Paving The Way of Implementation of Corporate Human Rights Responsibility Through A Binding Treaty: Practical Challenges and Future Opportunities

Collective Employment Agreement 1
PAVING THE WAY OF IMPLEMENTATION OF CORPORATE HUMAN RIGHTS
RESPONSIBILITY THROUGH A BINDING TREATY: PRACTICAL CHALLENGES
AND FUTURE OPPORTUNITIES
BY [Student’s Name]
Course’ Tittle
Name of the Professor
Name of the Institution
Location of the Institution
Date
1. Introduction
After major corporate failures in the past years, the issue of corporate human
rights regulations is being emphasized. This affects the impact of the business
activities of international organizations (TNCs) on aspects of human rights law.
Globalization has provided many opportunities and challenges for corporate
governance to prevent various human rights violations that occur during their
business hours.1 The economic globalization has provided huge opportunities as
well as numerous challenges in regulating the corporations to prevent various
human rights abuses occurring during their business operations. 2 The instances of
human rights abuses occurring in the business corporations include lack of ensuring
labour rights, forced labour, child labour, land grabbing, illegal violence in the
communities, poor maintenance of safety and healthy work environment, polluted
environment and destruction of its resources. 3 Therefore, the roles and power
obligations of companies in their operations are widely considered for ten years to
acquire favourable employment conditions.4
The concept of business and human rights (BHR) has been developed over
the years with the introduction of "soft legislation", meaning non-binding guidelines
and principles, proposed by international organizations, for example, the United
Nations (UN), the OECD-the International Organization for Standardization (OECD) 5,
ISO) and the International Labour Organization (ILO) for provinces to be recognized
1
Elise Groulx Diggs and Mitt Regan and Beatrice Parance, 'Business and Human Rights as a Galaxy
of Norms' (2019) 50 Geo J Int'l L 309
2
Ionel Zamfir, ‘Towards a binding international treaty on business and human rights’ (European
Parliament, April 2018)
<https://www.europarl.europa.eu/RegData/etudes/BRIE/2018/620229/EPRS_BRI(2018)620229_EN.p
df> accessed 29 June 2020
3
Ibid
4
Jernej Letnar Cernic and Nicolás Carrillo-Santarelli (eds), The Future of Business and Human
Rights: Theoretical and Practical Considerations for a UN Treaty (Intersentia 2018)
5
UN Human Rights Council, Guiding Principles on Business and Human Rights: Implementing the
United Nations ‘Protect, Respect and Remedy’ Framework, HR/PUB/11/04(2011)
in the management of international corporations or TNCs and other entities (OBE) 6
The international organizations have laid down broad, non-binding and voluntary
corporate practices and standards to be followed by the TNCs to create positive
impact on economic and social context. 7
However, in 1988, the United Nations (UN) made its first attempt to create a
non-voluntary code of conduct for the BHR called Norms on the Responsories of
Transnational Corporations and Other Business Enterprises on Human Rights ('UN
Norms')8, in order to regulate the TNCs which had been failed upon opposition and
non-adoption by the business enterprises. 9
However, the UN has made further efforts to regulate TNCs by introducing the
Global Compact Human Rights Program as part of corporate ethics and by issuing
the United Nations Guidelines on Business and Human Rights (UNGPs) in 2011
based on the three-pillar structure of the 'Protect Framework,' Respect and Remedy
'in this regard10 The UNGP was unanimously approved by the United Nations Human
Rights Council (UNHRC) in June 2011 which mandated that corporate rights
obligations in corporations be included and that international standards be set as a
global standard for protection against human rights abuses by business
organizations. The UNGP was the first official document to be unanimously adopted
and involved all stakeholders with a high level of awareness and willingness to listen
6
Barnali Chowdhury, ‘Balancing soft and hard law for Business and Human rights’ (2018) 67 ICLQ
961–986
7
Ibid
8
UN Sub-Commission on the Promotion and Protection of Human Rights, Norms on the
Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human
Rights (2003) (E/CN.4/Sub.2/2003/12/Rev.2)
9
Office of the High Commissioner for Human Rights, Responsibilities of Transnational Corporations
and Related Business Enterprises with Regard to Human Rights (2004) (E/CN.4/
DEC/2004/116)
10
Andreas Rasche, ‘”A Necessary Supplement” – What the United Nations Global Compact Is
and Is Not’ (2009) 48(4) Business Society 511
to BHR matters and led to the promotion of appropriate guidelines and reports.
However, there have been obstacles to the implementation of UNGPs, especially in
the area of access to remedies and justice for victims of human rights abuses in the
business world. In addition, increased commitment is needed by countries to do so
by developing National Action Plans (NAPs) and strengthening ties effectively rather
than simply declaring that they understand BHR. 11 The UNGPs were the first ever
legitimate document that was unanimously adopted and engaged all the
stakeholders with enhanced awareness and willingness towards listening to the BHR
issues and led to spurring development of the relevant guides and reports. 12
However, still there have been impediments in the implementation of the UNGPs
especially regarding access to the remedies and justice to the victims of abuses of
human rights in the business activities.13 Furthermore, an increased willingness is
required by the states in such implementation by developing National Action Plans
(NAPs) and enforcing the obligations effectively rather than simply declaration of
their understanding of BHR.14
The above-mentioned guidelines of the UN, OECD, ISO and ILO constitute
‘soft law’ framework regarding BHR that consists of characteristics including non-
binding obligations which state to co-operate through legal processes as a form of
remedy to the adverse human rights impacts. 15 However, these instruments cannot
deal particularly with the breach of human rights obligations nor contain specific
provisions on accountability, supervisory and oversight requirements. 16 Therefore,
despite having some hard law characteristics by setting out specific principles on
11
OHCHR, The Corporate Responsibility to Respect Human Rights: An Interpretive Guide (United
Nations 2012)
12
Zamfir (n 2)
13
Ibid
14
Ibid
15
Chowdhury (n 3) 967-968
16
Ibid
controlling corporate conduct, the above-mentioned OECD and ILO guidelines and
UNGPs on BHR fail to provide remedies to the consequences of the breach of
human rights and therefore lack in demonstrating corporate responsibility 17 in this
context.18 Hence, there has been an urge for the inclusion of hard law, i.e. binding
legal instrument, in the BHR context in order to effectively deal with non-compliance
issues by the TNCs19.
However, the debate of whether the soft law remains an essential tool for
governance of the corporations in the context of BHR has been ongoing due to the
reasons of lack of consensus between the states regarding the status of corporations
under international law that determine the extent of such corporate responsibility and
political will in accepting it.20 Thus in order to determine the regulatory framework in
the BHR issues for corporations, the requirement of analyzing the advantages,
disadvantages, risks, threats and practical challenges of implementing corporate
human rights responsibility and enforcing the obligations in a comprehensive manner
by balancing the soft law and hard law approaches is a major concern in recent
times21. This issue has been furthered with the question of necessity of creating a
binding UN Treaty to reach consensus at the international level in implementing the
corporate responsibility that also extends to certain domestic initiatives by the states
to legalize BHR obligations in their own jurisdictions. 22
17
OHCHR, The Corporate Responsibility…’ (n 10)
18
19
Martens J., and Seitz K., ‘The Struggle for a UN Treaty Towards global regulation on human rights and
business’ (Global Policy Forum, August 2016) <https://rosalux-ba.org/wp-
content/uploads/2016/09/un_treaty_online18.pdf> accessed 01 July 2020
20
JE Alvarez, ‘Are Corporations “Subjects” of International Law?’ (2011) 9 SantaClaraJIntlL 1;
21
International Organisation for Standardization, ‘Guidance on social responsibility’ ISO 26000:2010(en)
<https://www.iso.org/obp/ui/#iso:std:iso:26000:ed-1:v1:en> accessed 29 June 2020
22
Chowdhury (n 3) 982
However, the argument that soft law remains an important tool in corporate
governance in the context of the BHR has been ongoing for reasons of non-
international agreement on corporate status under international law that determines
the extent to which such an obligation to co-operate in the adoption is therefore
determined. Organizational BHR, the need for positive, negative analysis, risks,
threats and practical challenges to implement corporate rights responsibility and
enforce obligations broadly by measuring flexible law and strict legal mechanisms
has become a major problem in recent times 23. This problem has been further
exacerbated by the question of the need to establish a UN Commitment Agreement
in order to reach an international level agreement on the fulfilment of corporate
obligations which also extends to specific provincial plans to authorize BHR
obligations in their territories.24 This endorsement by the UNHRC was an indirect
consequence of the efforts made by the UN since 2005 with its Special
