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*Columbia FDI Perspectives*
Perspectives on topical foreign direct investment issues
No. 255  July 1, 2019
Editor-in-Chief: Karl P. Sauvant ([log in to unmask])
Managing Editor: Alexa Busser ([log in to unmask])
*A **legally binding instrument on business and human rights to advance
accountability and access to justice*
* <#m_9000946881006022611__edn1>
Kinda Mohamadieh** <#m_9000946881006022611__edn2>

In October 2018, an open-ended inter-governmental working group (under the
United Nations Human Rights Council) undertook the first reading of the zero
of a “legally binding instrument to regulate, in international human rights
law, the activities of transnational corporations and other business
enterprises.” The effort is led by Ecuador and South Africa, and an
increasing number of states attend the annual sessions, although many
developed countries still do not participate. A revised version of the
draft is expected in June 2019, to be discussed at the working group’s
October 2019 session.

International human rights law, including the International Covenants on Civil
and Political Rights
as well as Economic, Social and Cultural Rights
already imposes due diligence obligations on states to protect against
human rights abuse by third parties, including enterprises, within their
jurisdiction, such as the obligation to “prevent, punish, investigate or
redress the harm caused by private persons or entities.”[1]
<#m_9000946881006022611__edn3> Where domestic legal and institutional
frameworks fall short of these obligations, they ought to be developed.
Yet, states often face challenges in holding transnational businesses,
operating through subsidiaries and/or supply chains, accountable, given
their ability to escape liability based on jurisdictional grounds.

The draft seeks to address such challenges. It requires measures to prevent
human rights violations within the context of “business activities of a
transnational character” that “take place or involve actions, persons or
impact in two or more national jurisdictions.”[2]
<#m_9000946881006022611__edn4> There are suggestions to expand the scope of
the instrument to “all business enterprises.” Given that it would seek to
garner international cooperation and mutual assistance to address cases
where unilateral action by states is insufficient, the proposed approach,
which consists of focusing on such cases while not excluding domestic
enterprises that have transnational linkages, is relevant. For greater
certainty, negotiating parties could specify that the instrument does not
exclude national or state-owned entities.

The draft includes due diligence obligations for enterprises covering “the
activities of [their] subsidiaries and that of entities under [their]
direct or indirect control or directly linked to their operations, products
or services” (article 9). While the Ecuadorian drafters presented these
requirements as building on the approach in the Guiding Principles on
Business and Human Rights
critics have pointed out that the draft might be diluting the Guiding
Principles. Generally, it is crucial that the instrument incorporates a
broad notion of human rights due diligence, which covers companies’
subsidiaries and entities within their supply chains. Failure to comply
with due diligence requirements should trigger commensurate liability and

To facilitate victims’ access to courts, the draft vests jurisdiction in
the courts where the violation took place, or where the involved enterprise
has “its statutory seat, or central administration, or substantial business
interest, or subsidiary, agency, instrumentality, branch, representative
office or the like” (articles 5.1 and 5.2). Some have foreseen parallel
proceedings. This risk could be addressed through procedural rules, such as
adapted fork-in-the-road provisions, while guarding an approach empowering

The relationship between the states’ commitments under the instrument and
those under trade and investment agreements garners attention too,
including whether the instrument could establish the primacy of human
rights law over trade and investment law. The instrument could set forth
standards for organizing the interface between these bodies of law, so that
trade and investment agreements are not negotiated or interpreted in a
manner conflicting or inconsistent with states’ human rights obligations.

The draft reinforces rights of victims to information and legal assistance
pertaining to administrative and other costs (article 8). It clarifies
standards of liability under administrative, civil and criminal laws
(article 10) and advances criminal liability for legal persons and links
civil liability of parent companies to that of subsidiaries and entities in
supply chains (article 10.6).

The draft includes a provision on mutual legal assistance among states, in
“investigations, prosecutions and judicial proceedings” and recognition and
enforcement of judgments (article 11). Another provision recognizes “the
importance of international cooperation […] for the realization of the
purpose of the […] Convention” (article 12). The draft also provides for a
Committee of experts at the international level to monitor states’
implementation and compliance (article 14). A draft optional protocol
expands the competence of the Committee to “receiv[ing] and consider[ing]
communications from or on behalf of individuals or group of individuals.”[3]

Other issues have been raised for discussion, including the scope of rights
covered by the instrument, the protection of human rights defenders, the
opportunity to impose direct obligations on businesses, and an
international court on business and human rights.

