Updated draft legally binding instrument (clean version) to regulate

Updated draft legally binding instrument (clean version) to regulate, in international

human rights law, the activities of transnational corporations and other business

enterprises

The text is submitted in accordance with paragraph 25 (g) of A/HRC/52/41, and in line

with para paragraph 25 (i), will form the basis for State-led direct substantive

intergovernmental negotiations during the ninth session of the open-ended

intergovernmental working group on transnational corporations and other business

enterprises with respect to human rights.

July 2023

Background

Paragraph 25, literals (f), (g) and (i), of the report on the eighth session of the open-ended intergovernmental

working group on transnational corporations and other business enterprises with respect to human rights

(A/HRC/52/41) stated:

“25. Following the discussions held during the eighth session, and acknowledging the comments and

concrete textual suggestions expressed therein on the third revised draft legally binding instrument to

regulate, in international human rights law, the activities of transnational corporations and other business

enterprises, and also acknowledging the comments and concrete textual suggestions on the informal

suggested Chair proposals for select articles of the legally binding instrument, the Chair-Rapporteur

makes the following recommendations:

… (f) That the Chair-Rapporteur note the concrete textual proposals submitted by intergovernmental

organizations, national human rights institutions, civil society, business organizations, trade unions and

all other relevant stakeholders during the eighth session, for the appropriate consideration in the work

on the draft legally binding instrument during the intersessional period. Those stakeholders will be

consulted by the friends of the Chair and invited to submit written inputs;

(g) That the Chair-Rapporteur update the draft legally binding instrument taking into consideration the

concrete textual proposals and comments submitted by States during the eighth session and the

outcomes of the consultations as reported by the friends of the Chair, and circulate it in a version in

track changes, including by publishing it on the working group’s website, by no later than the end of July

2023;

… (i) That the Chair-Rapporteur promote State-led direct substantive intergovernmental negotiations

during the working group’s ninth session, on the basis of the updated draft legally binding instrument”.

In this context, this document contains an updated draft legally binding instrument, which has been elaborated

during the intersessional period taking into consideration the following materials:

1. The concrete textual proposals and comments submitted by States during the eighth session, which

refer to comments and concrete textual suggestions expressed therein on the third revised draft

legally binding instrument (A/HRC/52/41/Add.1), and to the comments and concrete textual

suggestions on the informal suggested Chair proposals for select articles of the legally binding

instrument (A/HRC/WG.16/8/CRP.2).

2. The concrete textual proposals submitted by all other relevant stakeholders during the eight session

(which can be found here).

3. The compilation of written inputs by stakeholders entitled to speak at the public sessions of the

working group (note verbale of 2 March 2023).

4. The outcomes of the consultations as reported by the friends of the Chair.

More information on the process: https://www.ohchr.org/en/hr-bodies/hrc/wg-trans-corp/igwg-on-tnc

Preamble

The States Parties to this (Legally Binding Instrument),

(PP1) Reaffirming all the principles and purposes set out in the Charter of the United

Nations;

(PP2) Recalling the nine core international human rights treaties adopted by the United

Nations, and the eight fundamental conventions adopted by the International Labour

Organization, as well as other relevant international human rights treaties and conventions

adopted by the United Nations and by the International Labour Organization;

(PP3) Recalling also the Universal Declaration of Human Rights, the Vienna

Declaration and Programme of Action, and all other internationally agreed human rights

Declarations, as well as the 2030 Agenda for Sustainable Development;

(PP4) Reaffirming the fundamental human rights and the dignity and worth of the

human person, in the equal rights of men and women and the need to promote social

progress and better standards of life in larger freedom while respecting the obligations

arising from treaties and other sources of international law, as set out in the Charter of the

United Nations;

(PP5) Reaffirming that all human rights are universal, indivisible, interdependent, inter-

related, and inalienable, and should be applied in a non-discriminatory way;

(PP6) Reaffirming the right of every person to be equal before the law, to equal

protection of the law, and to have effective access to justice and remedy in case of violations

of international human rights law;

(PP7) Stressing that the primary obligation to respect, protect, fulfill and promote

human rights and fundamental freedoms lie with the State, and that States must protect

against human rights abuses by third parties, including business enterprises, and to ensure

respect for and implementation of international human rights law, and to respect and ensure

respect for international humanitarian law in all circumstances;

(PP8) Recalling the United Nations Charter Articles 55 and 56 on international

cooperation, including in particular with regard to universal respect for, and observance of,

human rights and fundamental freedoms for all without distinction of any kind:

(PP9) Recognizing that, in all actions concerning children, including in the context of

business activities, the best interests of the child shall be a primary consideration, and shall

be respected in pursuing remedies for violations of the rights of the child;

(PP10) Acknowledging that all business enterprises have the potential to foster

sustainable development through an increased productivity, inclusive economic growth and

job creation that promote and respect internationally recognized human rights and

fundamental freedoms;

(PP11) Emphasizing that business enterprises play a crucial role in the social and

economic development as well as the implementation of the Agenda 2030 for Sustainable

Development;