Representative Professor John Ruggie followed by 2008 U.N. Framework on
Business and Human Rights that led to the remarkable adoption of the 2011
UNGPs.25 In view of this, the urgent need for a BHR Agreement was reached in
September 2013 by the Ecuadorian team at the United Nations Human Rights
Council (UNHRC), which said it needed to move forward with a legal obligation to
23
Lavanga V. Wijekoon, Michael G. Congiu, and Stefan J. Marculewicz, ‘United Nations Takes Another Step in
Developing a Treaty on Business and Human Rights’ (Littler Insight, 2020)
<https://www.littler.com/publication-press/publication/united-nations-takes-another-step-developing-treaty-
business-and-human> accessed 01 July 2020
24
Olga Fernández Sixto, ‘Business and Human Rights: A study on the implications of the proposed
binding treaty’ (LL.M dissertation, University of Essex 2015) https://www.business-
humanrights.org/sites/default/files/documents/Business%20and%20Human%20Rights.%20A
%20study%20on%20the%20implications%20of%20the%20proposed%20binding%20treaty.pdf>
accessed 29 June 2020
25
Sara McBearty, ‘The Proposed Business and Human Rights Treaty: Four Challenges and an
Opportunity’ (2016) 57 HarvardILJ <https://harvardilj.org/wp-
content/uploads/sites/15/McBrearty_0615.pdf> accessed 30 June 2020
regulate TNCs and ensure justice and remedy for human rights abuses. in the
conduct of business entities26. On June 26, 2014, the UNHRC approved27.
The historic struggle for the UN binding Treaty includes discussions and
considerations in the past five years during 2015-2019 in the sessions of the
OEIGWG that led to the creation of elements of the legally binding treaty 28, a Zero
draft29 and first and second versions of revised draft 30 were published respectively in
September 2017, July 2018, October 2019 and August 2020. 31 These instruments
were the result of negotiations to develop a binding treaty on BHR when the debates
have been persistent in this regard with questions as to how the treaty would deliver
to all the stakeholders, complement the soft laws including UNGPs and the content,
scope and concerns of the drafts to be created. 32
2. Effectiveness of the BHR framework in the implementation of the corporate
human rights responsibilities
This chapter on research provides insights into the study by evaluating the
research topic through various literature. This part of the study helps to evaluate the
current management structure in the implementation of corporate human rights
26
McBearty S., ‘The Proposed Business and Human Rights Treaty: Four Challenges and an Opportunity’ (2016)
57 HarvardILJ <https://harvardilj.org/wp-content/uploads/sites/15/McBrearty_0615.pdf> accessed 30 June
2020
27
McBearty S., ‘The Proposed Business and Human Rights Treaty: Four Challenges and an Opportunity’ (2016)
57 HarvardILJ <https://harvardilj.org/wp-content/uploads/sites/15/McBrearty_0615.pdf> accessed 30 June
2020
28
OEIGWG, ‘Elements for the draft legally binding instrument on transnational corporations and other
business enterprises with respect to human rights’ (OHCHR, 29 September 2017) HRC Res.
A/HRC/RES/26/9
<https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session3/LegallyBindingInst
rumentTNCs_OBEs.pdf> accessed 30 June 2020
29
Ibid 213-234
30
OEIGWG, ‘Legally binding instrument to regulate, in international human rights law, the activities of
transnational corporations and other business enterprises: Revised Draft’ (OHCHR, 16 July 2019)
<https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/OEIGWG_RevisedDraft_LBI
.pdf> accessed 30 June 2020
31
Business and Human Rights Resource Centre, ‘Binding Treaty’ (Business and Human Rights, 2020)
<https://www.business-humanrights.org/en/binding-treaty> accessed 30 June 2020
32
Ibid 254-256
responsibilities and to address the overall gaps required for the analysis of
innovation. The study finds the chapter through three key areas identified by
research questions such as assessing the effectiveness of the current Business and
Human Rights (PHR) framework in the implementation of corporate human rights
responsibilities; Identifying the justifications for creating a binding agreement in the
BHR and the practical challenges and implications of implementing a binding
agreement in the BHR. Finally, identify future opportunities moving towards a bond
agreement in the BHR.
2.1. Previous BHR Initiatives
Since the 1970s, there have been efforts and initiatives to adopt international
binding agreements and regulate multinational corporations (MNCs) through OECD
guidelines for multinational corporations, which were eventually adopted by the then
UN33. In the code of conduct governing the operations of MNCs 34. The above-
mentioned OECD guidelines were incorporated into the 1976 OECD Declaration on
International Investment and Multinationals, which contained recommendations on a
wide range of policies for MNCs and business responsible business, starting with
consumer interests, science and technology, competition and taxation 3536. These
guidelines have been further revised in 2011 which is a template of
33
OEIGWG, ‘Legally binding instrument to regulate, in international human rights law, the activities
of transnational corporations and other business enterprises: Zero draft’ (OHCHR, 16 July 2018)
<https://www.business-humanrights.org/sites/default/files/documents/DraftLBI.pdf> accessed 30
June 2020
34
Wettstein, Florian, Elisa Giuliani, Grazia D. Santangelo, and Günter K. Stahl. "International
business and human rights: A research agenda." Journal of World Business 54, no. 1 (2019):
54-65.
35
Hess, David. "The Transparency Trap: Non‐Financial Disclosure and the Responsibility of
Business to Respect Human Rights." American Business Law Journal 56, no. 1 (2019): 5-53.
recommendations by governments to the TNCs and the only multilaterally agreed
comprehensive code where those governments have committed to promote BHR 37.
Regarding the effectiveness of the OECD guidelines, Ethics on employment,
human rights, the environment and disclosure of information. These guidelines were
further revised in 2011, which is a template for governments' recommendations to
TNCs, and the only comprehensive code of diversity that those governments have
promised to promote PHR.38. In addition to the effectiveness of the OECD
guidelines, it was further argued that these guidelines have though specifically
recommended that the corporations have to be legit in solving the problem. It is
argued that they have the characteristics associated with strict law due to the setting
of precise standards of conduct for organizations. In addition to the effectiveness of
the OECD guidelines, it has been suggested that these guidelines specifically co-
operate with formal processes in resolving aggravated human rights abuses caused
by organizations, but they are not defined as 'formal procedures'. Furthermore, the
guidelines provided their interpretation to third-party review bodies in individual
countries labelled as National Contact Points, which would facilitate enforcement but
would not impose any legal consequences on companies for violating these
guidelines. Therefore, it has been decided that the OECD guidelines are pure soft
36
June 2020
37
June 2020
38
Roos S.R., ‘UN Guiding Principles on Business and Human Rights’ in: Idowu S.O., Capaldi N., Zu L.,
Gupta A.D. (eds), Encyclopedia of Corporate Social Responsibility (Springer 2013)
<https://link.springer.com/referenceworkentry/10.1007%2F978-3-642-28036-8_746#howtocite>
accessed 01 July 2020
law despite some difficult legal characteristics. Therefore, it is concluded that the
OECD guidelines despite having some hard law characteristics are rather pure soft
law39.
The next attempt of creating a BHR regime had been in 1980s, when the
negotiations failed due to the increasing competition by the developing countries in
attracting foreign investment to get rid of the debts resulted from the oil-price crisis of
1979 and consequently, the UN Commission on TNCs was abolished 40. The next
attempt to create a PHR regime was in the 1980s, when negotiations failed due to
increasing competition from developing countries to attract foreign investment to get
out of debt as a result of the 1979 oil price crisis. The TNC Commission was
abolished. The second failed attempt was made in 2003, when the UN recognized
the liability of transnational corporations and other business entities ('UN rules') for
human rights as the first non-binding tool. The security related draft was prepared by
the sub-commission. And the promotion of human rights. It follows the business and
human rights obligations and responsibilities of companies to provide protection to
consumers and to address issues related to the prevention of corruption and
environmental damage41. Therefore, the UN. Although it is not recognized by the
39
Roos S.R., ‘UN Guiding Principles on Business and Human Rights’ in: Idowu S.O., Capaldi N., Zu L.,
Gupta A.D. (eds), Encyclopedia of Corporate Social Responsibility (Springer 2013)
<https://link.springer.com/referenceworkentry/10.1007%2F978-3-642-28036-8_746#howtocite>
40
Sixto F. O., ‘Business and Human Rights: A study on the implications of the proposed binding
treaty’ (LL.M dissertation, University of Essex 2015) https://www.business-
humanrights.org/sites/default/files/documents/Business%20and%20Human%20Rights.%20A
%20study%20on%20the%20implications%20of%20the%20proposed%20binding%20treaty.pdf>
41
Methven O’Brien, Claire, and Jolyon Ford. "Business and Human Rights: From Domestic
Institutionalisation to Transnational Governance and Back Again." Nordic Journal of Human
Rights 37, no. 3 (2019): 216-233.