An instrument that advances the prevention of human rights abuses and
addresses procedural and jurisdictional barriers to legal action against
transnational businesses will strengthen international law in response to
changes in transnational business conduct. For example, if victims face a
defunct subsidiary, such an instrument could facilitate access to justice
and remedy before the courts of the parent company’s home state. It will
also offer companies further clarity on regulatory requirements.

* <#m_9000946881006022611__ednref1> *The Columbia FDI Perspectives are a
forum for public debate. The views expressed by the author(s) do not
reflect the opinions of CCSI or Columbia University or our partners and
supporters. Columbia FDI Perspectives (ISSN 2158-3579) is a peer-reviewed
** <#m_9000946881006022611__ednref2> Kinda Mohamadieh (
[log in to unmask]) was a senior researcher at the South Centre in
Geneva, Switzerland at the time of writing. The author is grateful to
Carlos Correa for his feedback and to Surya Deva, Harris Gleckman and
Carlos Lopez for their helpful peer reviews.
[1] <#m_9000946881006022611__ednref3> United Nations Human Rights
Committee, “International covenant on civil and political rights, General
Comment No. 31,” *CCPR/C/21/Rev.1/Add. 13* (2004), para. 8
[2] <#m_9000946881006022611__ednref4> *Ibid.*, article 4.2.
[3] <#m_9000946881006022611__ednref5> See also draft optional protocol
*The material in this Perspective may be reprinted if accompanied by the
following acknowledgment: “Kinda Mohamadieh, ‘A legally binding instrument
on business and human rights to advance accountability and access to
justice,’ Columbia FDI Perspectives, No. 255, July 1, 2019. Reprinted with
permission from the Columbia Center on Sustainable Investment (*
A copy should kindly be sent to the Columbia Center on Sustainable
Investment at **[log in to unmask]* <[log in to unmask]>*.*

For further information, including information regarding submission to the
*Perspectives*, please contact: Columbia Center on Sustainable Investment,
Alexa Busser, [log in to unmask]

*Most recent Columbia FDI Perspectives*

   - No. 254, Marion A. Creach, “Assessing the legality of
   data-localization requirements: Before the tribunals or at the negotiating
   table?,” June 15, 2019
   - No. 253, Frank J. Garcia and Kirrin Hough, “The case against third
   party funding in investment arbitration,” June 3, 2019
   - No. 252, Adam Douglas, “Will the United States join the Trans-Pacific
   Partnership, the Comprehensive and Progressive Agreement for Trans-Pacific
   Partnership, or neither?,” May 20, 2019

*All previous FDI Perspectives are available at *
*. *

*Other relevant CCSI news and announcements*

   - CCSI announces a call for papers for the 2019 edition of the *Yearbook
   on International Investment Law and Policy*. *For details, please see
   our website here
   - CCSI recently published two working papers: Human Rights Law and the
   Investment Treaty Regime
   overview of the interaction between human rights law and the investment
   treaty regime;.and The Policy Implications of Third Party Funding in
   Investor-State Dispute Settlement
   which CCSI analyzes underexplored yet critical policy issues surrounding
   the use of third-party funding in ISDS.
   - *On September 27, 2019*, CCSI, the Sabin Center for Climate Change
   Law, Landesa, and Wake Forest Law School will be hosting a day-long
   conference on the intersection between land use, the climate crisis and
   clean energy transition, and human rights. *For more information, and to
   register, please see our website here

Karl P. Sauvant, Ph.D.
Resident Senior Fellow
Columbia Center on Sustainable Investment
Columbia Law School - Earth Institute
Ph: (212) 854-0689
Fax: (212) 854-7946
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*Karl P. Sauvant, PhD*

*Resident Senior Fellow*
*Columbia Center on Sustainable Investment*
Columbia Law School - The Earth Institute, Columbia University
435 West 116th St., Rm. JGH 825, New York, NY 10027
| p: (212) 854 0689 | cell: (646) 724 5600 e: [log in to unmask]
| w: | t: @CCSI_Columbia

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