Press release: Human rights talks survive and advance despite EU’s pro-business attempts to derail

Geneva, July 10 — The first session of the historic United Nations negotiations towards a treaty on Transnational Corporations (TNCs) and other business enterprises with regards to human rights concluded today, following five days of inspiring talks on the need for a legally binding instrument. Civil society, expert panelists and many States engaged constructively in the negotiations, despite intense EU efforts to derail the process.

During the opening session of the Intergovernmental Working Group (IGWG) the EU objected to the agenda for the meeting, suggesting last minute changes, and demanded an extension of the IGWG mandate agreed in UN Human Rights Resolution 26/9. The last minute demands, clearly lacking in good faith and contrary to democratic procedure, caused an impasse that was finally overcome when it became clear there was no consensus around the EU proposal.

Given the European Union’s recent position towards Greece in support of the rights of financial institutions along with its decision to protect the rights of Transnational Corporations through the ISDS provisions in the TTIP, it is clearly prioritizing business interests over human rights.

“The Treaty Alliance organizations came to Geneva to call for constructive State engagement and to ensure any future treaty will focus on accountability for TNCs and access to remedy and justice for people affected. With the shameful exceptions of the EU, USA and several other rich countries, the States who were present should be commended for their engagement with this vital process,” said Anne van Schaik, Sustainable Finance Campaigner with Friends of the Earth Europe. “People cannot wait for their rights. With our presence here in Geneva, we are reminding engaged States to stay the course, and insisting that absent or obstructive States get on board. We’re here to remind them that the world is watching!”

“The EU is working more as an ambassador of big corporations than a defender of international human rights law. A clear example of this disturbing position is the proposed Transatlantic Trade and Investment Partnership between the U.S. and Europe that could contain an investment protection mechanism giving economic interests primacy over human rights,” said Lola Sánchez, Podemos MEP. “But today we are full of hope because democracy can not be stopped. The referendum in Greece has shown that people are rejecting more austerity and are turning their backs on more neoliberal politics”.

“States should now continue meaningful intercessional consultation, particularly with people affected by TNC abuses, to ensure real progress in the next round of negotiations,” said Brid Brennan of the Transnational Institute and the Global Campaign to Dismantle Corporate Power and Stop Impunity. “As civil society organizations and social movements, present here at the UN, we protest the disruptive behavior of the EU, and we challenge its member states to declare their position on this matter. The wellbeing of millions of people globally who have endured systematic corporate violations of their human rights depend on the IGWG to be able to continue and to fulfill its mandate, despite EU actions,” she added.

The first session of the IGWG on transnational corporations and other business enterprises with respect to human rights convened in Geneva on July 6th to begin the task of elaborating a treaty for business and human rights.

For Media Enquiries please contact:

Anne van Schaik, anne.vanschaik@foeeurope.org +31 6 243 43968

Dominic Renfrey, drenfrey@escr-net.org

Brid Brennan, bridbrennan@tni.org

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Useful links:

• Treaty Alliance website: www.treatymovement.com
• Joint written submission by Friends of the Earth Europe, Brot für die Welt, SOMO, CIDSE IBFAN, IBFAN-GIFA and Global Policy Forum: http://www.gifa.org/wp-content/uploads/2015/06/IGWG-contribution-FoEE-BftW-GPF-CIDSE-IBFAN-SOMO_July-2015-FINAL.pdf

IBFAN’s oral statements:

• IBFAN’s oral statement – General Comments: http://www.gifa.org/wp-content/uploads/2015/07/GIFA-Oral-Statement_GENERAL-COMMENTS1.pdf
• IBFAN’s oral statement on Panel IV – Scope-human rights coverage:http://www.gifa.org/wp-content/uploads/2015/07/GIFA-Oral-Statement_PANEL-IV_HR-COVERAGE.pdf
• IBFAN’s oral statement on Panel V – ETOs: http://www.gifa.org/wp-content/uploads/2015/07/GIFA-Oral-Statement_PANEL_V_CONTENT_ETOs.pdf

Oral statements by other organizations delivered on behalf of IBFAN:

