approach based on voluntary standards.
Five 'internationally recognised standards'
– 2011 UN Guiding Principles on Business and Human
Rights (hereafter referred to as UNGPs): guidelines to
prevent, address and remedy human rights violations
committed in business operations.
– 2000 UN Global Compact: the world's largest voluntary
corporate sustainability initiative encouraging businesses
to align their strategies and operations with universal
human rights, labour, environment and anti-corruption
principles, and take actions that advance societal goals.
– 1976 Organisation for Economic Co-operation and
Development (OECD) Guidelines for Multinational
Enterprises (last revised in 2011) are 'recommendations
addressed by governments to multinational enterprises
operating in or from adhering countries. They provide
non-binding principles and standards for responsible
business conduct in a global context consistent with
applicable laws and internationally recognised standards.
The [OECD] Guidelines are the only multilaterally agreed
and comprehensive code of responsible business conduct
that governments have committed to promoting.'
– Launched in 2010 by the International Organization for
Standardization, the ISO 26000 Guidance Standard on
Social Responsibility provides guidance on how
businesses and organisations can operate in a socially
responsible way. This means acting in such an ethical and
transparent way as would contribute to the health and
welfare of society. As the standard provides guidance
rather than requirements, it cannot be certified, unlike
other ISO standards.
– The International Labour Organization's Tripartite
Declaration of Principles concerning Multinational
Enterprises and Social Policy: adopted in 1977 and last
amended in March 2017, offers guidelines to
multinational enterprises, governments and employers'
and workers' organisations in areas such as employment,
training, conditions of work and life, and industrial
relations. This guidance is based mainly on principles laid
down in international labour conventions and
recommendations.
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The EU has shown commitment to the international business and human rights governance regime
and has undertaken various actions
1
under the main instruments mentioned above. Of all these, the
EU has beenmost engaged with the UNGPs. It hassupported their development and considers them
the overarching instrument in the field. The EU is, together with many of its Member States, at the
forefront of the UNGPs' implementation, for example with regard to establishing the required
national action plans.
Increased recognition for the relationship between human rights
and business
The issue of human rights and business started receiving increased public attention in the 2000s.
Consequently, an explicit reference to human rights was introduced in the OECD and ILO standards
mentioned above. The adoption of the UNGPs in 2011 marked a decisive step forward. Today, these
principles enjoy quasi-universal recognition, being unanimously endorsed by the UN Human Rights
Council (UNHRC). They impose commitments on both states and businesses and put special
emphasis on remedies for human rights abuses committed by corporations. Nevertheless,
according to a 2017 study for the European Parliament, although much progress has been achieved
in implementing the UNGPS (for example, the OECD Guidelines have been aligned to the UNGPs
and new tools have been developed), human rights abuses by corporations persist. According to
critics, this is possibly due to the absence of a central mechanism to ensure their implementation,
and to their non-binding character.
A binding international treaty could prevent such issues. A first attempt towards such a treaty was
the Draft UN Norms on the Responsibilities of Transnational Corporations and other Business
Enterprises with Regard to Human Rights. However, this, failed in the UN Commission on Human
Rights in 2004. It contained obligations for TNCs to respect and protect the whole array of
internationally recognised human rights and to provide remedy in case of violations.
The need for a binding international instrument: a complex
debate
Timeline of events relating to the binding treaty initiative
June 2011
September 2013
June 2014
October 2015
October 2016
October 2017
October 2017
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March 2018
June 2018
October 2018
When, in September 2013, Ecuador proposed the creation of an open-ended intergovernmental
working group to negotiate a treaty instrument in the UN framework, its initiative received strong
support from civil society organisations. However, support from among the UNHRC members was
moderate. Ecuador's resolution (A/HRC/26/L22), tabled at the 26th UNHRC Session on 26 June 2014
and co-sponsored by Bolivia, Cuba, South Africa and Venezuela, was adopted with only 20 votes in
favour, 14 against and 13 abstentions. It was rejected by the industrialised members, including the
EU Member States sitting on the UNHRC, while most Latin American members abstained.
The mandate provided by the resolution is to 'elaborate an international legally binding instrument
to regulate, in international human rights law, the activities of transnational corporations and other
business enterprises' (paragraph 1). The resolution does not define TNCs; it only explains in a
footnote what is meant by 'other business enterprises' (OBEs): this concept 'denotes all business
enterprises that have a transnational character in their operational activities, and does not apply to
local businesses registered in terms of relevant domestic law'.
