[Open Letter] South African Academics and NGOS welcome Draft of Treaty to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and other Business Enterprises

We, the undersigned academics and NGOs dedicated to the promotion and protection of human rights, welcome the Zero Draft of a Legally Binding Instrument to regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises. We commend the South African government for its leadership – together with Ecuador – in the process of negotiations towards the development of this crucial instrument, which represents a first step towards the broader acknowledgment of human rights obligations of business.

Having met to discuss the Zero Draft, we share a number of improvements that we believe should be made relating to the instrument. These include the following:

• The instrument should recognize clearly in its operational provisions that business has a duty to respect all human rights which has already been recognized in the United Nations Guiding Principles;

• In our view, the duties of business should be extended to include a duty to support and contribute towards the advancement of human rights;

• The preamble should make reference to some historic events that have led to the need for and the development of the treaty;

• Explicit reference must be made, at least in the preamble, to the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights as explicit examples of the international human rights the treaty seeks to protect;

• At the appropriate points, stronger references should be made to international humanitarian law and greater specification should be provided regarding duties in the context of areas of conflict, including armed conflict;

• Consistent with the United Nations Declaration on Human Right Defenders, Human Rights Defenders should be mentioned explicitly and specific protections provided for them;

• Jurisdictional grounds should be increased to include the nationality of victims and where the effects of actions are experienced;

• Liability should be fault-based except for situations where strict liability is provided for in domestic legal systems;

• The Fund for victims should be capable of drawing on funding not only from state contributions but through costs that are taxed from corporations found to be violating human rights and through voluntary contributions from corporations engaged in business activities of a transnational character;

• The treaty should include the obligation on states to amend existing corporate law doctrines to conform with human rights - for example, the need for the fiduciary duties of directors to include human rights due diligence duties; and

• The treaty should promote the recognition and enforcement of judgements across jurisdictions, including by eliminating the option for corporate defendants to avoid enforcement on public policy grounds.

A treaty on business and human rights is vital in addressing challenges faced by claimants who suffer abuses by business in our globalized world. The treaty will aim to address shortcomings both in international and domestic law: it should be welcomed by states and business corporations alike committed to advancing human rights protection. In light of this, we call on all states to engage in good faith to negotiate and reach an agreement on a treaty in this area. We also call on business corporations around the world – but, in South Africa particularly in light of businesses’ responsibility to help address the legacy of past injustice – to support the treaty seeking to regulate the conduct of Transnational Corporations and Other Business Enterprise and to engage constructively with it.

International Commission of Jurists

Lawyers for Human Rights

South African Institute for Advanced Constitutional, Public, Human Rights and International Law, a center of the University of Johannesburg

SA NRF Research Chair in International Law, University of Johannesburg

Centre for Human Rights, University of Pretoria
 

Centre for Applied Legal Studies, University of the Witwatersrand