WUNRN
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.”
__________________________________________________________________________________________________________________________________________________________________
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
__________________________________________________________________________________________________________________
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 opportunities—as represented by, for example, the size and growth
potential of markets—are 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
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.