Again at the 26th UNHRC session, a second resolution (A/HRC/26/L.1) on the same subject, drafted
by Norway and supported by 22 other countries from all regions, was tabled in what was a unique
situation. It requested that the UN Working Group on Business and Human Rights (established in
2011 by UNHRC resolution 17/4) to prepare a report considering, among other things, the benefits
and limitations of a legally binding instrument. It furthermore requested the High Commissioner for
Human Rights to initiate a consultative process with stakeholders exploring 'the full range of legal
options and practical measures to improve access to remedy for victims of business-related human
rights abuses'. The resolution was adopted by consensus.
The open-ended intergovernmental working group on transnational corporations and other
business enterprises with respect to human rights (OEIGWG), established under the above-
mentioned resolution A/HRC/26/9, held its first session in October 2015 and a second one in October
2016. These sessions 'were dedicated to conducting constructive deliberations on the content,
scope, nature and form of the future international instrument', in accordance with the UNHRC
mandate. On 19 October, the OEIGWG Chair published the 'Elements for the draft legally binding
instrument', which were then debated in the third OEIGWG session in October 2017.
Impunity for corporate abuses at transnational level
While it would be clearly unfair to accuse all TNCs of committing systematic human rights abuses, it
is no less true that the recent history of human rights abuses committed by or resulting from the
activities of such corporations contains a number of cases of shockingly irresponsible corporate
behaviour. Moreover, victims of such abuses have oftentimes faced huge obstacles both in
accessing justice and in obtaining redress.
This is mainly due to the complexities of the rules applicable to TNCs: they can easily use the most
favourable jurisdiction to fend off responsibility and to shift it instead to their subsidiaries and
suppliers. In a 2014 publication on corporate abuses and remedies, Amnesty International examines
the negative implications for human rights protection of the doctrine of 'separate legal personality'
(the 'corporate veil'): 'each separately incorporated member of a corporate group is considered to
be a distinct legal entity that holds and manages its own separate liabilities. [...] This doctrine implies
that the liabilities of one member of a corporate group will not automatically be imputed to another,
merely because there is an equity relationship between them'. This makes it quasi-impossible to sue
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parent companies either in the countries where their subsidiaries operateor in their home countries.
Moreover, victims who look for redress in foreign courts also face huge obstacles. When criminal
liability is at stake, those who have the ultimate responsibility for corporate abuses can find
protection in their home state's jurisdiction or in investment protection treaties.
There is thus a profound asymmetry between TNCs' rights and obligations. While they enjoy
substantial rights secured through trade and investment agreements, their human rights
obligations are less clearand more difficult to enforce. Given the power of TNCs in today's globalised
world, the expectation that domestic law would be sufficient to impose human rights-related
obligations and to hold TNCs accountable for abuses is simply unrealistic. The long supply chains
make it extremely difficult to establish responsibility and hold accountable those in the highest
position of command in such chains. States hosting powerful TNCs often lack the capacity to act
against them or do not take action over fear of losing foreign investment. Nor do TNCs' home states
take action, to avoid placing them at a competitive disadvantage.
Limits of the soft law/hard law approaches
Dissatisfaction with the slow and ineffective implementation of the UNGPs – though they were
much acclaimed at the time of their adoption – has driven the initiative to draft a binding
international treaty. The limits and shortcomings of the UNGPs have been widely recognised by
both governments and civil society organisations. Their non-binding character has been portrayed
as a particular weakness. Their defenders have responded to this criticism by pointing out that, as
they have only been around for a few years, more time is needed to assess their impact.
Furthermore, with respect to the binding treaty, many experts in the field point to the huge
complexity of the business and human rights subject. This was initially used as an argument for
preferring the soft-law approach of the UNGPs to a binding treaty. UN rapporteur John Ruggie, who
drafted the UNGPs, expressed strong reservations about such a treaty. The subject area it would
have to cover would be too vast, since it 'includes all human rights, all rights holders, all business –
large and small, transnational and national'. The inherent risk with such a complex treaty is that
negotiations would last many years, without leading to a conclusive outcome endorsed by all. The
EU, through the statement delivered by its Delegation to the UN at the third OEIGWG session, has
also expressed serious reservations about an all-encompassing treaty, marking its preference
instead for more precise and specific international legal instruments based on existing norms.
