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UN Treaty Talks Day 3 and 4: From business as usual to enhanced corporate responsibility for human rights

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• Day 3 and 4 of UN Treaty talks see interesting contributions on content and scope • EU and Member States delegations present • Relevant presentation from French MP Danielle Auroi on duty of vigilance bill and EU Green Card process

READ Day 1 and Day 2 summaries!

Off to a busy start, discussions on developing internationally binding regulation in the field of business and human rights, also known as the UN Treaty, intensified during days three and four.

Wednesday and Thursday focused on obligations and responsibilities for businesses and, respectively, approaches and criteria for the future definition of the Treaty’s scope – a compromise item introduced after a major divide arose between EU and other States during 2015’s negotiations, due to EU’s request for an enlarged scope.

Day 3: starts with business as usual

The debate on day three looked at different avenues to apply legal obligations directly on corporations, going into in-depth judicial detail regarding liability mechanisms.

The EU and Member States were present, but in maller numbers compared to the first two days. Although in the room, both EU and Member States did not take the floor on Wednesday.

Part of the morning panel, the International Organisation of Employers (IOE) made their view clear that States are the main bearers of duties and responsibilities regarding human rights protection, and businesses should only be asked to comply with national legislation, and possibly support the efforts of governments in implementing  international standards. IOE also cited the ILO Standards, OECD Guidelines for Multinational Enterprises and UN Guiding Principles on Business and Human Rights (UNGPs) as existing effective tools in the area of business and human rights.

The IOE’s position was contradicted by several interventions throughout the day, included those from the delegations of Ecuador and Uruguay, Professor Surya Deva - member of the UN Working Group on Business and Human Rights – and other experts and civil society representatives.

The Ecuadorian delegation reminded the participants that international standards also apply to private actors as well as states. The representative for Uruguay pointed out the absence of human rights content from the OECD Guidelines, determining the need for an international Treaty addressing this protection gap.

Civil society representatives highlighted the inefficiency of OECD National Contact Points, with Friends of the Earth International arguing for the establishment of a Treaty control and implementation mechanism similar to a world court hearing matters related to abuses committed by transnational corporations (TNCs).

Prof Surya Deva explained that there are no barriers in international law to impose direct obligations on corporations. Mr Deva recalled that the UNGPs themselves introduce obligations for corporations, adding that “no centre of power in society should be immune to obligations, especially in human rights law.”

Latin American delegations were very active during day three. Memorable interventions from Cuba and Bolivia should also be noted, as both countries asked for a monitoring mechanism to be introduced, to insure effective implementation of the Treaty and access to remedy for victims.

European delegation step up engagement on Day 4

The debate on Thursday saw an improved European presence. A higher number of European States were in Palais des Nations’ Room XX during the day, with the EU, France and Switzerland intervening from the floor during discussions.

The Council of Europe (COE) Commissioner for Human Rights, Nils Muižniekis, and French Member of Parliament (MP) Danielle Auroi also made important contributions to the debate through their addresses which expressed support for the Treaty.

The morning Panel on scope included a presentation from Anne Van Schaik from Friends of the Earth Europe. In her statement, Ms Van Schaik referred to the need to go beyond a narrow definition of TNCs and include all business relationships and operations, adding that for victims of corporate abuse it does not matter if their rights are violated by a national company or a TNC.

Ms Van Schaik’s comments were echoed in a joint intervention by FIDH, SOMO, ICJ, IBFAN, Bread for the world and CIDSE stating: “all businesses, including State­owned enterprises and local businesses, have the potential to negatively impact on human rights and, as a result of governance gaps, deficiencies and inadequate enforcement of national laws.”

The afternoon panel delivered excellent expert presentations and addresses from the floor on prevention, remedy, accountability and access to justice at national and international level.

The meeting started with an address from Mr Muižniekis, COE Commissioner for Human Rights, who stressed the importance of the Treaty process in improving human rights protection, and followed with a presentation from French MP Danielle Auroi.

The French MP talked about the on-going legislative debate in France on the duty of vigilance bill. The draft law proposes a human rights duty of vigilance obligation for large French companies, throughout their operations and subcontracting chains, both at home and abroad.

Ms Auroi also introduced the audience to a Green Card process started by eight EU Member State parliaments, asking the EU Commission to replicate progress made in France, and move for mandatory human rights due diligence (HRDD) at EU level. Ms Auroi added that the EU should demonstrate it prioritises UNGPs implementation by introducing mandatory HRDD.

Professor Surya Deva pointed out the importance and relevance of the UNGPs, as well as their complementarity with the Treaty. Mr Deva explained that the Treaty should be built on the UNGPs, but that the Principles “should be used as starting point, not as ending point.”  Mr Deva advised the Treaty should require States “to institutionalise mandatory HRDD”, and pay special attention “to most vulnerable groups, including migrant workers, children, women, indigenous peoples, people with disabilities, etc.”

Ms Lene Wendland, Adviser on Business and Human Rights at OHCHR presented the Remedy and Accountability Project Guidelines, aiming to provide legal and practical solutions for a wide range of issues related to existing barriers to justice faced by victims. Ms Wendland added that it is important that the Treaty has an enforcement agency with the resources and the expertise to prosecute the corporations for alleged abuses.

The EU pointed out that States have already achieved consensus on UNGPs, and that their effective implementations should be the focus of future efforts in the field. The EU delegate also asked about ways to address current challenges in UNGPs implementation, inquiring if they will not translate into challenges in implementing a future treaty.

Switzerland seemed more convinced of the need for a Treaty in an intervention following that of the EU, stating that the Treaty and UNGPs could be mutually reinforcing, and asking for the Treaty to consider the Remedy and Accountability Project recommendations.  

The fourth day of discussions brought more engagement from EU and Member States, as well as quality interventions on the Treaty’s content and on possible solutions to access to remedy issues.

But although high-level content discussions are progressing in Geneva, much more is needed for the Treaty to make the shift from collection of ideas to internationally binding regulation on business and human rights.

Special thanks to Bread for the World and SOMO for their help with writing the summaries!

BONUS:

Remember the civil society walk out during Brazil’s intervention on day 1?

Well, it went viral! One video of the walk out alone gained over 170,000 views on Facebook. See for yourself!

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