(PP12) Underlining that business enterprises, regardless of their size, sector, location,

operational context, ownership and structure have the responsibility to respect

internationally recognized human rights, including by avoiding causing or contributing to

human rights abuses through their own activities and addressing such abuses when they

occur, as well as by preventing human rights abuses or mitigating human rights risks linked

to their operations, products or services by their business relationships;

(PP13) Emphasizing that civil society actors, including human rights defenders, have

an important and legitimate role in promoting the respect of human rights by business

enterprises, and in preventing, mitigating and in seeking effective remedy for business-

related human rights abuses, and that States have the obligation to take all appropriate

measures to ensure an enabling and safe environment for the exercise of such role;

(PP14) Recognizing the distinctive and disproportionate impact of business-related

human rights abuses on women and girls, children, indigenous peoples, persons with

disabilities, people of African descent, older persons, migrants and refugees, and other

persons in vulnerable situation, as well as the need for a business and human rights

perspective that takes into account specific circumstances and vulnerabilities of different

rights-holders and the structural obstacles for obtaining remedies for these persons;

(PP15) Emphasizing the need for States and business enterprises to integrate a

gender perspective in all their measures, in line with the Convention on the Elimination of

All Forms of Discrimination against Women, the Beijing Declaration and Platform for Action,

the ILO Convention 190 concerning the elimination of violence and harassment in the world

of work, the Gender Guidance for the Guiding Principles on Business and Human Rights,

and other relevant international standards;

(PP16) Taking into account the work undertaken by the United Nations Commission

on Human Rights and the Human Rights Council on the question of the responsibilities of

transnational corporations and other business enterprises with respect to human rights, in

particular Resolution 26/9;

(PP17) Recognizing the contribution and complementary role that the United Nations

Guiding Principles on Business and Human Rights: Implementing the United Nations

“Protect, Respect and Remedy” Framework have played in that regard and to advancing

respect for human rights in the business activities;

(PP18) Noting the ILO Declaration on Fundamental Principles and Rights at Work and

the Tripartite Declaration of Principles concerning Multinational Enterprises and Social

Policy;

(PP19) Desiring to clarify and facilitate effective implementation of the obligations of

States regarding business-related human rights abuses and the responsibilities of business

enterprises in that regard;

Have agreed as follows:

Article 1. Definitions

1.1. “Victim” shall mean any person or group of persons who suffered a human rights abuse

in the context of business activities, irrespective of the nationality or domicile of the victim.

The term “victim” may also include the immediate family members or dependents of the

direct victim. A person shall be considered a victim regardless of whether the perpetrator of

the human rights abuse is identified, apprehended, prosecuted, or convicted.

1.2. “Adverse human rights impact” shall mean a harm which corresponds to a reduction

in or removal of a person’s ability to enjoy an internationally recognized human right.

1.3. “Human rights abuse” shall mean any acts or omissions that take place in connection

with business activities and results in an adverse human rights impact..

1.4. “Business activities” means any economic or other activity, including but not limited

to the manufacturing, production, transportation, distribution, commercialization, marketing

and retailing of goods and services, undertaken by a natural or legal person, including State-

owned enterprises, financial institutions and investment funds, transnational corporations,

other business enterprises, joint ventures, and any other business relationship undertaken

by a natural or legal person. This includes activities undertaken by electronic means.

1.5. “Business activities of a transnational character” means any business activity

described in Article 1.4. above, when:

(a) It is undertaken in more than one jurisdiction or State; or

(b) It is undertaken in one State but a significant part of its preparation, planning,

direction, control, design, processing, manufacturing, storage or distribution, takes

place through any business relationship in another State or jurisdiction; or

1.6. “Business relationship” refers to any relationship between natural or legal persons,

including State and non-State entities, to conduct business activities, including those

activities conducted through affiliates, subsidiaries, agents, suppliers, partnerships, joint

venture, beneficial proprietorship, or any other structure or relationship, including throughout

their value chains, as provided under the domestic law of the State, including activities

undertaken by electronic means.

1.7. “Regional integration organization” shall mean an organization constituted by sovereign

States of a given region, to which its member States have transferred competence in respect

of matters governed by this (Legally Binding Instrument). Such organizations shall declare,

in their instruments of formal confirmation or accession, their level of competence in respect

of matters governed by this (Legally Binding Instrument), and they shall subsequently inform

the depositary of any substantial modification to such competence. References to “States

Parties” in the present (Legally Binding Instrument) shall apply to such organizations within

the limits of their competence.

1.8. “Human rights due diligence” shall mean the processes by which business

enterprises identify, prevent, mitigate and account for how they address their adverse

human rights impacts. While these processes will vary in complexity with the size of a

business enterprise, the risk of severe adverse human rights impacts, and the nature and

context of the operations of that business enterprise, these processes will in every case

comprise the following elements:

(a) identifying and assessing any adverse human rights impacts with which the

business enterprise may be involved through its own activities or as a result of its

business relationships;

(b) taking appropriate measures to prevent and mitigate such adverse human rights

impacts;

impacts; and

(d) communicating how the relevant business enterprise addresses such adverse

human rights impacts regularly and in an accessible manner to stakeholders,

particularly to affected and potentially affected persons.