A related criticism is that the treaty would be of little practical significance given its overly general
character, and it could be used by states to obscure their incapacity to uphold human rights by
pointing the finger at transnational companies. Actually, many of the countries that have actively
promoted the treaty have very poor human rights and labour rights records, which raises serious
questions about their commitment to the cause of human rights. The EU has also expressed
concerns that a new treaty will not be of much help to victims of human rights violations caused by
the incapacity or unwillingness of certain states to uphold their existing human rights obligations.
According to the defenders of the UNGPs, the pursuit of a binding treaty would also risk weakening
their implementation by driving public attention and resources away, and by implicitly
acknowledging their limitations. However, this concern has not materialised, as there has been a lot
of progress in implementing the principles, including national action plans and legislative attempts
to regulate due diligence.
A more balanced view acknowledges that the UNGPs and the proposed treaty both have
advantages and disadvantages of their own. Therefore, the best strategy may be to continue with
several initiatives in order to 'enhance victims' access to remedies and to teach corporations how to
pursue effective due diligence in order to prevent potential human rights abuses'. While initially the
two camps – those supporting and those rejecting a binding treaty – were highly polarised,
2
the
division between them has diminished. Today, there are more people who believe that the two
initiatives could complement each other well, rather than compete with each other.
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The proposed business and human rights treaty – key
content and controversial issues
A major challenge for the drafters of the treaty is to select from among the huge range of issues
those that are the most relevant and capable of securing the necessary final consensus. During its
2015 and 2016 sessions, the OEIGWG debated a broad range of issues. Taking into account the
published 'Elements for the treaty', as well as the positions expressed by civil society and other
stakeholders, several issues have emerged as elements for possible inclusion in the treaty.
Figure 1 – Potential elements of the future treaty
Source: EPRS, 2018.
Among the most debated issues are:
The obligation for companies to demonstrate due diligence: According to the option
highlighted in the 'Elements', the states parties shall adopt legislative and other
measures to make due diligence
3
mandatory for TNCs and OBEs, including with respect
to their subsidiaries;
Strengthening legal liability: According to the 'Elements', states parties shall regulate
the legal liability of TNCs and OBEs from an administrative, civil and penal point of view
with respect to violations of human rights resulting from their activities. In particular, all
states should recognise the criminal liability of companies;
A broad concept of jurisdiction is required, allowing victims to have access to justice
either in the country where the violation occurred or in the country where the parent
company has its seat;
Provision of effective remedies has to be guaranteed: The right to effective remedies is
central to human rights law and to theUNGPs; nevertheless, victims of corporate abuses
have difficulty getting access to remedies. The treaty is expected to impose an
obligation on states to guarantee access to justice and effective remedies;
Establishing remedial mechanisms at international level: The 'Elements' propose an
International Court on Transnational Corporations and Human Rights and special
chambers of existing international and regional courts. The 'Elements' also put forward
the proposal for a non-judicial mechanism, namely an international committee
composed of experts, which would examine progress made by states parties, issue
reports and receive communications;
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Improving judicial cooperation among states parties is another objective. The
'Elements' provide for the facilitation of mutual legal assistance and for the recognition
of relevant court decisions.
An important issue on which the planned treaty could bring clarity is the recognition of the extra-
territorial obligations of states with respect to human rights and business. The UNGPs state that, 'At
present, states are not generally required under international human rights law to regulate the
extra-territorial activities of businesses domiciled in their territory and/or jurisdiction. Nor are they
generally prohibited from doing so, provided there is a jurisdictional basis.' On the other hand,
international law contains the principle that a state should not allow the use of its territory and its
jurisdiction to cause damage in the territory or jurisdiction of another state. Some human rights
treaty bodies recommend that states take steps to prevent abuse abroad by businesses within their
jurisdiction. The 'Elements' provide that the future treaty should 'reaffirm that State Parties’
obligations regarding the protection of human rights do not stop at their territorial borders'.
So far, the most controversial point of the debate has been whether the envisaged treaty should be
limited to TNCs andOBEs involved in transnational operations, or should also cover local companies.
