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Developing a Business and Human Rights Treaty: Lessons from the Deep Seabed Mining Regime Under the United Nations Convention on the Law of the Sea

Published online by Cambridge University Press:  18 May 2020

Nadia BERNAZ Open the ORCID record for Nadia BERNAZ [Opens in a new window]  and
Irene PIETROPAOLI Open the ORCID record for Irene PIETROPAOLI [Opens in a new window]
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Abstract

This article delves into the deep seabed mining regime under the United Nations Convention on the Law of the Sea (UNCLOS) with a view to inform the negotiating process of the proposed business and human rights (BHR) treaty. It highlights points of convergence and divergence between the two regulatory regimes and explores how the BHR treaty negotiations could draw from the deep seabed mining regime with regard to the responsibility and liability of states and corporations. In particular, it suggests that a BHR treaty could incorporate some of the arrangements of UNCLOS to address state obligations and direct corporate human rights obligations, both of a general and specific nature, including the obligation to carry out human rights due diligence. The article also proposes a mechanism of responsibility and liability of states and corporations under the future BHR treaty going beyond UNCLOS and embracing residual liability for home and/or host states.

Keywords

business and human rights treatydirect obligationshuman rights due diligenceliabilityUNCLOS
Type
Scholarly Article
Information
Business and Human Rights Journal , Volume 5 , Issue 2 , July 2020 , pp. 200 - 220
Copyright
© The Author(s), 2020. Published by Cambridge University Press

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Footnotes

*

Associate Professor, Law Group, Wageningen University, The Netherlands. Nadia Bernaz declares no conflicts of interest.

**

Research Fellow, British Institute of International and Comparative Law, UK. Irene Pietropaoli declares no conflicts of interest.

References

1 UN Human Rights Council (UN HRC), ‘Elaboration of an International Legally Binding Instrument on Transnational Corporations and Other Business Enterprises With Respect to Human Rights’, UN Doc A/HRC/RES/26/9 (2014), para 1.

2 UN HRC, ‘Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises With Respect to Human Rights’, http://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Pages/IGWGOnTNC.aspx (accessed 14 March 2020).

3 In this article, the terms companies, corporations and businesses are used interchangeably.

4 OECD, OECD Guidelines for Multinational Enterprises (OECD, 2011).

5 UN HRC, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’, A/HRC/17/31 (21 March 2011).

6 See, e.g., ‘Joint Civil Society Statement on the Draft Guiding Principles on Business and Human Rights’ (2011), http://www.fidh.org/IMG/pdf/Joint_CSO_Statement_on_GPs.pdf (accessed 18 March 2020); Salil Shetty, ‘Corporations Have Rights. Now We Need a Global Treaty on their Responsibility’, The Guardian (21 January 2015), https://www.theguardian.com/global-development-professionals-network/2015/jan/21/corporations-abuse-rights-international-law (accessed 18 March 2020). See also Bernaz, Nadia and Pietropaoli, Irene, ‘The Role of Non-Governmental Organisations in the Business and Human Rights Treaty Negotiations’ (2017) 9:2 Journal of Human Rights Practice 287CrossRefGoogle Scholar.

7 Bilchitz, David, ‘The Necessity for a Business and Human Rights Treaty’ (2016) 1:2 Business and Human Rights Journal 203CrossRefGoogle Scholar, 209: ‘It seems fundamentally unfair that the primary agent which is responsible for a harm is not capable of being held to account: only a treaty has the authority to shift this situation within international fora by recognizing expressly the fact that corporations are bound by international law in this regard’.

8 Surya Deva, ‘The Zero Draft of the Proposed Business and Human Rights Treaty, Part I: The Beginning of an End?’, https://www.business-humanrights.org/en/the-zero-draft-of-the-proposed-business-and-human-rights-treaty-part-i-the-beginning-of-an-end (accessed 18 March 2020).

9 Ibid.

10 Ibid.

11 The commentary of Principle 11 of the UNGPs states that ‘[t]he responsibility to respect human rights is a global standard of expected conduct’ that ‘exists over and above compliance with national laws and regulations protecting human rights’.

12 Bilchitz (2016), note 7, 207.

13 See, e.g., McConnell, Lee, ‘Assessing the Feasibility of a Business and Human Rights Treaty’ (2017) 66 International and Comparative Law Quarterly 143CrossRefGoogle Scholar.

