In the morning, before the negotiations were resumed, international civil society organisations met with the Ecuadorian Ambassador to the UN in Geneva and Chair-Rapporteur Luis Gallegos to exchange views on the negotiation process. For civil society this ongoing direct dialogue is very valuable.
Afterwards in the official negotiations, the Chair-Rapporteur introduced Article 5 on Jurisdiction of the Zero Draft. Experts on the panel included Olivier De Schutter, University of Louvain, Richard Meeran of the public interest law firm Leigh Day and Lavanga Wijekoon of Littler.
One point that the experts noticed was the need to define which court can take up a case for litigation. A possible scenario where the same case could be filed at the same time to different courts should be avoided.
De Schutter noted that more negotiations were needed on this point to avoid conflicts, explaining this was why GC24 mentioned that improved international cooperation is necessary to reduce the risk of conflicts between jurisdictions and forum shopping. He also emphasized that Article 5 was primarily based on already existing international law.
Richard Meeran of Leigh Day pointed to the fact that Article 5 was still not able to remove practical barriers to accessing justice experienced by victims. He mentioned the “Forum non conveniens” as an uncertainty remaining in the Zero Draft: the doctrine by which a national ‘home’ court can decline jurisdiction, insisting that the ‘host’ State has jurisdiction. The doctrines still exists in the US, Canada, and Australia, for example. A much-publicized example has been a US court declining jurisdiction in the Bhopal and Chevron cases, not to mention in the UK PLC cases in the 1990s. The European Court of Justice had ruled in 2005 that forum non conveniens cannot be applied to EU companies. A reintroduction of forum non conveniens in the Treaty would conflict with this ruling. On class action procedures (collective redress), he considered Article 5.3 not being sufficiently in order to facilitate access to justice.
Lavanga Wijekoon warned of jurisdiction becoming too broad when reading Article 5 with Article 7 on applicable law and Article 10 on liability altogether. This could create legal, diplomatic and economic uncertainty and unnecessary difficulties hindering justice. She basically reiterated business’ standpoints.
In the states’ interventions, Russia and China were especially critical of the provisions on class actions.
Independently of the actual negotiation process, participants on all sides were trying to anticipate what will happen on Friday when the conclusions and recommendations will be presented and are supposed to be adopted. These will determine the way in which the process of the OEIGWG will be taken forward after the closing of the 4th session. In order to encourage a constructive spirit, a large number of civil society organisations, including ECCJ, issued a joint statement, voicing their expectations with respect to some concretely defined next steps.
“ As civil society organisations, we look forward to the report, and recommend the following elements be included:
● An explicit commitment to continue with the 5th OEIGWG session, and as many subsequent sessions of the OEIGWG as are needed to elaborate an ambitious legally binding instrument;
● Informal inter-sessional consultations, guaranteeing meaningful civil society participation;
● National consultations, guaranteeing civil society participation;
● Publication of a strengthened Draft One based on inputs and comments made on the Zero Draft and during the previous sessions, including the critical inputs made by civil society and affected communities throughout the process;
● A reasonable timeline for additional written submissions by states and civil society on the zero draft.”
Discussions on the proposed Committee
The afternoon session was dedicated to Article 1 on Preamble, Article 14 On Institutional Arrangements and Article 15 on Final Provisions. Bradford Smith of OHCHR , Carlos Lopez of ICJ and Layla Hughes, CIEL gave experts’ comments.
Bredford Smith (OHCHR) made a number of proposals concerning the composition and the frequency of meetings of the Committee (the monitoring mechanism established in Article 14 of the Zero Draft) as well as its interaction with other actors such as national human rights institutes or civil society organisations.
Layla Hughes welcomed Article 15.3, which require state parties to protect policies and actions adopted pursuant to the Treaty from commercial and other interests. In her view, this provision could protect governments from interference by industry and allow them to make decisions in the public interest and not only business interests. However, she thought this provision would be more appropriate if framed under Article 9 on Prevention. She also urged to strengthen the gender perspective throughout the entire text, and ensure that the composition of the Committee be made on the basis on equality in this sense.
Carlos Lopez (ICJ) repeated the importance of civil society being involved in the Committee and he stated that Committee members must not have any conflict of interest. He also noted the absence of grievance mechanisms for states who would not agree on the interpretation of the Treaty once in force.
Russia was against setting up a Committee altogether, arguing that such a body would overlap with other existing Committees and would thus lead to fragmentation. Some other states, among them several from the global south and China, said that the financial implications of this Committee would need to be clarified.
Civil society stands up against industry threats
The International Organisation of Employers (IOE) speaker was concerned with the preamble from which a direct obligation could be deducted from the “ambiguous” formulation that “All TNCs shall respect ALL human rights”. He continued to criticize the loose language of the Optional Protocol that had only been delivered weeks after the Zero Draft.
During civil society interventions, a collective protest was organised against IOE: In a report, IOE had implicitly threatened countries ratifying the Treaty with commercial retaliation, targeting among other supportive states, Ecuador and South Africa, the two initiators of the Treaty process. It was a clear illustration of corporate capture of a political process, a speaker on behalf of the Global campaign said. In solidarity with his intervention, all civil society representatives stood up and held their hands up, facing the IOE representatives. Later on, also Carlos Lopez of ICJ urged the IOE to explain the intention and the message of their report.
At this point, ECCJ would like to thank all its friends and allies who have shared their notes with us and helped to put together these daily blogs!