The EU has insisted that it should cover all business enterprises, and from the beginning has made
this approach into a pre-condition of its participation in the drafting process. The EU argues that the
treaty would otherwise be incoherent, as many human rights violations are committed by purely
local companies. Also the treaty would put transnational companies at a competitive disadvantage
in relation to their local competitors, which could commit certain human rights violations with
impunity. Contrary to the EU's position, the 'Elements' clearly limit the scope of the treaty to 'TNCs
and OBEs involved in transnational operations. During the debates in the third session, the EU's
position did not find much support among other states.
Some analysts believe that there are substantial reasons for drafting a treaty only applicable to TNCs
and other business enterprises with transnational operations, as provided for in the mandate, and
not to local companies. They argue that the treaty is expected to fill a gap in the international rules
on determining the liability of parent or controlling companies beyond the jurisdiction of the state
where the violations occurred. At present, TNCs benefit the most from this governance gap.
According to a South Centre policy advisor, limiting the scope of the proposed treaty to TNCs and
business enterprises with transnational activities would not be discriminatory towards these in
relation to domestic companies, but would put them on the same footing. TNCs are often able to
avoid responsibility because of their transnational structure.
A further issue up for debate concerns the human rights covered. The international human rights
regime includes numerous rights – such as certain social and economic rights – some of which are
more difficult to enforce in a court of law. The 'Elements' propose a broad approach covering all
internationally recognised human rights, as reflected in all human rights treaties, as well as in
international conventions on labour rights, environment and corruption. According to critics, this
could push the treaty to such a level of abstraction that would make it practically ineffective.
A further point of controversy refers to the responsibility for fulfilling the obligations defined under
the treaty. The 'Elements' propose that they include, in addition to states and international
organisations with an economic remit, TNCs and OBEs, as well as natural persons. According to
critics of this approach, this move to hold corporations directly liable under international law for
their human rights abuses would be unprecedented. It would contravene the traditional approach
of international law to holding states accountable for human rights abuses committed by
corporations in their territory.
4
This was most likely also the reason the previous attempt in the UN
to establish binding norms on business and human rights failed (see page 3). Furthermore, states
could use the treaty to shun their responsibility for protecting human rights. Asking businesses to
implement elaborate human rights policies could also pose enormous practical difficulties, given
the complicated, partly unpredictable and sometimes contradictory implications economic
activities can have on human rights. International law does not provide any guidance on trade-offs
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between different human rights. According to Danny Bradlow, professor in international law, 'it
would be imprudent to establish binding rules on how businesses should manage human rights
issues before we fully understand how to draft such rules without causing unintended
consequences... It [human rights law] has not yet worked out how to deal with human rights
situations that require making trade-offs, setting priorities, and managing risk. These are standard
in business'.
Binding legal initiatives at EU and Member State level
EU level
Existing legal initiatives could serve a path-finding role in the drafting of the treaty, as already
recognised in the preparatory OEIGWG debates. At global level, there are several examples of such
initiatives, with the EU and a few of its Member States being among the frontrunners in the area.
The EU's Non-financial Reporting Directive (Directive 2014/95/EU),
5
which entered into force in 2014
and whose transposition deadline was 6 December 2016, provides obligations for companies
operating abroad to disclose their compliance inter alia with human rights norms. The directive
incorporates the concept of due diligence in EU legislation (Article 19a (b)), and human rights are
among the issues to be covered under the due diligence reporting obligations it sets. Around 6 000
large companies listed on EU markets or operating in the banking and insurance sectors will be
expected to publish their first reports (for the financial year 2017) in 2018. As the application of this
directive is in an incipient phase, assessing its impact on the extent to which businesses respect
human rights will take some time. Another legislative initiative imposing due diligence obligations
on EU companies is the recently adopted Conflict Minerals Regulation, which will take full effect on
1 January 2021. Importers of four minerals (tin, tantalum, tungsten and gold) into the EU will be
obliged to check the likelihood that the rawmaterials could be financing conflict or could have been
extracted using forced labour.
EU Member State level
In March 2017, France adopted a law on the duty of vigilance of parent and subcontracting
companies, imposing on large French companies the requirement to assess and prevent the
negative impacts of their activities and of those of their subsidiaries, suppliers and subcontractors
on the environment and on human rights. Businesses' failure to comply with this legal obligation
entails payment of a compensation. Civil society organisations hope this law could serve as a model
for EU-wide legislation, in line with the precedent set by the French law on non-financial reporting,
which preceded the above-mentioned EU directive on the subject.