• CIDSE’s oral statement on Panel II – Principles: http://www.gifa.org/wp-content/uploads/2015/07/CIDSE-oral-statement_Principles-1.pdf
• SOMO’s oral statement on Panel III – Scope/coverage of the instrument (TNCs vs all enterprises): http://www.gifa.org/wp-content/uploads/2015/07/SOMO-oral-statement-joint-submission-in-Panel-II-on-scope_final.pdf
• CIDSE’s oral statement on Panel IV – Scope/human rights coverage:http://www.gifa.org/wp-content/uploads/2015/07/CIDSE-oral-statement_Scope_Rights.pdf
• Friends of the Earth Europe’s oral statement on Panel V – ETOs: http://www.gifa.org/wp-content/uploads/2015/07/FoEE-and-others_panel-V_ETOs.pdf
• Friends of the Earth Europe’s oral statement on Panel VI – Content: Obligations of TNCs and other business enterprises: http://www.gifa.org/wp-content/uploads/2014/02/Panel-VI-content-FOEE-with-others.pdf
• SOMO’s oral statement on Panel VII – Content: standards for legal accountability TNCs and what conduct? http://www.gifa.org/wp-content/uploads/2015/07/Panel-VII-on-liability-SOMO1.pdf
• SOMO’s oral statement on Panel VIII – Content: Mechanisms for Access to Remedy, including international cooperation: http://www.gifa.org/wp-content/uploads/2014/02/Panel-VIII-on-Remedy-SOMO-FOEE-CIDSE-BfdW-IBFAN-GPF.pdf

Friends of the Earth Europe Oral Statement on Panel VI – Content: Obligations of TNCs and other business enterprises

Thank you Madam Chair.

I am speaking on behalf of Friends of the Earth Europe, SOMO, CIDSE, Brot für die Welt, IBFAN, IBFAN-GIFA and Global Policy Forum, who together made a joint submission to this intergovernmental working group. Our organizations are also members of the Treaty Alliance. 

We think a new binding instrument should ensure businesses comply with human rights due diligence requirements of the UNGPs and OECD Guidelines. Building on these existing norms, the treaty should establish a duty for States to transform the voluntary corporate responsibility to respect human rights into a mandatory corporate obligation to respect human rights throughout all their operations including transnational. 

A mandatory obligation to respect and remedy human rights should fix the gaps in the UNGPs while building on its achievement..The key aspects of this achievement are the human rights due diligence concept and the recognition that companies can impact on human rights in different ways. 

Let me briefly elaborate. Under the UNGPs, the process of human rights due diligence (HRDD) entails assessing the actual and potential human rights impacts from its operations; integrating and acting upon the findings made; tracking responses; and communicating how the negative impacts have been addressed. Of particular relevance is the obligation for business enterprises to consult with potentially affected groups and other relevant stakeholders to identify potentially adverse human rights risk. And address adverse impacts when they occur.

 The UNGPs state very clearly that companies can impact all human rights in a number of ways: not only by causing the violations, but also by contributing to it, or by being directly linked to the violations through its activities and business relationship. We see this for example in the role of financial institutions who provide financial services to companies which are engaged in landgrabbing, environmental degradation, violations of human rights and other. Or in the garment industry, where brands and retailers benefit from low production costs while workers in their supply chain face modern day slavery conditions. 

Human rights due diligence is key in preventing adverse human rights impacts. However, one of the biggest gaps left by the UNGPs is the lack of effective remedy mechanisms to redress human rights violations. Therefore, in order for the treaty to fill this gap, it needs to be combined with legal liability whether civil, criminal or administrative. Provisions onthe extraterritorial scope of due diligence regulation are also needed. 

We will elaborate further on corporate liability in tomorrow morning’s panel session.

 Madam Chair, we conclude by stressing again the importance of this week and the substantive discussions. We call on all states, including the EU, but also others whom we do not see here, to join these panel discussions and participate. These discussions will be heard and shared with NGOs, social movements and human and environmental rights defenders who are all hoping for a strong treaty for binding rules for businesses. 

I thank you for your attention. 

IBFAN Oral Statement on Panel IV - Scope: Human rights to be covered under the binding instrument

1st session of IGWG on TNCs and human rights, July 7, 2015, 3-6PM

Thank you Chairperson. I am speaking on behalf of the International Baby Food Action Network and the Pesticide Action Network Asia, both members of the Treaty Alliance. 

As highlighted by human rights experts as well as by our networks engaged with communities on the ground, corporate abuses affect the whole range of human rights defined in the core human rights instruments, from civil and political to economic, social and cultural rights. 

Our organizations have documented a great number of cases in which people’s health has been negatively affected, children’s development has been jeopardized, food and water have been contaminated and natural resources depleted by activities of business enterprises. Their activities, which include the production and use of highly hazardous chemicals and pesticides, do not only cause direct harm to populations and damage the environment. They also lead to long-term negative impacts on health that are sometimes irreversible and intergenerational. 

