Record number of registered participants. EU is present but does not participate in negotiations, some EU member states present but follow the EU’s line, as does Switzerland. Deputy High Commissioner for Human Rights recalls the goal of this process: Stopping corporate abuse. MEP Helmut Scholz calls for urgent acceleration of negotiations based on the EP’s resolution for genuine and constructive engagement of EU. Civil society voices strong support and need for extending Draft Zero.
On Monday 15 October 2018, the forth session of the Open-ended intergovernmental working group for the elaboration of an International Legally Binding Instrument on Transnational Corporations and other Business Enterprises with respect to human rights, Resolution A/HRC/26/9 opened in Geneva.
Deputy High Commissioner for Human Rights, Kate Gilmore, congratulated Ecuador on releasing the Draft Zero as a basis for negotiations.Despite different views, she recalled the shared goal: Putting an end to corporate abuses. She mentioned the record number of civil society representatives who have traveled to Geneva, giving a headcount of 280 accredited members as well as 25 experts speaking as panelists. She made it clear that the UNGPs and a binding Treaty should be mutual and complementary, not in competition with each other. The Treaty process should advance the application of the UNGPs. This process is needed as a bold step forward, for strengthened accountability and effective remedy. She called on participants to engage constructively in this complex process.
Then followed the election of the chairperson rapporteur, and the Ecuadorian Ambassador to the UN, Luis Gallegos, was elected. He agreed with Ms. Gilmore that this was are a historic moment to create a process that protects the victims. He explained that the Zero Draft was not the position of Ecuador or any other state, it is a result of consultations and experts’ contributions. The agenda and the program of work was unanimously adopted without any comments from any delegations.
A positive signal was the fact that Dominique Poitier was the key note speaker to start off the debate. As a Member of the French National Assembly he continues to play a key role in fighting for the French law on the duty of vigilance. He invited negotiators to be courageous and highlighted the need for justice in times of globalization. He had been the key note in the previous session, too.
Several African countries showed their support to the negotiations on behalf of the African Union and pleaded for speedy proceedings. South Africa reminded the room that this negotiation must be done with a sense of urgency and that the European Parliament’s resolution in favor of the Treaty should be commended.
Until the very last moment, civil society had heard contradicting information on whether the EU would take part and if they would, what approach they would take. Whereas at the 3rd session in 2017 they had obstructed the appointment of the Chair as well as the adoption of agenda and program of work, this year they refrained from any such practice. The EU’s representative to the UN, Jerome Bellion, presented a very reserved view on process and content. He underlined however that the EU was present, showing commitment to effective multilateralism. He deplored a lack of consensus building by Ecuador and South Africa, the two initiators of the process. The EU feels that none of their proposals had been taken into account. The biggest concern was the restriction to transnational corporations, the fact that not all human rights violations would be covered but also a lack of reference to the UNGPs. He continued to highlight the EU’s smart mix of legislation and voluntary measures in the field of business and human rights and its support for the National Action Plans (NAP). ECCJ has criticized in numerous instances the actual ineffectiveness of voluntary measures and the lack of innovative forward looking or binding measures stemming from NAPs. If only the EU was as assertive in making rules applicable to all businesses when it comes to European legislation.
‘We do not shy away from binding norms when they are needed’, Bellion repeated twice. He said the EU looks forward to listening and the receiving the report of the 4th session at the end, in which all positions should be nominally reflected. He conceded that there had been internal reflections of which format would best fulfill the need for a legally binding instrument, which would ensure level playing field. The EU is committed to building legal framework, addressing the real needs to prevent abuses, and ensure remedy when abuses occur.
MEP Helmut Scholz recalled the challenging situation in which the negotiations take place and the damage that is done to people and the environment by transnational companies. He recalled the EP’s resolution and emphasized that due diligence can strengthen access to remedy and a coherent binding framework was needed. In view of the urgency, he urged the negotiations not only to start but to accelerate with a focus on transnational companies which are still the focal point of the problem. He thought the Zero Draft was open enough to broaden the scope in the course of the process.
With special interest, participants awaited the intervention of the only EU member state on its own behalf, France’s intervention was fully in line with the EU’s statement, highlighting France’s engagement transposing OECD guidelines and UNGPs and in addition the French law on the duty of vigilance.
Also Switzerland’s intervention was interesting with respect to the Responsible Business Initiative, which, together with the existing French law, is the most concrete step towards national legislation on an overall corporate duty of care so far. However, the Swiss representative didn’t even mention this development at home, and instead emphasized its reservation towards the process. Switzerland prefers to focus on the its National Action Plan implementing the UNGPs as well as the OECD Guidelines for multinational enterprises and the OECD Guidance for responsible business conduct. Echoing the EU position, Switzerland wants to see the extension of the scope to all enterprises and criticises the Zero Draft’s definition of transnational, following Professor John Ruggie’s analysis. Switzerland reserves the right to intervene on content at a later stage during the negotiation week.
The OECD as an observer in the negotiations offered its support in order to align the Treaty with the OECD guidance’s understanding of due diligence which has been the result of a comprehensive multi-stakeholder process. The OECD National Contact Points could also serve as a model for grievance mechanisms, the representative said.
The International Chamber of Commerce as well as The International Organisation of Employers presented key points of their responses to the Zero Draft established together with Business Europe, unsurprisingly completely opposing the Draft and rejecting it as not helpful and allegedly undermining the UNGPs. Perfectly in line with the EU’s argumentation, the scope being limited to transnational companies, is seen as a key obstacle to establishing a meaningful instrument.
Civil society organisations representing a broad range of interest groups ranging from feminist, environment and development background, as well as research institutes spoke out and presented their support for the Treaty process, highlighted the need for action, and asking for refinements. The extension of scope to include domestic as well as state-owned companies was shared by many of them.
In the last part of the session, the Chair proceeded to the first reading, presenting the Zero Draft in detail, starting by Article 2. Statement of purpose and Article 8. Rights of victims. Comments were made by Ibrahim Salama, OHCHR, Ana María Suárez Franco, FIAN, Gabriela Quijano, Amnesty International, and finally MEP Molly Scott Cato. The latter deplored the unwillingness of the EU to engage more actively and recalled that human rights are only a valid instrument when they are binding.
The civil society delegations are invited to meet the EU delegation on Tuesday morning for an exchange of views.