Human Rights Commission, the UN, the creation of the regulations is the first
attempt to impose the promotion and protection of human rights by TNCs other than
the states under the Universal Declaration of Human Rights. This follows the
business and human rights obligations and responsibilities of the companies in order
to provide protection to the consumers and address issues on prevention of
corruption and environmental harm.42.
In 2000, the UN. Global Compact is another internationally recognized
standard, referred to as the "World's Largest Voluntary Corporate Sustainability
Initiative", which aims to encourage businesses to align their strategies and
operations with human rights, labor and environmental rights and anti-corruption
rules. , And make such efforts in support of social goals. UN Convention on
Standards of Corporate Behavior Global Compact has issued ten ambiguous
policies, which, in the absence of monitoring and third-party oversight rules, are
inaccurate in describing such standards and consequences of violation, which
constitutes pure soft law in the BHR framework 43. The UN Global Compact has
provided ten vague principles on standards for corporate conduct and thus lack of
precision in describing such standards and consequences.
In 2005, the then UN44. The Commission on Human Rights called on UN Secretary-
General Kofi Annan to appoint a special envoy for human rights and the TNC and
42
43
Ibid (n 2) 112-116
44
OEIGWG, ‘Elements for the draft legally binding instrument on transnational corporations and other business
enterprises with respect to human rights’ (OHCHR, 29 September 2017) HRC Res. A/HRC/RES/26/9
<https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session3/LegallyBindingInstrumentT
NCs_OBEs.pdf> accessed 30 June 2020
other business organizations, in response to which John Rocky, a political scientist
and professor at Harvard University, was appointed. For such purpose. 45.
In 2008, after extensive research and consultation with a number of
stakeholders on the fundamentals of the framework, Rocky proposed a three-
member framework in the BHR entitled "Protection, Respect and Resolution": i) The
State has a legal duty to protect individuals against human rights violations by third
parties, including business Within their jurisdiction to protect them; ii) the
responsibility of the business to respect human rights; And iii) the need for more
effective access to solutions for victims of human rights abuses: States have
obligations to provide judicial and non-judicial solutions, while business has a
responsibility to provide non-judicial solutions. Professor Rocky has identified
governance gaps created by globalization as the root causes of contemporary
problems related to PHR. He has also identified international organizations such as
the ILO and O in his studies. He has also found in his studies that the international
organizations such as ILO and OECD have given recognition that the business is
entitled to the responsibility of respecting human rights and joining the UN Global
Compact. Overall, this framework of Ruggie was successful to the extent that his
mandate mentioned in the core principles of the three-part framework was
extrapolated with a margin of about 4 years by the UN Human Rights Council until
201146.
After major corporate failures in recent years, the issue of corporate human
rights obligations is being emphasized. This affects the impact of the business
45
46
activities of international organizations (TNCs) on aspects of human rights law.
Globalization has provided many opportunities and challenges for corporate
governance to prevent various human rights violations that occur during their
business hours. Conditions of human rights abuses in business enterprises include
uncertainty about workers' rights, coercion, child labour, land grabbing, illegal
community violence, unsafe environmental care and a healthy working environment,
polluted environment and the destruction of its resources. Therefore, the roles and
power obligations of companies in their operations are widely considered for ten
years to acquire human rights in particular, in the sense of business. 47.
The concept of business and human rights (BHR) has been developed over
the years with the introduction of "soft legislation", meaning non-binding guidelines
and principles, proposed by international organizations such as the United Nations
(UN), the Organization for Economic Cooperation and Development (OECD), the
International Organization for Standardization (OECD). ISO) and the International
Labor Organization (ILO) for provinces to be recognized in the management of
international corporations or TNCs and other entities (OBE) 48. International
47
48
Directorate-General for External Policies: Policy Department, ‘Implementation
of the UN Guiding Principles on Business and Human Rights’ (European
Union, February 2017)
<https://www.europarl.europa.eu/RegData/etudes/STUD/2017/578031/EXPO
_STU(2017)578031_EN.pdf> accessed 01 July 2020

organizations have set wide-ranging, non-binding and voluntary company norms and
standards to be followed by TNCs to create a positive economic and social impact. 49.
However, in 1988, the United Nations (UN) made its first attempt to create a
non-voluntary code of conduct for the BHR called Norms on the Responsriers of
Transnational Corporations and Other Business Enterprises on Human Rights ('UN
Norms'). , in order to control TNCs that have failed in the opposition and rejection of
business entities. Human rights in business context and the responsibility to be taken
by the enterprises in cases of causes relating to “adverse human rights impact” and
risks of abuse of such rights by them and further discussed that how the structure,
size, ownership and operational context is responsible in cases of human rights
violations. The guiding principles also suggest the aspects of preventing and
mitigating the adverse human rights impact by the enterprises and take such
necessary steps in this regard.
However, the study of the European Parliament on the implementation of the
UNGPs on BHR found that there are certain challenges in such case if the principles
are implemented by the states, such as, lack of awareness about these principles
along with broader human rights and business issues among both government
officials and also other stakeholder parties 50. Such lack of understanding and
awareness by the states and the stakeholders were also identified by the UN
Secretary General in its mandate and report in 2011 and 2012 which led to the
creation of global fund by the states to enhance the capacity of the stakeholders in
order to implement the UNGPs and has been supported by the business enterprises
49
50
Hess, David. "The Transparency Trap: Non‐Financial Disclosure and the Responsibility of Business to Respect
Human Rights." American Business Law Journal 56, no. 1 (2019): 5-53.
as well. In addition, another key challenge in such implementation of the UNGPs is
the lack of financial and human resources, which are essential in order to develop
relevant policies, national action plans and regulations, to ensure their effective
implementation, enforcement, monitoring and prosecution. Other major factors that
prevent effective implementation of the UNGPs by the states include: lack of co-
ordination by the government departments; fear of restrain of foreign investment;
lack of good governance, existence of corruption and political limitations imposed by
foreign governments; opposition by business enterprises and governments groups;
lack of international companies involved in human rights abuses and lack of
coherence between international instruments of UN, OECD, etc 51.
2.2. Status of current BHR regime
Currently, there is no comprehensive and legally binding and enforceable UN
treaty on imposing corporate human rights responsibilities upon the TNCs, except
the ongoing attempts of the Zero draft and the revised draft versions created in the
past three years since 2017 which aim for enforcing such treaty in near future 52. It
has been deemed that the zero draft provides crucial provisions in ensuring
corporate accountability by upholding the requirement for the businesses to adopt
human rights due diligence policies and procedures 53. Thus, it has been also stated
51
52
Examples’ (New York, 2019) <https://d306pr3pise04h.cloudfront.net/docs/publications
%2FNavigating+the+Future+of+BHR.pdf> accessed 01 July 2020
53
Human Rights Council, Resolution 26/9 on the Elaboration of an international
legally binding instrument on transnational corporations and other business
enterprises with respect to human rights, Geneva, 26th July 2014

that the governments of the states have to support such draft treaty on imposing
binding obligations upon the business organizations in this regard 54.
Apart from that until such initiatives of draft zero or revised treaty, the
historical context referred the Universal Declaration of Human Rights (UDHR) 1948
which has provided such provisions that covered even business organizations as
organs of society which have to promote respect for the human rights and freedoms
and to secure their universal and effective recognition by progressive means.
However, most of the international laws including the ILO treaties impose indirect
obligations upon states to take action and reasonable measures within their
jurisdiction against violations of human rights by the businesses 55. Moreover, the
nature of the treaties and their ratification is a significant matter for consideration as
such international human rights treaties are neither binding upon all the states nor
universally ratified. In addition, although these general human rights treaties impose
obligations on States, they lack particularity regarding the scope of the duties that
the states have to impose on business organizations and companies 56.
2.3. Limitations of the existing framework
The first vibrant limitation of the currently existing BHR regime towards
binding treaty is lack of enough legally binding and enforceable UN treaty on

