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UN Treaty on Business & Human Rights negotiations Day 2 - EU disengagement & Lack of consensus on scope

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• Although arguing a good case in support of scope enlargement, supported by CSOs and experts the EU takes to the side-lines during scope negotiations • Participants can’t reach consensus on scope of business covered by Treaty, but CSOs propose options to overcome the divide. • Consensus is found on scope of human rights considered.

In the room or not? The EU still under spotlight

The week-long meeting in Geneva got off to a difficult start on Monday that put the EU at odds with a majority of state-delegations present. The first day of discussions ended in general uncertainty about whether the EU and few accompanying Member States would be participating in Tuesday’s sessions.

The EU’s intervention asking for two extra conditions to be added to the work plan, (one being broadening the Treaty’s scope to include all business), and the political pressure it created were received with broad discontent. At the same time, constructive EU participation and good faith engagement are necessary for this UN process to deliver meaningful results. Therefore, the Union’s decision not to continue blocking negotiations and let discussions begin at the end of the first day, was seen as an encouraging sign.

During an early Tuesday meeting with civil society organisations (CSOs), the EU representative at the UN reaffirmed that they had genuinely aimed for an agreement on their main concerns the day before. This agreement, he added, wouldn’t have undermined Resolution 26/9 but offer the needed flexibility for the issue to be revisited as the process unfolds. He also raised hopes that inter-government consultations to prepare the second session (taking place in 2016) would start as soon as the first session ends, implying that the EU would be part of such consultations.

The door remains open for future EU participation in the Treaty process: a small but important victory for European civil society after a year of negative signals from European decision-makers.

To general relief, Tuesday’s sessions started with the EU and few Member States in the meeting room. Sadly, the satisfaction was short-lived as things quickly took a more sour turn. During the morning panel on scope, (the very same issue expressed as a main EU concern a day earlier), the EU and Member States remained unexplainably silent. The situation worsened in the afternoon, when they decided not to show up at all. This empty chair policy raises inevitable doubts about their sincerity in protecting human rights above private interests. Simply sitting on the fence is not an option if the EU genuinely wants to convince other states about its concern, some of which also shared by CSOs.

A lot of criticism is being directed towards the EU for creating a wedge between delegations, delaying the approval of the work plan and adopting an ‘in and out’ attitude. But the EU’s questionable actions do not hold the torch for anti-Treaty behaviour. Many chairs in the room were empty because States did not send any representatives to the meeting, while turnout on day two was even lower than on Monday: less than 50 delegations. What’s worse is that big players like the US, Canada or Australia were not only absent from Treaty negotiations but are expected to actively fight against it.

Day two also brought the opportunity for CSOs to finally take the floor and share their views on the process. Many of those speaking were among the 400 plus organisations part of the Treaty Alliance, of which the ECCJ is also a member. Their interventions carried a common message that the Treaty is the right way forward and called for a throughout inclusion of affected communities in the development process.

Panel on Scope: Divergent views on what type enterprises should the Treaty cover

On the issue of scope (regarding whether or not the Treaty should look at TNCs or both TNCs and all other business enterprises), we saw some disagreement among states while views of experts and CSOs were more convergent. While it is recognised that the main focus of the Treaty will remain Transnational Corporations (TNCs) and cross-border operations, several voices argued over the definition only referring to TNCs and their activities, and the need to regulate their de facto reach as well.

While a large number of CSOs agree that the Treaty should provide measures that are specifically tailored to address the challenges posed by TNCs, they also called for the instrument to include provisions for all business and domestic operations. In their interventions, the majority of CSOs warned against falling in the trap of defining TNCs. They argued for the focus to be placed on victims’ realities and on ensuring the treaty can address complex corporate structures, including State-owned enterprises, joint-ventures and global supply chain issues.

Their demand caused a three-party divider. On one side, states like Pakistan, China, Venezuela or India are firmly opposed to changing the scope agreed in Resolution 26/9. On the other side, the EU and its Member States argue for scope enlargement. And in the middle, some states seem to be open to discussions – even if off the record – but claim they need more time. South Africa, Uruguay and Ecuador could be counted among them, and hope remains that they will play a key role in bridging these gaps in the upcoming months.

CSOs made constructive propositions to overcome this divide. In a joint submission to the IGWG, a group of organisations including SOMO, CIDSE, Brot für die Welt, IBFAN, IBFAN-GIFA and Global Policy Forum, together with Friends of the Earth Europe, introduced the idea of a hybrid option – balancing arguments from both sides - to solve the problem of scope. In their words, this option entitles that the treaty would “not exclude any specific type of business, but, in its substance, focus on developing provisions for transnational operations, thereby addressing the current challenges to hold transnational corporations to account.” An oral statement made by FIDH proposed a similar way forward.

Consensus on the scope of human rights violations

On the issue of the scope of human rights to be covered, a very strong consensus among participants could be noted – it might be worth to note that the EU was not in the room during this panel. While some voices were raised in the past year for limiting the binding instrument to gross violations, the room unanimously supported that the full catalogue of human rights – all of which subjectable to corporate violations - should be included. As Professor Surya Deva stated, “focusing on gross violations would only be symbolic for most of the victims worldwide, and not be useful for victims of Rana Plaza in Bangladesh or Shell in Niger Delta.”

Agreeing on the inclusion of all human rights in the Treaty scope was paramount. As substantial discussions continue to take place, it is important to secure early consensus on key matters and one was finally reached yesterday.

Crucial issues such as extra-territorial obligations on states, legal liability and access to remedy, will be discussed in days 3 and 4. The hope is for more constructive consensus to emerge. Nevertheless, we must keep in mind that while the 2015 and 2016 sessions collect inputs and share views, it is for the 2017 session to develop a first draft of the Treaty.

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