Business and Human Rights: Commencing discussions on a legally binding instrument
This double issue of the South Bulletin focuses on an important issue – human rights, transnational corporations and other business enterprises.
More specifically, it publishes reports on the first meeting of the Human Rights Council’s Working Group on a legally binding instrument on TNCs and other business enterprises with respect to human rights.
This issue, and the working group, have attracted the attention of hundreds of civil society groups around the world, as getting redress for the adverse effects of businesses, especially TNCs, is a long-standing topic.
The reports in this Bulletin include general overviews; the scope of application of the instrument; the obligations of states and businesses; standards for legal liability and building mechanisms for access to remedy. The opening speeches of the Chairperson and a Special Rapporteur are also included.
To download the entire South Bulletin, please click here. To read individual articles, please see below.
Business and Human Rights: Commencing historic discussions on a legally binding instrument
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, which is 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 articles will cover perspectives of states, experts, and civil society organizations.
By Kinda Mohamadieh and Daniel Uribe
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 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 was co-sponsored by Ecuador and South Africa, and supported by Algeria, Benin, Bolivia, Burkina Faso, China, Congo, Côte 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, China, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, France, Ghana, Greece, Guatemala, Haiti, Honduras, India, Indonesia, Iran, Iraq, Italy, Kenya, South Korea, Kuwait, Latvia, Libya, Liechtenstein, Luxembourg, Malaysia, Mexico, Moldova, Morocco, Myanmar, Namibia, Netherlands, Nicaragua, Pakistan, Paraguay, Peru, Philippines, Qatar, Russia, Singapore, South Africa, Switzerland, Syria, Thailand, Trinidad and Tobago, Tunisia, Ukraine, 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 in Geneva, 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 only 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.
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.
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 make 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 does 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 Action (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 into consideration, Cuba stressed. It will be counterproductive 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 Rights 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 ones, 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.
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, 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 (v) 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/.
(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 on http://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).
Highlights of some elements of discussion and points of view shared during the OEIWG’s session
Generally, the negotiations on an international binding instrument on business and human rights are perceived as a historic moment by proponents from among states and civil society organizations, and as a new phase of common endeavour in the promotion and protection of human rights;
The adoption of a legally binding instrument in this area is complex, and all parties are invited to actively participate in a transparent and constructive manner with the OEIWG to ensure effective progress;
TNCs are a main driving force of economic globalization and have far-reaching effects on human rights, as well as the economic, social and political contexts they operate within. Therefore, businesses must have an obligation to respect human rights commensurate with the potential impact on human rights resulting from their operations;
The UN Guiding Principles are an important tool for the promotion and protection of human rights, but have limitations with respect to the impact for victims of human rights violations by corporations;
There are no contradictions between the process of implementation of the UN Guiding Principles on Business and Human Rights, through national action plans, and the process pertaining to the adoption of a legally binding instrument; both processes are complementary and reinforce a common purpose;
Major legal voids with respect to the rights of victims affected by corporate violations should be addressed by a future instrument, taking into consideration the specificities of countries’ legal systems, social norms and traditions, and stages of development.
More information on the first session of the OEIWG is available on the following websites:
Webcast of the sessions available at: http://webtv.un.org/.
Kinda Mohamadieh is a Research Associate at the South Centre and Daniel Uribe is a Visiting Researcher at the South Centre.
Introducing this Special Issue on Corporations and Human Rights
This is a special issue of the South Bulletin. Firstly, it is a double issue, carrying the numbers 87 and 88, and having double the usual number of pages. Secondly, it is all about one issue: human rights, transnational corporations (TNCs) and other business enterprises.
The event linked to this is the first meeting of a working group in the Human Rights Council on human rights, transnational corporations and other business enterprises, which took place in July 2015 in Geneva.
This issue has had quite a long and important history. It is an important issue because there have been many adverse human rights effects of the activities of TNCs, and it has often been difficult or even impossible for the victims to get redress.
This is especially if these victims are in developing countries. They and their governments are usually too weak to make the foreign companies accountable for their environmental, health or other effects.
The domestic systems of law and enforcement may firstly be inadequate to take on giant transnationals. These companies and their executives can also return to their country of origin and then often be outside the reach of the people and countries in which the adverse effect took place.
More than three decades after the Bhopal tragedy in 1984, the many thousands of victims and their families still have no redress from the American company. The people of Niger Delta in Nigeria whose lands were contaminated by Shell have fought for but not yet obtained justice. The indigenous people of the Amazon in Ecuador have been pursuing court cases against the oil companies that polluted their forests, water and damaged their health, but so far without remedy. There are hundreds, thousands of cases in which local communities all over the world have similarly tried in vain to get justice.
In 2014, some countries introduced a resolution at the Human Rights Council. The resolution (A/HRC/RES/26/9) was adopted by the Council in June, with the decision to establish a working group on a legally binding instrument on transnational corporations and other business enterprises with respect to human rights. As indicated by its name, the working group has the mandate to establish a binding treaty or other binding instrument.
The first meeting of this working group was held in July 2015 in Geneva. The resolution had directed that the group’s first two sessions be dedicated to conducting constructive deliberations on the content, scope, nature, and form of the future international instrument.
It also recommended that the first meeting serve to collect inputs from States and relevant stakeholders on possible principles, scope and elements of such an international legally binding instrument.
This issue of South Bulletin carries several reports on the first meeting of the working group. These include an overview report of the meeting (including the opening session); the sessions on scope of application of the instrument; the obligations of states and businesses; standards for legal liability and building mechanisms for access to remedy. The opening speech of the Chairperson of the working group (Ambassador María Fernanda Espinosa Garcés of Ecuador) and the very good keynote address by the Special Rapporteur on the Rights of Indigenous Peoples (Victoria Tauli-Corpuz) are also published for the record.