54
Buhmann, Karin, Björn Fasterling, and Aurora Voiculescu. "Business & Human Rights
Research Methods." (2018): 323-332.
55
56
imposing corporate human rights responsibilities upon the TNCs. The only
outstanding binding treaty is the zero draft, which aims at enforcing such treaty in
near future. Another limitation is the lack of compliance to the laws regarding the
international business and human rights. Diligently, the compliance may occur with
or without consideration to the human rights. For this reason, it is hoped for Europe
to adopt due diligence laws mandatory on human rights for well international
corporation. Lastly, insufficiency witnessed by some of the national laws by certain
countries that fails to protect human rights against some companies remains a great
threat to the international community in terms of business and human rights as per
the TNCs57.
3. Justification of creating a binding treaty
The need for a binding treaty is justified due to reasons relating to the
limitations of the previous and existing BHR framework which include 58:
i) lacking clarity regarding the availability, characteristics and length of corporate
human rights responsibilities under international human rights laws and relevant
conventions and treaties;
ii) states being the principal abusers of business and human rights by being too
corrupt and having no power to protect people from influential business corporations;
57
58
iii) absolving of liability against human rights violations by the parent companies
for commission of such abuses by subsidiaries on the basis of norms separating
legal personality and limited liability;
iv) obstacles and legal barriers experienced by the victims in getting access to
justice which include excessive litigation costs and doctrine of forum non
convenience.
Regarding such need for treaty, David Bilchitz argued to impose binding
obligations on corporations, in order to clarify relevant norms and further that the
rights to businesses in international economic transactions and investment treaties
do not always violate human rights and to facilitate victims’ access to remedies 59.
Bilchitz have provided arguments for and against a treaty stating that drafting a
treaty would take time, but in the meantime, other existing non-binding instruments
including the UNGPs are there and has concluded that as the global economic
power which is shifting to the South, so if the BRICS countries support a treaty the
developed countries in the North could not go against it and as a result if the TNCs
are obliged to meet the provisions of the treaty, they would become an international
standard for the corporations60.
As a result of understanding the need for a binding treaty, summing up the timeline
since which the attempts were made of creating a UN international standard binding
treaty include61:
59
60
61
i) a unanimous adoption of the UNGPs by the UNHRC in June 2011;
ii) the Ecuador’s call for a new binding treaty for negotiation in September 2013;
iii) the Ecuador's resolution on such a binding treaty adopted in the UNHRC and
another resolution placed by Norway confirming the significance of the UNGPs and
asking for an assessment of the advantages and disadvantages of a binding treaty
was unanimously adopted in June 201462;
iv) the first session of the open-ended intergovernmental working group
(OEIGWG) was provided with the task of drafting the new binding treaty in October
2015;
v) the OEIGWG's second session held on October 2016;
vi) the publication of a guiding document called “Elements” by the Chair of the
OEIGWG for a draft binding treaty and a third session held on October 2017;
vii) the endorsement of the “Elements” by the UNHRC and it providing
authorization to the OEIGWG to carry on its work on March 2018;
viii) the first Zero draft of the treaty in June 2018;
ix) the fourth OEIGWG session held in October 2018;
x) the publication of the revised draft on 16th July 2019 by the Chair of the
OEIGWG;
62
Methven O’Brien, Claire, and Jolyon Ford. "Business and Human Rights:
From Domestic Institutionalisation to Transnational Governance and Back
Again." Nordic Journal of Human Rights 37, no. 3 (2019): 216-233.

xi) the fifth session of the OEIGWG in February-March 2020 and
xii) finally, a second revised draft published on 06.08.2020 under the
chairmanship of the OEIGWG.
Regarding the above-mentioned attempts as a result of justification of creating
a binding treaty, the support of the civil society organizations on the proposal of the
Ecuador in 2013 to negotiate an UN treaty was huge compared to the moderate level
support provided by the UNHRC63. Moreover, even the Ecuador's resolution of June
2014 received only 20 supporting votes in addition to 14 opposing votes by mostly
the industrialized and corporate members and 13 abstention votes by mostly the
Latin American members64. It was argued that although the mandate provided by
the resolution of 2014 is to 'elaborate an international legally binding instrument to
regulate, in international human rights law, the activities of transnational corporations
and other business enterprises', it does not define TNCs and rather only defines
'other business enterprises' (OBEs), where this proposal takes into account all
business enterprises that have a transnational character in their operations but does
not apply to local businesses registered under relevant domestic law 65.
In addition, the second resolution by Norway in June 2014 was supported by
22 other countries from all regions 66. Consequently, placing it in a unique condition
as it requested that the UN Working Group on Business and Human Rights to
prepare a report considering the merits and demerits of a legally binding instrument
63
64
Ibid (n 2) 211-212)
65
Ibid (n 3) 111-120)
66
UN Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of
Transnational Corporations and Other Business Enterprises with Regard to Human Rights (2003)
(E/CN.4/Sub.2/2003/12/Rev.2)
and further asked the High Commissioner for Human Rights to begin consultation
with stakeholders considering the range of legal and practical aspects to improve
access to remedy for victims of violations of BHR. Furthermore, the first two
sessions of the OEIGWG were related to conducting constructive deliberations on
the content, scope, nature and form of the future international instrument according
to the UNHRC mandate. Whereas, the publication by the OEIGWG Chair entitled
'Elements for the draft legally binding instrument' were later debated in the third
OEIGWG session in 201767.
Therefore, it has been argued that the UNGPs provide recognition that there
are limitations in access to effective remedies for victims of corporations’ failure to
respect human rights, but still do not provide an enforcement mechanism and as a
result its non-binding nature and lack of third party oversight, makes it a form of soft
law rather than hard law 68. Consequently, considering the effectiveness of all the
previous BHR initiatives in determining the necessity of creating a legally binding
obligatory instrument or treaty. It has been argued that none of these attempts could
be concluded as a hard law initiative and hence justifies such necessity (Necessity of
hard law initiatives), although the OECD guidelines possess certain characteristics
that could lead to the hard law end of the continuum, without requiring such adoption
mandatory binding obligations69.