Misleading marketing causes long-term effects on people’s health and development. For example, when baby food companies promote their breastmilk substitutes in violation with the WHO Code, they undermine breastfeeding optimal practices, therefore exposing infants and young children to a greater risk of mortality and compromising their future health, growth and wellbeing. 

We would like to reiterate that all human rights are universal and inalienable as well as interdependent and indivisible. A treaty that would cover only a narrow scope of human rights would be meaningless to the affected people. Therefore, the future treaty should incorporate all human rights contained in the core human rights conventions as well as the relevant ILO conventions, in particular those related to labour rights, maternity protection, rights of indigenous people, and agricultural and migrant workers. Thank you.

SOMO Oral Statement on Panel III - Scope/coverage of the instrument (TNCs vs all enterprises)

1st session of IGWG on TNCs and human rights, July 7, 2015, 10AM-1PM

Thank you Madam Chair. 

I am speaking on behalf of SOMO, CIDSE, Brot für die Welt, IBFAN, IBFAN-GIFA and Global Policy Forum, who together with Friends of the Earth Europe made a joint submission to this intergovernmental working group. Our organizations are also members of the Treaty Alliance, and are among the nearly 400 organizations from around the world who have signed the Treaty Alliance joint statement. 

With regard to the scope of the businesses the treaty would cover – the footnote discussion – we have identified a hybrid option that we would like to share with you. Before explaining this hybrid option, I would like to thank Dr. Surya Deva for advising us and developing this idea. In short, the hybrid option entails that, conceptually, the treaty would NOT exclude any specific type of business, but, in its substance, it would focus on developing provisions for transnational operations, thereby addressing the current challenges to hold transnational corporations to account. 

Let me briefly explain this idea. First of all, it is important to stress that the very reason to start negotiating the treaty is to address governance gaps related to transnational business operations and problematic home-host state dynamics that come with it, and that the bulk of the human rights impacts we seek to address occur in relation to such transnational operations. 

Nevertheless, the footnote poses a number of challenges. First of all, it lacks conceptual clarity, for all companies – even TNCs – are registered under domestic law of some country. A second and more problematic aspect is that any attempt to define TNCs is likely to prove futile, because an entity could be considered “transnational” in view of multiple alternative variables, such as shareholding, operations, business relations, location of offices, nationality of shareholders and directors. 

Our organisations fear that any attempt to limit the treaty’s scope by providing a definition of targeted corporations - thereby excluding a subset of companies - will inevitably result in lawyers advising enterprises how to bypass the given definitional contours, and would thus provide loopholes in the protection against business related human rights abuse. Therefore, the proposed international instrument in our view should not exclude any business category. 

That having said, the treaty’s main objective and focus needs to be on provisions for transnational operations of business, such as the obligation of states to regulate the extraterritorial activities of business, and to provide mutual assistance between states in investigating violations and in enforcing judgements. It is these types of provisions we are looking for in the treaty, which clearly go beyond the domestic level. 

To conclude: in our view this hybrid option could effectively avoid double standards and loopholes to escape the foreseen treaty regulation, while at the same time it would but put the energy where most of the pain is: at the level of transnational operations and TNCs. We hope this idea will constructively contribute to the debate. Thank you Madam Chair.

CIDSE Oral Statement on Panel I: Principles for an international legally binding instrument on transnational corporations (TNCs) and other business enterprises with respect to human rights

1st session of IGWG on TNCs and human rights, July 6, 2015, 1-3PM

Thank you Madam Chair. I am speaking on behalf of CIDSE, the international alliance of Catholic justice and solidarity organizations, who together with the organizations Friends of the Earth Europe, Brot für die Welt, SOMO, IBFAN and IBFAN-GIFA and Global Policy Forum, made a joint submission to this intergovernmental working group. We are also members of the Treaty Alliance, and are among the nearly 400 organizations from around the world who have signed the Treaty Alliance joint statement, many of whom are present this week both inside this room and outside in a wider mobilization. 

First I wish to say that our organizations have been calling for constructive engagement by all States in this process. Therefore we are pleased at the openness shown yesterday for an inclusive process, and as a number of our members are based in Europe we very much welcome the presence and a constructive participation from the EU and its Member States in this group’s work. 

We wish to highlight 3 sets of principles we believe to be fundamental to this treaty process. These have also been strongly raised in several cases during yesterday’s side event on the impact of transnational corporations and other businesses on grassroots communities, co-organized by several of our organizations.

The first is Accountability.

