Draft UN Treaty on Business and Human Rights: Significant Challenges Remain |
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By Dr. Corinne Lewis, Partner, Lex Justi
The Third Revised Draft treaty on business and human rights was reviewed article by article during the October 2021 session of the open-ended intergovernmental working group (OEIGWG) held at the United Nations in Geneva. The OEIGWG was established and mandated, under a 2014 UN Human Rights Council resolution, to elaborate an international legally binding instrument on business and human rights.
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The draft treaty is intended to be legally binding on States, not businesses, and provides that States are to undertake measures to ensure that business enterprises implement their responsibility to respect human rights, with “business enterprises” covering all businesses, not just those carrying out transnational activities. The draft treaty addresses, among other topics: prevention of human rights violations by businesses, which includes that “States Parties shall require business enterprises to undertake human rights due diligence” (art. 6); protection of victims of human rights violations, including access to a remedy (arts. 5 & 7); and the availability of civil and criminal liability provisions (art. 8).
Although the language of the treaty has been refined and brought into closer alignment with the UN Guiding Principles on Business and Human Rights through the progressive versions of the treaty, the treaty lacks support from many industrialized countries, a number of which did not even attend the October session, including Australia, Canada and South Korea. In fact, only some 70 States participated in the discussions of the draft treaty during the seventh session.
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The United States, which has not participated in any of the previous six discussion of the treaty held by the working group, did attend the seventh session, but did not express support for the treaty or provide specific comments on its articles. Instead, the United States commented that it favors an alternative form for the treaty, a framework treaty. This format would entail abandoning the current draft form of the treaty and replacing it with a framework treaty that defines a common objective and principles to bolster its implementation, in a manner similar to other UN Framework treaties, such as the UN Framework Convention on Climate Change.
This approach is also supported by the International Chamber of Commerce, the International Organization of Employers, and BusinessEurope, the largest and most influential lobby group in Brussels. The discussion of the alternative approach to a treaty during the OEIGWG’s October session followed a debate in July 2021 on the pros and cons of the current draft treaty versus an alternative framework treaty by a roundtable of experts organized by the International Human Rights Committee of the American Bar Association’s International Law Section.
To advance the work on the draft, a group of Ambassadors in Geneva, which reflects a balanced regional representation, will be convened as “Friends of the Chair”. The OEIGWG is expected to issue an updated version of the draft treaty by the end of July 2022. (See Draft Report of Seventh Session.) In the meantime, significant challenges remain to the finalization, support, and implementation of the current draft treaty and these will likely be coupled with increasing debate among States of the appropriate form of the treaty – whether the current form of the draft treaty or an alternative framework treaty.
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Dr. Corinne Lewis provides legal advice and consultation, including training, on business and human rights issues to a range of clients, including nongovernmental and international organizations, law firms and multinational companies, in order to further the responsibility of businesses to respect human rights.
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Upcoming Virtual CLE Events |
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The International Human Rights Committee of the International Law Section of the State Bar of Texas presents its on-going series of webcasts on topics of interest to the section’s lawyers. Register Now for this upcoming CLE!
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Recent Developments in Asylum and Immigration: From Afghanistan to US-Mexico Border |
December 2, 2021
2:00-3:30 pm CST (Virtual)
Free of Charge
Approved for 1.5 Hours of MCLE
Course No. 174140997
Texas Lawyers self report your MCLE Hours at My Bar Page
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Joshua Newcomer, Moderator
Joshua Newcomer is a principal in the Houston office of McKool Smith. His practice focuses on complex commercial litigation, with an emphasis on financial, fiduciary, and international disputes. Prior to joining McKool Smith, Joshua was an associate at an international law firm. He also previously served as a law clerk to the Honorable Carolyn Dineen King of the United States Court of Appeals for the Fifth Circuit and to the Honorable William H. Yohn Jr. of the United States District Court for the Eastern District of Pennsylvania. Before attending law school, Joshua was an associate consultant for L.E.K. Consulting in Boston and Singapore, where he focused on business strategy and shareholder valuation.
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Maran Turner, Panelist
Maran Turner is executive director of Freedom Now, an organization that protects individuals and communities from government repression and defends human rights through direct legal support, targeted high-leverage advocacy, and capacity-building analysis and assistance. Most recently, Maran assisted Afghani refugees seeking to emigrate after the U.S. withdrawal from Afghanistan. Prior to joining Freedom Now, she was a lawyer with the Southern Africa Litigation Centre (SALC) in Johannesburg, South Africa from 2006 to 2007, where she managed a team of pro bono lawyers and worked with Southern African jurists on human rights litigation. Prior to her position with SALC, she was an associate with DLA Piper LLP (US) where she was honored as Pro Bono Attorney of the Year for her international human rights work representing notable human rights defenders such as former Czech Republic President Václav Havel and Nobel Peace Prize Laureate Desmond Tutu. Maran holds a B.A. from the University of Texas at Austin and a J.D. cum laude from the University of Miami.
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Nicole Ramos, Panelist
Nicole Ramos is the Director of Al Otro Lado's Border Rights Project. Al Otro Lado is a binational legal aid and defense organization that provides services to migrants, refugees, and deportees in the United States and Mexico. The Border Rights Project works with asylum seekers in Mexico who wish to present themselves to immigration authorities in order to seek asylum in the United States. In addition to providing legal orientation and accompaniment, the project engages in human rights monitoring and impact litigation as well as broader media campaigns, and advocacy efforts to challenge systemic human rights violations committed by state actors, including advocacy before international human rights monitoring bodies. Nicole is an Adjunct Professor at Temple University Beasley School of Law and lectures extensively at universities, law schools, and professional conferences throughout the United States.
