White Paper: Options for a Treaty on Business and Human Rights

The United Nations Human Rights Council decided in June 2014 to establish an Intergovernmental Working Group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” The first meeting of the Working Group took take place in Geneva in July 2015. The Council did not further specify what sort of instrument should be drafted. The Center for Human Rights of the American Bar Association and the Law Society of England and Wales asked the present authors to prepare a “White Paper” on possible options for a treaty on business and human rights. The Paper takes no position for or against a treaty, or any particular form or content of a treaty. It is purely informational. It represents the views only of its authors, not necessarily those of the American Bar Association or its Center, or of the Law Society. Although other experts provided helpful comments on earlier drafts, the authors are solely responsible for the content. The Paper begins by summarizing the context of the treaty process and current international law on business and human rights. It then addresses three main topics: Treaty Options: The wide variety of forms and content a treaty could take; Templates: Forms of treaties that enjoy broad support in international law, which could serve as templates for a treaty on business and human rights; and Cross-Cutting Issues: Issues of international law and policy that drafters may need to address, regardless of the form and content of a treaty (companies covered; applicable rights; law governing civil damages suits; geographic scope of State duties; parent company responsibilities; and whether to impose duties only on States or directly on business)