The third meeting of the open-ended inter-governmental working group (OEIWG) for the elaboration of an international legally binding Instrument on transnational corporations and other business enterprises (TNCs and OBEs) with respect to human rights (hereafter referred to as Instrument) was successfully held at the Palais des Nations, United Nations Office in Geneva on 23-27 October 2017 (1). The mandate of the OEIWG, set in Resolution A/HRC/RES/26/9 adopted by the Human Rights Council in 2014, is to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”. According to the draft report of the 3rd OEIWG (2), 101 countries attended the meeting.

The session was organized in panels that discussed the different items proposed under the Elements Document (3), which had been presented by the Chairperson-Rapporteur of the OEIWG in line with the mandate of Resolution 26/9 (4). As the resolution mandates, the Elements Document was meant for substantive negotiations, and was prepared taking into consideration the discussions held during the first two sessions of the OEIWG in 2015 and 2016.

Much of the Elements Document prepared by the Chairperson-Rapporteur for the third session of the OEIWG builds on existing and emerging country practices. For example, under ‘general obligations’, the Elements Document proposes that States should ensure that TNCs and OBEs under their jurisdiction adopt adequate mechanisms to prevent human rights violations or abuses throughout their supply chains. One of the latest State practice in this regard is that of France, which adopted during February 2017 a law on .

Moreover, the approaches proposed under the Elements Document attend to challenges and gaps pointed out by specialized studies, such as those of the UN Office of the High Commissioner for Human Rights (OHCHR) Project on Accountability and Remedy. Those have pointed out that “lack of cooperation and coordination between interested States with respect to the investigation, prosecution and enforcement of cross-border cases” have contributed to undermining the ability of domestic legal regimes to effectively respond to cross-border cases concerning business involvement in human rights abuses (5). In this regard, the Elements Document contains proposed measures aimed at guaranteeing international cooperation at the stage of investigation, prosecution and enforcement of judgments in cases of human rights violation and abuses by TNCs and OBEs.

In this context, Mr. Olivier De Schutter, who sits on the Committee on Economic, Social and Cultural Rights, stressed that what the Elements Document proposes in regard to general obligations under a prospective Instrument is a restatement of international human rights law, which is well informed by the latest developments in the work of human rights treaty bodies and human rights jurisprudence, whereby there is nothing unorthodox being proposed.

On scope, while this discussion remains one of the critical elements where different point of views persist, the Elements Document presents an approach that could potentially form a basis for convergence among negotiating State Parties. The Elements Document proposes that a future Instrument would cover activities of TNCs and OBEs regardless of mode of creation, control, ownership, size or structure, whereby the focus would be on the activity or conduct of the business entity, as the determinant factor for coverage under a prospective Instrument. This approach means that the Instrument will eventually cover all kind of corporations, whether they are parent companies, branches, subsidiaries, affiliates, or business partners, as long as their conduct is of a transnational character. It can be noted that to the extent that the primary objective of the prospective Instrument would be to help avoid the use of legal and contractual structures by corporations in order to escape liability in case of human rights’ violations, and to attain remedy for victims of corporate human rights violations and abuses, the concepts and approaches proposed under the Elements Document provide a very useful basis for moving the discussion towards textual negotiations.

Several aspects of the third OEIWG were highly positive. The inputs and discussions held during the various panels in the course of the third session were substantive in nature, and well-targeted towards deconstructing the technical issues pertaining to the proposed elements. Moreover, much of the propositions and discussions were well-rooted in the experiences of victims of corporate human rights violations and the legal barriers they face, and directly addressed challenges that victims face in their quest to access justice and facilitate access to remedies. It was insightful to hear Mr. Richard Meeran, who represents victims of corporate human rights violations in litigation cases against corporations, capture the nature of the discussions by noting that what takes place at the OEIWG is not an academic exercise, but is addressing the practicalities pertaining to victims’ access to remedy and justice.

More than 200 representatives of civil society groups took part in the session, which included the Treaty Alliance (6), the Campaign to Stop Corporate Impunity (7), Amnesty International, the International Federation for Human Rights, and Friends of the Earth International, among others. Representatives of business organizations also took part in the session, such as the International Organization of Employers and its member - the US Business Council. A significant number of civil society groups, along with a number of experts and States, spoke explicitly of the problems arising from corporate capture and the need to address conflicts of interest in the process of negotiations on an Instrument. In this regard, several groups suggested that the future Instrument should include a provision similar to Article 5.3 of the WHO Framework Convention on Tobacco Control (FCTC) (8), which is meant to protect States from undue influence of corporations and vested interests in the process of implementation of the convention, and to ensure legitimacy of the process.

After the 3rd session of the OEIWG, the process will continue in moving towards developing a negotiating text for a draft legally binding instrument on business and human rights. The Chairperson-Rapporteur had stressed that “the mandate from the UN Human Rights Council under Res 26/9 is clear…the working group should continue working until it reaches a legally binding instrument…there is absolutely no ambiguity as to the nature of the mandate”. He underlined the historic nature of the process, pointing out that it “addresses one of the major problems of the global social contract in the 21st century”. The OEIWG adopted the report of the session ad referendum, following which the Chairperson-Rapporteur declared that “this session is adjourned”.

- Kinda Mohamadieh is senior researcher for the Global Governance for Development Programme (GGDP) of the South Centre.

(1) The full webcast of the meeting can be found at the following website: http://webtv.un.org/meetings-events/human-rights-council/.

(2) The draft report was circulated during the last day of the 3rd session of the OEIWG for adoption at the next session of the OEIWG in March 2018.

(3) The panels tackled issues of ‘preamble, principles, purposes and objectives’, the ‘scope of application’ of a prospective Instrument, ‘general obligations’ under a prospective Instrument, ‘preventive measures’, ‘legal liability’, ‘access to justice’, ‘effective remedy’ and ‘guarantees of non-repetition’, ‘jurisdiction’, ‘international cooperation’, and ‘mechanisms for promotion, implementation and monitoring’. In addition, a session was dedicated for the voices of the victims of corporate human rights abuse from different sectors.

(4) Operational paragraph 3 of Resolution A/HRC/RES/26/9 provides for the following: “3.  Further decides that the Chairperson-Rapporteur of the open-ended intergovernmental working group should 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;”

(5) See: Background document “The Accountability and Remedy Project”, accompanying consultation draft of the OHCHR Accountability and Remedy Project, available at: http://www.ohchr.org/Documents/Issues/Business/DomesticLawRemedies/OHCHR_ARP_Background_Paper_to_Draft_Guidance.pdf (accessed 11.7.2016).

(6) http://treatymovement.com/

(7) https://www.stopcorporateimpunity.org/

(8) Article 5.3 of the WHO Framework Convention on Tobacco Control provides that: “In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law”.

SOUTHNEWS No. 194, 2 November 2017

South Centre: www.southcentre.int