![handle is hein.journals/gmjintco12 and id is 1 raw text is: THE EMERGING UN BUSINESS AND HUMAN RIGHTS TREATY AND ITS
CODIFICATION OF INTERNATIONAL NORMS
Ilias Bantekas*
I. INTRODUCTION
The 2019 and 2020 versions of the draft Business and Human Rights
Treaty (BHR Treaty) signal a move away from soft law and self-regulation
for multinational corporations (MNCs) and entities engaged in transnational
business activities. There is some resistance to the treaty from industrialized
states, although they have failed to tackle root causes of extra-territorial
human rights abuses by MNCs under their control. While the BHR treaty
does not absolve states of their primary responsibility as human rights duty
bearers, it does however establish a triangular relationship requiring that
MNCs observe strict due diligence requirements, as well as provide remedies
to victims of human rights violations and abuses caused directly or indirectly
by them. The state is compelled to facilitate and enforce corporate due
diligence as well as extensive access to justice for victims, including through
the provision of legal aid, physical security, effective jurisdiction, corporate
and personal sanctions, and even mutual legal assistance.
By way of background, in 2011, the UN Human Rights Council
established an inter-governmental working group (Working Group) to
address the human rights roles and responsibilities of transnational
corporations and other business enterprises.1 This Working Group was
tasked with regulating the activities of transnational corporations and other
business enterprises.2 The UN Guiding Principles on Business and Human
Rights, endorsed by the UN Human Right Council in 2011,3 had run its
course, necessitating a move away from self-regulation and corporate social
responsibility.4 Despite some opposition by industrialized states, a proposal
was tabled by Norway and forty-four co-sponsors seeking operationalization
* Professor of International Law, Hamad bin Khalifa University (Qatar Foundation),
College of Law & Adjunct Professor of Law Georgetown University, Edmund A. Walsh School
of Foreign Service.
' See Statement on Behalf of a Grp. of Countries at the 24rd [sic] Session of the Human
Rights Council, Bus. & HUMAN RIGHTS RES. CTR. (Sept. 2013), http://business-
humanrights.org/sites/default/files/media/documents/statement-unhrc-legally-binding.pdf.
2 Human Rights Council Res. 26/9, U.N. Doc. A/HRC/26/L.22/Rev.1, at 2, 1 1 (June 25,
2014).
s See Guiding Principles on Business and Human Rights: Implementing the United Nations
Protect, Respect and Remedy Framework, OHCHR, U.N. Doc. HR/Pub/11/04 (2011),
http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHREN.pdf
[hereinafter Guiding Principles].
' See Larry Cata Backer, Shaping a Global Law for Business Enterprises: Framing
Principles and the Process of a Comprehensive Treaty on Business and Human Rights, 42 N.C.
J. INT'L L. 418, 419-20 (2017).](ViewImageLocal?handle=hein.journals/gmjintco12&div=1&collection=&method=preview&ext=.png&size=3)
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