1.9. “Remedy” shall mean the restoration of a victim of a human rights abuse to the position

they would have been had the abuse not occurred, or as nearly as is possible in the

circumstances. An “effective remedy” involves reparations that are adequate, effective, and

prompt; are gender and age responsive; and may draw from a range of forms of remedy

such as restitution, compensation, rehabilitation, satisfaction, such as cessation of abuse,

apologies, and sanctions), as well as and guarantees of non-repetition.

1.10. “Relevant State agencies” means judicial bodies, competent authorities and other

agencies and related services relevant to administrative supervision and enforcement of the

measures referred to in this (Legally Binding Instrument) to address human rights abuse,

and may include courts, law enforcement bodies, regulatory authorities, administrative

supervision bodies, and other State-based non-judicial mechanisms.

Article 2. Statement of Purpose

The purpose of this (Legally Binding Instrument) is:

(a) To clarify and facilitate effective implementation of the obligation of States to

respect, protect, fulfill and promote human rights in the context of business activities,

particularly those of transnational character;

(b) To clarify and ensure respect and fulfillment of the human rights responsibilities of

business enterprises;

activities by effective mechanisms for monitoring, enforceability and accountability;

(d) To ensure access to gender-responsive, child-sensitive and victim-centred justice

and effective, adequate and timely remedy for victims of human rights abuses in the

context of business activities;

(e) To facilitate and strengthen mutual legal assistance and international cooperation

to prevent and mitigate human rights abuses in the context of business activities,

particularly those of transnational character, and provide access to justice and

effective, adequate, and timely remedy for victims.

Article 3. Scope

3.1. This (Legally Binding Instrument) shall apply to all business activities, including

business activities of a transnational character.

3.2. Notwithstanding Article 3.1. above, when imposing prevention obligations on business

enterprises under this (Legally Binding Instrument), States Parties may establish in their law,

a non-discriminatory basis to differentiate how business enterprises discharge these

obligations commensurate with their size, sector, operational context or the severity of

impacts on human rights.

3.3. This (Legally Binding Instrument) shall cover all internationally recognized human rights

and fundamental freedoms binding on the State Parties of this (Legally Binding Instrument).

Article 4. Rights of Victims

4.1. Victims of human rights abuses in the context of business activities shall enjoy all

internationally recognized human rights and fundamental freedoms.

4.2. Without prejudice to Article 4.1. above, victims shall:

(a) be treated with humanity and respect for their dignity and human rights, and their

safety, physical and psychological well-being and privacy shall be ensured;

(b) be guaranteed the right to life, personal integrity, freedom of opinion and

expression, peaceful assembly and association, and free movement;

appropriate and gender-sensitive access to justice, individual or collective reparation

and effective remedy in accordance with this (Legally Binding Instrument) and

international law, such as restitution, compensation, rehabilitation, reparation,

satisfaction, guarantees of non-repetition, injunction, environmental remediation, and

ecological restoration;

(d) be guaranteed the right to submit claims, including by a representative or through

class action in appropriate cases, to courts and non-judicial grievance mechanisms of

the States Parties to this (Legally Binding Instrument);

(e) be protected from any unlawful interference against their privacy, and from

intimidation, and reprisals, before, during and after any proceedings have been

instituted, as well as from re-victimization in the course of proceedings for access to

effective, prompt and adequate remedy, including through appropriate protective and

support services that are gender and age responsive;

(f) be guaranteed access to information, provided in relevant languages and accessible

formats to adults and children alike, including those with disabilities, held by business

enterprises or relevant State agencies, and legal aid relevant to pursue effective

remedy; and

(g) be guaranteed full participation, transparency, and independence in reparation

processes, which take into account the differentiated impacts of human rights abuses

on specific groups of people and respond adequately to these impacts and their

particular needs.

4.3. Nothing in this provision shall be construed to derogate from any higher level of

recognition and protection of any human rights of victims or other individuals under

international, regional, or national law.

4.4. Victims shall have the right to request State Parties, pending the resolution of a case,

to adopt precautionary measures related to urgent situations that present a serious risk of

or an ongoing human rights abuse.

Article 5. Protection of Victims

5.1. States Parties shall protect victims, their representatives, families, and witnesses from

any unlawful interference with their human rights and fundamental freedoms, including prior,

during and after they have instituted any proceedings to seek access to effective, prompt,

and adequate remedy, as well as from re-victimization in the course of these proceedings.

5.2. States Parties shall take adequate and effective measures to guarantee a safe and

enabling environment for persons, groups and organizations that promote and defend

human rights and the environment, so that they are able to exercise their human rights free

from any threat, intimidation, violence, insecurity, harassment, or reprisals.

5.3. States Parties shall investigate human rights abuses covered under this (Legally

Binding Instrument), effectively, promptly, thoroughly, and impartially, and where

appropriate, take action against those natural or legal persons responsible, in accordance

with domestic and international law.

5.4. States Parties, pending the resolution of a case, shall adopt, either ex officio or on

request by the victim, precautionary measures related to urgent situations that present a

serious risk of or an ongoing human rights abuse.

Article 6. Prevention

6.1. States Parties shall regulate effectively the activities of all business enterprises within

their territory, jurisdiction, or otherwise under their control, including transnational

corporations and other business enterprises that undertake activities of a transnational

character.

