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UN Treaty Talks Day 5: Morality cannot be legislated, but behaviour can be regulated

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• Final day of of UN Treaty discusses access to remedy in morning plenary • EU and Member States delegations present • States achieve compromise and adopt meeting report in closing plenary

Read summaries for Day 1, Day 2, Day 3 & 4!

Read our call to EU and Member States ahead of the meeting!

The last day of debate for the IGWG on Transnational Corporations (TNCs) and Other Business Enterprises (OBEs) focused on access to remedies and on approving the meeting report.

The morning panel on Lessons learned and challenges to access to remedy (selected cases from different sectors and regions) offered a space for representatives of civil society and experts to discuss potential avenues to improving access to justice for victims of corporate abuse.

Ms Elizabeth Periz, from Tierra Digna, talked about the main hurdles to access to remedies (e.g. lack of transparency), and affirmed the importance of having preventive measures in addition to reparations.

Ms Beth Stephens shared her experience in corporate litigations under the US Alien Tort Claim Acts (ATCA), arguing that the treaty should provide for a wide range of remedies, including non-judicial and voluntary remedies, but pointed out that they alone are not enough.

Ms Claudia Muller-Hoff, from the European Centre for Constitutional and Human Rights, agreed that non-judicial mechanisms can be effective if they have a complimentary role, being less procedural and more accessible.

Ms Stephen echoed views expressed by civil society representatives on both Friday and Thursday, that OECD National Contact Points (NCPs) are insufficiently effective in many cases. Indeed, a study led by Professor John Ruggie showed that only one case out of those considered by NCPs led to an actual and enforceable decision.

Ms Muller-Hoff recalled that the most marginalised people, like indigenous peoples, are the most affected by TNCs and OBEs’ activities, proposing capacity building and trainings for the judiciary to ensure better access to remedy for victims of corporate abuse.

A significant number of States and NGOs took the floor during the morning panel. The Netherlands delegate explained that a study commissioned by the Dutch Government shows that the Dutch legislative system offers avenues for victims to access justice, especially under criminal law, but did not dismiss the need for continued improvement. He referred to ongoing reforms on improving access to remedy in the Netherlands, including by facilitating access to evidence in civil cases, and expanding possibilities for collective redress.Friends of the Earth International brought the room’s attention to the fact that there are many states in which national legislation does not include human rights protection, thus significantly hindering access to justice for victims. One example was that of Mozambique, country in which the judicial system is not independent from the government, and only political will could guarantee access to justice.

The political situation in Brazil took centre stage once again on Friday. The International Association of Democratic Lawyers (IADL) argued that the current political situation in Brazil makes it even more difficult to access to justice due to the close relation between the private sector and the government. The Brazilian representative replied that the statement was out of the context, and that the current forum should not be politicized, inviting civil society representatives concerned by these issues to meet privately.  

The United Nations Working Group on Business and Human Rights reaffirmed their commitment to issues related to access to remedy, adding that it would be the subject of their report to the UN General Assembly in 2017.

The afternoon session revolved around the meeting report. After brief, but tense, discussions among States – with Russia together with EU, and South Africa on opposite ends of the debate regarding the Chair’s mandate in preparing the 2017 session – the room reached a compromise agreement.

The draft report approved ad referendum includes a mention that next meeting will particularly focus on operative paragraph three of Resolution 26/9, stating that the Chair would “prepare elements for the draft legally binding instrument for substantive negotiations” for 2017’s IGWG discussions.

Chairperson-Rapporteur, Ecuadorian Ambassador Ms Maria Fernanda Espinosa concluded the five-day session with a Martin Luther King Jr. quote saying: “Morality cannot be legislated, but behaviour can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless.”

Although relevant progress was made on the UN Treaty, most important decisions and discussions still lie ahead.

We are looking forward for the 2017 meeting of the IGWG debating the instrument’s content, and we again call on EU and Member States to continue being present at the discussions. We also call on them to engage constructively in the debate and prioritise human rights and access to justice for all, both at home and abroad.

Special thanks to Bread for the World, CIDSE, FIDH, Friends of the Earth Europe and SOMO for helping us write summaries of the 5-day meeting!

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