The reports provide summaries of the manifold views of international and national experts, government delegations, international organisations, civil society organisations, on the wide range of issues linked to the issue of TNCs and human rights and to the working group.
We hope you find this a valuable record of these issues and views and of the first session of the working group.
Discussing obligations of States and businesses
A meeting of a UN Human Rights Council working group recently discussed a treaty on the human rights effects of transnational corporations (TNCs) and other business enterprises. Below is the third part of the report on the meeting, focusing on discussions concerning the obligations of States with respect to operations of TNCs and other business enterprises, including extraterritorial obligations, and the obligations of businesses.
By Kinda Mohamadieh and Daniel Uribe
Resolution A/HRC/RES/26/9 adopted by the United Nations Human Rights Council (HRC) on 25 June 2014 established an open-ended intergovernmental working group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises” (Operative paragraph 1, 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, Resolution A/HRC/RES/26/9).
On the content of a prospective Instrument, the first meeting of the open-ended intergovernmental working group (OEIWG) included a session entitled “Obligations of States to guarantee the respect of human rights by TNCs and other business enterprises, including extraterritorial obligations” and another entitled “Enhancing the responsibility of TNCs and other business enterprises to respect human rights, including prevention, mitigation and remediation”.
Discussion on the obligations of States
CONTRIBUTIONS FROM PANELLISTS
Professor Hatem Kotrane, Member of the UN Committee on the Rights of the Child, noted that States have obligations to respect, protect and fulfil human rights. The obligation to respect requires States not to hinder the enjoyment of human rights, therefore not to facilitate or otherwise foster abuses of human rights, either directly or indirectly. Professor Kotrane added that States are obliged to ensure that all actors, including corporations, respect human rights.
Speaking from his experience with the UN Committee on the Rights of the Child, Professor Kotrane added that States carry the obligations to “ensure that all political, legislative and administrative decision-making related to transnational corporations and other business enterprises are taken in a public and transparent way, making full and systematic account of the effect that these entities may have on the rights of the child”. In cases where States are commercially involved with private entities, and in cases of public tenders, Professor Kotrane noted that States should allocate these contracts to those companies that respect the rights of the child. Likewise, “State agencies, particularly state law-enforcement agencies, should not be involved in violations of the rights of the child or enable such acts to be committed by third parties”.
In regard to the obligation to fulfil human rights, Professor Kotrane spoke of the importance of awareness measures and dissemination of human rights standards among corporations. He also stressed the importance of a stable and predictable legal and regulatory framework that enables States to protect human rights, inter alia, through well-defined and properly implemented laws on labour, employment, health, occupational safety, the environment, corruption, etc.
Professor Kotrane underlined that “children could be more vulnerable than adults when faced with violations of their rights” since the consequences of this harm could be irreversible and the impact could persist during their entire lives.
On extraterritorial obligations of States, Professor Kotrane made reference to the United Nations Guiding Principles (UNGPs) and recalled that States have the obligation to protect against abuses committed by their enterprises in their territories and in the territory of a third party. He explained that such obligation entails taking appropriate measures to prevent, punish and adjudicate violations through effective policy making, laws, and adjudication mechanisms, including complaint procedures.
Taking an example from the work of the UN Committee on the Rights of the Child, Professor Kotrane emphasised that States should account for violations committed against children by their transnational corporations when operating outside their territory, by way of ensuring that such violations are addressed by the laws of the country in which the corporations are based as well as in the territory in which they function. He gave the example of the application of extraterritoriality in the case of the ‘Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography’. In this case, “the competence of the courts is broadened to take account of violations when the perpetrator is living in the territory of the relevant state or it is living outside the state but it has the nationality of that State”. When applied to transnational corporations, Professor Kotrane suggested, “States should be competent to exercise extraterritorial jurisdiction when TNCs have their base or their headquarters in a particular country”.
Professor Krotane added that extraterritorial obligations involve both the States of origin and host States in which business enterprises operate, including “where they have branches and also where they develop their economic activities via outsourcing and partner companies”. In order to operationalise this obligation, Professor Kotrane explained that States have an obligation, pursuant to the Convention on the Rights of the Child and its Optional Protocols, to uphold the rights of children in the context of extraterritorial activities of TNCs when there is a ‘reasonable’ link between the state and the activity in question. The term ‘reasonable’ applies when certain circumstances are fulfilled in regard to the location of the enterprise and the location of its activities, Professor Kotrane added.
Kinda Mohamadieh, Associate Researcher at the South Centre, noted that the duty of the States to protect human rights from violations by private entities is well established under international human rights law. She added that a prospective instrument could focus on clarifying the means and measures by which states should fulfil these existing obligations, thus build on the large body of opinion and jurisprudence emerging from universal and regional systems of human rights.
Ms. Mohamadieh indicated that “the identification and clarification of these obligations […] is expected to support States in encountering the current challenges facing the protection of human rights with respect to corporate human rights abuses, particularly when facing an enterprise of transnational character”. These cases cannot be addressed “through the frameworks and mechanisms available to the State on its own, but necessitate international cooperation”, she added.
Ms. Mohamadieh referred to opinions and general comments adopted by the UN Human Rights Treaty Bodies, which recognised that States have obligations vis-à-vis acts committed by private persons or entities that could impair the enjoyment of human rights, and that States also have positive obligations to exercise due diligence to prevent, punish, investigate or redress the harm caused by private entities. She underlined that “in order to meet this duty, States should regulate certain activities of private individuals and bodies by adopting effective measures to prevent future injury and respond to past injury”.
In addition, Ms. Mohamadieh highlighted that “under general international law and specific human rights covenants, States may