Conceptualizing Corporate Accountability in International Law: Models for a Business and Human Rights Treaty
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Conceptualizing Corporate Accountability in International Law: Models for a Business and Human Rights Treaty Nadia Bernaz 1 Accepted: 29 September 2020/ # The Author(s) 2020
Abstract This article conceptualizes corporate accountability under international law and introduces an analytical framework translating corporate accountability into seven core elements. Using this analytical framework, it then systematically assesses four models that could be used in a future business and human rights (BHR) treaty: the United Nations Guiding Principles on Business and Human Rights model, the Universal Declaration of Human Rights model, the progressive model, and the transformative model. It aims to contribute to the BHR treaty negotiation process by clarifying different options and possible trade-offs between them, while taking into account political realities. Ultimately, the article argues in favour of the BHR treaty embracing a progressive model of corporate accountability, which combines ambitious development of international law with realistic prospects of state support. Keywords Business and human rights . Treaty . Corporate accountability . UN guiding
principles on business and human rights . Universal declaration of human rights
Introduction In 2014, following a proposal by Ecuador and South Africa, the UN Human Rights Council established an open-ended intergovernmental working group with the mandate to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”. The intergovernmental working group held its first session in Geneva in 2015 and its latest session in October 2019. At the time of writing, four draft documents This paper is submitted as part of the special issue on “Business and Human Rights”.
* Nadia Bernaz [email protected]
1
Wageningen University Law Group, Hollandseweg 1, 6706 KN Wageningen, The Netherlands
N. Bernaz
have been published: Elements for the draft legally binding instrument on transnational corporations and other business enterprises with respect to human rights in 2017, the Zero Draft in 2018, the Draft Treaty in 2019, and the Second Revised Draft Treaty in 2020. The very idea of a business and human rights (BHR) treaty has led to numerous debates about whether it is feasible (Bilchitz 2016; De Schutter 2016; McConnell 2017), timely (Ruggie 2014; Leader 2017), or even a positive development from the perspective of victims of corporate human rights abuse (Ruggie 2014; Simons 2017). The treaty should strengthen corporate accountability for human rights to the benefit of rights-holders, but how this will be done remains uncertain. The complexity of accountability as a concept adds to the confusion. This article aims to answer the following research question: how can corporate accountability be conceptualized in the future BHR treaty so as to maximize the treaty’s impact both in terms of contents and state support? To address this question, this article first conc
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