States have the duty to protect human rights by regulating the behavior of private (non-State) actors. States are expected to take all measures that could reasonably be taken, in accordance with international law, in order to prevent private actors from adopting conduct that may lead to human rights violations. I want to underline this aspect of prevention. Yesterday our colleague speaking about mining in Colombia emphasized that communities’ rights are being violated from the very beginning of corporate activities, for example their right to land by forced displacement for big mining projects, not to speak of their right to health by environmental contamination and their very right to life. Therefore the duty to protect includes both a duty to provide access to remedy, as well as a duty of preventative regulation and sanction.

The obligation of a State to control the conduct of non-State actors where such conduct might lead to human rights violations also outside its territory has been explicitly affirmed by various United Nations human rights treaty bodies, and in several opinions of the International Court of Justice related to environmental harms. 

The second is Equality and non-discrimination. 

As stated in Article 1 of the Universal Declaration of Human Rights, “All human beings are born free and equal in dignity and rights.” The prohibition against discrimination is at the heart of human rights law and is clearly established in numerous human rights texts. Each State must ensure that all individuals subject to its jurisdiction are protected against corporate human rights abuse, without distinction of any kind.

Of key relevance here is the need to redress the current power imbalances between both States and affected peoples vis-à-vis transnational corporations. Affected communities face huge imbalances in trying to defend their rights and also in litigation against transnational companies, it was said yesterday, with unlimited resources and influence. States also experience such power imbalances in negotiating investment/trade agreements and attracting foreign direct investment. Here I want to underline the message from affected communities expressed in yesterday’s side event, that human rights for all must take primacy over the rights of some investors in the context of trade and investment agreements. 

The third is Participation and transparency. 

People have a right to participate in how decisions are made regarding protection of their rights. Affected people are also actors, not just States and companies. Transparency means that governments must be open about all information and decision-making processes related to rights. This should empower concerned actors by equipping them with information and creating a precondition for holding power-holders to account. Transparency has arguably already become a general principle of international law, for example within international environmental law and disarmament treaties.

Of key relevance here is Free, Prior and Informed Consent. As we heard yesterday from Victoria Tauli Corpuz, the very survival of indigenous peoples around the world is threatened by corporate activity. During the side event yesterday, we heard that the damages to cultures, to nature, are increasingly becoming irreversible and irreparable, so we must act urgently so that companies respect the autonomy of communities and their own, other conceptions of development and progress. International law has now recognized that FPIC is a legal norm imposing clear affirmative duties and obligations on States with regard to indigenous rights. The recent development of FPIC in national and international law is demonstrative of its widespread support as a principle of international law by the international community.

Madame Chair, our organizations work with communities and individuals currently suffering abuses and violations of their human rights a result of business activity. Our colleague from an indigenous communities in Canada put it very eloquently yesterday, when she said that this process is about “shining light where there’s only darkness on abuses of human rights.” Concrete measures are urgently needed to protect women and men seeking to defend their rights and the environment in the face of harmful corporate practice, and to address the denial of access to justice to communities in numerous countries. Thank you Madam Chair.

IBFAN Oral Statement - General Comments

1st session of IGWG on TNCs and human rights, July 6, 2015, 10AM-1PM

Thank you Chairperson. I am speaking on behalf of the International Baby Food Action Network, the Pesticide Action Network Asia and Pacific, Friends of the Earth Europe, SOMO and the Global Policy Forum, members of the Treaty Alliance. 

We welcome the opening of the first session of the open-ended intergovernmental working group for the elaboration of an International Legally Binding Instrument on Transnational Corporations and other Business Enterprises with respect to human rights. We are very glad to see countries and civil society taking part in this crucial process and would like to encourage all States to engage constructively in the discussions. 

This is a historical step for all citizens, particularly for those affected by corporate abuses, who have struggled for many years for justice. Therefore, we urge you to ensure meaningful involvement of these affected communities in the treaty process in order to ensure that their needs are met. 

To date, millions if not billions of people are negatively affected by corporate activities. Abuses are more frequent and apparent in the South, although communities from the North are also suffering from corporate misconduct such as chemical contamination and promotion of unsafe or unhealthy food. In addition, negative external costs related to corporate activities, including adverse and irremediable impacts on health and environment, are often borne by affected communities themselves as well as by public institutions and national governments. Whenever the affected communities organize to claim their rights and seek for remedies, their leaders regularly face threats to their security and even to their life. 

Besides, whistle-blowers are often harassed or fired for having reported or disclosed information on a threat or harm to the public interest. Human rights defenders and whistle-blowers are at the forefront to get corporations accountable and thus should be provided special protection by the treaty. During a side event that took place yesterday, we had the opportunity to hear about the experience of a whistle-blower, Dr Yasmine Motarjemi, former executive in charge of global food safety at Nestlé, who denounced existing corporate strategies to continue putting business interests ahead of human rights with impunity. 