6.2. State Parties shall adopt appropriate legislative, regulatory, and other measures to:

(a) prevent the involvement of business enterprises in human rights abuse;

(b) ensure respect by business enterprises for internationally recognized human

rights and fundamental freedoms;

(d) promote the active and meaningful participation of individuals and groups, such

as trade unions, civil society, non-governmental organizations, indigenous peoples,

and community-based organizations, in the development and implementation of laws,

policies and other measures to prevent the involvement of business enterprises in

human rights abuse.

6.3. State Parties shall ensure that competent authorities relevant to the implementation of

Article 6.2 have the necessary independence, in accordance with its legal system, to enable

such authorities to carry out their functions effectively and free from any undue influence.

6.4. Measures to achieve the ends referred to in Article 6.2 shall include legally enforceable

requirements for business enterprises to undertake human rights due diligence as well as

such supporting or ancillary measures as may be needed to ensure that business

enterprises while carrying out human rights due diligence:

(a) undertake and publish on a regular basis human rights impact assessments prior

and throughout their operations;

(b) integrate a gender and age perspective, and takes full and proper account of the

differentiated human rights-related risks and adverse human rights impacts

experienced by women and girls;

vulnerability or marginalization;

(d) meaningful consult with potentially affected groups and other relevant

stakeholders;

(e) protect the safety of human rights defenders, journalists, workers, members of

indigenous peoples, among others, as well as those who may be subject to retaliation;

and

(f) insofar as engagement with indigenous peoples takes place, undertake such

process in accordance with the internationally recognized standards of free, prior, and

informed consent.

6.5. Each Party shall take necessary measures to ensure that business enterprises take

appropriate steps to prevent human rights abuse by third parties where the enterprise

controls, manages or supervises the third party, including through the imposition of a legal

duty to prevent such abuse in appropriate cases.

6.6. State Parties shall periodically evaluate the legislative, regulatory, and other measures

referred to in Article 6.2 and with a view to determining their adequacy for meeting the aims

set out in that Article and shall revise and extend such measures as appropriate.

Article 7. Access to Remedy

7.1. States Parties shall provide their relevant State agencies, with the necessary

competence in accordance with this (Legally Binding Instrument) to enable victims’ access

to adequate, timely and effective remedy and access to justice, and to overcome the specific

obstacles which women and groups in vulnerable or marginalized situations face in

accessing such mechanisms and remedies.

7.2. State Parties shall, consistent with its domestic legal and administrative systems:

(a) develop and implement effective policies to promote the accessibility of its

relevant State agencies to victims and their representatives, taking into account the

particular needs and interests of those victims who may be at risk of vulnerability or

marginalization;

(b) progressively reduce the legal, practical, and other relevant obstacles that,

individually or in combination, hinder the ability of a victim from accessing such State

agencies for the purposes of seeking an effective remedy; and

delivery of, effective remedies.

7.3. The policies referred to in Article 7.2 (a) shall address, to the extent applicable to the

State agency in question:

(a) the need to ensure that procedures and facilities for accessing and interacting

with such agencies are responsive to the needs of the people for whose use they are

intended, including by providing appropriate, adequate, and effective legal aid

throughout the legal process;

(b) the need to ensure that victims have ready access to reliable sources of

information, in relevant languages and accessible formats to adults and children alike,

including those with disabilities, for victims and their representatives, about their

human rights, the role and capacity of relevant State agencies in relation to helping

victims obtain an effective remedy, the status of their claims, and appropriate support

to enable them to participate effectively in all relevant processes, including by

facilitating requests for disclosure of relevant information of business-related activities

or relationships linked to a human rights abuse;

victims and business enterprises; and

(d) risks of reprisals against victims and others.

7.4. The measures to achieve the aims set out in Article 7.2 (b) shall include, to the extent

applicable to the State agency in question and necessary to address the obstacle in

question:

(a) reducing the financial burden on victims associated with seeking a remedy, for

instance through the provision of financial assistance, waiving court fees in appropriate

cases, or granting exceptions to claimants in civil litigation from obligations to pay the

costs of other parties at the conclusion of proceedings in recognition of the public

interest involved;

(b) providing support to relevant State agencies responsible for the enforcement of

the measures referred to in Article 6;

reprisals against victims and others;

(d) adopting measures to facilitate the production of evidence, when appropriate and

as applicable, such as the reversal of the burden of proof and the dynamic burden of

proof;

(e) ensuring fair and timely disclosure of evidence relevant to litigation or

enforcement proceedings; and

(f) ensuring that rules of civil procedure provide for the possibility of group actions

in cases arising from allegations of human rights abuse.

7.5. For the purposes of achieving the aims set out in Article 7.2 (c), States shall adopt

such legislative and other measures as may be necessary:

(a) to enhance the ability of relevant State agencies to deliver, or to contribute to the

delivery of, effective remedies;

(b) to ensure that victims are meaningfully consulted by relevant State agencies with

respect to the design and delivery of remedies; and

remedies in cases of human rights abuse and to take appropriate steps to rectify any

non-compliance.

