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Towards a Legally Binding Instrument

Efforts to elaborate an international legally binding human rights and business instrument have been renewed with the establishment in 2014 of an open-ended intergovernmental working group ‘whose mandate is to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of Transnational Corporations and Other Business Enterprises’.79

So far, the actual contents of such an instrument has been the subject of much debate.80 Ruggie himself has suggested that it is necessary to start looking into gross human rights abuses.81 One avenue could be an extension of international criminal jurisdiction to include legal persons as perpetrators of (or complicit in) international crimes through the introduction of a new treaty or the extension of ICC jurisdiction. Another option could be to look into linking non-binding and binding elements found in the UNGPs and to work towards the creation of an obligation for the state to regulate the activities of business enterprises, for example through compulsory due diligence and reporting procedures for some or all business enterprises. Finally, a few proposals have been made towards strengthening the legal obligations of states and business enterprises, such as a creating international human rights remedies that would target business enterprises, 82 or imposing an obligation on states to create a duty of care for parent companies via a new international legally binding instrument on human rights and business.83 the Court left the door open for extraterritorial human rights claims against Canadian corporations in Quebec courts. The Quebec Court of Appeal ultimately overturned that decision and dismissed the case but not on the grounds of lack of jurisdiction. See also the judgment against Royal Dutch Shell and its subsidiary SPDC, District Court of The Hague, 30 Jan. 2013. Even in the USA, Circuits Court judgments have looked into whether claims had a sufficient link to the US territory in order to determine whether or not the presumption against extraterritorial application of the ATS could be displaced. When the alleged violations concerned conduct that occurred entirely abroad (the claim does not affect or concern the US territory), the presumption against extraterritorial application cannot be lifted, Al Shimari et al. v. CACIPremier Tech., Inc., 2014 WL 2922840 (4th Cir. 30 June 30 2014); Cardona et al. v. Chiquita Brands International, No. 12-14898 (11th Cir. 24 July 2014), J. Martin dissenting.

  • 79 Establishment by the HRC in June 2014 of an open-ended intergovernmental working group to elaborate an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, HRC Resolution L.22, A/HRC/26/L.22/Rev.1.
  • 80 An account of the difficulties that surrounded the adoption of the resolution can be found at .
  • 81 Issue Brief by J. Ruggie, A UN Business and Human Rights Treaty? Harvard Kennedy School, 28 Jan. 2014.
  • 82 M. Nowak, ‘The Need for a World Court of Human Rights’, Human Rights Law Review vol. 7
  • (2007): 251-9.
  • 83 As advocated by Amnesty International, Injustice Incorporated: Corporate Abuses and the Human Right to Remedy (Amnesty International, 2014), 202.

In any case, the elaboration and negotiation of such a legally binding instrument, albeit with only a very narrow scope, will not be an easy road to travel.

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