Therefore, we would like to stress the necessity to put in place adequate safeguards to guarantee that the treaty process is not unduly influenced by the private sector and thus, to ensure its independence, integrity and credibility. These safeguards should be set up as a priority, in a transparent manner, and should include concrete measures that help identify and eliminate risks of personal or institutional conflicts of interests. 

In conclusion, we would like to reiterate our support to this treaty process. We will continue to provide information to the intergovernmental working group and mobilize our respective networks at international, regional and national levels. Thank you.

Press release: Human Rights Council: Historic resolution adopted for a legally binding instrument on TNCs - Third World Network, 30 June 2014

Geneva, 30 June (Kinda Mohamadieh*) – The United Nations Human Rights Council (HRC) adopted, through a vote, a historic and significant resolution to start a process for an international legally instrument on transnational corporations.

Officially entitled “Elaboration of an international legally binding instrument on Transnational Corporations and other Business Enterprises with respect to Human Rights” (A/HRC/26/L.22) the resolution was adopted on 26 June at the 26th session of the HRC.

The resolution was co-sponsored by Ecuador and South Africa, and also supported by Bolivia, Cuba and Nevezuela. In the vote on the resolution, 20 Members of the HRC supported the resolution, while 13 Members abstained, and 14 Members voted against it.

Countries that supported the resolution include: Algeria, Benin, Burkina Faso, China, Congo, Cote D’Ivoire, Cuba, Ethiopia, India, Indonesia, Kazakhstan, Kenya, Morocco, Namibia, Pakistan, Philippines, Russian Federation, South Africa, Venezuela, Vietnam. Countries that abstained include: Argentina, Botswana, Brazil, Chile, Costa Rica, Gabon, Kuwait, Maldives, Mexico, Peru, Saudi Arabia, Sierra Leone, and United Arab Emirates. Countries that voted against the resolution include: Austria, Czech Republic, Estonia, France, Germany, Ireland, Italy, Japan, Montenegro, Republic of Korea, Romania, the former Yugoslav Republic of Macedonia, United Kingdom, and United States of America.

The resolution provides for the establishment of an open-ended intergovernmental working group (IWG) that is mandated with elaborating an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.

The resolution provides that the IWG shall hold its first session for five working days in 2015, before the 30th session of the HRC. The resolution also provides that the first two sessions of the working group shall be dedicated to conducting constructive deliberations on the content, scope, nature and form of the future international instrument.

The resolution mandates the Chairperson-Rapporteur of the IWG to prepare elements for the draft legally binding instrument for substantive negotiations at the commencement of the third session of the working group, taking into consideration the discussions held at its first two sessions.

It recommends that the first meeting of the IWG serve to collect inputs, including written inputs, from States and relevant stakeholders on possible principles and elements of such an international legally binding instrument.

The resolution requests the IWG to submit a report on progress made to the HRC for consideration at its thirty-first session.

The resolution explains in a footnote that the reference to ‘other business enterprises’ denotes all business enterprises that have a transnational character in their operational activities, while it does not apply to local businesses registered in terms of relevant domestic law.

The resolution also makes reference as well to the important role of civil society actors in promoting corporate social responsibility and in preventing, mitigating, and seeking remedy for adverse human rights impacts of transnational corporations (TNCs) and other business enterprises.

In presenting the resolution to the HRC, Ambassador Luis Gallegos Chiriboga of Ecuador stressed that the Council owes its existence to those who tirelessly fight to protect human rights and the victims of human rights violation, including those that are most needful for protection and support. He called upon the Council to correct injustices, including the lack of protection for victims of violations of human rights abuses carried out by TNCs. He noted that these corporations benefit from binding international protections. However, victims of harmful corporate activities lack access to legal protection, while only having available voluntary norms.

Ambassador Chiriboga focused on the importance of protecting victims, noting that victims of disasters, such as that by Union Carbide in Bhopal (India), Shell in the Niger Delta (Nigeria), and Chevron in Ecuador, among others, are still waiting for remedy and fair compensation. He underlined the support of more than 500 civil society organizations from around the world, European Parliamentarians, and the Vatican to the initiative towards elaborating a legally binding instrument on TNCs and other business enterprises with respect to human rights.

Ambassador Chiriboga also stressed Ecuador’s support for implementation of the United Nations Guiding Principles on Business and Human Rights.