67
Zamfir I., ‘Towards a binding international treaty on business and human rights’ (European
<https://www.europarl.europa.eu/RegData/etudes/BRIE/2018/620229/EPRS_BRI(2018)620229_EN.
pdf> accessed 29 June 2020
68
Choudhury, Barnali. "Balancing soft and hard law for business and human
rights." International & Comparative Law Quarterly 67, no. 4 (2018): 961-986.
69
Moreover, considering the limitations of both soft law and hard law
approaches, it was concluded that there was dissatisfaction regarding the ineffective
implementation of the UNGPs, despite its higher appreciation during its adoption that
ultimately led to the steps and attempts of drafting an international binding treaty 70.
The voluntary and non-binding character of the UNGPs was deemed to be the
limitations of the UNGPs which have been also recognized by the governments and
civil society organizations. It was further argued that the UNGPs have been around
for some years only and thus their impact has to be assessed with more time 71.
Furthermore, creating a binding treaty was initially said to cause huge complexity of
the business and human rights issues by many experts as it has to include all the
human rights of different kinds of businesses including both national and
transnational; having inherent risks within such framework and taking long time to
conclude with negotiations and thus rather a soft-law approach through the UNGPs
were preferred72.
4. Debates on the binding treaty, practical challenges in its enforcement and
future possibilities
Discussions on the creation of a bond agreement began in June 2014 with
international initiatives as several states began the difficult task of completing a bond
PHR tool with the following impetus:
i) administrative gaps will be covered where states do not implement human
rights protection;
70
71
Ibid (n 2) 212-213
72
Ibid (n3) 80-90
ii) The responsibilities of the companies will be set up from a central source;
iii) UNGPs can be transformed into binding obligations that ensure that all
organizations, regardless of their location, adhere to the same human rights
standards and increase access to effective solutions;
iv) The Working Group chaired talks to achieve the broader range of human
rights that companies can be responsible for.
However, it has been argued since then that creating a binding legal
framework for PHR issues poses some risks related to state approval and a lack of
global support for the binding tool. But many states did not support the proposed
agreement or participate in the negotiations, without the support of these states, the
largest TNCs would not have come under the agreement and therefore left such
administrative gaps. Therefore, it is not clear whether efforts to create such a bond
PHR tool without the support of those key states will significantly improve the
protection of human rights victims in the hands of organizations 73.
The main challenge for draftsmen of draft binding agreements is to consider
their wide range of specific issues, which must be taken into account in making
decisions with the necessary consensus. During the 2015 and 2016 sessions of the
73
Roos S.R., ‘UN Guiding Principles on Business and Human Rights’ in: Idowu
S.O., Capaldi N., Zu L., Gupta A.D. (eds), Encyclopedia of Corporate Social
Responsibility (Springer 2013)
<https://link.springer.com/referenceworkentry/10.1007%2F978-3-642-28036-
8_746#howtocite> accessed 01 July 2020

OEIGWG, the most discussed issues of the day were the proposed binding
agreement on business and human rights liability:
i) the obligation of companies to diligently demonstrate due to human rights as
stated in the ‘Elements’ and the imposition on State Parties to compel TNCs and
OBEs with their subsidiaries;
ii) the expression regulating the legal liability of TNCs and OBEs, according to
the 'elements' relating to administrative, civil and criminal aspects of human rights
violations by their activities;
iii) The concept of broad jurisdiction was another issue because the victims
had to have access to effective solutions in the country where the violation took
place or where the parent company was located or where the treaty states were
expected to impose such an obligation. Guarantee for such solutions;
iv) The 'elements' have proposed the International Court of Justice for
Transnational Institutions and Human Rights, as well as the special chambers of
existing international and regional courts, and to develop an international settlement
mechanism and a non-judicial mechanism, ie to monitor initiatives taken by state
parties and to communicate reports and communications. To receive;
v) Provides 'elements' to facilitate mutual legal assistance to enhance judicial
cooperation and to recognize relevant decisions of the court.
There were also significant problems with the recognition of PHR-related
states' extraterrestrial obligations. The UNGPs said that under international human
rights law, states generally do not need to regulate additional regional activities of
businesses within their jurisdiction and are generally prohibited from doing so in
accordance with international law. Allowing the territory of one state to cause
damage to the territory of another state. Despite this, some human rights treaty
organizations have suggested that states take action to prevent abuse in other states
by businesses within their territories. Therefore, in view of such issues, the
‘elements’ provided that the future binding agreement should ensure that the
obligations of state parties to protect human rights do not extend beyond their
territorial boundaries. In those times, the highest form of debate was whether the
proposed agreement would be limited to businesses engaged in transnational
activities or would also include local companies. The EU supported the idea of
including all businesses in the agreement, otherwise it would be inappropriate and
an evil compared to local competitors who violate human rights 74.
Whereas the 'Elements' have vividly short challenged the physique and
appearance of the union to the businesses involving transnational operations and
contrasted with the EU's position arguing that validates drafting a treaty specifically
applicable to businesses with transnational operations and excluding the local
companies75. This was argued with the issue that such a binding treaty is to be
drafted in order to complete the international gap in law on parent enterprises liability
determination beyond the government’s limits where the abuses of human rights
were committed. This was further argued with the matter that the TNCs are in the
most beneficial position by being able to avoid responsibility due to their
transnational nature and so limiting the scope of the then proposed or draft treaty
would not be discriminatory with the local companies. Other relevant debate
regarding the 'Elements' was that it provided for a wider view considering every
74
75
Ibid (n2) 98-110
dimension recognizing human rights as covered the treaties and international
conventions76. Hence, At the same time, the 'elements' restrict the nature and
purpose of the agreement to businesses engaged in transnational activities and
contradict the EU position.
At the same time, the 'elements' restrict the nature and purpose of the
agreement to businesses engaged in transnational activities and contradict the EU
position77. It was argued that such a binding agreement should be prepared to fill a
gap in international law in determining the liability of parent companies beyond the
jurisdiction of the state where the human rights violations took place. TNCs are in a
very advantageous position of avoiding liability due to their transnational nature, so
restricting the scope of the proposed or draft agreement of the day does not
discriminate with local companies. The other relevant discussion regarding
‘elements’ was that it provided a broader approach considering that all internationally
recognized human rights are included in all human rights treaties and international
conventions. Then, at the third OEIGWG session in 2017, the EU expressed its
strong opposition to the drafting of a binding agreement by UN representatives,
which would not be of little practical importance and would cover up their inability to
uphold human rights by accusing states of using it.
76
Ibid (n3) 78-80
77
Roos S.R., ‘UN Guiding Principles on Business and Human Rights’ in: Idowu
S.O., Capaldi N., Zu L., Gupta A.D. (eds), Encyclopedia of Corporate Social

Regarding the nature and effectiveness of the ILO Tripartite Declaration,
although it imposes reporting obligations on governments, it does not provide for the
consequences of breach of its provisions and also does not specify any enforcement
mechanism. As a consequence, it is argued that although the Declaration contains
fewer hard law features compared to that of the OECD Guidelines, it could not be
still said to be purely soft law.
Among all the UN guidelines (General Principles and Global Compact),
OECD, ISO and ILO, the European Union and many other member states have kept
the UNGP at the forefront of recognizing the relationship between human rights and
business and this has been demonstrated. by establishing national programs in
accordance with these principles in order to operate effectively. According to a study
by the European Parliament in 2017, UNGPs were used to some extent as OECD
guidelines were in line with UNGP; however, there are still many cases of human
rights abuses due to a lack of key mechanisms in ensuring the implementation of the
UNGP and its non-compliant nature.
In the end, the international business community did not support the
"elements" because they appeared to be a major step backwards and jeopardized
the important consensus reached by the UNGPs, their spirit and their words were
undermined. Therefore, the “components” are contradictory and bizarre in PHR
bonds; The agreement and the proposed Option Act were made, which raised
serious concerns for international and regional businesses, but it was argued that
they did not provide a better foundation for the potential BHR framework. Significant
times in human rights

Taken as a whole, the law governing the implementation of the Zero Pact
Agreement and the Neglected Selection Act are not legally binding; Compare
established standards and rules; It does not work for the purpose of promoting
inclusive economic growth and investment; He is at risk of being prosecuted for
politically motivated crimes; And - in fact - not the power to help all victims of human
rights abuses. In addition, entrepreneurs are deeply concerned about the process
that has led to the publication of the Standardization Agreement and the Draft Option
Protocol. It also says it wants to make a significant contribution to business dialogue
and human rights. However, it is worrying that no real effort has been made to
ensure a solid, transparent and open process that fully embraces the expertise and
experience of all stakeholders. The way in which UNGPs are created reflects the
highest number of meaningful private sector involvement. The business community
encourages all IGWG stakeholders to improve their negotiations with the business in
addressing complex human rights issues78.
Entrepreneurs vehemently reject the Draft Optimization Agreement and the
Draft Option Protocol. I do not believe that these documents make a significant
contribution to the commercial and human rights field; Instead, they underestimate
the significant progress made under the UNGP. In addition, the process followed by
IGWG to date does not give business confidence that the program will provide a
reliable and effective solution to these complex human rights issues. Giving credit to
companies with international functions, not those with domestic jobs or SOEs, even if
78

