"Business & Human Rights Treaty Debate: Lessons from the International Law Commission", 1 Jul 2015

From July 6-10, 2015…an open-ended intergovernmental working group…is set to begin its work ‘to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’. As this process begins, it is important that participants reflect upon existing work considering the regulation of industrial activities under international law. Importantly, the International Law Commission (ILC)… has considered analogous issues that deserve serious attention and reflection…For those who would be inclined to suggest that this ILC work can have no relevance to the treaty debate due to its focus on environmental harm rather than human rights, the Amnesty report should give reason to pause…While the Prevention Articles and especially the Loss Allocation Principles have been the subject of critique, they…should feature in any discussion of a “binding” treaty. So too should the related but distinct approach of the International Law Association’s Committee on the Transnational Enforcement of Environmental Law…[T]he negotiation of a text – whether a progressive codification of customary international law or a newly agreed treaty text – is only the first step in the hard work of international law making...[Also refers to Trafigura Beheer]