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UN Treaty on Business & Human Rights "Zero Draft" Negotiations Day 2

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EU delegation in Geneva meets civil society. Still the hottest topic on the table: Only transnational or all corporations in the scope of the Treaty? Side event cancelled due to lack of participation on behalf of European governments. Affected communities speak up and some states don’t like it. Many detailed proposals on how to ensure real access to justice. Chair takes French duty of vigilance law as a good example. Experts exchange on what due diligence means.

The second day of the fourth session of the Open-ended intergovernmental working group for the elaboration of an International Legally Binding Instrument on Transnational Corporations and other Business Enterprises began on Tuesday 16 with a meeting between civil society and EU representatives. Jerome Bellion, EU representative to the UN in Geneva and Sophie Kammerer of the European External Action Service (EEAS), invited civil society delegates to an informal meeting to exchange on the EU’s engagement in the process. The room was filled with civil society representatives from inside and outside of Europe.

Numerous EU member state representatives also attended the meeting but remained silent. We would like to think that their presence can be interpreted as a positive signal in terms of their engagement and interest. However, many civil society participants were disappointed because the exchange remained on a very general level. Still, it gives some points of entry to discuss further on questions such the EU’s trade policy in relation to human rights, the competence and mandate of the EU and its member states to engage in the Treaty negotiations, the interaction between the EEAS and the European Parliament on this issue or the EU’s next steps in terms of working on binding rules at the European and global level.

In the run-up to the session, the EU had already confirmed that it would be present at these negotiations, but it would not make comments on the content of the Zero Draft. EU member states had been advised not to give oral statements on the content on their own. This decision was reflected throughout the day in a general silence by the EU and member states delegates, with the exception on France.

The official part of the negotiations began with an introduction by the Chair-Rapporteur. Oral statements were given on the Zero Draft, namely Article 2 on Statement of purpose and Article 8 on Rights of victims. The scope of the Treaty One was again of the most prominent topics, with calls by states, business representatives and some civil society organisations for an application to all types of companies, not only to business with transnational activities.

Paul de Clerck of Friends of the Earth Europe (FoEE) asked delegates to align positions in the ongoing different international processes concerning trade policy, and claimed the principle of supremacy of human rights over business and trade interests. Many other speakers followed along the same lines, urging states to provide effective protection for human rights defenders (HRDs). Both the preamble and Article 8 of the Zero Draft are the appropriate parts of the text to acknowledge this important role of activists on the ground.

A civil society representative speaking on behalf of Ecuador’s communities affected and threatened by the damage that Chevron has done by toxic contamination of soil illustrated the need for such protection. In addition, other testimonies by human rights defenders from various countries and contexts in the room left no doubt that binding rules in this respect are overdue.

Next on the agenda was discussion of the Zero Draft’s Article 6 on Statute of limitations; Article 7 on Applicable law; and Article 13 on Consistency with International Law.

The comments from invited experts included Nicolas Guerrero, Senior Legal Officer at the WHO Framework Convention on Tobacco Control (FCTC) Secretariat. Guerrero drew parallels between this international instrument and the ongoing negotiations. The United Nations FCTC has previously been mentioned in the course of the current negotiation as a potential model in some respects. We can probably expect to hear more about this link in the future.

Sam Zia-Zarifi, Secretary General of the International Commission of Jurists, said this process was going in the right direction and was appropriate to remove existing barriers to access to justice.

Makbule Sahan of the International Trade Union Confederation (ITUC) welcomed the Zero Draft. A key concern from the trade union side related to trade and investment agreements. The Zero Draft was not yet apt to ensure the primacy of human rights over trade and investment. ITUC proposes a provision to integrate human rights clauses into trade and investment agreements. Another point concerned the broad provisions on national sovereignty, which could potentially undermine the impact of the future Binding Treaty on access to justice.

On the side of states interventions, the Russian federation reiterated its skepticism toward a binding treaty in general, while giving detailed comments on every paragraph. They, as well as many other speakers, mentioned that the list of crimes under international law and their definition raised some concerns and the need for clarification. The choice of applicable law for litigation (Article 7) also caught the attention of states. Many claimed that their courts would not be able to hold a case applying a foreign law of a third country.

Switzerland raised a concern on how the primacy to the Treaty over trade and investment agreements would be enforced. In particular, the delegate asked what would happen if one party to the agreement is not signatory to the Treaty.

