WUNRN

http://www.wunrn.com

 

The Open-Ended Intergovernmental Working Group on Transnational Corporations & Other Business Enterprises with Respect to Human Rights has, indeed a challenging task. We in the women’s movement see constant infringements of rights of all people’s by corporations and businesses, and often referred to as the Private Sector. The corporations are seen to have increasing engagements at the UN and with international financial institutions. But, to get a Legally Binding Document passed on any subject is exceedingly hard, and would also need Member States to ratify. We have seen how hard this is for a potential Legally Binding Document on Violence Against Women.

 

There is also the linkage between corporate activities and armed conflicts and the fact that corporations may well violate human rights in the contexts of instability or armed conflict.

 

WILPF, Women’s International League for Peace & Freedom has been monitoring this process and has reported: “It is clear that it is essential to include a gender perspective in the treaty elaboration in order to acknowledge that human rights violations are not experienced in the same way by all individuals and notably by women,” It has also been noted that involving the developed countries in the process and getting their support for a proposed treaty remains a major challenge for the future,

 

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http://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Pages/IGWGOnTNC.aspx

 

UNITED NATIONS HUMAN RIGHTS COUNCIL

 

Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights

 

Mandate

At its 26th session, on 26 June 2014, the Human Rights Council adopted resolution 26/9 by which it decided “to establish an open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, whose mandate shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”

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http://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Pages/Session1.aspx

 

UNITED NATIONS HUMAN RIGHTS COUNCIL

 

First session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights

 

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CONCEPT NOTE

 

 

First session of the Open Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with respect to Human Rights

Concept note proposed under the responsibility of the designated Chair, Amb. María Fernanda Espinosa, Permanent Representative of Ecuador to the United Nations in Geneva

Geneva, Palais des Nations, Room XX

July 06th 10th, 2015

background

 

1.    The open-ended intergovernmental working group (OEIWG) on transnational corporations (TNCs) and other business enterprises with respect to human rights was established through resolution A/HRC/RES/26/9 (resolution 26/9), adopted by the Human Rights Council on June 26th, 2014. The OEIWG is mandated to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises (para. 1 of resolution 26/9). The resolution provides that the first two sessions of the open-ended inter-governmental working group shall be dedicated to conducting constructive deliberations on the content, scope, nature and form of the future international instrument (para. 2 of resolution 26/9). The resolution also recommends 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 (para. 5 of resolution 26/9). It should be noted that pursuant to  paragraph 3 of the resolution, the deliberations of the first two sessions should be such as would allow the Chairperson-Rapporteur of the open-ended intergovernmental working group to prepare elements for the draft legally binding instrument for substantive negotiations at the commencement of the third session of the working group on the subject, taking into consideration the discussions held at its first two sessions - therefore, it is expected to have focused and constructive deliberations.

 

2.    Resolution 26/9 stresses that the obligation and primary responsibility to promote and protect human rights and fundamental freedoms lies with the State, and that States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including transnational corporations. While the obligation of States to regulate business activities within their territorial jurisdiction is clear, on the other hand States obligations regarding corporate conduct acting abroad remain unclear.

 

3.    Member States discussions during the process of preparation of the resolution underlined that there are gaps in the international legal framework related to the duty to protect human rights in respect of business activities, and that related instruments are concentrated in soft law. Resolution 26/9 recognizes the importance of the issue of business and human rights, especially given the increasing role that TNCs and businesses play in various economic sectors. In the case of human rights abuses caused by TNCs, the third pillar under the UN Guiding Principles on Business and Human Rights, which addresses access to effective remedy, acknowledges the limitations of national measures and the need for greater clarity in regard to access to effective remedies.

 

4.    Furthermore, the international legal system reflects an asymmetry between rights and obligations of TNCs. While TNCs are granted rights through hard law instruments, such as bilateral investment treaties and investment rules in free trade agreements, and have access to a system of investor-state dispute settlement, there are no hard law instruments that address the obligations of corporations to respect human rights.

