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

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.