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International Human Rights Day Webinars
December 10, 2021
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Approved for 3 Hours MCLE Credit, including 2 hours of Ethics | Course No. 174141536 |
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The State Bar of Texas International Law Section in partnership with the International Bar Association Human Rights Law Committee presents a series of webinars celebrating international Human Rights Day.
These webinars are free to attend. Places are limited, so please register now via the relevant links below to secure your place. Event details are included below.
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Human Rights Day is observed every year on December 10 — the day in 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR). The UDHR is a milestone document that proclaims the inalienable rights which everyone is entitled to as a human being - regardless of race, color, religion, sex, language, political or other opinion, national or social origin, property, birth or other status. Available in more than 500 languages, it is the most translated document in the world.
The State Bar of Texas created the International Human Rights Committee (IHRC) in August 2015, the first of its kind among state bars, with the goals to study legal issues related to international human rights, inform Texas lawyers of these issues, and provide guidance to these Texas lawyers.
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Human Rights in The Maritime Industry |
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December 9, 2021 | 6:00-7:00 pm CST
1 Hour MCLE | Course No. 174141536
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The following issues will be discussed in the webinar:
- Human rights abuses on the sea and of seafarers;
- The development of policies to stop ongoing human rights abuses;
- Modern slavery and its impact on human rights issues in maritime law;
- Education of businesses in maritime law to avoid human rights abuses; and
- Remedies to human rights abuses in maritime law.
Moderator:
Wajiha Ahmed, Buttar Caldwell and Co. Solicitors, Sydney, New South Wales; Secretary, IBA Human Rights Law Committee
Speakers:
Anthe Philippides, Former Justice of the Court of Appeal of Queensland, Brisbane, Queensland
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Best Practice in Access to Justice: Lessons From The Pandemic |
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December 10, 2021 | 7:00-8:00 am CST
1 Hour MCLE (Ethics) | Course No. 174141536
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This webinar will discuss highlighting best practice with regards to increasing access to justice in different jurisdictions. This will be of particular interest to practicing lawyers and judges with a focus on those lawyers providing pro-bono legal services to underserved communities.
The aim of the webinar is to enhance the understanding and protection of the rule of law by underscoring the challenges some communities have in accessing courts and similar tribunals. The panel will present potential means (eg, virtual access and AI) for overcoming those challenges, with particular focus on how courts in various jurisdictions have continued to permit access to justice during the pandemic. The panel will explore the hypothesis that, with the move to virtual hearings, courts have the potential to be more flexible and timely in delivering access in a post-pandemic environment.
Moderator:
Robert Bernstein, Holland & Knight, New York, New York, USA; Member, Young Lawyers’ Committee Advisory Board
Speakers:
Richard J. Sullivan, United States Court of Appeals for the Second Circuit, New York, New York, USA; Vice Chair, Judges' Forum
Katrina Harry, Veterans' Review Board, Sydney, New South Wales, Australia
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Media Relations for Lawyers Involved in International Human Rights Matters |
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December 10, 2021 | 9:00-10:00 am CST
1 Hour MCLE (Ethics) | Course No. 174141536
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There are misconceptions among lawyers involved in international human rights matters that all media attention is either always good or always bad. The nuances of working with the media are often lost. Lawyers who represent individuals may miss the point that media attention may put their client, their client's family or others at risk. Corporate lawyers may miss opportunities to help their clients by avoiding all media contact. This session will explore how lawyers who are involved in international human rights matters for all types of clients can interact with the media to further their cause, or avoid damaging it. The panel will discuss where the media can be helpful or hurtful in such matters.
Moderator:
Thomas Wilson, Vinson & Elkins, Houston, Texas; Website Officer, IBA Human Rights Law Committee
Speakers:
Dana Green, The New York Times, New York; Senior Vice Chair, IBA Media Law Committee
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Webinar Series Co-Presenters: |
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State Bar of Texas International
Human Rights Committee
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International Bar Association
Human Rights Law Committee
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Human Rights Essay Contest |
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The International Law Section Announces Essay Contest on Topic of International Human Rights
Contest Now Open to Texas Law Students with $1,500 First Place Cash Prize
Submission Deadline: April 1, 2022
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The State Bar of Texas International Law Section is holding an essay contest on the topic of international human rights. The contest is open to individuals attending law school (including LL.M. programs) within the State of Texas and Texas residents in law school outside the state.
The essay may address any aspect of international human rights law that the student chooses and there are no minimum or maximum word limits. A first-place prize of $1,500 will be awarded for the best entry as judged by representatives from the Section.
In addition to the $1,500 prize, the winner will be recognized at the ILS Annual Institute and the winning essay will be published in a future issue of the ILS International Newsletter and on the International Bar Association’s Human Rights Law Committee’s website.
Essay submissions are due April 1, 2022 on or before 11:59 PM (Central Time) and should be sent by email attachment to Diana Marin at admin@ilstexas.org.
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Save The Date! December 17, 2021 |
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The International Law Section is planning an in-person CLE event in the Dallas/Ft Worth area for December 17, 2021.
Stay tuned. More details to follow shortly.
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