14 UN Office of the High Commissioner for Human Rights (OHCHR), ‘Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises, Zero Draft’ (16 July 2018), https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/Session3/DraftLBI.pdf (accessed 18 March 2020) (Zero Draft).

15 OHCHR, ‘Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises, Revised Draft’ (16 July 2019), https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/OEIGWG_RevisedDraft_LBI.pdf (accessed 18 March 2020) (Revised Draft).

16 UN Convention on the Law of the Sea, 1833 UNTS 3 (10 December 1982) (UNCLOS).

17 Ibid, art 1.

18 Oda, Shigeru, Fifty Years of the Law of the Sea (The Hague: Kluwer Law International, 2003)Google Scholar; Barrett, Jill and Barnes, Richard (eds.), Law of the Sea: UNCLOS as a Living Treaty (London: British Institute of International and Comparative Law, 2016)Google Scholar.

19 ‘A Constitution for the Ocean’, remarks by Tommy TB Koh, President of the Third United Nations on the Law of the Sea, https://www.un.org/depts/los/convention_agreements/texts/koh_english.pdf (accessed 18 March 2020).

20 Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements, http://www.un.org/depts/los/reference_files/chronological_lists_of_ratifications.htm (accessed 18 March 2020).

21 UNCLOS, note 16, art 1(1).

22 Ibid, art 189.

23 Ibid, art 87.

24 Ibid, art 136.

25 Ibid, art 137(1). Under Article 133 (Part XI), ‘(a) “resources” means all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules; (b) resources, when recovered from the Area, are referred to as “minerals”’.

26 UN Division for Ocean Affairs and the Law of the Sea, ‘The United Nations Convention on the Law of the Sea (A Historical Perspective)’, http://www.un.org/depts/los/convention_agreements/convention_historical_perspective.htm (accessed 18 March 2020).

27 Ibid. See also Miller, Kathryn et al, ‘An Overview of Seabed Mining Including the Current State of Development, Environmental Impacts, and Knowledge Gaps’ (2018) 4:418 Frontiers Marine Science 1CrossRefGoogle Scholar.

28 Miller (2018), note 27. See also Hein, James R et al, ‘Deep-Ocean Mineral Deposits as a Source of Critical Metals for High- and Green-Technology Applications: Comparison with Land-based Resources’ (2013) 51 Ore Geology Reviews 1, 8–9CrossRefGoogle Scholar.

29 Julie Hunter, Pradeep Singh and Julian Aguon, ‘Broadening Common Heritage: Addressing Gaps in the Deep Sea Mining Regulatory Regime’ (2018) Harvard Law Development https://harvardelr.com/2018/04/16/broadening-common-heritage/ (accessed 18 March 2020).

30 See, e.g., Brian Clark Howard, ‘The Ocean Could Be the New Gold Rush’, National Geographic (13 July 2016), https://perma.cc/JW9A-DJEZ (accessed 18 March 2020); Rebecca Trager, ‘Countries Poised to Roll Out Deep Sea Mining in New “Gold Rush”’, Chemistry World (7 March 2017), https://perma.cc/UM66-7TA6 (accessed 18 March 2020).

31 UNCLOS, note 16, art 156.

32 Ibid, art 153.

33 Ibid, arts 158 and 170.

34 Evriviades, Euripides, ‘The Third World’s Approach to the Deep Seabed’ (1982) 11 Ocean Development & International Law 201CrossRefGoogle Scholar, 215. See also Centre for Oceans Law and Policy, University of Virginia, United Nations on the Law of the Sea 1982: A Commentary (The Hague: Martinus Nijhoff, 1985) vol I, xxviii.

35 White House Factsheet, ‘US Policy and the Law of the Sea’ (1982) 82 Department of State Bulletin 54–55Google Scholar.

36 Williamson, Edwin D, ‘The Controversial Part XI’ (2008) 12 Texas Review of Law and Policy 443Google Scholar. See also Sohn, Louis B, ‘The Law of the Sea Crisis’ (1984) 58 St John’s Law Review 2Google Scholar; Sanger, Clyde, Ordering the Oceans: The Making of the Law of the Sea (Toronto: University of Toronto Press, 1987)Google Scholar.

37 Vitzthum, Wolfgang Graf, ‘Sea-Bed and Subsoil’ (2000) IV Encyclopedia of Public International Law 334Google Scholar.

38 Agreement relating to the Implementation of Part XI of the United Nations Convention of the Law of the Sea of 10 December 1982 (28 July 1994), 1836 UNTS 3 (1994 Agreement).