Inspired by the French move, eight EU national parliaments have expressed their support for a green
card initiative, namely the parliaments of Estonia, Lithuania, Slovakia and Portugal, the UK House of
Lords, the Dutch House of Representatives, the Italian Senate, and the French National Assembly.
The initiative calls for a duty of care towards individuals and communities whose human rights and
local environment have been affected by the activities of EU-based companies. Nevertheless, the
European Commission's response has been that it has 'no plans to adopt further legislation at this
stage, but is carefully monitoring, in close collaboration with the main stakeholders, how the
situation is evolving in the Member States and in the international bodies involved in the corporate
social responsibility process'.
In February 2017, the lower chamber of the Dutch Parliament adopted a Child Labour Due Diligence
Law for companies. If the Senate also approves it, the law will be effective as of 2020 and will oblige
companies to determine not only whether there is a 'reasonable suspicion' that their first supplier is
free from child labour but also – where possible – whether child labour occurs further down the
production chain.
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Figure 2 – The proposed treaty in the current business and human rights-governance
system
Source: EPRS, 2017
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Stakeholders' positions
A broad alliance of civil society organisations (the Treaty Alliance) has been built in order to support
the treaty negotiation process, with the objectives to '(1) enhance the protection of affected
individuals and communities against violations related to the operation of TNCs and OBEs, and (2)
provide them with access to effective remedies, in particular through judicial mechanisms'.
According to the alliance, the treaty must stipulate the primacy of human rights law over corporate
rights.
On the other hand, the International Organisation of Employers has expressed its opposition to a
binding treaty, pointing out that it would undermine the UNGPs. In a statement delivered at the
second OEIGWG session, it stated that the problem is not the governance gap at the international
level, but the lack of capacity at the national level to effectively implement and enforce laws.
Inappropriate working conditions and negative impacts on the environment are due to 'a high
prevalence of informality, ineffective governmental inspection, a lack of governance frameworks,
high levels of corruption, and ineffective judiciary systems' at national level. Global supply chains
most often have a positive impact on local working conditions by setting higher standards.
However, other business organisations have come out in favour of the binding treaty, albeit with
some caveats. Accordingly, the World Business Council for Sustainable Development (WBCSD) and
a number of partners (the International Organisation of Employers; the International Chamber of
Commerce; and the Business and Industry Advisory Committee to the OECD), submitted a joint
advocacy paper for the second OEIGWG session. The paper highlighted their main
recommendations that the jurisdictional scope of the treaty must include all business enterprises;
the UN treaty process should build on the UN 'protect-respect-remedy' framework defined in the
UNGPs and respect the established division of roles between states and companies; and that access
to remedy must be local to be effective.
The International Commission of Jurists, an organisation composed of 60 eminent judges and
lawyers from all regions of the world, has laid out its Proposals for Elements of a Legally Binding
Instrument on Transnational Corporations and Other Business Enterprises. Access to remedy and
justice is an essential part of its vision. While considering that the mandate and scope of the treaty
should not be limited to TNCs, the organisation argues that a one-size-fits-all approach is not the
best approach, either.
In Europe, various stakeholders such as academics, politicians, global justice campaigners and NGOs
have come out in favour of the treaty.
Support for the treaty has also been building at national level. For example, in France, civil society
organisations, together with a significant number ofparliamentarians,have urged their government
to support the UN process.
European Union position
After dropping its initial reluctance, the EU has been constructively involved in the UN process for
drafting the treaty, being represented by its Delegation to the UN in Geneva. The EU has observer
status in the UN Human Rights Council, the body which oversees the drafting process. The positions
defended by the EU Delegation in the UN framework are agreed beforehand among all Member
States.
The EU has set two main requirements for a legally binding international treaty: 1) ensuring that the
scope of the discussion is not limited to TNCs (see page 7), and 2) the treaty should be firmly rooted
in the UNGPs, making sure that their implementation is not undermined. The EU insists that the
UNGPs have allowed for tangible progress on better protecting human rights in relation with
business activities and they provide an efficient framework, which needs to be implemented.
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At the third session in October 2017, the EU expressed serious concerns about the way the process
had been conducted. More specifically, the 'Elements of the Treaty' were published much later than
initially scheduled and the programme of work for the discussions was made available only very
shortly before the meeting, hampering stakeholders in preparing their positions, raising serious
questions about the validity of the outcome. The EU expressed its regret that the scope of the
negotiation has not been widened to cover all companies. The 'Elements' were endorsed by the
March 2018 UN Human Rights Council, without taking into account the EU's position. The EU has
not expressed an official position on this development. Its participation in the process will most
likely continue based on the same requirements (see above).