 

5.    The role of TNCs has exponentially expanded over the last few decades. Value chains (i.e. intra-firm or inter-firm, regional or global, and commonly referred to as global value chains, or GVCs) are shaped by TNCs that account for around 80 per cent of global trade[1]. It is clear that the role of corporations has evolved in a way that transcends national laws. Yet, TNCs still lack international legal responsibility commensurate with their role and influence in international and domestic affairs. While it is important to strengthen national legal frameworks and mechanisms for access to remedy in cases of human rights violations, there is an increasing need for international cooperation between states to ensure that victims of corporate human rights abuse have access to remedy.

 

6.    Additionally, studies show that companies incentives are not negatively impacted by the regulatory aspects of the context in which they operate. Issues of primary concern to investors include the size and growth potential of markets, infrastructure development, and availability of resources (natural resources and abundant labor). For example, a study by the International Monetary Fund entitled Determinants of Foreign Direct Investment: A Sectoral and Institutional approach (2010) showed that institutional development and regulatory procedures do not have significant influence on the total FDI flows and inflows[2].  Moreover, a World Bank study notes that both a review of the empirical literature and analysis using new data sources suggest that business opportunitiesas represented by, for example, the size and growth potential of marketsare by far the most powerful determinants of FDI[3].

 

7.    The more than forty years of history of addressing issues of business and human rights under the auspices of the United Nations, dates back to the nineteen-seventies, and includes experiences like the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights", which provide important precedents and lessons learned in this area. At the same time, significant steps have been achieved, including the adoption of the UN Guiding Principles (UNGPs) on business and human rights. Some Member States converge over the importance of continuing efforts towards implementing the UNGPs and developing national action plans based on them.

 

8.    The discussions under the mandate established by the resolution could draw on  existing progress in the field as well as innovating in certain areas. Close coordination with other organizations and United Nations agencies addressing certain issues, as well as coordination with civil society organizations is extremely important.

 

objective for the first SESSION OF THE oeiwg

 

9.    The main objective of the session of the OEIWG will be to comply with the mandate contained in resolution 26/9. The actions to be taken in this regard include, among others, to confirm the chair of the intergovernmental working group; to receive inputs from States and relevant stakeholders on possible principles, scope and elements of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights, and to discuss issues relating to the content (including possible principles and elements), , nature and form of such an instrument, as provided for in paragraphs 2 and 5 of resolution 26/9.

 

 

THE PROGRAMME OF WORK

 

10.In order to guide the debates during the first session of the OEIWG, a programme of work (PoW) was proposed to Member States almost three weeks in advance of the beginning of the session. The PoW has been enriched by the comments and suggestions provided by some interested Parties, whose concerns were addressed to the extent that they were neither conflicting nor contradictory to the mandate contained in resolution 26/9.

 

11.The proposed PoW has been divided into five items to be discussed during nine public meetings and one private meeting, all of them to be held during the period from Monday 6th till Friday 10th July 2015, from 10h00 to 13h00, and from 15h00 to 18h00.

 

12.The plenary discussions on the substantive issues are planned to take place under item 4 of the Provisional agenda, and in order to trigger the debate, seven panels have been proposed, where experts coming from different backgrounds, professional experiences and geographic regions, have been invited. The selection of experts took into account recommendations provided by States and relevant stakeholders.

 

13.As for the specific topics to be discussed, the intention of the PoW is to present indicative headings for the debates, neither prejudging positions, nor assuming consensus on any issue, as it is clear that the views and opinions are diverse and sometimes contradictory or controversial, as it has been expressed by many stakeholders during the preparatory stages.

 

14. The first substantive discussion will be on the Principles for an International Legally Binding Instrument on Transnational Corporations (TNCs) and other Business Enterprises with respect to human rights. Participants may be interested in sharing their views on how to address the key principles that will guide the elaboration of the legally binding instrument. 