Article 8. Legal Liability

8.1. Each State Party shall adopt such measures as may be necessary to establish a

comprehensive and adequate system of legal liability of legal and natural persons

conducting business activities, within their territory, jurisdiction, or otherwise under their

control, for human rights abuses that may arise from their business activities or relationships,

including those of transnational character.

8.2. Subject to the legal principles of the State Party, the liability of legal and natural

persons referred to in this Article shall be criminal, civil, or administrative, as appropriate to

the circumstances. Each State Party shall ensure, consistent with its domestic legal and

administrative systems, that the type of liability established under this article shall be:

(a) responsive to the needs of victims as regards remedy; and

(b) commensurate to the gravity of the human rights abuse.

8.3. Subject to the legal principles of the State Party, the liability of legal and natural

persons shall be established for:

(a) conspiring to commit human rights abuse; and

(b) aiding, abetting, facilitating, and counselling the commission of human rights

abuse.

8.4. Each State Party shall adopt such measures as may be necessary, and consistent with

its domestic legal and administrative systems, to ensure that, in cases concerning the liability

of legal or natural persons in accordance with this article:

(a) the liability of a legal person is not contingent upon the establishment of liability

of a natural person;

(b) the criminal liability, or its functional equivalent, of a legal or natural person is not

contingent upon the establishment of the civil liability of that person, and vice versa;

and

upon the establishment of the liability of the main perpetrator for that unlawful act.

8.5. Each State Party shall ensure, consistent with its domestic legal and administrative

systems, an appropriate allocation of evidential burdens of proof in judicial and

administrative proceedings that takes account of differences between parties in terms of

access to information and resources, including through the measures referred to in Article

7.4 (d), as appropriate to the circumstances.

8.6. Each State Party shall ensure that legal and natural persons held liable in accordance

with this Article shall be subject to effective, proportionate, and dissuasive penalties or other

sanctions.

Article 9. Jurisdiction

9.1. State Parties shall take such measures as may be necessary to establish its jurisdiction

in respect of human rights abuse in cases where:

(a) the human rights abuse took place, in whole or in part, within the territory or

jurisdiction of that State Party;

(b) the relevant harm was sustained, in whole or in part, within the territory or

jurisdiction of that State Party;

i. a legal person domiciled in the territory or jurisdiction of that State Party; or

ii. a natural person who is a national of, or who has his or her habitual

residence in the territory or jurisdiction of, that State Party; and

(d) a victim seeking remedy through civil law proceedings is a national of, or has his

or her habitual residence in the territory or jurisdiction of, that State Party.

9.2. For the purposes of Article 9.1, a legal person is considered domiciled in any territory

or jurisdiction in which it has its:

(a) place of incorporation or registration;

(b) principal assets or operations;

(d) principal place of business or activity.

9.3. State Parties shall take such measures as may be necessary, and consistent with its

domestic legal and administrative systems, to ensure that decisions by relevant State

agencies relating to the exercise of jurisdiction in the cases referred to in Article 9.1 shall

respect the rights of victims in accordance with Article 4, including with respect to:

(a) the discontinuation of legal proceedings on the grounds that there is another,

more convenient or more appropriate forum with jurisdiction over the matter; or

(b) the coordination of actions as contemplated in Article 9.4.

9.4. If a State Party exercising its jurisdiction under this Article has been notified, or has

otherwise learned, of judicial proceedings taking place in another State Party relating to the

same human rights abuse, or any aspect of such human rights abuse, the relevant State

agencies of each State shall consult one another with a view to coordinating their actions.

Article 10. Statute of limitations

10.1. State Parties shall adopt such measures as may be necessary to ensure that no

limitation period shall apply in relation to the commencement of legal proceedings in relation

to human rights abuses which constitute the most serious crimes of concern to the

international community as a whole, including war crimes, crimes against humanity or crimes

of genocide.

10.2. In legal proceedings regarding human rights abuse not falling within the scope of

Article 10.1, each State Party shall adopt such measures as may be necessary to ensure

that limitation periods for such proceedings:

(a) are of a duration that is appropriate in light of the gravity of the human rights

abuse;

(b) are not unduly restrictive in light of the context and circumstances, including the

location where the relevant human rights abuse took place or where the relevant harm

was sustained, and the length of time needed for relevant harms to be identified; and

Article 4.

Article 11. Applicable Law

11.1. All matters of procedure regarding claims before the competent court which are not

specifically regulated in the (Legally Binding Instrument) shall be governed by the law of that

court seized on the matter.

11.2. All matters of substance which are not specifically regulated under this (Legally Binding

Instrument) may, upon the request of the victim, be governed by the law of another State

where:

(a) the acts or omissions have occurred or produced effects; or

(b) the natural or legal person alleged to have committed the acts or omissions is

domiciled.

Article 12. Mutual Legal Assistance

12.1. States parties shall afford one another the greatest measure of assistance in

connection with criminal, civil and administrative proceedings relevant to the enforcement of

the measures referred to in Articles 6-8, including assistance to expedite requests from

private parties for the transmission and service of documents and for the taking of evidence

in civil proceedings.

12.2. States Parties shall carry out their obligations under Article 12.1 in conformity with any

treaties or other arrangements on mutual legal assistance that may exist between them.

