The III session of the Open-Ended Intergovernmental Working Group on an international Treaty on business and human rights reached its mid-point yesterday the 25th October. Whilst the XXII Room of Palais des Nations in Geneva began to show a decrease in energy and audience (especially during the late hours of the afternoon), the day also provided for meaningful interventions on the two main agenda items: preventative measures and access to justice. The EU Delegation was active in taking the floor with more constructive speeches on these topics. On the other hand, EU Member States seem comfortable in their position staying behind the institution, with the notable exception of France. Civil society is expecting that the EU, Member States and other States will stay fully engaged in the current and future sessions.
Prevention is key, but needs to be legally enforced
Corporate human rights due diligence obligations were discussed under chapter 4 of the Draft Elements on Preventive Measures. The room presented a general consensus around the idea that prevention is key when addressing human rights impacts in the context of business operations. As the panelist Ana Maria Suarez from FIAN International (Food First and Information Action Network) put it, a sole focus on remedy is frequently not enough, especially when some impacts will affect future generations. The UN Special Rapporteur on Hazardous Substances and Waste illustrated the relevance of a Treaty in this respect by highlighting the alarming lack of implementation of the UNGPs in such a globally critical sector such as the chemical industry.
State Delegates taking the floor agreed in general with the importance of due diligence mechanisms, with the exception of Russia, which opposed the inclusion of this chapter. An important point was added by representatives from States with natural wealth, including South Africa, Namibia, Brazil and Palestine, on the special urge for prevention and protection in this regard. The non-mention of conflict minerals or conflict and business in high-risk contexts in general was also echoed with surprise by Delegates and civil society alike.
The EU Delegation referred to prevention as “a shared objective” and went on to present different questions for clarification, such as whether human rights due diligence obligations as drafted in the elements would apply to domestic small and medium enterprises, which are part of global supply chains.
The wide support for corporate human rights due diligence requirements expressed in the room reinforces the demands that ECCJ and many others been putting forward over the last years. Voluntary measures to make corporations implement mechanisms to identify, prevent, remedy and account for the human rights impacts of their global operations have proven insufficient. Yesterday’s discussion reflects the growing acknowledgement of this dire reality among states. It also illustrated that the different legal developments taking place in some States such as France are beginning to echo at the international level. Indeed Delegates such as Ecuador and several panelists made reference to the French duty of vigilance law, which takes as its main element a company’s duty to adopt a plan of vigilance. The law is also referenced in the Draft Elements. France was indeed the only EU Member State to yesterday take the floor, with the Delegate emphasizing its provision on corporate civil liability. This point was also stressed by one speaker from civil society, who pointed out that the corporate duty to adopt a plan of vigilance contained in the Elements, had to go hand in hand with liability and enforcement mechanisms.
Highlights on this agenda item came from the interventions of civil society. There was vast support for prevention and due diligence obligations for companies. This support was nonetheless accompanied by a series of key requirements in order to make prevention effective and meaningful. In short, these were the need to guarantee information and transparency concerning companies’ projects, as well as the meaningful participation of communities affected by them. In this regard, there were numerous references to the right to Free Previous and Informed Consent (FPIC) for all affected communities. “We have the right to be consulted, and we have the right to say no”, was heard more than once in the room.
The accountability gap is no longer a question
The last two items, covered during the afternoon, were liability and access to justice (chapters five and six of the Draft Elements). A remarkable moment was the intervention, for the first time, of the Holy See. The Delegate drew clear attention to the asymmetry in the international framework of corporate rights and duties which allowed companies to dodge accountability. The representative thus called for stronger regulations and enforcement mechanisms. On the opposite side, Russia’s once again prolific intervention focused on watering down the elements and ultimately questioned the entire feasibility of corporate liability. Corporate criminal liability proved a contentious topic, reflecting the diversity of experience in the way domestic legal systems around the world address this issue. Carlos Lopez from the International Commission of Jurists emphasized its relevance for covering the most serious of human rights violations, some of them equivalent to international crimes such as genocide, crimes against humanity, torture or war crimes.