[On 16 June 2011, the UN HRC endorsed by consensus the "Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework" proposed by UN Special Representative John Ruggie (Resolution 17/4). More information available at: 
http://www.business-humanrights.org/SpecialRepPortal/Home/Protect-Respect-Remedy-Framework/GuidingPrinciples

At its 17th session, in resolution A/HRC/17/4, the HRC decided to establish a Working Group on the issue of human rights and TNCs and other business enterprises, consisting of five independent experts, with the mandate to promote the dissemination and implementation of the Guiding Principles. More information available at:
http://www.ohchr.org/EN/Issues/Business/Pages/WGHRandtransnationalcorporationsandotherbusiness.aspx

In a statement at the 17th session of the HRC in June 2011, the delegation of Ecuador noted its conviction that the United Nations should continue to work on the issue of establishing binding international standards on the activities of TNCs. Ecuador’s statement underlined that the Guiding Principles are “not binding standards”, “are just a guide”, and thus “are not mandatory”. At the September 2013 session of the HRC, the delegation of Ecuador delivered a statement on behalf of more than 85 countries stressing the need for a legally binding framework to regulate the work of TNCs. More on this statement is provided below.]

Speaking on behalf of South Africa, Ambassador Abdul Samad Minty noted that the government of South Africa accords special priority in regard to issues of TNCs, business, and human rights. He highlighted that the South African government holds a strong view that these entities, which are the primary drivers of globalization, cannot operate in a void. He added that TNCs and other business enterprises often operate in an environment where appropriate national legislation to effectively regulate their operations, or mitigate the propensity for their violation of human rights, is either absent or very weak.

Experience shows that in countries of the North, where there are strong binding laws and regulations promulgated by national parliaments, the violations of human rights by corporations are significantly minimized, according to Ambassador Minty.

He stressed that a universal regulatory framework in the form of a binding instrument to provide legal protections, effective remedies, as well as a range of other measures in quest for protections of victims, is desirable and imperative. He also recalled that global mass mobilizations by over 500 civil society organizations calling for such an instrument.

Countries take the floor to explain their vote

China expressed its support for joined efforts by the international community to promote better protection and respect of human rights. It added that it is in favor of pursuing dialogue and cooperation to implement the United Nations Guiding Principles on Business and Human Rights and to ensure their actual effects. China noted that the formulation of an international legal instrument is a complex issue, highlighting the disparities among countries in terms of economic development, judicial systems, systems of enterprise, as well as historical and cultural backgrounds. China underlined the importance of being gradual towards gathering consensus.

India noted that the issues of TNCs and other business enterprises is an area where the international community must work together, not only to encourage businesses to respect human rights, but also to hold them accountable for violations arising out of their business operations. India added that the work of the existing expert working group on the issue of human rights and TNCs and other business enterprises during the last three years provided guidance to States and businesses and shed light on glaring gaps in available protections. However, India underlined, the Guiding Principles on Business and Human Rights have their own limitations and carry little impact in the case of victims whose human rights have been violated by operations of TNCs.

India added that the resolution seeks to open an opportunity for States to discuss, in a focused manner, the issues of TNCs, and provides an acceptable road map to move forward in this direction. As States promote the integration of the world economy and capital flows across borders, it is important to plug possible protection gaps that may arise due to business operations, it added. When States are unable to enforce national law with respect to gross violations committed by businesses, or to hold them accountable due to the sheer size and clout of TNCs, the international community must come together to seek justice for the victims of violations committed by TNCs, India stressed.

The United States, the European Union, Japan, the United Kingdom and Irelandspoke against the resolution.

The United States focused in their remarks on the United Nations Guiding Principles on Business and Human Rights, noting that they consider them a success, despite the limited three years since they have been endorsed.  While agreeing that more needs to be done to improve access to remedy for victims of business-related human rights abuses, the United States raised concern that the resolution on a legally binding instrument is not complementary to the work on promoting the implementation of the United Nations Guiding Principles.

The United States added that they perceive that the proposed intergovernmental group would create a competing initiative that would undermine efforts to implement the Guiding Principles. It expected that focus would turn to the new instrument, while companies, States, and other actors would unlikely invest significant time and money in implementing the Guiding Principles. The United States cautioned that a one-size-fit-all instrument would be unlikely able to address concerns related to the complex issues of regulating business, noting that such an instrument would be binding only on States that become party to it. It also raised few practical questions concerning the application of the proposed international instrument to corporations, which are not subject to international law. The United States expressed its unwillingness to participate in the proposed intergovernmental working group.