39 See Rattray, Keneth, ‘Resolution and Agreement Relating to the Implementation of Part XI of the UN Convention on the Law of the Sea: A General Assessment – Comment’ (1995) 55 Eitschrift Fur Auslandisches Offentliches Recht Und Völkerrecht 303Google Scholar.

40 For example, France, the United Kingdom, Japan, Italy, Germany, the Netherlands, Ireland, Norway and Spain. Ibid, 306.

41 Hunter, Singh and Aguon (2018), note 29.

42 UNCLOS, note 16, arts 55 and 57.

43 Beaulieu, Stace, Graedel, TE and Hannington, Mark D, ‘Should We Mine the Deep Sea Floor?’ (2017) 5 Earth’s Future 655CrossRefGoogle Scholar, https://perma.cc/56LS-DPZ2 (accessed 18 March 2020).

44 Nautilus Minerals Inc., ‘Management’s Discussion and Analysis of Financial Condition and Results of Operations’ (2017) 10, https://perma.cc/M2LK-MN2Y (accessed 18 March 2020); Nasdaq GlobeNewswire, ‘Nautilus Provides Project Update’ (12 October 2017), https://perma.cc/7ACK-XCCM (accessed 18 March 2020).

45 Ben Doerthy, ‘Collapse of PNG Deep-Sea Mining Venture Sparks Calls for Moratorium’, The Guardian (15 September 2019), https://www.theguardian.com/world/2019/sep/16/collapse-of-png-deep-sea-mining-venture-sparks-calls-for-moratorium (accessed 18 March 2020).

46 Ibid.

47 ‘Japan Successfully Undertakes Large-Scale Deep-Sea Mineral Extraction’, Japan Times (26 September 2017), https://perma.cc/9JRK-EEUZ (accessed 18 March 2020); ‘Japan Just Mined the Ocean Floor and People Want Answers’, CBC Radio (14 October 2017), https://perma.cc/B6PP-SLAM (accessed 18 March 2020).

48 See, e.g., Secretariat of the Pacific Community, ‘Pacific-ACP States Regional Legislative and Regulatory Framework for Deep Sea Minerals Exploration and Exploitation’ (2012), https://perma.cc/G594-VAAN (accessed 18 March 2020); Secretariat of the Pacific Community, ‘Achievements of the SPC-EU Deep Sea Minerals Project: Strengthening the Management of Deep Sea Minerals in the Pacific’ (2014), 1–2, https://perma.cc/6LTE-77B9 (accessed 18 March 2020); Secretariat of the Pacific Community, ‘SPC-EU Deep Sea Minerals Project Response to the ISA Stakeholder Engagement Survey on Developing a Regulatory Framework for Mineral Exploitation in the Area’ (16 May 2014) 1, https://perma.cc/EH6B-V6PA (accessed 18 March 2020).

49 Cecilia Jamasmie, ‘World’s First Seabed Gold, Copper, Silver Mine to Begin Production in 2019’, Mining.com (24 March 2017), http://www.mining.com/worlds-first-seabed-mine-to-begin-production-in-2019/ (accessed 18 March 2020).

50 Damian Carrington, ‘Is Deep Sea Mining Vital for a Greener Future – Even if it Destroys Ecosystems’, The Observer (4 June 2017); Hunter, Singh and Aguon (2018), note 29; Ben Doherty, ‘Deep-Sea Mining Possibly as Damaging as Land Mining, Lawyers Says’, The Guardian (18 April 2018); Matthew Taylor, ‘Deep-Sea Mining to Turn Oceans into “New Industrial Frontier”’, The Guardian (3 July 2019), https://www.theguardian.com/environment/2019/jul/03/deep-sea-mining-to-turn-oceans-into-new-industrial-frontier (accessed 18 March 2020); Greenpeace International, In Deep Water (3 July 2019), https://www.greenpeace.org/international/publication/22578/deep-sea-mining-in-deep-water/ (accessed 18 March 2020); Deep Sea Mining Campaign, London Mining Network, Mining Watch Canada, ‘Why the Rush? Seabed Mining in the Pacific Ocean’ (July 2019), http://www.deepseaminingoutofourdepth.org/wp-content/uploads/Why-the-Rush.pdf (accessed 18 March 2020).

51 UNCLOS, note 16, art 153(2)(b).

52 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 610 UNTS 205 (27 January 1967), art VI.

53 Ibid.

54 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1363 UNTS 21 (11 July 1984), art 14.

