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Day 1 UN Treaty Negotiations - the EU brings a sense of déja vu

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Full house and high participation on the first day ● Welcome that EU is present alongside a high turnout of Member States ● Regrettable EU reluctance to agree with the programme of work and its insistence in bringing as obstacles issues that can be discussed as part of the actual negotiations ● UNGPs still used by EU and Member States as an argument to oppose the Treaty ("we are doing enough, Treaty process can distract efforts from UNGPs implementation") but as experience in France shows, they are compatible with the adoption of legal measures ● If EU wants to live up to its commitment to uphold human rights, a more constructive role is expected. We are hopeful that it will happen in the next days

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The Third Session of the Open-ended Intergovernmental Working Group (IGWG) on Transnational Corporations and Other Business Enterprises started on Monday 23th October 2017 at the United Nations in Geneva.

The first day began with a full house. The vast attendance of State delegates and civil society was acknowledged by all keynote speakers at the opening session. The EU Delegation and a good turnout of EU Member States were also in the room, something which was welcomed by civil society after months of intense advocacy and campaign work.

The big attendance at this Third Session was not unexpected. The present session is essential, since it will kick off substantive discussions on the content of the future international binding instrument, according to the mandate given by the HRC Resolution 26/9. The publication, by Ecuador’ s Working Group presidency, of the Draft Elements on 2 October helped to also raise expectations for the week of discussions beginning yesterday.

The introductory session began with an optimistic tone set by the opening panel. It was followed by words from the UN High Commissioner of Human Rights in a video message, the President of the Human Rights Council and the Director of the Thematic Engagement, Special Procedures and Right to Development Division at the OHCHR. All expressed unanimous and clear support for the Treaty process. The Ambassador of Ecuador at the UN, Mr Guillaume Long, was also elected Chairperson Rapporteur of the Third Session without debate.

Programme of Work: the European Groundhog Day

Unfortunately consensus was short-lived with the beginning of discussions on the Programme of Work. Hard discussions on this topic gave a sense of déjà vu across the audience, which found themselves back in the first session of 2015.  The EU Delegation intervened, questioning the transparency of the process, and raising the same two arguments which led the institution to leave the room two years ago. These were, the need to debate the implementation of the UNGPs and other frameworks in the session and second, the need to include a footnote in the programme of work guaranteeing that the future instrument will not be limited to transnational corporations but will also include domestic companies.

As the Chairperson had already announced just minutes before the introduction of the UNGPs in the agenda, an arduous discussion started on the footnote issue. South Africa classified this condition as “unacceptable” and urged the European Union to engage in the negotiations. This position was echoed by many delegates, even by States such as Brazil, who share the EU’s view on the scope of the treaty. Only Norway took the floor at this stage in order to align itself with the EU’s position. It was joined by Australia and Mexico.  The EU’s response to this general lack of support focused on stressing their respect for the HRC Resolution and on wondering what message States would be sending to victims by limiting the scope of the Treaty.

Fortunately, despite the highly tense tone of the discussion, it reached a constructive end. After the Chairperson reminded that a session on the scope is included in the programme, the EU decided to not formally object to the programme of work. It nonetheless raised doubts about the future of the process. 

Plenary discussions: Europe acknowledges existing gaps, also faces harsh criticism

Guest speakers in the Plenary Discussions set a more optimistic atmosphere. Ms Maria Fernanda Espinosa, Mr Long’s predecessor in the working group and current Foreign Affairs Minister of Ecuador, stressed her hope in a successful process, and called for a constructive environment for negotiations.  Ms Espinosa would reiterate Ecuador’s commitment with the process at an evening meeting with over one hundred members of civil society organisations.

Second panellist was Mr Dominique Potier, member of the French Parliament and Rapporteur in the adoption of the French duty of vigilance law. Mr Potier presented the law as an example of how companies can be regulated to address their impacts at home and abroad and stressed that the law complements the UNGPs. Furthermore, he continued, working for a Treaty is not a matter of political color, as illustrated by last week’ s statement signed by French parliamentary members across the political spectrum, calling on the government to support the Treaty.

African states reminded the room of the dramatic and harmful impacts the activities of transnational corporations can have, and the need for binding measures which level the playing field. At a side event organized by CIDSE, ECCJ members Friends of the Earth Europe and SOMO as well as other organisations, there were further testimonies from the Global South exposing the impunity surrounding corporate abuses linked to investment and trade projects.

In the space for general statements, a large number of interventions from delegates from Asia, Latin America, Africa and Arab Countries reiterated their support for the Treaty and its urgency. On the contrary, those Member States which took the floor such as Norway and Switzerland, besides allying themselves with the EU’s concerns, used their time to advocate for the UNGPs, despite the fact that this item would be given its own space in the following hour. France’s delegate also highlighted the duty of vigilance law, stating that it complements the framework of corporate social responsibility already in place in France. The delegate stressed that international law in this field is necessary.

The EU Delegation’s own intervention was positive at least in one respect. It reiterated and recognized the existing protection gaps regarding corporate human rights impacts, and the need to work further in preventing, investigating, punishing and redressing the adverse human rights effects of business activities. He expressly stressed that “the EU continues to take concrete steps to meet these shared objectives”. The Council Conclusions on Business and Human Rights adopted in 2016, he continued, sets a clear direction in this regard.

Lola Sanchez, Member of the European Parliament from GUE/NGL, addressed a severe criticism to the EU Delegation which triggered a strong applause from the audience. She reminded the EU delegation that the European Parliament had already on nine occasions called on it to engage constructively in the Treaty negotiations. She expressed anger at the “obstructionist and cynical” approach of the EU delegation and called it to maintain, from now on, a constructive attitude.

States praised themselves for the UNGPs but what are NAPs really delivering?

At the beginning of the time reserved for the UNGPs, many people from the audience left the room, in part due to weariness (the program was already delayed) as well as fatigue with the amount of time that the UNGPs had already taken in previous interventions.

EU Members States, which had remained mostly silent during the previous hours, intervened to stress their good performance in implementing the UNGPs. This included the interventions from the UK, Belgium, the Netherlands, Finland, Sweden, which all aligned in bloc with the EU’s position and stressed their actions to implement the Principles. The UK mentioned that though the UNGPs are not legally binding, they don't prevent States from adopting legislation as they had done with the UK Modern Slavery Act (which contains a transparency clause in relation to companies’ supply chains). ECCJ has in the past welcomed the leadership of EU Member States in adopting the NAPs, but has also regretted their multiple and substantial gaps.

Finally, the first roundtable on the general principles of the Treaty could only cover the panellists presentation. Due to the long delay, the Chairperson had to close the session to be resumed tomorrow.

Conclusions

As positive as it is that the EU and its Member States stay in the room, today’ session has made it clear that mere presence is not enough. The inclusion of the concerns and topics as pre-conditions to keep on with the negotiations creates extreme obstacles for constructive and pragmatic discussions to advance. The EU has expressed today, on different occasions, that it respects the Human rights Resolution and it does not want to obstruct the process. We think that they are still on time to live up to their commitments, but a more proactive and positive attitude is essential.

The EU Delegation will meet with civil society in the morning of the second day. We hope that they are open to listening to our ideas and proposals, as well as willing to taking them into account.

When sitting, the Third Session deliberations can be live-streamed here.
See previous years coverage from 2016 (Day 1 Day 2) and 2015 (Day 1 Day 2)

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