Between Apology and Utopia: The Indeterminacies of the Zero Draft Treaty on Business and Human Rights

Journal article


Birchall, D. (2020). Between Apology and Utopia: The Indeterminacies of the Zero Draft Treaty on Business and Human Rights. Suffolk Transnational Law Review.
AuthorsBirchall, D.
Abstract

This paper analyses the recently released zero draft of the binding treaty on business and human rights focusing on the core questions of rights and duties under the treaty. The treaty would compel state parties to adopt extraterritorial jurisdiction for ‘harm caused by human rights violations’ in the context of ‘business activities of a transnational character,’ along with a range of other and supplementary obligations. While the treaty is inclusive and adopts many progressive concepts, there is a chronic unwillingness to address the hard questions, obfuscating between apology for current practices and utopian idealism beyond that to which states will commit. This is most evident in the failure to provide adequate definitions, content or interpretative tools to terms such as ‘human rights violation’ and ‘business activities of a transnational character.’ This gap may both do a disservice to rights-holders and disincentivize state uptake. While filling in these gaps will be controversial, this paper argues that addressing the hard cases must be seen as a core responsibility of the drafters if an ambitious treaty is to be realized.

Year2020
JournalSuffolk Transnational Law Review
Suffolk Transnational Law Review
PublisherSuffolk University Law School
Publication dates
Print01 Dec 2020
Publication process dates
Deposited22 Sep 2021
Accepted01 Nov 2021
Accepted author manuscript
License
All rights reserved
File Access Level
Open
Permalink -

https://openresearch.lsbu.ac.uk/item/8xy92

Download files


Accepted author manuscript
BHR Treaty.pdf
License: All rights reserved
File access level: Open

  • 125
    total views
  • 55
    total downloads
  • 3
    views this month
  • 1
    downloads this month

Export as

Related outputs

How European Human Rights Law Will Reshape U.S. Business
Birchall, D. and Chambers, R. (2024). How European Human Rights Law Will Reshape U.S. Business. UC Law Business Journal. 20 (1), pp. 3-58.
Private equity: when big profits come at a heavy price for human rights
Birchall, D. and Bernaz, N. (2023). Private equity: when big profits come at a heavy price for human rights. The Conversation Trust.
Many global corporations will soon have to police up and down their supply chains as EU human rights ‘due diligence’ law nears enactment
Birchall, D. and Chambers, R. (2023). Many global corporations will soon have to police up and down their supply chains as EU human rights ‘due diligence’ law nears enactment. The Conversation Trust.
Human Rights: The Right to Work in Academia
Birchall, D. and Martin, N. (2023). Human Rights: The Right to Work in Academia. Journal of Inclusive Practice in Further and Higher Education. 15 (1), pp. 75-101.
Business Strategy as Human Rights Risk: the Case of Private Equity
Birchall, D. and Bernaz, N. (2023). Business Strategy as Human Rights Risk: the Case of Private Equity. Human Rights Review. https://doi.org/10.1007/s12142-023-00680-w
Power, Participation, and Private Regulatory Initiatives: Human Rights Under Supply Chain Capitalism (University of Pennsylvania Press, 2021) Edited by Daniel Brinks, Julia Dehm, Karen Engle and Kate Taylor
Okafor, C. and Birchall, D. (2023). Power, Participation, and Private Regulatory Initiatives: Human Rights Under Supply Chain Capitalism (University of Pennsylvania Press, 2021) Edited by Daniel Brinks, Julia Dehm, Karen Engle and Kate Taylor. Business and Human Rights Journal. https://doi.org/10.1017/bhj.2023.5
Human Rights and Political Economy: Addressing the Legal Construction of Poverty and Rights Deprivation
Birchall, D. (2022). Human Rights and Political Economy: Addressing the Legal Construction of Poverty and Rights Deprivation. The Journal of Law and Political Economy. 3 (2), pp. 393-416. https://doi.org/10.5070/LP63259636
Human Rights and Business Ethics
Birchall, D. (2022). Human Rights and Business Ethics. Springer Nature. https://doi.org/10.1007/978-3-319-23514-1_1293-1
Human Rights and the Multinational Corporation
Birchall, D. (2022). Human Rights and the Multinational Corporation. Springer Nature. https://doi.org/10.1007/978-3-319-23514-1_1294-1
Corporate Power over Human Rights
Birchall, D. (2022). Corporate Power over Human Rights. Springer Nature. https://doi.org/10.1007/978-3-319-23514-1_1289-1
Reconstructing State Obligations To Protect And Fulfil Socio-Economic Rights In An Era Of Marketisation
Birchall, D. (2021). Reconstructing State Obligations To Protect And Fulfil Socio-Economic Rights In An Era Of Marketisation. International and Comparative Law Quarterly. pp. 1-17. https://doi.org/10.1017/S0020589321000282
Challenging the Commodification of Human Rights: The Case of the Right to Housing
Birchall, D. (2021). Challenging the Commodification of Human Rights: The Case of the Right to Housing. Santa Clara Journal of International Law. 19 (1).
Research Handbook on Human Rights and Business
Deva, S. and Birchall, D. Birchall, D. (ed.) (2020). Research Handbook on Human Rights and Business. Edward Elgar.
The role of civil society and human rights defenders in corporate accountability
Birchall, D. (2020). The role of civil society and human rights defenders in corporate accountability. in: Birchall, D. and Deva, S. (ed.) Research Handbook on Human Rights and Business Edward Elgar.
Just a Slap on the Wrist? Parental Corporal Punishment of Children and the Defence of Reasonable Chastisement in Hong Kong
Birchall, D. (2020). Just a Slap on the Wrist? Parental Corporal Punishment of Children and the Defence of Reasonable Chastisement in Hong Kong. Hong Kong Law Journal.
Corporate Power over Human Rights: An Analytical Framework
Birchall, D. (2020). Corporate Power over Human Rights: An Analytical Framework. Business and Human Rights Journal. 6 (1), pp. 42-66. https://doi.org/10.1017/bhj.2020.23
The consequentialism of the UN Guiding Principles on Business and Human Rights: towards the fulfilment of ‘do no harm’
Birchall, D. The consequentialism of the UN Guiding Principles on Business and Human Rights: towards the fulfilment of ‘do no harm’. Electronic Journal of Business Ethics and Organization Studies.
Irremediable impacts and unaccountable contributors: the possibility of a trust fund for victims to remedy large-scale human rights impacts
Birchall, D. (2019). Irremediable impacts and unaccountable contributors: the possibility of a trust fund for victims to remedy large-scale human rights impacts. Australian Journal of Human Rights. 25 (3), pp. 428-447. https://doi.org/10.1080/1323238X.2019.1687191
Any Act, Any Harm, to Anyone: The Transformative Potential of'Human Rights Impacts' under the UN Guiding Principles on Business and Human Rights
Birchall, D. (2019). Any Act, Any Harm, to Anyone: The Transformative Potential of'Human Rights Impacts' under the UN Guiding Principles on Business and Human Rights. University of Oxford Human Rights Hub Journal. 2 (1), pp. 99-121.
Human rights on the altar of the market: the Blackstone letters and the financialisation of housing
Birchall, D. (2019). Human rights on the altar of the market: the Blackstone letters and the financialisation of housing. Transnational Legal Theory. 10 (3-4), pp. 446-471. https://doi.org/10.1080/20414005.2019.1692288