[This article is also available in German]
On its fourth day of its third session, the Intergovernmental Working Group for a Treaty on Business and Human Rights faced highly in-depth and complex substantive topics. Jurisdictional barriers, international judicial cooperation and mechanisms to monitor and implement the international Treaty provided the ambitious agenda of the day. As tedious as it may sound, the course of the day also showed that when the will is present, State Delegates (including the EU) are more than capable of passionate and engaged discussions, reaching a level of depth and detail not yet seen so far. The Chairperson-Rapporteur, numerous Delegates, as well as civil society acknowledged this point, sharing publically their confidence that the current fruitful discussions will set the bases for actual negotiations on the draft Treaty from 2018 onwards.
The day started by resuming the final remarks of civil society on access to justice from the Draft Elements as provided by Ecuador. Testimonies from communities helped to catch the audience’s attention in the early hours of the day. Communities affected by extractive projects called for remedies that go beyond mere economic payments principally used to clean the reputation of companies, and which instead restore victims their livelihood and identity. Responding from the panel, professor Deva, Chairperson of the UN Working Group on Business and Human Rights, warned that States National Action Plans to implement the UN Guiding Principles of Business & Human Rights have so far been very weak in the area of access to justice. He announced that the Working Group is in general increasingly concerned about the quality of NAPs and will follow this factor more closely into the future. Indeed, ECCJ and ICAR have been drawing attention to the poor quality of NAPs in their successive assessment reports.
The need to lift jurisdictional barriers
Jurisdiction was identified as a crucial topic for guaranteeing access to justice. From the panel, Gabriela Quijano of Amnesty International expressed great concern that many Delegates had just the day before rejected the idea of letting courts in parent companies’ home States hear cases concerning corporate harm caused abroad. She referred to the Council of Europe Recommendation on Human Rights and Business from 2016, which include positive action in this regard. The document was signed by 48 States, many of whom were present in the room.
Still some Delegates, mainly Mexico and Russia, insisted on their reluctance to this issue. On the other side, South Africa and Ecuador recognized that victims of corporate human rights abuses are increasingly resorting to the courts of States where companies themselves are based. The point was made clearly, that jurisdictional barriers can lead to a denial of justice, since it can be extremely difficult to hold companies accountable in the countries where they operate, and where they are based.
The EU Delegate acknowledged the importance of this topic, reminding the room that the EU has legal norms in place in this regard, whilst acknowledging their imperfection (something ECCJ and other organisations have emphasized on a number of occasions).
EU croissants bring a moment of levity in high level discussions
In the midst of increasingly dry discussions, the EU Delegate and the Chairperson-Rapporteur gifted the audience a trickle of comedy. The Delegate invited civil society to a private meeting today in which, he stressed, very much needed coffee and croissants would be served. This caused the Chairperson- Rapporteur to step in and kindly request a share of the petit déjeuner. He would also, he exclaimed, be glad to share coffee and croissants with the EU. A final reference by the EU to budget limits triggered the laughter among participants. Austerity once again resumed.
International cooperation and mechanisms of monitoring
A very tight agenda finished with the topics of international cooperation and monitoring as well as implementation mechanisms. International cooperation is nothing new for States as international actors. As the executive director of the South Centre Vicente Yu put it, the international mechanisms of investment dispute arbitration already guarantee enforcement of decisions protecting investors’ so-called rights; nothing precludes this from being extended to the protection of human rights interests.
The EU Delegate again acknowledged the relevance of the topic, even classifying the chapter as “interesting”. He then recited the various existing constrains, asking the Chairperson-Rapporteur how the Treaty would overcome these to allow for pragmatic implementation.
State Delegates and civil society brought an array of real examples which illustrated how the lack of enforcement of judicial decisions can render victims helpless and perpetrators unpunished in transnational human rights litigations. One key example was the case of environmental pollution by Chevron in Ecuador, provided by the Delegate of this country and a member of the Platform of People Affected by Chevron in Ecuador. After finally winning their lawsuit against the company in Ecuador, victims were forced to resort in 2011 and 2012 to courts in both the US and Canada to enforce the ruling (Chevron has no assets in Ecuador), at huge financial cost. Their efforts have so far been unsuccessful. Of course it was regrettable that neither the US or Canada were actually present at the III Session to hear these accounts.
The last topic of implementation saw one recurring issue, namely the proposal to establish an international court or tribunal to hear cases against transnational corporations. Anne van Shaik from Friends of the Earth Europe based this need on the difficulties for victims to access justice in the countries where the harm occurs, as textbook examples such as Shell in the Niger Delta clearly depict. She also highlighted the hypocricy of some Delegates, which pushed forward a Multilateral Investment Court, whilst claiming to find it too difficult to defend a similar instrument to protect human rights.
The EU Delegate expressed doubts about attaching criminal liability to corporations (‘legal persons’) at the international level, arguing that the International Criminal Court had already rejected such a development (whilst conditionally allowing for the prosecution of corporate officers as individuals).
Numerous civil society groups provided different contributions and views on what form an implementing mechanism could take, but all were united in stressing that the current state of affairs can not be allowed to continue.
Conclusions: setting the base for actual negotiations in 2018
As stressed by the Working Group Chairperson-Rapporteur, civil society in general and some Delegates alike, discussions in this third session had started to take real shape, showing the way towards a future international Treaty on business and human rights.
The inauguration on Monday found a tense atmosphere and acute tensions among different actors, with an EU still reluctant to feel itself part of the process, harboring concerns regarding the process conducted by the group’s presidency. Nevertheless, the course of the days led to a noticeable change in atmosphere and attitude, as many of the participants' intial reluctance to engage in meaningful discussion fadded in favor of far more proactive, detailed and complex interventions.
With this is mind, it has been admitted that this week’ s discussions can set a satisfactory ground for the continuation of the process in 2018. The Chair of the group is expected to present a proposal for a Draft Treaty ahead of the IV session next year. In this regard, a big number of voices including panelists, Delegates and civil society, made clear that the process needs to go on, as established by the mandate given by the Human Rights Council. Yesterday, more than 40 civil society organisations addressed an open letter to States and the EU calling on decision-makers to ensure the continuity of the process. In particular, the organisations demand that States and the EU explicitly commit to “prepare detailed reactions to the elements for a draft legally binding instrument, in preparation for constructive engagement in the ongoing process towards the next negotiation session of the OEIGWG in 2018”.
The letter can be read here.