Italy, speaking on behalf of the European Union (EU) Member States, focused on the efforts undertaken since 2011 to disseminate and implement the United Nations Guiding Principles on Business and Human Rights. Italy referred to national action plans elaborated by several EU Member States to reflect the Guiding Principles. It added that the Guiding Principles do not exclude further legal developments, while reaffirming their understanding that what has been done so far is not enough to prevent abuses and enable access to remedy when abuses occur. The EU stressed that no international mechanism could replace robust domestic legislation and processes involving all stakeholders, calling for additional focus on implementation of the Guiding Principles on Business and Human Rights. The EU also noted that the resolution focuses on TNCs, while many abuses are committed by enterprises at the domestic level.

The United Kingdom (UK) was of the opinion that issues of business and human rights should be addressed through national rule of law at individual state level, and through the application of fair, just, and independent legal systems that can protect victims and ensure that business activity can thrive. The UK added that focusing on the United Nations Guiding Principles on Business and Human Rights would be the best way forward in dealing with these important issues.

Japan underlined their commitment to the Guiding Principles on Business and Human Rights, noting that the resolution could undermine efforts undertaken in regard to their implementation. The Guiding Principles provide guidance on how States could fulfill their obligations in the area of human rights, while respecting business-related international legal obligations, according to Japan. The international community could deepen its understanding in regard to an international legally binding instrument through examining best practices in this regard in the course of implementing the Guiding Principles, Japan added.

Ireland aligned itself with the views expressed by the EU, underlining its commitment to the Guiding Principles on Business and Human Rights, while noting that the resolution could undermine the process of their implementation. While noting the importance of addressing barriers to access to judicial and non-judicial remedies, Ireland was of the opinion that an intergovernmental working group would not be the appropriate fora for such a discussion.

The 26th session of the HRC also adopted, by consensus, another resolution entitled “Human rights and transnational corporations and other business enterprises” (A/HRC/26/L.1) co-sponsored by Norway, Russia, and Argentina. The resolution extends for a period of three years the mandate of the existing expert Working Group on the issue of human rights and TNCs and other business enterprises, as set out in HRC resolution 17/4.

Background on the process towards resolution A/HRC/26/L.22/Rev.1

In September 2013, the delegation of Ecuador, speaking on behalf of more than 85 countries, including the African Group, the Arab Group, Pakistan, Sri Lanka, Kyrgyzstan, Cuba, Nicaragua, Bolivia, Venezuela, Peru, and, Ecuador, underlined the need for a legally binding instrument in a statement delivered at the 24th session of the HRC.

States subscribing to the statement stressed that “the increasing cases of human rights violations and abuses by some TNCs reminds us of the necessity of moving forward towards a legally binding framework to regulate the work of transnational corporations and to provide appropriate protection, justice and remedy to the victims of human rights abuses directly resulting from or related to the activities of some transnational corporations and other businesses enterprises”.  The statement noted that an “international legally binding instrument, concluded within the UN system, would clarify the obligations of transnational corporations in the field of human rights, as well as of corporations in relation to States, and provide for the establishment of effective remedies for victims in cases where domestic jurisdiction is clearly unable to prosecute effectively those companies”.

In pursuit of the discussion on TNCs, human rights, and a legally binding instrument in this area, the Permanent Missions of Ecuador and South Africa to the United Nations in Geneva co-organized a workshop during the week of the 25th ordinary session of the HRC to explore this issue.

The workshop aimed at contributing to clarifying the ways in which a legally binding instrument on business and human rights would provide a framework for enhanced State action to protect rights and prevent the occurrence of human rights abuses. It also aimed at discussing the difficulties faced by developing countries when trying to hold transnational corporations accountable, as well as the gaps under the current soft law framework.

In this regard, the discussion tackled the extraterritorial duties of States, obstacles that victims of human rights violations face when trying to access justice and adequate remedies, including national, regional and international courts and non-judicial mechanisms.

According to the report resulting from the meeting, some of the main elements highlighted during the discussion focused on the importance of recognizing that there are gaps in the international legal framework related to the duty to protect human rights in respect to business activities, and the concentration of related instruments in soft law. The report noted as well the recognition of the asymmetry between rights and obligations of TNCs; while TNCs are offered 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.

Furthermore, the report noted that the obligation of States to regulate business activities within their territorial jurisdiction is clear, but on the other hand their obligation regarding corporate conduct acting abroad is not clear. The report noted as well the importance that participants accorded to building on lessons learned from the history of addressing the issues of business and human rights, including the experience of discussing the “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights".

