This blog is part of the Reflections on the Zero Draft blog series on the proposed binding treaty on business and human rights. We present this series as part of our work to highlight key developments and opportunities for change, with the aim of empowering advocates in civil society, governments and businesses with the evidence and guidance to help define their position and engagement in the treaty process. We believe this initiative is complementary to the implementation of the UN Guiding Principles, and that an inclusive and open debate is crucial to ensure these initiatives deliver for everyone, and that the business & human rights movement continues its 'unity in diversity'.

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On 16 July 2018, the zero draft legally binding instrument to regulate under international human rights law the activities of transnational corporations and other business enterprises (hereinafter Zero Draft Treaty or Treaty) was released by the Open-Ended Intergovernmental Working Group on transnational corporations and other business enterprises with respect to human rights. The release of the Treaty marks a significant milestone for the evolving global business and human rights framework, aiming to ensure corporate accountability and reduce the culture of impunity, during both peace time and situations of conflict. The Zero Draft Treaty and its current provisions do indeed provide a necessary development and a potential alternative avenue for individuals, communities and peoples affected by corporate abuses, especially in conflict-affected areas.

Over the years, and for those continuously subjected to human rights violations and affected by corporate abuses in situations of conflict and occupation, including in the Occupied Palestinian Territory (OPT), the traditional methods of accountability and redress have proved to be insufficient, mainly due to the international community’s lack of political will. As a result, civil society organisations in this context have been eager to explore and push for the business and human rights approach, encompassing the UN Guiding Principles on Business and Human Rights (UNGPs) and the Zero Draft Treaty, among others, in order to ensure corporate accountability, and end the ongoing disregard for international law and human rights standards. Within the business and human rights framework, there is an aspired likelihood to guarantee accountability for corporate unlawful commissions of, and involvement in serious human rights abuses and violations. 

In its current format, the Zero Draft Treaty attempts to maintain a complementary approach with the UNGPs – a necessary requirement for the continuation of a unified universal approach in countering corporate abuses. The Treaty, while focused on various pertinent issues, including corporate human rights due diligence, fails to shed light on the importance of requiring stringent due diligence by both the state and corporate actors in situations of conflict. As such, a provision under Article 9 on Prevention requiring enhanced due diligence specific to conflict-affected areas to avoid adverse human rights impacts by corporate activities and/or their relationships, is rather essential. Nonetheless, the minimal discussion and provisions allocated within the Treaty on conflict-affected areas is disappointing, especially when compared to the UNGPs’ more elaborate undertaking on potential corporate involvement in gross human rights abuses and crimes.

As such, the Treaty fails to adequately address its relevance to and implementation in situations of armed conflict and occupation. Article 15(4) of the Zero Draft Treaty requires that “special attention shall be undertaken in the cases of business activities in conflict-affected areas,” with an attempt to set obligations to “identify, prevent and mitigate” human rights abuses incurred by the activities or the relationships of business enterprises. The focus on conflict-affected areas in the Treaty is an absolute necessity, considering the sharp rise in conflicts around the globe in the 21^st century, particularly since 2010, affecting millions around the world.[1]

Yet unfortunately, “special attention” remains insufficient to address the increasing role of corporations in the commission of and involvement in grave breaches of international law, as well as their significant role in protracting and sustaining conflicts, particularly those relevant to the arms industry and natural resources. In fact, the Treaty neglects the detrimental ramifications of corporate activities on the rights of peoples, particularly the fundamental right to self-determination and permanent sovereignty over natural resources, including in situations of conflict. In the case of the OPT for example, multinational and national Israeli corporations have been playing a significant role in supporting, facilitating and financing Israel’s prolonged occupation and settler-colonial enterprise.[2] Similar cases can be identified throughout history in various geographic parts, necessitating that the Treaty not only focus on individual rights, but also those of peoples’ and the collective.  

The Treaty further falls short of adopting the required language and specific legal framework pertinent to conflict-affected areas; i.e., international humanitarian law, which sets obligations and protections for state and non-state actors, including business enterprises, in situations of conflict. Such failure will have serious repercussions on the implementation of the provisions of the Treaty in related contexts, including by stripping away rights from protected persons in situations of occupation for example. In light of this, the Treaty should require states to acknowledge the applicability of both international human rights law and international humanitarian law, potentially by amending Article 7 of the Treaty on Applicable Law thereby including a provision specific to conflict-affected areas.

Lastly, it is worth noting that the Treaty further undermines the role of human rights defenders, including those advocating for land rights and environmental justice relevant to corporate abuses. In this regard, the Treaty fails to address relevant fundamental issues and risks against human rights defenders within this sphere (exemplified in attacks, intimidation, threats and criminalization) and to ensure their protection and safety by the state. This is especially relevant to situations of conflict, where the rule of law and human rights standards are often deliberately undermined, while human rights defenders, activists and civil society are an earmarked target for their work in documenting and exposing human rights violations, including those carried out by private actors.