Just before the lunch break, Brazil demanded a Call to Order from the Chair. Brazil claimed that the NGO Via Campesina had made unfounded allegations that were not under the scope of the negotiation process and in their view undermined the otherwise constructive spirit of that meeting. The Chair did not respond to this request immediately but stated that it was impossible to answer all the questions raised during the morning session and proceeded to adjourn the meeting.

Side-event canceled due to states’ absence, and civil society address the need for robust enforcement mechanisms

The German NGO Bread for the World, in cooperation with ECCJ, CIDSE, FoEE, Global Policy Forum and SOMO, had planned a side event aimed at putting the Treaty process in relation to the UNGPs and the developments at European level. The event had to be canceled because no EU member states’ representatives were willing to join the panel and speak outside of the EU’s official line of not engaging on content discussions. The organisers’ efforts to make it clear that the event would focus on the UNGPs, in order not to conflict with the EU’s official line, did not change the representatives’ minds.

At one of the other lunchtime side events entitled ‘ What kind of international monitoring and/or adjudicating mechanism do we need’ ,organized by the International Commission of Jurists, FIDH and Friedrich Ebert Stiftung, the three organisations presented their proposals and ideas to improve enforcement and complaint mechanisms for a future binding Treaty to be of actual practical use to victims.

Erica Mendez from Friends of the Earth Mozambique brought the background of experiences with oil spills from the extractive industry or the negative effects of monocultural agriculture in different African countries. Affected communities currently have no effective means to stop transnational corporations from abusive practices. Without specifically mentioning the EU, but being clear between the lines, she criticized countries from the North trying to block the Treaty process instead of supporting justice and accountability. She argued for an international tribunal instead of just state coordination in order to facilitate true access to justice, and presented a detailed concept. She also emphasized the need for the possibility of class action (collective redress) before such a court.

The potential of mandatory Human Rights Due Diligence (HRDD) for effective prevention

The afternoon session continued with an introduction by Chair-Rapporteur on Article 9 on Prevention of the Zero Draft. Experts on the panel were Baskut Tuncak, UN Special Rapporteur on human rights and toxics, Elżbieta Karska, most recently appointed member of the UN Working Group on Business and Human Right, Robert McCorquodale of Inclusive Law, litigation lawyer and academic expert on Business and Human Rights and finally, representing the business perspective, Gabriella Rigg Herzog, of the US Council for International Business.

In the discussion, France took the floor to speak on its behalf, not explicitly about the Treaty content, but in order to present lessons learned from French duty of vigilance law. The French representative explained the scope of the French law (5.000 employees in France and 10.000 if a French company has employees abroad) and underlined that the French company’s legal responsibility includes harm caused by its subsidiaries, subcontractors and suppliers. She emphasized that prevention should lie at the heart of all other provisions, being the prime guarantee for the respect for human rights, provided they are linked to a liability mechanism.

Switzerland and many other speakers asked why the concept of reasonable due diligence in Draft Zero was not aligned with the terminology neither of OECD nor UNGPs references.

Referring to the ‘hot topic’ on whether or not to extend the Treaty’s scope beyond only transnational companies, Chair-Rapporteur Gallegos stressed that the Treaty was about adding a binding nature to human rights due diligence requirements which would effectively prevent abuses and help victims. Gallegos said that French law showed the need for a differentiation between the different sizes of companies, which can more easily be done at national level.

McCorquodale dismissed concerns raised by China about an international legal frame for due diligence. In his view this concept has already a very strong international power and understanding, not least based on several international litigation cases. In his intervention, he had argued to distinguish between the business concept of human rights due diligence in terms of commercial risk assessment as opposed to the human rights due diligence we want for an effective prevention and protection. He made clear that this aspect needs to be made more precise in Article 9 of the Zero Draft.

The OECD again referred to its recent guidance on human rights due diligence, which could serve as an already internationally agreed basis to start from. Clean Clothes Campaign supported this suggestion and agreed that there was a need for a better alignment with the four step principles set out in the UNGPs in order to avoid confusion and to effectively implement. This vision was also shared by the International Organisation of Employers, despite stemming from a different motivation. 

Friends of the Earth International suggested to include the concept and scope of vigilance of the French law instead of the due diligence provisions foreseen in the Zero Draft. The responsibilities of the mother company and the rights of affected communities should be at the center of considerations.

A potential Freudian slip of a business representative was the cause for some amusement during the afternoon, after he emphasized how extremely important it was to ‘prevent human rights’.

When sitting, live coverage of the negotiations can be streamed here.

Read ECCJ summary of Day 1 here.

Read reports from the III Session here.

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