12.3. States Parties shall cooperate closely with one another to enhance the enforcement of

the measures referred to in Articles 6-8. States Parties shall, in particular, take the necessary

steps:

(a) to establish, maintain and enhance channels of communication between their

relevant State agencies and their counterparts in other States Parties in order to

i. facilitate the secure and rapid exchange of information concerning all

aspects of the enforcement of the measures referred to in Articles 6-8, including

for the purposes of the early identification of breaches of such measures; and

ii. share information concerning issues, challenges, and lessons learned

in the prevention of business involvement in human rights abuse, including with

a view to enhancing the effectiveness of competent authorities, agencies and

services; and

(b) to facilitate effective coordination between their relevant State agencies and to

promote the exchange of personnel and other experts, including, subject to bilateral

agreements or arrangements between the States Parties concerned, the posting of

liaison officers.

12.4. For the purposes of meeting their obligations under this article, each State Party shall:

(a) ensure that its relevant State agencies have access to the necessary information,

support, training and resources to enable personnel to make effective use of the

treaties and arrangements referred to in Article 12.2; and

(b) consider entering into or enhancing bilateral or multilateral agreements or

arrangements aimed at improving the ease with which and speed at which

i. requests for mutual legal assistance can be made and responded to;

and

ii. information can be exchanged between relevant State Agencies for

the purposes of enforcement of the measures referred to in Articles 6-8, including

through information repositories that provide clarity on points of contact, core

process requirements and systems for updates on outstanding requests.

Article 13. International Cooperation

13.1. States Parties shall cooperate in good faith to enable the implementation of their

obligations recognized under this (Legally Binding Instrument) and the fulfillment of the

purposes of this (Legally Binding Instrument).

13.2. States Parties recognize the importance of international cooperation, including

financial and technical assistance and capacity building, for the realization of the purpose of

the present (Legally Binding Instrument) and will undertake appropriate and effective

measures in this regard, between and among States and, as appropriate, in partnership with

relevant international and regional organizations and civil society. Such measures include,

but are not limited to:

(a) promoting effective technical cooperation and capacity-building among policy

makers, parliaments, judiciary, national human rights institutions, business enterprises

and operators, as well as users of domestic, regional and international grievance

mechanisms;

(b) sharing experiences, good practices, challenges, information and training

programs on the implementation of the present (Legally Binding Instrument);

abuses and the obligations of States under this (Legally Binding Instrument);

(d) facilitating cooperation in research and studies on the challenges, good practices

and experiences in preventing human rights abuses in the context of business

activities, including those of transnational characters;

(e) contribute, within their available resources, to the International Fund for Victims

referred to in Article 15.7 of this (Legally Binding Instrument).

Article 14. Consistency with International Law

14.1. States Parties shall carry out their obligations under this (Legally Binding Instrument)

in a manner consistent with, and fully respecting, the principles of sovereign equality and

territorial integrity of States.

14.2. Notwithstanding Article 9, nothing in this (Legally Binding Instrument) entitles a State

Party to undertake in the territory of another State the exercise of jurisdiction and

performance of functions that are reserved exclusively for the authorities of that other State’s

jurisdiction.

14.3. Nothing in the present (Legally Binding Instrument) shall affect any provisions in the

domestic legislation of a State Party or in any regional or international treaty or agreement

that is more conducive to the respect, protection, fulfillment and promotion of human rights

in the context of business activities and to guaranteeing the access to justice and effective

remedy to victims of human rights abuses in the context of business activities, including

those of transnational character.

14.4. This (Legally Binding Instrument) shall not affect the rights and obligations of the

States Parties under the rules of general international law with respect to State immunity

and the international responsibility of States. Earlier treaties relating to the same subject

matter as this (Legally Binding Instrument) shall apply only to the extent that their provisions

are compatible with this (Legally Binding Instrument), in accordance with Article 30 of the

Vienna Convention on the Law of Treaties.

14.5. All existing bilateral or multilateral agreements, including regional or sub-regional

agreements, on issues relevant to this (Legally Binding Instrument) and its protocols,

including trade and investment agreements, shall be interpreted and implemented in a

manner that does not undermine or restrict their capacity to fulfill their obligations under this

(Legally Binding Instrument) and its protocols, if any, as well as other relevant human rights

conventions and instruments.

Article 15. Institutional Arrangements

Committee

15.1. There shall be a Committee established in accordance with the following procedures:

(a) The Committee shall consist of, at the time of entry into force of the present (Legally

Binding Instrument), (12) experts. After an additional sixty ratifications or accessions

to the (Legally Binding Instrument), the membership of the Committee shall increase

by six members, attaining a maximum number of (18) members. The members of the

Committee shall serve in their personal capacity and shall be of high moral standing

and recognized competence in the field of human rights, public international law or

other relevant fields.

(b) The experts shall be elected by the States Parties, consideration being given to

equitable geographical distribution, the differences among legal systems, gender and

age balanced representation and ensuring that elected experts are not engaged,

directly or indirectly, in any activity which might adversely affect the purpose of this

(Legally Binding Instrument).

persons nominated by States Parties. They shall be elected for a term of 4 years and

can be re-elected for another term. Each State Party may nominate one person from

among its own nationals.