a few steps have been taken from the perpetrator and there is no control over that
organization or its ability to influence operations, undermines the effective and full
UNGP approach. The Proposed Agreement and the Draft Optional Protocol also
ignore the key factors in determining the company's credit rights, namely the three
ways in which a company could be harmed; The size of; Systematic human rights
issues not only in the organization; Circumstances in which provinces do not meet
international obligations to protect human rights and enforce important levels of
employment. In addition, by increasing the use of foreign power, the Zero Draft
Agreement and Draft Option Protocol ignores the monarchy and ignores human
rights abuses in many provinces, while at the same time looking at international
businesses to fill those human rights gaps. 79.
In doing so, the Zero Draft Agreement and the Draft Options Protocol will
exclude most victims from reaching a decision that will block significant foreign
investment, and that will allow failed states to operate as human rights holders and
send money to certain businesses. None of this will meet the challenges of
globalization and help revitalize all economic growth and social development.
Entrepreneurs want to emphasize that there are many concerns about the Planning
Agreement, the Draft Options Protocol and the IGWG process do not undermine
their commitment to efficiency and respect for human rights. Identifying and
responding to human rights risks, including impact assessments, shareholder
engagement, foreign investment and increased exposure, has become an integral
part of voluntary organization activities and companies are constantly improving their
79
efforts in this regard. Similarly, companies do not want to do business directly or
indirectly with suppliers or entrepreneurs who cause human rights violations.
Entrepreneurs do not support the Zero Non-Compliance Agreement or Draft
Option Protocol. Both of these books undermine the business system and human
rights by undermining the UNGP and the failure of countries to meet existing
obligations. Companies create the risk of choosing to “cut and run” from high-risk
countries, postponing investments in key projects to achieve growth and the SDGs
without entering other high-risk markets. Companies must follow strict policies such
as the police in their overseas supply companies to ensure that their business
partners act responsibly. Worryingly, this approach will continue to undermine the
role of the state, and some of its traditional functions and powers - such as testing
and charging fines for business partners - should be shifted to global trade. All of
these unintended consequences will significantly undermine the growth and
partnership model presented under STGs.
5. Research Methodology and Approach
This chapter of the study stipulates the procedure and approach used in
extracting and tabling of the results for this research. It expounds on the research
design, research method and data collection process in details for more valid and
reliable results.
This research falls into the category of practical research as it requires an
analysis of the development and implementation of the corporate human rights
responsibilities in the soft law and hard law framework throughout the years and
assess its impact on the business corporations dealing with the practical challenges
and debates concerning the creation of a binding treaty in the BHR context.
However, the research questions also require descriptive research since it describes
the ongoing debates on current BHR governance framework and also assess the
significance of the balance between the soft law and hard law approaches. It is also
an exploratory research as it explores the practical challenges and future benefits
and opportunities in creating a binding treaty and justify it in implementing the
corporate human rights responsibilities effectively.
As per research design approach, it is a qualitative research method due to
the subjective assessment of the current corporate human rights framework, to
understand the underlying challenges, standards and practices that prevail until
today in order to draw the findings in favour of the binding treaty. Moreover, an
analytical approach is required here to apply legal reasoning, to interpret laws,
theories and practices of business and human rights and further make a critical
assessment of the necessity, practical challenges and future possibilities of the
binding treaty in implementing corporate human rights responsibilities. Overall, a
socio-legal approach is to be adopted to understand the effect of a binding treaty on
BHR upon attitude, behaviour and organizations of corporate world and vice-versa in
providing remedy to the victims of the society.
This study takes a qualitative approach with insights from practical research,
descriptive research, explanatory, analytical and socio-legal knowledge to vividly
expound on the law issues regarding the international human rights relative to the
topic. Consequently, the study deployed a systematic literature review, a method
which satisfied all the aspects demanded by the approach and design. Using the
method, various literature sources were gathered through different searches with
different key words related to the topic. Key words used during the search included
corporate human rights, implementation of the corporate human rights, corporate

human rights responsibility, binding treaty, challenges, future opportunities, BHR
Initiatives, previous BHR initiatives, current BHR initiatives, limitations,
consequences, impacts, and advancements.
In this study, the literature materials consulted themselves acted in the
capacity of findings to the research questions. As a result, the analysis and
evaluation of the collected literatures provided the qualitative analysis designed by
the study80.
6. Findings, Recommendations and Conclusion
6.1. Findings
After thin analysis of the previous, current and future BHR initiatives, the study
identified a few challenges and initiative opportunities that hinders the human rights
responsibility internationally81. The BHR initiatives majorly looked into an improved
ethics on employment, human rights, environment and disclosure of information.
Furthermore, the study identified that implementation of corporate human rights
responsibility through a binding treaty in the international community is yet to be
achieved only when the corporate partners sojourned to the understandings of the
binding treaty initiatives put in place 82. For this reason, some of the challenges facing
80
81
Rights 37, no. 3 (2019): 216-233.
82
Alvarez JE, ‘Are Corporations “Subjects” of International Law?’ (2011) 9 SantaClaraJIntlL 1
the implementation of the human rights responsibility through binding treaty
initiatives as identified by the study grossed to competition of developing countries
for investment opportunities by foreign countries-possibly the developed countries;
failing of the UN norms on the Responsibilities of Transnational Corporations and
Other Business Enterprises with Regard to Human Rights; Ineffectiveness of the
UNGPs initiatives; oblique ISO guidelines; Insufficiency in ILO guidelines; and lack of
central mechanism in ensuring the implementation of the UNGPs and their non-
binding nature83.
On the other hand, the study identified possibilities of future opportunities of
implementation of human rights responsibilities through binding treaty initiatives
internationally. According to the research, this is only possibly only when the
limitations of the previous and current initiatives are surpassed. Besides, the
possibility of the future implementation of the BHRs initiatives on human rights
responsibility lies on the gap of a binding treaty initiative currently in place. Today,
the only binding treaty initiative available is the zero draft and its subsequent drafts
developed about three years ago 84. As a result, the need for a binding treaty initiative
is justified by this gap of insufficiencies of available initiatives to enact such
guidelines.
Competition of the developing countries for foreign investment opportunities
The study table one of the challenges hindering the implementation of the
human rights responsibility through binding treaty initiatives as the competition of the
developing countries for foreign investment opportunities in their land. For this
reason, there is breach to the guidelines outlined by the OECD annexed to the 1976
83
84
OECD Declaration on International Investment and Multinational Enterprises, that
consisted of recommendations on wider range of principles starting from consumer
interests, science and technology, competition and taxation to the responsible
business conduct for MNCs and business ethics on employment, human rights,
environment and disclosure of information 85. For instance, despite the due diligence
of the law, some countries play a disparity in supporting human rights concerning the
key elements outlined by the 1976 OECD declaration. Considerably, there has been
several incidences of breach of these codes of conduct of employees in different
multinational enterprises and transnational corporations, but with little consideration
by the concerned state due to fear of losing the foreign investor in that specific
developing country. Some of the common abuses of the human rights by the
multinational enterprises includes lack of employment ethics, over taxation,
unpleasant environment and restricted freedom. In the pictures captioned below, the
first picture in figure 1 shows child abuse in a mining company while the second
picture captioned as figure 2 shows employees demonstrating on poor mining
environment86. According to the OECD of 1976, human rights covers the protection
of humans against the poor work environment and child labour. However, since the
developing countries needs the companies from the developed countries (the foreign
investors), none will stand out strongly to condemn such acts against human rights
responsibility as outlined by the 1976 OECD principles 87.
Failing of the UN norms on the RTCs and OBEs
85
Chowdhury B., ‘Balancing soft and hard law for Business and Human rights’ (2018) 67 ICLQ 961–
986
86
Ibid (n2) 961–986
87
Ibid (n3) 961–986
In 2003, the first draft of the Rules on Human Rights ('UN Rules') on the
responsibilities of transnational corporations and other business entities was adopted
by the UN Convention on Security and Development. Came to light as an unbound
tool by the subcommittee. Human rights 88. This came in consideration to the
business and human rights obligations and responsibilities of the companies in order
to provide protection to the consumers and address issues on prevention of
corruption and environmental harm. It considered the business and human rights
obligations and responsibilities of companies to provide protection to consumers and
to address issues related to the prevention of corruption and environmental damage.
This precedes the failure of global compact policies in 2000, which has been referred
to as the “largest voluntary enterprise sustainability initiative in the world”. The main
responsibility of the global compact policy lies in achieving human rights, labour and
environmental rights and anti-corruption rules, and takes such attempts to support
social goals, which ultimately failed. The UN has failed by the rules of the Ten
Unclear Policies on Standards for Corporate Behaviour. Compact is universally
recognized, and thus there is inaccuracy in describing such standards and
consequences as they are violated due to the lack of monitoring and third-party
supervision rules. Law in the BHR Framework.89.
As a result of its failure, the UN the commission was forced to appoint a
special envoy on human rights and the TNC and other businesses, including John
Rocky, a professor at Harvard University. The expert came up with three resolutions
in the BHR; Protection, Settlement and Respect through the following perspectives:
(i) the State has a legal duty to protect her people from abuse, including trade
88
Cassell D., “Building a Treaty on Business and Human Rights: Context and Contours”, (2019) 41(2)
Human Rights Quarterly, 497-508
89
Ibid (n2) 497-508
Protecting them; ii) the duties of enterprises to protect clients; And iii) transparency.
Professor Ruggy has identified the personality some challenges as causes of
contemporary problems involving PHR. ILO and the OECD recognize that the UN
has a duty to keep human rights. He also found in his studies that it belongs to the
Global Compact. Despite these measures, Professor Rookie conducted further
research in 2011 and proposed the UNGP with the aim of mitigating the
aforementioned governance gaps and ensuring better access to solutions. Victims
soon. Therefore, the first 1-10 policies in the UNGPs are related to the state duty to
protect; Policies 11-24 address the issue of business liability to be respected and
Policies 25-31 addressing the necessities for availing victims with opportunity to legit
solutions to human rights abuses.
Due to such failures, the study table some of the reasons that appeared to be
the source of the failures of such policies. These insufficiencies included and not
limited to; lack of co-ordination by the government departments 90; fear of restrain of
foreign investment; lack of good governance, existence of corruption and political
limitations imposed by foreign governments; opposition by business enterprises and
governments groups; lack of international companies involved in human rights
abuses and lack of coherence between international instruments of UN, OECD, etc.;
lack of awareness about these principles along; and lack of financial and human
resources. As a result, the UNGPs are non-binding soft-law instrument in
authoritative nature and of global standard, with no new obligations but reflecting
international law standards in ensuring human rights in the context of business.
Oblique ISO guidelines