The EU Delegation referred to access to justice and remedy as, again, a shared goal, and asserted that the EU has a system in place to that effect. The Delegate referenced the OHCHR protect and remedy project as inspiration for this Treaty chapter, before presenting a number of linguistic doubts over concepts such as complicity, participation and benefit from human rights abuses. The Delegate again questioned how these concepts would apply to small and medium enterprises along the supply chain in addition to the States-business nexus.
Representatives from communities of different regions, including indigenous peoples and many women, spoke up to make clear that establishing corporate liability is essential and non-optional in order to solve the current and dehumanizing accountability gap. ECCJ and other organisations have with consistency reiterated the need to consider the establishment of corporate liability under administrative, civil and criminal law in order to guarantee the rights of victims of corporate human rights abuses to obtain justice.
Access to Justice: agreement that more needs to be done
The essential topic of access to justice was unfortunately addressed very late in the day’s agenda, with a tired audience and many empty chairs. Despite this, the urgency of the issue helped to sustain intense participation. The Chair of the UN Working Group on Business and Human Rights drew attention to the group’s various reports containing clear recommendations, and reminded the room that the next Forum, in November, will focus on access to remedy. Richard Meeran, a representative from a law firm involved in human rights and environmental litigation brought a practical approach to the panel: communities seeking justice against big multinationals have so far faced legal, jurisdictional and practical obstacles such as the forum non conveniens doctrine; the corporate veil; the effective impossibility of obtaining documents owned by companies; and the often prohibitive financial costs involved. In alliance with other civil society organisations, ECCJ has worked on identifying the current obstacles to access to justice for corporate human rights abuses, calling on States and the EU to take reforms aimed at alleviating and eliminating these obstacles.
In fact, Delegates’ participation on this issue provided perhaps the most remarkable point of the day: a general agreement (again with the notable exception of Russia) as to the existence of the problem. Without lifting its overall reserved position on the document, the EU Delegate came to express the EU’s general agreement with the introductory paragraph on access to justice. Referencing the EU Fundamental Rights Agency Opinion on Access to Justice adopted this year, the Delegate announced that as a follow-up the European Commission had requested the Agency to conduct research on judicial and non-judicial remedy mechanisms in Member States. The Delegate nonetheless questioned how exactly the Draft Elements intend to go beyond the existing obligations for States, which already cover this issue.
The rest of the interventions from Delegates were also, as the Chairperson would later acknowledge, constructive. Among other aspects, Brazil emphasized the need to guarantee that non-judicial remedies don’t substitute judicial mechanisms. Venezuela stressed that the Treaty should address the problem of lack of jurisdiction in cases of transnational corporations. Ecuador welcomed the chapter and agreed with the existence of obstacles mentioned so far.
Finally, civil society interventions were also prolific and detailed in their proposals. A representative from SOMO presented a report recently published together with other CSOs, explaining how the future Treaty could help to solve the gap in access to justice.
The specific need to address special threats and obstacles faced by women was also stressed by various panelists. Women are not only particularly affected by corporate human rights abuses, but they also face additional burdens to access justice. Without a gender focus, access to justice won’t be achieved.
Richard Meeran provided some very appropriate ending words. Referring to the very technical discussions that had just taken place, he said: “It is about justice. It is not about some academic argument about what a court has to say or not, we are talking about how communities, individuals, victims of human rights violations can have access to justice”.
The third day saw more in-depth and productive discussions on key topics concerning business and human rights problems, which the Intergovernmental Working Group has been given a mandate to address. There was a change in approach and attitude by the EU Delegation, which maintained its reservation to the overall project, yet came with more constructive interventions and support for some overall goals expressed in the Draft Elements.
Meanwhile, the voices of the EU Member States, with the notable exception of France, were still absent. The EU Delegation informed that its words represented the 28 States. Nonetheless, member States’ participation in their individual capacities is also crucial, not only because they can make valuable contributions to the debate (as France has shown), but also because, as full members of the United Nations, they are expected to take part and constructively contribute to such a historic and crucial process. A higher participation from other non-European States would also be encouraging. It is common knowledge that the more voices heard during these crucial days, the more inclusive the future document will be.
Civil society is hoping to witness until the end all states, including the EU and its Member, constructively supporting this process under the current mandate.
ECCJ wishes to thank Mariëtte van Huijstee from SOMO and Maddalena Neglia and Sonia Tancic, from FIDH, for their contributions to this reporting.