(d)Elections of the members of the Committee shall be held at the Conference of States

Parties by majority present and voting. At least four months before the date of each

election, the Secretary-General of the United Nations shall address a letter to the

States Parties inviting them to submit their nominations within two months. The

Secretary-General shall prepare a list in alphabetical order of all persons thus

nominated, indicating the State Party which has nominated them, and shall submit it

to the States Parties.

(e) The initial election shall be held no later than six months after the date of the entry

into force of this (Legally Binding Instrument). The term of six of the members elected

at the first election shall expire at the end of two years; immediately after the first

election, the names of these six members shall be chosen by lot by the chairperson of

the meeting referred to in this Article.

(f) If a member of the Committee dies or resigns or for any other cause can no longer

perform his or her Committee duties, the State Party which nominated him or her shall

appoint another expert from among its nationals to serve for the remainder of his or

her term, subject to the approval of the majority of the States Parties.

(g) The Committee shall establish its own rules of procedure and elect its officers for a

term of two years. They may be re-elected.

(h) The Secretary-General of the United Nations shall provide the necessary staff and

facilities for the effective performance of the functions of the Committee under this

(Legally Binding Instrument). The Secretary-General of the United Nations shall

convene the initial meeting of the Committee. After its initial meeting, the Committee

shall meet at such times as shall be provided in its rules of procedure.

(i) With the approval of the General Assembly, the members of the Committee

established under the present (Legally Binding Instrument) shall receive emoluments

from United Nations resources on such terms and conditions as the Assembly may

decide through the established procedures.

15.2. States Parties shall submit to the Committee, through the Secretary-General of the

United Nations, reports on the measures they have taken to give effect to their undertakings

under this (Legally Binding Instrument), within one year after the entry into force of the

(Legally Binding Instrument) for the State Party concerned. Thereafter the States Parties

shall submit supplementary reports every four years on any new measures taken and such

other reports as the Committee may request.

15.3. The Secretary-General of the United Nations shall transmit the reports to all States

Parties.

15.4. The Committee shall have the following functions:

(a) Make general comments and normative recommendations on the understanding

and implementation of the (Legally Binding Instrument) based on the examination of

reports and information received from the States Parties and other stakeholders;

(b) Consider and provide concluding observations and recommendations on reports

submitted by States Parties as it may consider appropriate and forward these to the

State Party concerned that may respond with any observations it chooses to the

Committee. The Committee may, at its discretion, decide to include these suggestions

and general recommendations in the report of the Committee together with comments,

if any, from States Parties;

information required for the implementation of the provisions of the (Legally Binding

Instrument);

(d) Submit an annual report on its activities under this (Legally Binding Instrument) to

the States Parties and to the General Assembly of the United Nations;

(e) The Committee may recommend to the General Assembly to request the Secretary-

General to undertake on its behalf studies on specific issues relating to the present

(Legally Binding Instrument).

Conference of States Parties

15.5. The States Parties shall meet regularly in a Conference of States Parties in order to

consider any matter with regard to the implementation of the (Legally Binding Instrument),

including any further development needed towards fulfilling its purposes.

15.6. No later than six months after the entry into force of the present (Legally Binding

Instrument), the Conference of the States Parties shall be convened by the Secretary-

General of the United Nations. The subsequent meetings shall be convened by the

Secretary-General of the United Nations biennially or upon the decision of the Conference

of States Parties.

International Fund for Victims

15.7. States Parties shall establish an International Fund for Victims covered under this

(Legally Binding Instrument), to provide legal and financial aid to victims, taking into account

the additional barriers faced by women, children, persons with disabilities, Indigenous

peoples, migrants, refugees, internally displaced persons, and other vulnerable or

marginalized persons or groups in seeking access to remedies. This Fund shall be

established at most after (X) years of the entry into force of this (Legally Binding Instrument).

The Conference of States Parties shall define and establish the relevant provisions for the

functioning of the Fund.

Article 16. Implementation

16.1. States Parties shall take all necessary legislative, administrative or other action

including the establishment of adequate monitoring mechanisms to ensure effective

implementation of this (Legally Binding Instrument).

16.2. Each State Party shall furnish copies (including in electronic form or online links) of its

laws and regulations that give effect to this (Legally Binding Instrument) and of any

subsequent changes to such laws and regulations or a description thereof, within [6 months]

of their enactment, to the Secretary-General of the United Nations, which shall be made

publicly available.

16.3. Special attention shall be undertaken in the cases of business activities in conflict-

affected areas including taking action to identify, prevent and mitigate the human rights-

related risks of these activities and business relationships and to assess and address the

heightened risks of abuses, paying special attention to both gender-based and sexual

violence, the use of child soldiers and the worst forms of child labour, including forced and

hazardous child labour.

16.4. In implementing this (Legally Binding Instrument), States Parties shall address the

specific impacts of business activities on while giving special attention to those facing

heightened risks of human rights abuse within the context of business activities, such as,

but not limited to, women, children, persons with disabilities, indigenous peoples, people of

African descent, older persons, migrants, refugees and internal displaced persons.

16.5. The application and interpretation of these Articles shall be consistent with

international law, including international human rights law and international humanitarian

law, and shall be without any discrimination of any kind or on any ground, without exception.