90
Elise Groulx Diggs and Mitt Regan and Beatrice Parance, 'Business and Human Rights as a Galaxy of
Norms' (2019) 50 Geo J Int'l L 309
Unclear ISO guidelines is one of the factors challenging the implementation of
the human rights responsibility through binding treaty initiatives. However, the (ISO)
26000 in 2010 for Guidance Standard on Social Responsibility has failed to particular
address most of the underlying challenges over the matter of human rights in the
international community91. For instance, the (ISO) 26000 in 2010 for Guidance
Standard on Social Responsibility is another internationally recognized standard
which provided guidance on how business organizations can operate with social
responsibility in socially acceptable manner 92. As a result, an international
organization for standardization appeared incompetent to address most of the
vibrant issues concerning the implementation of human rights responsibilities
through binding treaty initiatives. Even though the policy provides an opportunity to
report obligations on the government, the ILO Tripartite Declaration fails to report
consequences of breach of its provisions and also does not specify any enforcement
mechanism. Finally, the Declaration contains fewer hard law features compared to
that of the OECD Guidelines, it could not be still said to be purely soft law 93.
Insufficiency in International Labour Organization (ILO) guidelines
Implementation of human rights responsibility through binding treaty initiatives
is tabled to have met its backwash through development of insufficient ILO
guidelines. Through this attempts to meeting the goals of BHRs, the International
Labour Organization adopted a “Tripartite Declaration of Principles concerning
Multinational Enterprises and Social Policy” in 1977 with a revised version in 2017,
which is another international standard in offering guidelines to TNCs, states’,
91
International Labour Organization, Tripartite Declaration of Principles Concerning Multinational
Enterprises and Social Policy (1978) 17 ILM 422
92
Ibid (n2) 422
93
Ibid (n3) 423
bosses and servants organizations on labour and employment issues, training, work
and life conditions and industrial relations and based on principles under
international labour conventions and recommendations 94. Regarding the nature and
effectiveness of the ILO Tripartite Declaration, although it imposes reporting
obligations on governments, it does not provide for the impact’s defiance of its
provisions and also does not specify any enforcement mechanism. As a
consequence, it is argued that although the Declaration contains fewer hard law
features compared to that of the OECD Guidelines, it could not be still said to be
purely soft law95.
As described, implementation of human right responsibility through a binding
treaty has faced several challenges on the initiatives put forward to the process.
Development of business and human rights initiatives can be dated back since
1970s to date, with little progress in the transnational and multinational corporations.
Despite of the attempts by the UN agencies to formulate policies against abuse of
human right and mistreatment of human being by corporate states, achieving a
responsible state of human right in the international community remains in its
staggering condition due to several challenges outlined above. The study availed the
evidences of attempts of policy formulations towards upholding human rights in the
transnational and multinational enterprises. Such policies evidenced in the study
included and not limited to; the BHR initiatives, OECD principles, the UN policies.
94
Rasche A., ‘” A Necessary Supplement” – What the United Nations Global Compact Is and Is Not’
(2009) 48(4) Business Society 511
95
Rasche A., ‘” A Necessary Supplement” – What the United Nations Global Compact Is and Is Not’
(2009) 48(4) Business Society 511
Finally, some issues showing future prospects for completing the process; (i) the
obligation to diligently demonstrate due to human rights as stated in the Institutions
'Elements' and the obligation on State Parties to compel TNCs and OBEs with their
subsidiaries; (ii) the expression regulating the legal liability of TNCs and OBEs,
according to the 'elements' relating to administrative, civil and criminal aspects of
human rights violations by their activities; . States guarantee such solutions. Experts
in monitoring the efforts of state parties, publishing reports and obtaining
communications; Finally, (v) provide 'elements' to facilitate mutual legal assistance to
enhance judicial cooperation and to recognize the relevant decisions of the court.
6.2. Recommendations
The study has identified several challenges hoovering the implementation of the
human rights responsibility through binding treaty initiatives. These challenges must
be solved for the process to reach its fulfilment. Starting from the BHR initiatives,
some of the challenges that must be solved included competition of developing
countries for investment opportunities by foreign countries-possibly the developed
countries; failing of the UN traditions towards RTCs and OBEs as per the law;
Ineffectiveness of the UNGPs initiatives; oblique ISO guidelines; Insufficiency in ILO
guidelines; and lack of central mechanism in ensuring the implementation of the
UNGPs and their non-binding nature. Although, greater solutions lie within the
solution of the gross challenges including, but not limited to; ; lack of co-ordination by
the government departments; fear of restrain of foreign investment; lack of good
governance, existence of corruption and political limitations imposed by foreign
governments; opposition by business enterprises and governments groups; lack of
international companies involved in human rights abuses and lack of coherence

between international instruments of UN, OECD, etc.; lack of awareness about these
principles along; and lack of financial and human resources.
Some of the recommendations put forward by the study to solve the identified
gaps included96;
(i) Gap: clarification challenge regarding the existence, nature, and extent of
corporate human rights responsibilities.
Recommendation: the existing governance gaps would be covered where
the States do not enforce human rights protections.
(ii) Gap: states being the principal abusers of business and human rights by
being too corrupt and having no power to protect people from influential
business corporations.
Recommendation: the responsibilities of corporations would be set out
from a central source.
(iii) Gap: absolving of liability against human rights violations by the parent
companies for commission of such abuses by subsidiaries on the basis of
doctrines of separate legal personality and limited liability.
Recommendation: the UNGPs could be converted into binding obligations
ensuring that all the corporations, irrespective of their locations, stick to the
same set of human rights standards and increasing access to effective
remedies.
(iv) Gap: obstacles and legal barriers experienced by the victims in getting
access to justice which include excessive litigation costs and doctrine of
forum non convenience.