 

15.The second topic refers to the scope of the Instrument: TNCs and other Business Enterprises: concepts and legal nature in International Law. Among the issues that have drawn attention from different actors before the first session of the OEIWG is the footnote of resolution 26/9, which provides an interpretation on how to understand the expression other business enterprises. This issue has already triggered a lively debate. Some States and other stakeholders have requested a broad interpretation of the footnote, not limited only to businesses with a transnational character, but applied to all business enterprises. In order to address this concern, and without prejudging any position or opinion, it is important to underline that the footnote is part of resolution 26/9, which was adopted by the Human Rights Council following a multilateral negotiation and respecting the rules and procedures of the Council. Taking this into account, States and relevant stakeholders are invited to engage in a substantive and constructive discussion in order to address this concern. Therefore Member States and other stakeholders are invited to provide their views and positions on this matter during the first session of the OEIWG. 

 

16.The third topic, referring to the coverage of human rights under the Instrument, has also generated interest. Some views refer to the need to ensure a wide and broad coverage of all human rights, while other voices have mentioned that only gross human rights violations should be addressed. Participants will be invited to share their views on this issue.

 

17.The fourth discussion will be on the Obligations of States to guarantee the Respect of Human Rights by TNCs and other business enterprises, including extraterritorial obligations.  The issue of extraterritoriality of State's obligations is an important topic for consideration, since in the production chain, there may be  many jurisdictions involved. While recognizing the complexity of this topic, a fulsome discussion is expected.

 

18.Enhancing the responsibility of TNCs and other business enterprises to respect human rights, including prevention, mitigation and remediation, will be the fifth issue to discuss. As the preparatory debates have showed, it is foreseeable that participants may use this opportunity to share opinions on the legal nature of TNCs, and their rights and responsibilities. There is indeed an unfinished debate about obligations to be imposed directly upon TNCs and other business enterprises.  

 

19. The sixth topic refers to the Legal liability of TNCs and other business enterprises: What are the standards for corporate legal liability and for which conduct? This issue is closely related to the previous issue concerning the legal nature of TNCs.

 

20. The last issue addressed by the proposed Programme of Work is the need to  build National and international mechanisms for access to remedy, including international judicial cooperation, with respect to Human Rights  violations by TNCs and other business enterprises - The OHCHR accountability and remedy project. Under this Programme item, participants may engage in a discussion on the best way to address remedy, assessing the existing instruments,  identifying potential gaps, and providing other alternatives.

 

Participation

21. Information on the session may be found at the link http://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Pages/IGWGOnTNC.aspx States and relevant stakeholders are invited to participate in a constructive way in this process, and to contribute to the debate by sharing their opinions, views, perspectives and expectations in the most democratic, transparent and inclusive manner, with the assurances of an objective and impartial chairmanship committed to respecting the rules and procedures of the Council.

 

Click Website Link to SIGN STATEMENT & See List of Sign-On Individuals & Organizations: http://www.treatymovement.com/statement

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Enhance International Legal Framework to Protect Human Rights from Corporate Abuse

We, the signatories to this joint statement,

Welcome the establishment at the 26th Session of the UN Human Rights Council of the “open-ended intergovernmental working group on a legally binding instrument on transnational corporations and other business enterprises with respect to human rights, the mandate of which shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises” (res 26/9). We call on all civil society organizations and States to actively and constructively participate in this process.

We are convinced of the need to enhance the international legal framework to protect human rights in the context of business operations. We are also mindful of the urgent need to improve access to justice, remedy and reparations for victims and to stop corporate human rights abuses. The treaty process complements other instruments and initiatives in the field of business and human rights.

On the process and participation of States and civil society

There is a large and growing group of human rights organizations, social movements, affected communities and other civil society organizations involved in this process. The strong mobilization at the time of the Human Rights Council decision to start this process gathered more than 600 signatures (from at least 90 countries) in support of a Joint Statement and ensured the presence of numerous national and international organizations in Geneva in June 2014.

With regard to the procedures to be followed by the Intergovernmental Working Group, it is important from the outset that the ground rules ensure full transparency and enable a participative process towards the elaboration of this legally binding instrument.

The process of elaboration of the prospective treaty should address the needs and realities of people and communities whose human rights have been infringed, or are being threatened, by corporate conduct.