55 Convention on International Liability for Damage Caused by Space Objects, 961 UNTS 187 (1 September 1972), art II.

56 Convention on Civil Liability for Oil Pollution Damage, 973 UNTS 3 (1 November 2003), art III.

57 Revised Draft, note 15, art 3.

58 Walter, Christian, ‘Subjects of International Law’ in Wolfrum, Rüdiger (ed), Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2007), 6Google Scholar.

59 Vienna Convention on the Law of the Treaties, 1155 UNTS 331 (27 January 1980), art 2(1)(g) and 26.

60 This vast literature includes: Jägers, Nicola, Corporate Human Rights Obligations: In Search of Accountability (Antwerp: Intersentia, 2002)Google Scholar; Zerk, Jennifer, Multinationals and Corporate Social Responsibility: Limitations and Opportunities in International Law (Cambridge: Cambridge University Press, 2006)CrossRefGoogle Scholar; Alston, Philip (ed), Non-State Actors and Human Rights (Oxford: Oxford University Press, 2005)Google Scholar; Clapham, Andrew, Human Rights Obligations of Non State Actors (Oxford: Oxford University Press, 2006)CrossRefGoogle Scholar; Mcbarnet, Doreen, Voiculescu, Aurora and Campbell, Tom (eds), The New Corporate Accountability, Corporate Social Responsibility and the Law (Cambridge: Cambridge University Press, 2007)Google Scholar; Kinley, David (ed), Human Rights and Corporations (London: Taylor & Francis Press, 2009)Google Scholar; Černič, Jernej Letnar, Human Rights Law and Business: Corporate Responsibility for Fundamental Human Rights (Groningen: Europa Law Publishing, 2010)Google Scholar; Heijden, Marie-Jose Van Der, Transnational Corporations and Human Rights Liabilities (Antwerp, Oxford, New York: Intersentia, 2012)Google Scholar; Deva, Surya, Regulating Corporate Human Rights Violations: Humanizing Business (London: Routledge, 2012)CrossRefGoogle Scholar; Černič, Jernej Letnar and Ho, Tara Van (eds), Human Rights and Business: Direct Corporate Accountability for Human Rights (Nijmegen: Wolf Legal Publishing, 2015)Google Scholar; Bernaz, Nadia, Business and Human Rights. History, Law and Policy. Bridging the Accountability Gap (London, New York: Routledge, 2017)Google Scholar.

61 Contrast, for example, Rodley, Nigel, ‘Non-State Actors and Human Rights’ in Sheeran, Scott and Rodley, Nigel (eds), Routledge Handbook of International Human Rights Law (New York: Routledge, 2013), 523Google Scholar, 540 with Clapham (2006), note 60. See also Nicolas Carrillo-Santarelli, ‘Corporate Human Rights Obligations: Controversial but Necessary’, business-humanrights.org/en/corporate-human-rights-obligations-controversial-but-necessary (accessed 18 March 2020); Bilchitz (2016), note 7, 205–210; Latorre, Andrés Felipe López, ‘In Defence of Direct Obligations for Businesses Under International Human Rights Law’ (2020) 1:28 Business and Human Rights Journal 1.Google Scholar

62 Nevsun Resources Ltd v Araya 2020 SCC 5 (28 February 2020). The Court noted that it is not plain and obvious that corporations today enjoy a blanket exclusion under customary international law from direct liability for violations of obligatory, definable and universal norms of international law, and that Canada has long followed the conventional path of automatically incorporating customary international law into domestic law via the doctrine of adoption.

63 McBrearty, Sara, ‘The Proposed Business and Human Rights Treaty: Four Challenges and an Opportunity’ (2016) 57 Online Symposium Harvard International Law Journal 11, 12Google Scholar.

64 John G Ruggie, ‘The Past as Prologue? A Moment of Truth for UN Business and Human Rights Treaty’ (8 July 2014) 10, http://www.hks.harvard.edu/m-rcbg/CSRI/Treaty_Final.pdf (accessed 18 March 2020).

65 Danny Bradlow, ‘Why We Need to Tread Carefully in Drawing Up Human Rights Rules for Business’, The Conversation (29 July 2015), https://theconversation.com/why-we-need-to-tread-carefully-in-drawing-up-human-rights-rules-for-business-45179 (accessed 18 March 2020).

66 ‘Who is More powerful? States or Corporations?’, The Conversation (10 July 2018), https://theconversation.com/who-is-more-powerful-states-or-corporations-99616 (accessed 18 March 2020).

67 Deva, Surya, ‘Multinationals, Human Rights and International Law: Time to Move Beyond the “State-Centric” Conception’ in Černič, Jernej Letnar and Ho, Tara Van (eds), Human Rights and Business: Direct Corporate Accountability for Human Rights (Oisterwijk: Wolf Legal Publishers, 2015), 27.Google Scholar

68 Fahner, Johannes H and Happold, Matthew, ‘The Human Rights Defence in International Investment Arbitration: Exploring the Limits of Systemic Integration’ (2019) 68 International and Comparative Law Quarterly 741.CrossRefGoogle Scholar

69 See Bernaz and Pietropaoli (2017), note 6.

70 See Schutter, Olivier De, ‘Towards a New Treaty on Business and Human Rights’ (2015) 1 Business and Human Rights Journal 41, 44.CrossRefGoogle Scholar

71 Revised Draft, note 15, preamble.

72 Hulme, Max H, ‘Preambles in Treaty Interpretation’ (2016) 164 University of Pennsylvania Law Review 1281, 1285–1287.Google Scholar

73 Vienna Convention on the Law of Treaties, note 59.

74 Elements for the Draft Legally Binding Instrument on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, Chairmanship of the OEIGWG established by UN HRC Res A/HRC/RES/26/9 (29/09/2017). See also Doug Cassel, ‘At Last: A Draft UN Treaty on Business and Human Rights’ (2 August 2018), Letters Blogatory, https://lettersblogatory.com/2018/08/02/at-last-a-draft-un-treaty-on-business-and-human-rights/#more-27105 (accessed 18 March 2020).

75 UNCLOS, note 16, art 137.

76 Ibid.

77 See Papanicolopulu, Irini, ‘The Law of the Sea Convention: No Place for Persons’ (2012) 27 International Journal of Marine and Coastal Law 867, 869.Google Scholar

78 1994 Agreement, note 28, Annex, section 1, para 7.

79 UNCLOS, note 16, Annex III, arts 6 and 7. See A Commentary, note 34, vol VI, 198.

80 Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, ISBA/6/A/18, Annex (13 July 2000).

81 Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area, ISBA/16/A/12/Rev 1, Annex (15 November 2010); Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area, ISBA/18/A/11, Annex (22 October 2012).

82 On the issue of corporate obligations under international law in relation to environmental protection, see also Turner, Stephen, A Global Environmental Right (London: Routledge, 2014)Google Scholar, who argues for a ‘corporate environmental duty’ under a ‘Draft Global Environmental Right’ instrument, 70–100.

83 A Commentary, note 34, vol VI, 205.

84 See Hayashi, Moritaka, ‘Archaeological and Historical Objects Under the United Nations Convention on the Law of the Sea’ (1996) 20 Marine Policy 291, 293.CrossRefGoogle Scholar

85 Business and Human Rights Resource Centre, ‘Mandatory Human Rights Due Diligence’, https://www.business-humanrights.org/en/mandatory-due-diligence (accessed 18 March 2020). See also Phil Bloomer and Irene Pietropaoli, ‘Governments Can Help Make Business More Responsible on Human Rights’, https://www.business-humanrights.org/en/governments-can-help-make-business-more-diligent-on-human-rights (accessed 18 March 2020).

86 LOI no 2017-399 du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre (1).

87 Swiss Coalition for Corporate Justice, ‘The Responsible Business Initiative’, https://corporatejustice.ch/ (accessed 18 March 2020).

88 Following a series of debates in Parliament, there were two parliamentary counter-proposals to the RBI. The first retained the key elements of the RBI but included several restrictions; the second eliminates the liability provision and requires only a non-financial reporting duty and due diligence limited to child labour risks and conflict minerals. On 18 December 2019, the Swiss Council of States adopted the second counter-proposal. The matter will now go back to the National Council, which could accept the second counter-proposal or propose further changes. If the second counter-proposal is adopted by Parliament in its current form, the RBI Committee is not going to withdraw the initiative, which would go instead to the popular vote.

89 Wet Zorgplicht Kinderarbeid (14 May 2019).

90 Revised Draft, note 15, art 5(2). According to article 9(2), due diligence includes (a) monitoring human rights impacts; (b) identifying and assessing human rights violations; (c) preventing human rights violations; (d) reporting on non-financial matters, including at a minimum environmental and human rights matters; (e) undertaking environmental and human rights impact assessments; and (f) carrying out meaningful consultations with affected groups and relevant stakeholders.

91 Article 1(3) of the Revised Draft defines ‘contractual relationships’ as ‘any relationship between natural or legal persons to conduct business activities, including but not limited to, those activities conducted through affiliates, subsidiaries, agents, suppliers, any business partnership or association, joint venture, beneficial proprietorship, or any other structure or contractual relationship as provided under the domestic law of the State’. Revised Draft, note 15.

92 Responsibilities and Obligations of States Sponsoring Persons and Activities with Respect to Activities in the Area, Case No 17, Advisory Opinion (1 February 2011), 2011 ITLOS Reports 10, paras 145, 147–148, https://perma.cc/8SJJ-5MGT (accessed 18 March 2020).

93 On this, see Andre Nollkaemper and Dov Jacobs, ‘Shared Responsibility in International Law: A Conceptual Framework’ (2013) 34 Michigan Journal of International Law 359. They argue: ‘Current international law is largely based on the notion of independent international responsibility (mainly of states and international organizations). This notion does not always provide the conceptual or normative tools for allocating responsibility between a plurality of actors in situations where contributions to harmful outcomes cannot be attributed based on individual causation of each actor’. Ibid, 364.

94 Advisory Opinion, note 92, para 110.

95 Ibid.

96 Brown, Edward D, Sea-Bed Energy and Minerals: The International Legal Regime (Dordrecht: Springer, 2001), vol II, 75.Google Scholar

97 Article 4(4) Annex III provides examples of such measures. It reads as follows: ‘The sponsoring State or States shall, pursuant to article 139, have the responsibility to ensure, within their legal systems, that a contractor so sponsored shall carry out activities in the Area in conformity with the terms of its contract and its obligations under this Convention. A sponsoring State shall not, however, be liable for damage caused by any failure of a contractor sponsored by it to comply with its obligations if that State Party has adopted laws and regulations and taken administrative measures which are, within the framework of its legal system, reasonably appropriate for securing compliance by persons under its jurisdiction.’, UNCLOS, note 16, Annex III.

98 Bedjaoui, Mohammed, ‘Responsibility of States: Fault and Strict Liability’ in Bernhardt, Rudolf (ed), Encyclopaedia of Public International Law (Amsterdam: Elsevier), vol IV, 212.Google Scholar

99 Advisory Opinion, note 92, para 66.

100 A Commentary, note 34, vol VI, 127.

101 Advisory Opinion, note 92, para 204.

102 Nollkaemper and Jacobs (2013), note 93, 422.

103 Advisory Opinion, note 92, para 203.

104 Ibid, para 205.

105 Statement of Stichting Greenpeace Council (Greenpeace International) and the World Wide Fund for Nature, International Tribunal for the Law of the Sea (13 August 2010), 3, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/Statement_Greenpeace_WWF.pdf (accessed 18 March 2020).

106 The OECD National Contact Points provide opportunities for corporate accountability, but their scope is geographically limited and this mechanism falls shorts of liability.

107 Lucas Roorda, Jurisdiction over Foreign Direct Liability Claims against Transnational Corporations in EU Member States (PhD thesis, Utrecht University, 2019) 43–45

108 Revised Draft, note 15, art 2(1)(b).

109 Ibid, art 6(4).

110 Advisory Opinion, note 92, para 204.

111 Fasciglione, Marco, ‘An International Mechanism of Accountability for Adjudicating Corporate Violations of Human Rights? Problems and Perspectives’ in Albuquerque, Paulo Pinto de and Wojtyczek, Krzyszof (eds), Judicial Power in a Globalized World (Cham, Switzerland: Springer, 2019)Google Scholar.

112 Anton, Donald K, ‘The Principle of Residual Liability in the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea: The Advisory Opinion on Responsibility and Liability for International Seabed Mining (ITLOS Case No. 17)’ (2012) 7 McGill International Journal of Sustainable Development Law & Policy 241, 249Google Scholar, citing article 15 of Basel Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements of Hazardous Wastes and Their Disposal.

113 International Law Commission, ‘Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities’, GA Res 61/36 (2006).

114 Ibid, Principle 4(5).

115 Anton (2012), note 112, 254.

116 OHCHR, ‘Draft Optional Protocol to the Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises’ (6 September 2018), art 8(1).

117 Ibid.

118 The Revised Draft already includes a detailed article on ‘rights of victims’. Revised Draft, note 15, art 4.