96
OHCHR, The Corporate Responsibility to Respect Human Rights: An Interpretive Guide (United
Nations, 2012)
Recommendation: the working group headed for the negotiations
achieving a liable international corporation.
The earlier challenges affecting the BHR initiatives could be solved by the John’s
recommendations. Following extensive research and consultation with a number of
stakeholder stakeholders on the key principles of this framework, the BHR structure
entitled "Protection, Respect and Resolution" has three components: (i) the State
has a legal duty to protect her people from abuse, including trade Protecting them; ii)
the duties of enterprises to protect clients; And iii) transparency. Professor Ruggy
has identified the personality some challenges as causes of contemporary problems
involving PHR. ILO and the OECD recognize that the UN has a duty to keep human
rights. He also found in his studies that it belongs to the Global Compact.
6.3. Conclusion
To conclude, the research established that there are a lot of things still
missing for the complete implementation of the human right responsibility through
binding treaty for a safer transnational corporation. Most of the world agencies
aiming at peaceful coexistence among the international community such as the UN
agencies, OECD, ISO, and ILO have attempted to ensure a safer world community
with due diligence of human rights through formulation of various initiatives.
Beginning with the PHR initiatives, the OECD guidelines in some of the efforts to
ensure the implementation of human rights through the Binding Agreement, the UN
Including Global Compact and the then UN Human Rights Commission. The study
identified that the only existing initiative is its latest drafts related to the
implementation of human rights through zero draft and binding contract initiatives.
The (UN), (OECD), International Organization for Standardization (ISO) and

International Labour Organization (ILO) States should follow suit in managing .NC
and other business entities (OPEs). As a result of its failure, the UN the commission
was forced to appoint a special envoy on human rights and the TNC and other
businesses, including John Rocky, a professor at Harvard University.
The expert came up with three resolutions in the BHR; Protection, Settlement and
Respect through the following perspectives: (i) the State has a legal duty to protect
her people from abuse, including trade Protecting them; ii) the duties of enterprises
to protect clients; And iii) transparency. Professor Ruggy has identified the
personality some challenges as causes of contemporary problems involving PHR.
ILO and the OECD recognize that the UN has a duty to keep human rights. He also
found in his studies that it belongs to the Global Compact. Despite these measures,
Professor Rookie conducted further research in 2011 and proposed the UNGP with
the aim of mitigating the aforementioned governance gaps and ensuring better
access to solutions. Victims soon. Therefore, the first 1-10 policies in the UNGPs are
related to the state duty to protect; Policies 11-24 address the issue of business
liability to be respected and Policies 25-31 addressing the necessities for availing
victims with opportunity to legit solutions to human rights abuses. Hence, after thin
analysis of the previous, current and future BHR initiatives, the study identified a few
challenges and initiative opportunities that hinders the human rights responsibility
internationally97. The BHR initiatives majorly looked into an improved ethics on
employment, human rights, environment and disclosure of information.
97
Rights 37, no. 3 (2019): 216-233.

Furthermore, the study identified that implementation of corporate human rights
responsibility through a binding treaty in the international community is yet to be
achieved only when the corporate partners sojourned to the understandings of the
binding treaty initiatives put in place 98. For this reason, some of the challenges facing
the implementation of the human rights responsibility through binding treaty
initiatives as identified by the study grossed to competition of developing countries
for investment opportunities by foreign countries-possibly the developed countries;
failing of the UN norms on the Responsibilities of Transnational Corporations and
Other Business Enterprises with Regard to Human Rights; Ineffectiveness of the
UNGPs initiatives; oblique ISO guidelines; Insufficiency in ILO guidelines; and lack of
central mechanism in ensuring the implementation of the UNGPs and their non-
binding nature99.
The findings table herein are legible for validity and reliability verification since
the study takes a qualitative approach with insights from practical research,
descriptive research, explanatory, analytical and socio-legal knowledge to vividly
expound on the law issues regarding the international human rights relative to the
topic. Consequently, the study deployed a systematic literature review, a method
which satisfied all the aspects demanded by the approach and design. Using the
method, various literature sources were gathered through different searches with
different key words related to the topic. Key words used during the search included
corporate human rights, implementation of the corporate human rights, corporate
human rights responsibility, binding treaty, challenges, future opportunities, BHR
98
99
Initiatives, previous BHR initiatives, current BHR initiatives, limitations,
consequences, impacts, and advancements.
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Paving The Way of Implementation of Corporate Human Rights Responsibility Through A Binding Treaty: Practical Challenges and Future Opportunities

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Collective Employment Agreement 1

PAVING THE WAY OF IMPLEMENTATION OF CORPORATE HUMAN RIGHTS

RESPONSIBILITY THROUGH A BINDING TREATY: PRACTICAL CHALLENGES

AND FUTURE OPPORTUNITIES

Name of the Professor

Name of the Institution

Location of the Institution

activities of international organizations (TNCs) on aspects of human rights law.

Globalization has provided many opportunities and challenges for corporate

business hours.1 The economic globalization has provided huge opportunities as

well as numerous challenges in regulating the corporations to prevent various

communities, poor maintenance of safety and healthy work environment, polluted

acquire favourable employment conditions.4

and principles, proposed by international organizations, for example, the United

Nations (UN), the OECD-the International Organization for Standardization (OECD) 5,

in the management of international corporations or TNCs and other entities (OBE) 6

corporate practices and standards to be followed by the TNCs to create positive

impact on economic and social context. 7

Transnational Corporations and Other Business Enterprises on Human Rights ('UN

non-adoption by the business enterprises. 9

obligations in corporations be included and that international standards be set as a

global standard for protection against human rights abuses by business

However, there have been obstacles to the implementation of UNGPs, especially in

business world. In addition, increased commitment is needed by countries to do so

human rights in the business activities.13 Furthermore, an increased willingness is

required by the states in such implementation by developing National Action Plans

their understanding of BHR.14

binding obligations which state to co-operate through legal processes as a form of

provisions on accountability, supervisory and oversight requirements. 16 Therefore,

UNGPs on BHR fail to provide remedies to the consequences of the breach of

human rights and therefore lack in demonstrating corporate responsibility 17 in this

issues by the TNCs19.

disadvantages, risks, threats and practical challenges of implementing corporate

human rights responsibility and enforcing the obligations in a comprehensive manner

binding UN Treaty to reach consensus at the international level in implementing the

to legalize BHR obligations in their own jurisdictions. 22

international agreement on corporate status under international law that determines

the extent to which such an obligation to co-operate in the adoption is therefore

threats and practical challenges to implement corporate rights responsibility and

exacerbated by the question of the need to establish a UN Commitment Agreement

in order to reach an international level agreement on the fulfilment of corporate

obligations which also extends to specific provincial plans to authorize BHR

obligations in their territories.24 This endorsement by the UNHRC was an indirect

Representative Professor John Ruggie followed by 2008 U.N. Framework on

conduct of business entities26. On June 26, 2014, the UNHRC approved27.

scope and concerns of the drafts to be created. 32

2. Effectiveness of the BHR framework in the implementation of the corporate

human rights responsibilities

current management structure in the implementation of corporate human rights

Human Rights (PHR) framework in the implementation of corporate human rights

responsibilities; Identifying the justifications for creating a binding agreement in the

BHR and the practical challenges and implications of implementing a binding

agreement in the BHR.

2.1. Previous BHR Initiatives

binding agreements and regulate multinational corporations (MNCs) through OECD

International Investment and Multinationals, which contained recommendations on a

guidelines have been further revised in 2011 which is a template of

recommendations by governments to the TNCs and the only multilaterally agreed

Regarding the effectiveness of the OECD guidelines, Ethics on employment,

further revised in 2011, which is a template for governments' recommendations to

promised to promote PHR.38. In addition to the effectiveness of the OECD

recommended that the corporations have to be legit in solving the problem. It is

of precise standards of conduct for organizations. In addition to the effectiveness of