We call on all States to actively participate in good-faith and constructively in the development of this treaty. States and the IGWG should safeguard their integrity from undue influence by actors from or related to the private sector whose primary interest in the process falls outside the objective of promotion and protection of human rights.

The existing rules for the participation of observers with ECOSOC status in the Intergovernmental Working Group should be applied. Special attention should be given to the participation of representatives from communities and organizations of people affected by transnational corporations and other business enterprises.

On the format, scope and content of the treaty

We reaffirm the content of the Treaty Alliance’s Joint Statement adopted prior to the decision of the Human Rights Council of June 2014. A new phase starts now with the establishment of the open-ended Intergovernmental Working Group and the preparations for its first session on 6-9 July 2015. With a view to achieving meaningful progress at this session, we consider that the following elements must be discussed:

a) The treaty should require States to adopt legislation and other measures requiring TNCs and other business enterprises to adopt policies and procedures aimed at preventing, stopping and redressing adverse human rights impacts wherever they operate or cooperate. These measures should also cover business operations and relationships taking place in countries other than the countries where the business may be domiciled or headquartered. Companies should be subjected to appropriate sanctions for their failure to adopt such policies and procedures.

b) The treaty should clarify the kind of company conduct that will give rise to legal liability (civil, criminal and administrative). Through this international instrument, States will have the obligation to translate these standards into national legislation and enforce them. Offences committed against the environment and impacting adversely human rights should be included. Provisions for international legal and judicial cooperation among countries should facilitate the investigation and trial of cases of transnational nature.

c) The treaty should elaborate on the modalities in which TNCs and other business enterprises participate in the commission of human rights abuses, including corporate complicity and parent company responsibility for the offences committed by its subsidiary. Corporate legal responsibility should not exclude the legal responsibility of company directors or managers.

d) The treaty should allow people with a claim access to judicial remedies not only in their own home States, but in all other States that have jurisdiction over the concerned business enterprise. The jurisdiction of national courts of these States should extend to deal with these cases separately and jointly, and effectively guarantee access to justice to the victims.

e) The treaty should provide for an international monitoring and accountability mechanism. A dedicated unit or centre within the United Nations may improve the international capacity for independent research and analysis and for monitoring the practices of transnational corporations and other business enterprises. The needs and feasibility of a complementary international jurisdiction should be discussed.

f) The treaty should contain provisions requiring States to respect, protect and facilitate the work of human rights defenders and whistle-blowers. The right to access to information of public importance and relevant to cases of business-related abuse should be guaranteed.

We consider that during the sessions of the IGWG there should be a full discussion about addressing businesses operating within a single State.

The enhancement of the international human rights system in relation to TNCs and other business enterprises is urgent and needed. We call on civil society organizations, social movements, affected communities and the public to actively promote locally, nationally and internationally the public debate around this process and mobilize for this treaty.



[1] Source: UNCTAD WIR 2013, http://unctad.org/en/pages/PressRelease.aspx?OriginalVersionID=113.

[2] James P. Walsh and Jiangyan Yu (2010), “Determinants of Foreign Direct Investment: A sectoral and Institutional approach”, IMF Working Paper, available at: http://core.ac.uk/download/pdf/6671904.pdf. The paper explicitly states, “None of the developmental or institutional variables appear to have any influence either on total FDI flows or inflows into the primary sector”. The situation does not change much when assessing the inflow of FDI into the secondary sector. As a matter of fact, although labor market flexibility and financial depth seem to be partially significant, other variables related to regulation do not have any sort of influence. See also: Paulo Elicha Tembe & Kangning Xu (2012) « Attracting Foreign Direct Investment in Developing Countries: Determinants and Policies-A Comparative Study between Mozambique and China”. See also: U.S. Agency for International Development (2005) Foreign Direct Investment: Putting It to Work in Developing Countries. Washington, DC: USAID.

[3] Kusi Hornberger, Joseph Battat, and Peter Kusek (2011) “Attracting FDI; How Much Does Investment Climate Matter?”, published as World Bank Group- View Point: Public Policy for the Private Sector, available at: http://siteresources.worldbank.org/FINANCIALSECTOR/Resources/327-Attracting-FDI.pdf.