European Parliament's position
The Parliament is a staunch supporter of the binding treaty initiative. It has expressed its full support
for the UN-level preparatory work to this effect and has argued against any obstructive actions.
6
The
Parliament has called on the EU to show its full commitment to such an instrument and to actively
engage in the debates.
7
It has also emphasised the need to build the principle of accountability into
the planned treaty, which could be achieved by including a grievance mechanism in it.
8
The Parliament has also recognised the insufficiency of voluntary action. For example, in its recent
legislative initiative report, EU flagship initiative on the garment sector, the Parliament expressed
concern that the existing voluntary initiatives aimed at achieving sustainability of the garment
sector's global supply chain have not been effective enough in addressing human rights- and labour
rights-related issues in the sector.
MAIN REFERENCES
Amnesty International, Injustice Incorporated – Corporate abuses and the human right to remedy, 2014.
Faracik, Beata, Implementation of the UN Guiding Principles on Business and Human Rights, European
Parliament, Directorate-General for External Policies, February 2017.
Business & Human Rights Resource Centre, Binding Treaty, a vast collection of resources on the treaty
initiative.
Ruggie, John, Get real or we'll get nothing: Reflections on the First Session of the Intergovernmental
Working Group on a Business and Human Rights Treaty, 22 July 2015.
ENDNOTES
1
For an overview of EU actions in the area, see the following studies: The EU's engagement with the main Business
and Human Rights instruments (Stephanie Bijlmakers, Mary Footer, Nicolas Hachez, Frame Project, November 2015), and
Implementation of the UN Guiding Principles on Business and Human Rights (Beata Faracik, European Parliament Study,
February 2017, especially pp. 38-40).
2
It is not unusual that at the outset of negotiations on new international treaties, parties would adopt more hard-
line positions, but would soften them up later.
3
While the UNGPs do not define this concept clearly, the UN High Commissioner for Human Rights (UNHCHR)
defines it as follows: 'In the context of the Guiding Principles, human rights due diligence comprises an ongoing
management process that a reasonable and prudent enterprise needs to undertake, in light of its circumstances (including
sector, operating context, size and similar factors) to meet its responsibility to respect human rights.' A proposal by civil
society envisages inclusion into the treaty of a provision 'that all human rights due diligence should be conducted
according to, at minimum, the international standards of the [UN] Guiding Principles'.
4
On the issue of state versus companies' obligations, see Direct Corporate Obligations by David Bilchitz and Carlos
López.
5
Under the directive, certain large companies are required to disclose in their management report information
on their policies, main risks and outcomes relating to environmental matters, social and employee aspects, respect for
human rights, anticorruption and bribery issues, and diversity in their board of directors. Companies may rely on
international, European or national guidelines (such as the UN Global Compact, the OECD Guidelines for Multinational
Enterprises and ISO 26000). See the European Commission's webpage on the matter.
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6
See European Parliament resolution of 14 December 2016 on the Annual report on human rights and democracy
in the world and the European Union's policy on the matter 2015; European Parliament resolution of 25 October 2016 on
Corporate liability for serious human rights abuses in third countries; European Parliament resolution of 21 January 2016
on the EU's priorities for the UNHRC sessions in 2016.
7
See European Parliament resolution of 17 December 2015 on the Annual report on human rights and democracy
in the world 2014 and the European Union's policy on the matter; resolution of 12 March 2015 on the EU's priorities for the
UN Human Rights Council in 2015; and resolution of 12 March 2015 on the Annual report on human rights and democracy
in the world 2013 and the European Union's policy on the matter.
8
In its resolution of 14 February 2017 on the revision of the European Consensus on Development, the Parliament
asked the EU to support the adoption of a legally binding international instrument to hold companies accountable for
their human rights violations. In its resolution of 14 April 2016 on the Private sector and development, the Parliament
asked the EU to support such an instrument since it would provide effective remedies for victims in cases where domestic
jurisdiction is unable to prosecute companies effectively. The inclusion of a grievance mechanism in such a binding
instrument is also called for in Parliament's resolution of 19 May 2015 on Financing for development.
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