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Day 5 of negotiations for a UN Binding Treaty on Business and Human Rights

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The fifth and final day was decisive for the future of a binding UN Treaty on business and human rights. The final report, with its conclusions and recommendations, points the way forward.

The morning session was the last public session and focused on the presentation of the Draft Optional Protocol. The panel entitled, “The voices of the victims” showcased selected cases from  different sectors and regions. Panel experts speaking were Ana María Suárez Franco, FIAN; Iván González, Trade Union Confederation of the Americas; Tchenna Masso, MAB; and Wandisa Phama, University of Witwatersrand CALS.

In the reaction from states, the EU asked for the floor for the first time since their opening statement on day one. They had announced then that this would be the only time when the EU would give an opinion. The official EU representative to the UN in Geneva stressed the EU’s big concern about the protection of Human Rights Defenders. He said it was important to continue hearing the views of victims and they should be understood as an appeal to all of us to respond in an effective manner. He underlined how both transnational and domestic companies, as well as civil society and national human rights institutes, play important roles in providing access to justice and remedy.

As in his unexpected intervention in a side event on day 3, he again emphasised that it was unacceptable that those who speak out for victims are endangered themselves. He referred to the UNGPs and their clear provisions for states to set up measures to protect human rights defenders. He stated that any possible legally binding instrument (LBI) should affirm that states have that obligation also with regard to vulnerable groups such as children, person with disabilities and indigenous peoples, and with a gender lens. He pointed towards the European Instrument for Democracy & Human Rights (EIDHR) as an instrument in place to support activities in this field, in addition to other grants available to human rights defenders. As in his initial statement of day one, he quoted key provisions of EU legislation that, according to him, provide for access to justice already. And again, he was concerned about the lack of presence and support from other states in this process.

It came as a surprise that some EU member states did take the floor after all. Belgium, France and Spain intervened in the debate, however fully aligned with the official EU position, presenting only their own mechanisms at national level to protest victims, and Belgium and Spain highlighting their National Action Plans (NAP) in this respect.

Civil society, among them ECCJ’s members and allies in Spain and Belgium have already criticized these NAPs as being insufficient and not introducing any effective binding rules ensuring access to remedy. According to their analysis, the Belgian NAP lacks any obligations to provide remedy to victims and moreover a proof why an international binding Treaty would be needed to complement national measures. The Spanish NAP provided only a small step forward and focused mainly on business competition advantages instead of setting up concrete obligations such as due diligence for companies to not only remedy but to prevent business violations.

Brazil felt attacked and voiced disappointment with the negative tone and politicization of the debate. They demanded recognition of their efforts to ensure the rule of law and respect for diversity of opinions in Brazil. On this basis they even threatened to leave the negotiations if these issues were not taken into account. Together with their protest on day 2, it seemed that the political struggle that is currently happening in the specific political context of Brazil, where freedom of expression and the protection of victims are increasingly threatened, had been carried into the Human Rights and Alliance of Civilizations Room of the Palais des Nations in Geneva.

The International Organisation of Employers (IOE) responded to yesterday’s civil society protest action against their report, arguing that the paper which caused the controversy had not been presented as their primary point and had been misrepresented.

AWRID and Al Haq brought another important aspect to the debate on the missing gender aspect, namely corporate abuse experienced by women in conflict areas. They explained how in DRC women are at higher risk of violence including in proximity to mining sites. In Palestine, security corporations were involved in harassment, denial of access to medical care and other human rights violations against women in particular.

The afternoon session was an informal session, not web streamed for the public but open to civil society participation. The web stream started again only for the very last part of the meeting, after 18:00 CET. The interpreters had already left the meeting, so all participants were obliged to speak in English.

The EU decided not to be present during the informal discussion on the recommendations, which again demonstrates the lack of engagement for a binding Treaty. In their final statement, the EU clarified that it does not want to block the process but at the same time dissociates itself from the recommendations and conclusions, thus not being bound by them, and asked for this statement to be included in the recorded conclusions. They affirmed to be continuing discussions on other legal options that could find a broader consensus in the international community.

The Global Campaign against corporate impunity demanded from the Chair to revise the Zero Draft for the next round of negotiations considering among other points, a provision for an international enforcement mechanism and the creation of an International Court to prosecute TNCs that commit human rights violations and an International Monitoring Center of TNCs.

In his closing words, Chair-Rapporteur asked all participants to respect the freedom of expression, not only for those in the room but also through internet and social media.

Summing up, the outcome of this 4th session of the OEIGWG are conclusions towards a “First Draft” following the Zero Draft and a 5th session taking place in 2019, and this is a positive signal on the way to reaching a binding UN Treaty on Business and Human Rights.

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