16.6. In implementing this Legally Binding Instrument, State Parties shall protect public

policies and decision making spaces from undue political influence by businesses.

Article 17. Relations with Protocols

17.1. This (Legally Binding Instrument) may be supplemented by one or more protocols.

17.2. In order to become a Party to a protocol, a State or a regional integration organization

must also be a Party to this (Legally Binding Instrument).

17.3. A State Party to this (Legally Binding Instrument) is not bound by a protocol unless it

becomes a Party to the protocol in accordance with the provisions thereof.

17.4. Any protocol to this (Legally Binding Instrument) shall be interpreted together with this

(Legally Binding Instrument), taking into account the purpose of that protocol.

Article 18. Settlement of Disputes

18.1. If a dispute arises between two or more States Parties about the interpretation or

application of this (Legally Binding Instrument), they shall seek a solution by negotiation or

by any other means of dispute settlement acceptable to the parties to the dispute.

18.2. When signing, ratifying, accepting, approving or acceding to this (Legally Binding

Instrument), or at any time thereafter, a State Party may declare in writing to the Depositary

that, for a dispute not resolved in accordance with paragraph 1 of this article, it accepts one

or both of the following means of dispute settlement as compulsory in relation to any State

Party accepting the same obligation:

(a) Submission of the dispute to the International Court of Justice;

(b) Arbitration in accordance with the procedure and organization mutually agreed by

both States Parties.

18.3. If the States Parties to the dispute have accepted both means of dispute settlement

referred to in paragraph 2 of this article, the dispute may be submitted only to the

International Court of Justice, unless the States Parties agree otherwise.

Article 19. Signature, Ratification, Acceptance, Approval and Accession

19.1. The present (Legally Binding Instrument) shall be open for signature by all States and

by regional integration organizations at United Nations Headquarters in New York as of

(date).

19.2. The present (Legally Binding Instrument) shall be subject to ratification, acceptance or

approval by signatory States and to formal confirmation by signatory regional integration

organizations. It shall be open for accession by any State or regional integration organization

which has not signed the (Legally Binding Instrument).

19.3. This (Legally Binding Instrument) shall apply to regional integration organizations

within the limits of their competence; subsequently they shall inform the depositary of any

substantial modification in the extent of their competence. Such organizations may exercise

their right to vote in the Conference of States Parties with a number of votes equal to the

number of their member States that are Parties to this (Legally Binding Instrument). Such

right to vote shall not be exercised if any of its member States exercises its right, and vice

versa.

Article 20. Entry into Force

20.1. The present (Legally Binding Instrument) shall enter into force on the thirtieth day after

the deposit of the [---] instrument of ratification or accession.

20.2. For each State or regional integration organization ratifying, formally confirming or

acceding to the (Legally Binding Instrument) after the deposit of the [---] such instrument,

the (Legally Binding Instrument) shall enter into force on the thirtieth day after the deposit of

its own such instrument.

Article 21. Amendments

21.1. Any State Party may propose an amendment to the present (Legally Binding

Instrument) and submit it to the Secretary-General of the United Nations. The Secretary-

General shall communicate any proposed amendments to States Parties, with a request to

be notified whether they favour a conference of States Parties for the purpose of considering

and deciding upon the proposals. In the event that, within four months from the date of such

communication, at least one-third of the States Parties favour such a conference, the

Secretary-General shall convene the conference under the auspices of the United Nations.

Any amendment adopted by a majority of two-thirds of the States Parties present and voting

in the Conference of the States Parties shall be submitted by the Secretary-General to all

States Parties for acceptance.

21.2. An amendment adopted and approved in accordance with this Article shall enter into

force on the thirtieth day after the number of instruments of acceptance deposited reaches

two-thirds of the number of States Parties at the date of adoption of the amendment.

Thereafter, the amendment shall enter into force for any State Party on the thirtieth day

following the deposit of its own instrument of acceptance. An amendment shall be binding

only on those States Parties which have accepted it.

21.3. If so decided by the Conference of States Parties by consensus, an amendment

adopted and approved in accordance with this Article which relates exclusively to the

establishment of the Committee or its functions, and the Conference of States Parties shall

enter into force for all States Parties on the thirtieth day after the number of instruments of

acceptance deposited reaches two-thirds of the number of States Parties at the date of

adoption of the amendment.

Article 22. Reservations

22.1. Reservations incompatible with the object and purpose of the present (Legally Binding

Instrument) shall not be permitted.

22.2. Reservations may be withdrawn at any time.

Article 23. Denunciation

A State Party may denounce the present (Legally Binding Instrument) by written notification

to the Secretary-General of the United Nations. The denunciation shall become effective

one year after the date of receipt of the notification by the Secretary-General.

Article 24. Depositary and Languages

24.1. The Secretary-General of the United Nations shall be the depositary of the present

(Legally Binding Instrument).

24.2. The Arabic, Chinese, English, French, Russian and Spanish texts of the present

(Legally Binding Instrument) shall be equally authentic.

In witness thereof the undersigned plenipotentiaries, being duly authorized thereto by

their respective Governments, have signed the present (Legally Binding Instrument):