Mobilization by civil society groups

The months before the 26th session of the HRC witnessed mobilization by international networks, organizations, and social movements from various regions, organized under the umbrella of an alliance calling for binding international regulation to address corporate human rights abuse. A statement calling for an international legally binding instrument has been signed by 610 civil society organizations and social movements as well as 400 individuals from 95 countries.

The signatories call upon States to elaborate an international treaty that “affirms the applicability of human rights obligations to the operations of transnational corporations and other business enterprises”. They add that the treaty should “require States Parties to monitor and regulate the operations of business enterprises under their jurisdiction, including when acting outside their national territory, with a view to prevent the occurrence of abuses of human rights in the course of those operations”. 

They underline that the treaty should “require States Parties to provide for legal liability for business enterprises for acts or omissions that infringe human rights and to provide for access to an effective remedy by any State concerned, including access to justice for foreign victims that suffered harm from acts or omissions of a business enterprise in situations where there are bases for the States involved to exercise their territorial or extraterritorial protect-obligations”. The statement stresses as well the importance of providing for “an international monitoring and accountability mechanism” and for “protection of victims, whistle-blowers and human rights defenders that seek to prevent, expose or ensure accountability in cases of corporate abuse and guarantees their right to access to information relevant in this context” (The call is available at the following website: http://treatymovement.com).

In a press release commenting on the adoption of the resolution initiating a process to develop a legally binding instrument on TNCs, other business enterprises, and human rights, the Treaty Alliance emphasized that “the establishment of a binding instrument is complementary to the implementation of the Guiding Principles and necessary to ensure glaring gaps in protection are addressed”. The Alliance explained in the press release that, “some States opposing the resolution made attempts to come to a compromise, but were not willing to provide a concrete path towards the drafting of a binding instrument to prevent human rights abuses by TNCs and other business enterprises and allow for the provision of remedy to victims”.

The Alliance added that, “while companies must respect all human rights, as reaffirmed in the UN Guiding Principles on Business and Human Rights, they currently are not held accountable under international human rights law. Thus, the implementation of the Guiding Principles at the national level has been slow and the Guiding Principles remain insufficient to prevent human rights violations. In the meantime, many victims around the world continue to suffer without access to justice”.

The Alliance further noted that “an intergovernmental process will contribute to addressing current imbalances under international law, particularly in light of protections companies can obtain under Bilateral Investment Treaties and Free Trade Agreements, which have allowed corporations to sue States”.

(Kinda Mohamadieh is with the Arab NGO Network for Development).

Treaty Alliance Press Release - June 27, 2014

Yesterday, a resolution was adopted in the UN Human Rights Council that will begin the process of elaborating an international legally binding instrument on business and human rights. Despite strong opposition from the EU and US, the resolution received affirmative votes from 20 member States on the Human Rights Council, while 13 States abstained.

This victory in the promotion of human rights is welcomed by the Treaty Alliance, a group of networks and campaign organizations collectively working to organize advocacy in support of developing binding international regulation to address corporate human rights abuses. A statement calling for an international legally binding instrument has been signed by 610 civil society organizations and social movements and 400 individuals from 95 countries. Additionally, the Subcommittee on Human Rights of the European Parliament and the Vatican have made statements supporting the creation of such an instrument.

This adoption will result in the establishment of an open-ended intergovernmental working group that will have the mandate of elaborating a binding instrument to regulate the activities of Transnational Corporations (TNCs) and Other Business Enterprises. Some States opposing the resolution made attempts to come to a
compromise, but were not willing to provide a concrete path towards the drafting of a binding instrument to prevent human rights abuses by TNCs and other business enterprises and allow for the provision of remedy to victims.

While companies have a responsibility to respect all human rights, as reaffirmed in the UN Guiding Principles on Business and Human Rights, they are currently not held legally accountable. Thus, the implementation of the Guiding Principles at the national level has been slow and the Guiding Principles remain insufficient to prevent human rights violations. In the meantime, many victims around the world continue to suffer without access to justice.

Members of the Treaty Alliance emphasize that the establishment of a binding instrument is complementary to the implementation of the Guiding Principles and necessary to ensure glaring gaps in protection are addressed. Notably, an intergovernmental process will also contribute to addressing current imbalances under international law, particularly in light of protections companies can obtain under Bilateral Investment Treaties and Free Trade Agreements, which have allowed corporations to sue States.

While the US and EU have repeatedly stated that they will not participate in the intergovernmental open-ended working group established by the resolution, the Treaty Alliance hopes for their involvement in this process that will be critical to ensuring effective protection of human rights in the context of business activities.