"Time has come for States to act collectively to develop an effective international instrument to ensure that businesses take seriously their human rights responsibilities wherever they operate", the experts observed. "Of paramount importance is the prevention of human rights abuses, which requires domestic legislation mandating the use of tools such as human rights due diligence. The instrument should also strengthen access to remedy for affected individuals and communities and safeguard rights of civil society organisations and environmental and human rights defenders, whose work is critical to corporate accountability."
The UN Guiding Principles on Business and Human Rights expect States to "consider a smart mix of measures – national and international, mandatory and voluntary – to foster business respect for human rights" (Commentary to Principle 3). Negotiating a legally binding international instrument, which builds on the UN Guiding Principles, should thus be seen as part of this "smart mix".
"As the European Commission is set to release the draft of its mandatory human rights and environmental due diligence law, the process to negotiate an international instrument provides an opportunity for States to create a global level field. This instrument could also help in addressing asymmetry created by international trade and investment agreements which confer legal rights on businesses but no corresponding human rights obligations", they continued.
The experts noted that a legally binding instrument adopted at the multilateral level would avoid fragmented approaches to corporate responsibility. The proposed instrument should apply to all business enterprises and cover all internationally recognised human rights. It should adopt a gender perspective and pay special attention to abuses experienced by marginalised or vulnerable individuals and communities.
They reminded States that "no business should be allowed to profit from exploiting workers or exposing them to hazardous chemicals, polluting the environment, exacerbating the climate crisis, or triggering armed conflicts."
The instrument should impose an obligation on States to require business enterprises to conduct meaningful human rights due diligence in line with the UN Guiding Principles. Human rights due diligence should cover all human rights, labour rights and environmental rights to enable enterprises to identify, prevent, mitigate and remediate all business-related adverse impacts on both people and the planet.
"Despite significant uptake of the UN Guiding Principles by States and businesses in the last decade, victims of corporate human rights abuses continue to struggle in securing effective remedies for business-related human rights abuses. This must change urgently. And this instrument could play a vital role in bringing this change", they said.
The proposed instrument should provide for a range of civil, administrative and criminal penalties proportionate to the nature and severity of human rights abuses. It should also facilitate mutual legal assistance and international cooperation, which is especially critical in cases with cross-border or transnational dimensions.
"As scepticism towards economic globalization has reached unprecedented levels, businesses should be co-opted into the fight to humanize globalization", the experts concluded. "Businesses should be required to uphold all human rights, contribute to poverty alleviation, and accelerate the transition to an inclusive and sustainable economy. The proposed instrument is an opportunity to make this shift."
The following UN human rights mandates endorsed this statement: