TWN
Info Service on UN Sustainable Development (Jul15/09)
16 July 2015
Third World Network
SOUTHNEWS
No. 93, 14 July 2015
SOUTHNEWS
is a service of the South Centre to provide information and news on
topical issues from a South perspective.
Visit the South Centre’s website: www.southcentre.int.
Business
and Human Rights: Commencing historic discussions on a legally binding
instrument
By
Kinda Mohamadieh and Daniel Uribe
A meeting of a working group of the UN Human Rights Council recently
discussed a treaty on the human rights effects of transnational corporations
and other business enterprises. Below is a report of the meeting.
The open-ended intergovernmental working group on transnational corporations
and other business enterprises with respect to human rights (hereafter
referred to as OEIWG) successfully completed its deliberations over
five days between on 6-10 July 2015. The OEIWG was set up by Human
Rights Council (HRC) resolution A/HRC/RES/26/9, which was adopted
on 26 June 2014, at the 26th session of the HRC.
Resolution A/HRC/RES/26/9 was a historic step in the discussions on
business and human rights under the United Nations (UN). Civil society
groups played a crucial and active role throughout the process. Two
major messages came out of the deliberations of the OEIWG: that the
United Nations Guiding Principles and a legally binding Instrument
on business and human rights are two complementary and re-enforcing
processes, and that a prospective Instrument should cover all human
rights and human rights violations.
Discussions on business and human rights have a long history, including
most recently the adoption of the UN Guiding Principles on Business
and Human Rights (See A/HRC/17/31 and resolution 17/4 of 16 June 2011).
Previously, these issues were tackled under the draft UN Code of Conduct
on Transnational Corporations, which underwent a decade of negotiations
between 1982 and the early 1990s under the UN Commission on Transnational
Corporations. The "Norms on the Responsibilities of Transnational
Corporations and Other Business Enterprises with Regard to Human Rights"
were also discussed at the beginning of the millennium (i).
There are a number of other codes and guidelines addressing the role
of business and its interface with human rights that the UN system
has established, including the ILO Tripartite Declaration on Principles
concerning Multinational Enterprises and Social Policy (1977), the
WHO based code on Marketing of Breast-Milk substitutes (1981), and
the Guidelines for Consumer Protection (based on a UN General Assembly
resolution in 1985), among other instruments (ii).
Resolution A/HRC/RES/26/9
Resolution A/HRC/RES/26/9 was co-sponsored by Ecuador and South Africa,
and supported by Bolivia, Cuba, Venezuela, Algeria, Benin, Burkina
Faso, China, Congo, Cote D’Ivoire, Cuba, Ethiopia, India, Indonesia,
Kazakhstan, Kenya, Morocco, Namibia, Pakistan, Philippines, the Russian
Federation, Venezuela, and Vietnam.
The resolution provided that “the first two sessions of the open-ended
intergovernmental working group on a legally binding instrument on
transnational corporations and other business enterprises shall be
dedicated to conducting constructive deliberations on the content,
scope, nature, and form of the future international instrument…” (Operative
paragraph 2 of Resolution A/HRC/RES/26/9)
It also recommended that “the first meeting of the open-ended intergovernmental
working group serve to collect inputs, including written inputs, from
States and relevant stakeholders on possible principles, scope and
elements of such an international legally binding instrument” (Operative
paragraph 5 of Resolution A/HRC/RES/26/9).
Opening session of the OEIWG
The first session of the OEIWG was attended by representatives of
Algeria, Argentina, Austria, Bangladesh, Bolivia, Brazil, Bulgaria,
Chile, People’s Republic of China, Colombia, Costa Rica, Cuba, Republic
Dominican, Ecuador, Egypt, El Salvador, Ethiopia, France, Ghana, Guatemala,
Republic of Haiti, Greece, Republic of Honduras, India, Indonesia,
Iran, Iraq, Italy, Kenya, Korea, Kuwait, Latvia, Libya, Liechtenstein,
Luxembourg, Malaysia, Republic of Moldova, Morocco, Myanmar, Nicaragua,
Namibia, Netherlands, Pakistan, Paraguay, Peru, Philippines, Qatar,
Russia, Singapore, South Africa, Switzerland, Syria, Thailand, Trinidad
and Tobago, Tunisia, Ukraine, Mexico, Uruguay, Venezuela and Vietnam.
In addition, the Holy See and the State of Palestine participated
in the sessions. Not all Member States that attended the opening session
were represented or actively participating throughout the working
days of the OEIWG.
The OEIWG was also attended by the European Union, the Organisation
for Economic Co-operation and Development, Council of Europe, UN Women,
UNICEF, ILO, UNCTAD and the South Centre.
Many NGOs attended as observers and played an active role in organizing
side events as well as speaking in the various sessions.
The opening session was started with a speech by the Deputy
High Commissioner for Human Rights, on behalf of the United Nations
Secretary-General. The High Commissioner for Human Rights,
through a video intervention, stressed that “there is no conflict
between advocating for implementation of the UN Guiding Principles
and supporting international legal developments to further enhance
protection and accountability in the business context”. “To the contrary,
each of these initiatives should be viewed as positive steps in the
progressive development of international human rights standards”,
the High Commissioner added. He encouraged all stakeholders to build
progressively on the UN Guiding Principles on Business and Human Rights
(UNGPs) and all existing human rights instruments. “Achieving these
ends will require a spirit of consensus and an unwavering commitment
to strengthening the protection of human rights for all people in
all circumstances”, the High Commissioner underlined.
The Working Group elected Ambassador María Fernanda Espinosa Garcés,
Permanent Representative of the Republic of Ecuador, as its Chairperson-Rapporteur
by acclamation. Ambassador Espinosa Garcés was nominated by the representative
of Guatemala on behalf of the Group of Latin American and Caribbean
Countries (GRULAC).
Intense discussions and long consultations on the programme
of work
The process of adopting the programme of work for the first session
of the OEIWG witnessed some intense discussions and consultations.
The Chairperson-Rapporteur presented a proposed work progamme that
included seven sessions besides the opening session. The sessions
addressed elements prescribed by the mandate of Resolution A/HRC/RES/26/9;
it included a panel on principles for an international legally binding
Instrument, a second panel on scope of coverage of the Instrument
and the issues pertaining to concepts and legal nature of transnational
corporations (TNCs) and other business enterprises under international
law, a third panel on human rights to be covered under the Instrument
with respect to activities of TNCs and other business enterprises,
a fourth session on obligations of states, a fifth session on responsibility
of TNCs and other business enterprises to respect human rights, including
prevention, mitigation and remediation, a sixth session on legal liability
of TNCs and other business enterprises, and a seventh session on national
and international mechanisms for access to remedy.
The representative of the European Union delegation made two proposals
for amending the programme of work, including adding a first panel
entitled “Implementation of the United Nations guiding principles
on business and human rights – a renewed commitment by all States”
and adding the word ‘all’ before the word ‘business enterprises’ wherever
it appears throughout the programme of work.
Most delegations taking the floor in the session noted their concern
with regard to the suggested changes proposed by the delegation of
the European Union and pointed that they were ready to adopt the programme
of work as it was presented by the Chairperson-rapporteur. A number
of delegations also argued that the proposition to add the term ‘all’
before any mention of ‘business enterprises’ could have the effect
of amending Resolution A/HRC/RES/26/9. Several delegations stressed
that the Working Group should conduct itself in accordance with Resolution
A/HRC/RES/26/9 and did not have the mandate to alter a resolution
of the Human Rights Council. A number of delegations stressed that
they did not see any contradiction between the United Nations Guiding
Principles on business and human rights and Resolution A/HRC/RES/26/9,
but that they approach them as complementary processes.
The session was halted for the purpose of undertaking informal consultations
on the proposals presented by the delegation of the European Union,
which extended for several hours until late in the afternoon.
Upon return to the formal session, the Chairperson-rapporteur presented
a revised version of the programme of work, including an additional
panel on the UN Guiding Principles with the participation of Mr. Michael
Addo, chairperson of the Working Group on the issue of human rights
and transnational corporations and other business enterprises. The
delegation of the European Union presented an amended proposal in
regard to the addition of the word ‘all’, which entailed adding a
footnote to the programme of work stating the following: “this programme
of work does not limit the scope of this intergovernmental working
group taking into consideration calls to cover TNCs and all other
business”. The delegation of the European Union mentioned that this
suggestion was not its own proposal, but that it was reflecting discussions
that took place during the informal consultations. The majority of
delegations that took the floor objected to the proposal, leading
the Chairperson-rapporteur to declare the adoption of the programme
with the addition of one panel on the UN Guiding Principles on business
and human rights as the first panel.
The approach of the European Union delegation to the consultations
pertaining to the proposed work programme was perceived by several
participants in the OEIWG, including many NGOs, as amounting to attempts
towards obstructing the adoption of the programme. For example, Brid
Brennan, from the Global Campaign to Dismantle Corporate Power and
Stop Impunity, stated: "We believe the Representative of the
EU Delegation has no official formal mandate to corral 28 member states
into silence on such an important matter as human rights and transnational
corporations. As civil society organizations and social movements,
present here in the UN today, we protest the disruptive behavior of
the EU, and we challenge the EU member states to declare their position
on this matter, and not simply repeat the EU stance" (iii).
It is worth noting that the delegation of the European Union and most
of the delegations of European Union Member States did not attend
most of the remaining sessions under the programme of work.
Opening statements
Deputy High Commissioner for Human Rights
Ms. Flavia Pansieri, Deputy High Commissioner for Human Rights, noted
that Resolution A/HRC/RES/26/9 acknowledges that “transnational corporations
and other business enterprises both have the capacity to contribute
to economic well-being, and cause adverse impact on human rights”,
and that the challenge of the OEIWG is to “harmonize economic activity
with the protection of human rights”.
Ms. Flavia Pansieri recognized the important and legitimate role that
civil society actors and national human rights institutions have in
promoting human rights in the economic sphere, and in monitoring and
advocating for prevention and remedies of abuses.
The Deputy High Commissioner highlighted that the diverse voices participating
in the OEIWG will bring important perspectives for the identification
of effective ways of preventing and redressing business related human
rights impacts and ensuring greater accountability for those impacts.
The Deputy High Commissioner urged States, and other participants,
to use the meeting as an opportunity to advance “more effective protection
of human rights in the economic sphere”.
Ambassador María Fernanda Espinosa, Chairperson-rapporteur, Permanent
Representative of Ecuador to the European Office of the United Nations
and other International Organizations
After her election as Chairperson-rapporteur of the OEIWG, Ambassador
María Fernanda Espinosa addressed the first session of the OEIWG where
she noted that this was the first time that an intergovernmental negotiation
was being conducted on the issue of an international regulatory framework
for transnational corporations and other business enterprises with
regard to human rights. Ambassador Espinosa reminded the participants
that the dialogue for such a framework dates back to more than forty
years ago, and that it is on the basis of those efforts that the first
session of the OEIWG was going to be conducted.
Ambassador Espinosa added that the mandate given by Resolution A/HRC/RES/26/9
is clear, and involves taking further steps towards an international
binding regulatory framework on human rights and transnationals corporations.
Likewise, the objective of the treaty is not to adversely affect the
business sector, but rather for the international binding instrument
to be a tool for setting clear and universal norms for the protection
and promotion of human rights in regard to operations of transnational
corporations and other business enterprises.
The future Instrument, Ambassador Espinosa highlighted, will also
promote an environment of certainty and clarity, not only to positively
foster international investment, but principally to promote, protect
and respect human rights.
Ambassador María Fernanda Espinosa acknowledged the support of more
than one thousand non-governmental organisations (NGOs) around the
world, noting that this support is “display of a global trend that
serves as driving force for the adoption of an international instrument”.
Finally, Ambassador María Fernanda Espinosa extended an open invitation
to all actors committed to the protection of human rights to participate
in the OEIWG.
Keynote Speech by the Special Rapporteur on the Rights of Indigenous
Peoples
Ms. Victoria Tauli-Corpuz, Special Rapporteur on the Rights of Indigenous
Peoples, recalled that since the 1970s, indigenous peoples have been
at the forefront of discussions on corporate human rights abuses.
The Special Rapporteur noted that indigenous peoples have been victims
of corporate activities which have negatively impacted their traditional
territories without consent. She added that, even today, indigenous
peoples and other communities continue to suffer this negative impact.
For the Special Rapporteur, the adoption of Resolution A/HRC/RES/26/9
“represents a significant development” and is a response to calls
from around the world to strengthen human rights law with regards
to corporate-related human rights abuses.
Ms Tauli-Copuz acknowledged that some progress has been achieved by
the adoption of the UN Guiding Principles in 2011, and that an international
legally binding instrument on business and human rights could contribute
to redressing the gaps and imbalances in the current international
framework. Therefore, the “search for a new international legally
binding instrument and the implementation of the Guiding Principles
should not be seen as contradictory, but rather complementary objectives”.
The Rapporteur highlighted that currently, foreign investors and transnational
corporations have strong rights and enforcement mechanisms, while
international and domestic rules dealing with responsibilities of
corporations and other businesses are in the form of soft law. For
the Rapporteur, an international legally binding instrument would
“significantly help in establishing the much needed balance in the
international system of rights and obligations with regard to corporations
and host governments”.
Furthermore, the Rapporteur stressed that the instrument should take
into account the principles of indivisibility and interdependence
of all human rights, and that the future legal Instrument must clarify
the extraterritorial obligations of states to ensure access to effective
remedies, and recognise the primacy of human rights above all other
systems of law. Moreover, the Rapporteur observed that the instrument
could potentially benefit various stakeholders not only victims of
human rights abuse. Businesses that already respect human rights and
are engaged in best-practice development have a clear interest in
supporting and helping develop this Instrument.
General Statements
Several states took the floor to present general statements in regard
to the mandate of the OEIWG.
Algeria took the floor on behalf of the African Group. The
delegation of Algeria recognised that “notwithstanding the positive
contribution that TNCs makes towards poverty alleviation and development,
through … long-term investments driven by States’ priorities in productive
activities with improved access to modern technology, skills and technology
transfer and international markets, the benefits are not always holistic”.
The delegation of Algeria also added that “human rights violations,
such as in the area of environmental degradation, dumping of toxic
wastes and child labour by TNCs and other business enterprises, affect,
marginalise and impoverish groups disproportionally and exacerbates
human rights concerns in different parts of the world”. Likewise,
Algeria added that “business and human rights agenda are closely linked
to key social and economic rights enshrined in the African Charter
of human and people’s rights”. Finally, the delegation highlighted
that “while there are positive measures undertaken nationally and
regionally… actions must be initiated for the progressive development
of an international legally binding instrument”.
South Africa stressed that “transnational corporations
and other business enterprises are the key drivers of globalization
and owners of a big share of the global wealth […] and are able to
exert influence over global policy making”. The Permanent Representative
of South Africa highlighted that “the notion of corporate social responsibility
has no force of law and cannot be used for legal remedy in litigation
by competent courts”. South Africa observed that currently individual
national action plans create a situation where gaps persist. Uniform
standards, set off in a future Instrument, can complement national
action plans. In addition, South Africa noted that international human
rights law lays down obligations on states to act in certain ways
or refrain from certain acts in order to promote and protect human
rights and fundamental freedoms. On the other hand, the lack of international
human rights law binding on TNCs and other business enterprises points
to a major legal void that needs to be addressed in order to end impunity
for human rights violations committed by these entities. Many states
are at a disadvantage in terms of power relations with TNCs, added
South Africa. The proposed treaty would create a legal framework,
including a number of principles, which would resolve several of these
complex issues, and provide legal protections and effective remedies
in quest of maximum protections for victims of corporate human rights
violations. South Africa noted that the foundation of international
human rights law lies in the Universal Declaration of Human Rights,
which speaks of the entitlement of everyone to enjoy these rights
and does not indicate duty bearers of the obligations. Legal obligations
on actors other than states should not be precluded from this theory.
States are hardly the only entities capable of infringing on human
rights, South Africa added. The obligations to promote, protect, and
fulfill all human rights should therefore extend to all situations
in which these rights are violated, irrespective on who places them
in jeopardy. TNCs and other business enterprises must conform to the
UN core values and principles and existing human rights treaties.
South Africa cautioned that the influence of TNCs on the decision
making of the UN bodies have already been felt in the entire system.
It is essential that necessary measures be taken to prevent human
rights violations and provide remedies for victims of human rights
violations when committed, South Africa stressed.
The delegation of the Russian Federation supported
the creation of the OEIWG on the basis of an understanding that “[diluting]
the discussion of such a complex and complicated matter will be inappropriate
and it would need to be studied in depth and discussed in the broadest
possible format, taking into account all stakeholders”. The Russian
Federation explained that it “does not share the view that we need
to urgently draft a new legally binding document on business and human
rights, such step…[the Russian Federation considers]…is currently
premature”. The delegation also stated that “it is too early to discuss
the actual substance of this new document, and that at this point
the main topic should not be the elements and principles, but more
a discussion on the viability of the treaty and whether it is realistic
and expedient to draft such a treaty on this basis”. Finally, the
delegation stressed that the work of the OEIWG should be based on
a “gradual development of the Guiding Principles”.
The representative of Pakistan recognised the support
for the development of a new binding Instrument “in order to protect
the human rights of victims of abuses committed by transnational corporations,
which should be both norm setting and remedial in character”. The
importance of the UN Guiding Principles was also acknowledged and
the delegation considered them “as an important reference point in
the course of work” of the OEIWG. The representative of Pakistan stressed
that “access to justice and effective remedy are unquestionable rights
of the victims of TNCs’ abuse in all its forms and manifestations”,
and added that “the transnational corporations are protected and shielded
by hard laws, whereas the victims of TNCs abuse are provided with
soft laws to safeguard their rights”. Thus, Resolution A/HRC/RES/26/9
gave the OEIWG a clear mandate “to address this serious anomaly”.
Finally, the representative of Pakistan observed that the intention
is not to “discourage the good work and positive role played by a
number of these TNCs in our countries [but] to encourage their valuable
investment in our states, with full responsibility and due respect
to the human rights of all individuals”.
The delegation of the European Union appreciated
that a panel on the implementation of UN Guiding Principles was integrated
in the programme of work. It also stressed that “… it is still not
clear [to the European Union] as to why what was tested during the
lunch break did not fly, but …we have not blocked the adoption of
the program of work and we think that should be appreciated, and we
have done so to make sure that we can get started with the discussions”.
The delegation also stressed that as there was no possibility to resolve
this issue in the programme of work, “consultations for the next steps
should start in an inclusive and transparent manner as soon as this
session ends, with a view to ensure effective progress in this process”.
The delegation of the European Union asked that all the remarks made
by the European Union be recorded in the report of the session. Finally,
it highlighted that the European Union is “committed to continue working
with States across regions to effectively implement the UN Guiding
Principles on Business and Human Rights” and “committed to continue
their work for the protection of human rights defenders and civil
society”.
Switzerland reminded the OEIWG that “companies are required
to uphold human rights, but protection of human rights is a fundamental
duty of the State”. The delegation stated that “Switzerland currently
prioritizes the application of the UN Guiding Principles on Business
and Human Rights, and the development of national action plans”. The
delegation also specified that it currently do not support the “drafting
of an international treaty”, as Switzerland would like to avoid an
“excessive polarization of this debate”.
Bolivia stressed the importance of urgently moving forward
towards building a more fair and equitable international legal framework
to regulate TNCs and other business enterprises in respect to international
human rights law.
China supported the OEIWG noting that TNCs are playing
an important role in the global economy and are contributing to economic
development and to better use of resources. They also contribute to
development of science and technology and mankind as a whole, China
added. Nevertheless, China pointed out that when it comes to
labor resources, environment, protection of human rights, and fair
trade, TNCs can also cause problems. In this context, China supported
the efforts by the international community in order to ensure that
trade leads to greater promotion and protection of human rights. China
added that an international legally binding treaty in this area is
a complex issue, and encouraged all parties to participate openly
and constructively in the works of the OEIWG. China noted the importance
of taking into consideration the specificities of each country, including
the specificities of countries’ legal systems, social norms and traditions,
cultural history, and stage of development. China noted that with
the principles of inclusiveness and openness, solutions acceptable
to all parties could be found. China emphasized that the ultimate
objective of a future Instrument is to ensure that TNCs do contribute
to economic and social development of their host country and improve
living standards of all people. China added that the Instrument is
not intended to undermine the positive contributions that corporations
can undertake.
Cuba reiterated its support to the process of establishing
binding obligations on TNCs in domestic and international law in order
to guarantee that their activities comply with respect to human rights
standards. Cuba underlined the need to respect the mandate adopted
by the Human Rights Council under Resolution A/HRC/RES/26/9 and called
on all states to participate transparently in this process.
Argentina noted that they will participate constructively
in the process of the OEIWG, and welcomed the convening of its first
session. Argentina is one of the countries that co-sponsored the UN
Guiding Principles, the representative added, as they believe it is
a useful tool. Argentina added that negotiations on a Treaty can help
make progress in implementing the Guiding Principles.
Indonesia underlined that the OEIWG marks a historic moment
and a new phase of a common endeavor with regard to global human rights’
promotion and protection. In particular, Indonesia added that human
rights’ promotion and protection also belongs to transnational corporations
and other business enterprises. At the national level, Indonesia continues
to raise awareness on the need of business to respect, promote and
protect all human rights in line with the national development agenda.
Indonesia underlined the importance of taking an incremental, inclusive
and comprehensive approach, in line with Resolution A/HRC/RES/26/9.
Indonesia encouraged all relevant parties and stakeholders to build
a positive and conducive atmosphere to move together, to own the process,
the issues and the outcome. Indonesia noted the importance of taking
into consideration as well the international political economy, development,
and the environment.
Venezuela reiterated the support to Resolution A/HRC/RES/26/9
and the importance of establishing global mechanisms and norms through
a binding instrument.
Egypt pointed to the decades in which the international
community aimed at developing comprehensive body of international
human rights law. In this context, the primary responsibility to promote
and protect human rights and fundamental freedoms lie with the state,
Egypt added. TNCs are also a main driving force of economic globalization,
whereby the activities of TNCs have far reaching effects on human
rights. In this context, business enterprises should avoid infringing
on human rights of others and address adverse human rights impacts
resulting from their operations. Egypt added that ensuring respect
of human rights by TNCs will not be fully guaranteed without a legally
binding instrument.
Brazil pointed to the internal discussions undertaken
in its capital on the issue of business and human rights. The representative
of Brazil noted that this issue is considered a cross-cutting subject
that falls under the competency of all ministries. An inter-ministerial
working group has been set up to develop a national position in this
area. Brazil does not see opposition between the self-regulatory Guiding
Principles and a binding instrument, the representative of Brazil’s
delegation added. The delegate pointed to social responsibility of
corporations as a parallel issue that Brazil incorporates under its
investment facilitation agreements.
India underlined that issues of TNCs and other business
enterprises are important areas where the international community
should work together, not only to encourage business to respect human
rights but also to hold them accountable for violations arising out
of their operations. India added that the UN Guiding Principles have
limitations in respect to their impact in regard to victims of violations
by corporations. The OEIWG presents an opportunity for states to discuss,
in a focused manner, the issues of corporations and human rights,
and plug gaps that may arise from business operations. Often, due
to the sheer size and clout of TNCs, states are unable to hold them
accountable for human rights violations, India noted. In such situations,
the international community must come together to seek justice for
the victims. India underlined the importance of moving forward based
on the direction established by Resolution A/HRC/RES/26/9, and an
approach that balances between realism and ambition. India called
for respect of the mandate of Resolution A/HRC/RES/26/9, and the importance
of avoiding attempts for dilution or diversion of this mandate.
Representatives from the Council of Europe, the Organization of Economic
Cooperation and Development and the International Coordinating Committee
of National Human Rights Institutions also took the floor to give
general comments.
Highlights on some of the substantive issues discussed by the OEIWG
The United Nations Guiding Principles and a legally binding
instrument; two complementary and re-enforcing processes
One of the major messages coming out of the deliberations under the
first session of the OEIWG, including from participating Member States,
experts and civil society representatives, was that there is no contradiction
between the process of following up on the Guiding Principles on Business
and Human Rights and the process of pursuing discussions pertaining
to a legally binding instrument on transnational corporations and
other business enterprises with respect to human rights. To the contrary,
most comments in this regard stressed that a legally binding instrument
would re-enforce the process of the Guiding Principles.
As noted above, this message was first enunciated by the High
Commissioner for Human Rights in his opening words to the
OEIWG. Several states noted a similar position.
For example, South Africa noted that a legally binding
instrument will be a logical extension and advancement from the UN
Guiding Principles on Business and Human Rights. South Africa added
that a large number of countries supported the Guiding Principles
and the process towards a legally binding instrument because there
is no contradiction between the two areas. The impression must not
be given that there is any opposition between the processes; they
are two forms of complementary actions to strengthen mechanisms in
support of victims of human rights abuse, South Africa added.
Pakistan noted that the UN Guiding Principles would be
an important reference point in the course of work of the OEIWG.
Egypt noted that they have been always supportive of the
Guiding Principles and do not see any contradiction between them and
the mandate of Resolution A/HRC/RES/26/9.
Indonesia stressed that they support the UN Guiding Principles
and are trying to implement them at the national level.
Argentina pointed that they co-sponsored the Guiding Principles
and believe that negotiations on a legally binding treaty can help
in making progress in implementing the Guiding Principles.
Venezuela also expressed that there is no contradiction
between the Guiding Principles on Business and Human Rights and a
future binding Instrument.
Many of the invited experts expressed a similar opinion. Dr. Bonita
Meyersfeld, director of the Centre for Applied Legal Studies at the
University of Witwatersrand in Johannesburg pointed out that the binary
between the UN Guiding Principles and a legally binding instrument
is “incorrect and destructive”.
Professor Robert McCorquodale, Professor of International Law and
Human Rights at the University of Nottingham noted that the Instrument
should build on the UN Guiding Principles and the conceptual steps
made by the UN Guiding Principles in regard to responsibility of corporations
and access to remedy.
Professor Surya Deva, Associate Professor at the School of Law of
the City University of Hong Kong, noted that if a state is not engaging
with the treaty process then it would not be serious about the Guiding
Principles.
A prospective instrument should cover all human rights
Another clear message that came out of the deliberations at the OEIWG
was that a prospective Instrument should cover all human rights and
human rights violations. On this topic, it was noted that the UN Guiding
Principles pointed that business enterprises can have an impact on
virtually the entire spectrum of internationally recognized human
rights (See commentary to UNGP 12). It was also underlined that human
rights are universal, indivisible and interdependent as recognised
in the Vienna Declaration and programme of work (1993). Furthermore,
it was noted that there is no clear definition of gross violations
of human rights under international law.
Cuba noted that a prospective Instrument should be based
on a broad scope. Violations of human rights by TNCs often involve
economic, social, and cultural and environmental rights, in addition
to the right to drinking water, health, food and development among
other rights. The specific vulnerability of indigenous groups, children,
women and persons with disabilities should be taken in consideration,
Cuba stressed. It will be courter productive to have a limited
view of the scope of rights to be covered by the Instrument, according
to Cuba.
South Africa noted that all human rights are universal,
indivisible, interdependent and mutually reinforcing, as recognised
by the Vienna Declaration and programme of work (1993). The Instrument
should cover all human rights, including the right to development.
The power that TNCs and other business entities enjoy gives rise to
an equal responsibility in relation to human rights and fundamental
freedoms, South Africa added.
Ecuador noted that cases of human rights abuse by TNCs
often involve the violations of various rights including the right
to health, food, healthy environment, housing, development and other
economic, labor, social and cultural rights. This was already recognized
by the UN Guiding Principles. The consequence is that the responsibility
of corporations applies to the whole spectrum of human rights, Ecuador
added. The scope of a future binding Instrument should not be limited
to gross violations of human rights, according to Ecuador, because
that will mean maintaining the gaps and lack of protections for victims
of corporate human rights’ abuse.
Similarly, Bolivia and Venezuela stressed the universal,
interrelated, and interdependent nature of all human rights. Consequently,
the Instrument should cover all human rights, according to the two
delegations.
China added that a future Instrument should cover the
widest scope including the right to development, while striking a
balance between the individual rights and collective rights, especially
the collective right to development and the right to peace.
Among experts, Dr. Hatem Kotrane, member of the UN Committee on the
Right of the Child, noted that limiting a future Instrument to gross
violations of human rights will be equivalent to tolerating certain
violations on account that they are less important. He added that
all human rights are universal, indivisible, closely linked and cannot
be organized in a hierarchy.
Professor Surya Deva, Associate Professor at the School of Law of
the City University of Hong Kong, noted that we know that corporations
can violate all human rights, a fact that was acknowledged by Professor
John Ruggie. He called on the OEIWG to consider the option that all
international human rights instruments, not only the existing one,
but also those that might evolve in the future, to be covered by the
Treaty.
Adoption of the report of the first session of OEIWG
At the end of the session, the Chairperson-Rapporteur, Ambassador
Maria Fernanda Espinosa Garces, presented the members and observers
of the OEIWG a report on the deliberations of the meeting, which was
adopted ad referendum. The members of the OEIWG will have two weeks
to send in suggestions and recommendations. The report will be presented
to the thirty-first session of the Human Rights Council, in accordance
with Resolution A/HRC/RES/26/9.
Taking the floor during the session of the report’s adoption, Pakistan acknowledged
the efforts invested in organizing the session and regretted that
some Member States decided voluntarily not to participate in the working
group, hoping that they will participate in future sessions. Pakistan
added that the future Instrument should focus on addressing the lacunae
in the international legal order, and should be limited in application
to the practices of TNCs and other business enterprises with transnational
character. The character, stature, operational reach, political clout
and financial power of TNCs at times surpass the resources of smaller
states putting them at a disadvantageous position, Pakistan added.
Any attempt to alter the mandate of Resolution A/HRC/RES/26/9 and
introduce new interpretations to broaden the scope of the working
group will be counterproductive, according to Pakistan. It will not
only dilute the main objective, which is to focus on the operations
of transnational businesses, but could also have serious impacts on
the workings of any future dispute settlement resolution bodies in
this context. It is essential to follow a focused and targeted approach
by keeping the national businesses outside the scope of this working
group, according to Pakistan.
Pakistan
added that focus should be on bridging the gap in access to remedy
and accountability. Pakistan also outlined the importance of extra-territorial
jurisdiction of home states of TNCs in cases of violations committed
outside their national borders, without affecting the sovereignty
of other states. Pakistan also noted the importance of voluntary consultation
mechanisms between courts of home and host states for better coordination
and evidence gathering, provision of adequate financial resources
for victims of TNCs’ abuses to facilitate redress of grievances, and
provision of technical and capacity building for developing states
to effectively protect all human rights of their citizens, including
the right to privacy against extraterritorial surveillance and data
monitoring. Pakistan also underlined the importance of setting a safety
mechanism to protect TNCs from frivolous cases. Pakistan added that
the enactment of loser-pays rule can be detrimental to victims in
case they lose a case, and requires further deliberations.
South Africa characterized the session of the OEIWG as
a historic session, and underlined their expectation for consultations
in the period towards the second OEIWG.
The Philippines reiterated its support to the mandate
set by Resolution A/HRC/RES/26/9 and its support, in principle, to
the recommendations outlined in the report presented by the Chair.
Philippines highlighted the importance of taking into account the
view of effected peoples and communities as well as business enterprises,
and noted the importance of an inclusive, transparent and constructive
process that will allow the OEIWG to produce robust, ambitious, yet
doable instrument. The Philippines underlined the importance that
the work ahead be carefully balanced and produce a set of high standards
that enhance, and not result in limiting or derogating from, existing
rights. The Philippines stressed the importance of an Instrument that
is flexible enough to apply in various contexts and called for consultation
with stakeholders to be conducted at the national level.
In closing, several Member States took the floor to reiterate support
of the process and preparations towards the second session of the
OEIWG, including Venezuela, Egypt, Bolivia, Algeria, Ecuador, Cuba,
Morocco, China, and Brazil. In addition, China noted the importance
that the Working Group absorbs the opinions and views of all parties
while insisting on the principle of the intergovernmental process.
Several civil society groups spoke as well in support of the process
(See later section for more on the input of civil society groups).
In closing, the Chairperson-Rapporteur, Ambassador Maria Fernanda
Espinosa Garces, congratulated the Working Group for a positive
outcome as a result of its deliberations, in compliance with the mandate
established through Resolution A/HRC/RES/26/9, while acknowledging
the diversity of opinions given the complex nature of the theme. The
Chairperson noted that the Working Group is participating in the improvement
of international law, which is a huge responsibility. She noted that
the Working Group has finished the first stage of what would continue
to be an open-ended, participatory and inclusive process that could
end with a legally binding instrument. She noted that Member States
and civil society organizations have renewed the relevance of the
United Nations, as a multilateral space, in regard to issues of corporations
and human rights. She added that if the Working Group manages to complete
this process, it will show that the United Nations and the Human Rights
Council in particular, is able to respond to the challenges and social
and economic dynamics of our times.
Broad support from civil society organizations
Civil society organizations took a central role throughout the deliberations
of the first session of the OEIWG. Groups were active both inside
the United Nations through constructive additions to the substantive
debates and through mobilizations and outreach outside the United
Nations Palais.
According to the Global Campaign to Dismantle Corporate Power and
Stop Impunity Groups, this process is a historic opportunity to end
the impunity of TNCs and improve - in the long term and on a global
scale- the protection of human rights all around the world.
Several civil society groups, including Friends of the Earth and the
Transnational Institute (TNI), regretted the “non-constructive attitude
of Western countries, including the European Union”, pointing to their
“attempts by all means and till the last minute to derail the working
group’s process”. In their closing statement, these groups underlined
their major concern that the same countries that are proactive when
it comes to promoting the interests of TNCs through the negotiation
of new free trade agreements and bilateral investment treaties are
obstructive when it comes to protecting human rights and holding TNCs
accountable. “With the shameful exceptions of the EU, United States
and several other rich countries, the States who were present should
be commended for their engagement with this vital process,” noted
Anne van Schaik, Sustainable Finance Campaigner with Friends of the
Earth Europe (iv).
Rolf Künnemann, Human Rights Director of FIAN International, speaking
on behalf of the Treaty Alliance (v), pointed that “the participating
states, legal experts and civil society worked hard and successfully
to get key human rights issues on the table. The Treaty Alliance contributed
a variety of views in order to enrich the debate. Diversity of views
is strength. We insist that the EU replaces disruptive tactics with
an honest dialogue, in good faith. The Treaty Alliance will be on
alert during the intersessional period and will intensify its mobilization”
(vi).
For more information on the inputs and activities of civil society
groups in this process, please check:http://www.treatymovement.com/.
Footnotes:
(i) The Norms were approved in August 2003 by the United Nations Sub-Commission
on the Promotion and Protection of Human Rights, but the UN
Commission on Human Rights did not approve them and took no further
action in that regard.
(ii) For example, the UNCTAD-based Set of Multilaterally Agreed Equitable
Principles and Rules for the Control of Restrictive Business Practices
(adopted in 1980 by the UN General Assembly) and the Draft International
Code of Conduct on the Transfer of Technology (not adopted by the
General Assembly.
(iii) See : “A victory vis-a-vis the upcoming UN Treaty on TNCs and
human rights”, statement appearing on http://www.fian.org/ (10.7.2015)
(iv) See: “A victory vis-a-vis the upcoming UN Treaty on TNCs and
human rights”, statement appearing onhttp://www.fian.org/ (10.7.2015).
(v) The Treaty Alliance is a group of networks and campaign groups
around the world joining to collectively help organize advocacy activities
in support of developing a binding international instrument to address
corporate human rights abuses. Some of the groups involved include:
CETIM, CIDSE, Dismantle Corporate Power Campaign, ESCR-Net, FIAN,
FIDH, Franciscans International, Friends of the Earth International,
IBFAN-GIFA, Indonesia Global Justice, International Commission of
Jurists, Legal Resources Center, PAN AP, Transnational Institute,
TUCA. More information is available at: http://www.treatymovement.com/
(vi) See : “A victory vis-a-vis the upcoming UN Treaty on TNCs and
human rights”, statement appearing on http://www.fian.org/ (10.7.2015).
**
This brief will be followed by additional articles reporting on the
discussions that took place on various substantive issues covered
by the programme of work of the first OEIWG session, including: the
scope of application of a prospective treaty; obligations of States
and obligations of corporations under human rights law; the legal
liability of TNCs and other business enterprises; and mechanisms for
access to remedy. The briefs will cover perspectives of states, experts,
and civil society organizations.
More information on the first session of the OEIWG is available
on the following websites:
http://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Pages/Session1.aspx.
Webcast of the sessions available at: http://webtv.un.org/.
Authors: Kinda Mohamadieh is research associate at the South Centre
and Daniel Uribe is intern at the South Centre. Contact the authors
at: Mohamadieh@southcentre.int.
To view other articles in SouthNews, please click
here.
For
more information, please contact Vicente Paolo Yu of the South Centre:
Email mailto:yu@southcentre.org,
or telephone +41 22 791 80 50.
