The 5th and final day of the Fifth Session of the Treaty negotiations begun with discussions of the final draft provisions, including “Implementation” (Article 14); “Relations with Protocols” (Article 15); “Settlement of Disputes” – either between States  or  about interpretation or application of the Treaty – (Article16); “Signature, Ratification, Acceptance, Approval and Accession” (Article 17); as well as “Entry into Force” (Article 18).

Concerning Article 14 on Implementation, Mexico opined that the whole article was effectively redundant considering it rehashed material that had already been laid out in previous operative articles covering state duties. The implementation articles require states to pay particular attention when implementing the Treaty to ‘those facing heightened risks of violations of human rights within the context of business activities, such as women, children, persons with disabilities, indigenous peoples, migrants, refugees and internal displaced persons’.

Russia questioned why migrants would be included in this list, whereas a submission from civil society argued that peasants must be included as per the recent UN Declaration on the Rights of Peasants and Other People Working in Rural Areas.

Namibia submitted that in addition to ‘conflict areas’ contained in the provisions, a reference to ‘occupied territories’ should also be included, a suggestion seconded by Cuba. Azerbaijan argued for strengthening such wording even more to the effect of ‘to whom the lands rightfully belong’ or words to that effect.

Following discussions focused on Article 14.2, which requires state parties to furnish copies of its laws giving effect to the Treaty obligations under the instrument with the General-Secretary of the United Nations. Mexico stated that such a requirement is also redundant if such laws would be publicly available on its government website, a sentiment shared by Brazil. Namibia replied that perhaps most useful would be for states to submit an ‘executive framework’ of relevant policies and laws to the implementation of the Treaty, leaving some in the room to question whether that could mean National Action Plans (NAPs) on the implementation of the UNGPs.

With regard to Article 16 on “Settlement of Disputes” between States as related to the interpretation of the Treaty, the draft provisions allow for ‘negotiation or by any other means of dispute settlement acceptable to the parties to the dispute’ as well as submission to the International Court of Justice (ICJ). Russia argued that only the former form of negotiation between states and not submission to any international body should be available for resolution of disputes. Brazil questioned the benefit of ICJ’s role compared to simple state arbitration.

On provision 17.3 concerning regional integration organisations, Russia seemed to question on the one hand the validity of the instrument as it applies to regional organisations, and the competence of such regional groups to act on behalf of their participant member states on the other. Iran also queried whether regional organisations would have a vote on behalf of all their states.

Subsequently, Brazil took the floor once again to reiterate its concerns from the previous day regarding CSO’s input to the Session ostensibly on the grounds of ‘relevance to draft articles’. It requested that compliance with the rule of procedure be strictly adhered to in order that ideas could be exchanged in an environment of confidence, expressly seconded by China during its intervention.

Looking forward to the next OEIGWG Session, many states such as Ethiopia praised the Chairperson-Rapporteur and the Secretariat for a well-managed Session and their willingness to continue to process. China strongly appreciated experts’ helpfulness and expressed the hope that in future Sessions others would also be able to submit experts for input. Namibia and South Africa requested that in the next Session the draft articles be projected on the screens in the room, potentially with changes ‘track-changed’ and highlighted from where they came (which state/states and/or CSOs, experts etc.). They also argued/proposed that inter-sessional submission should be considered from states and regional groups.

Final comments from civil society

International financial institutions (e.g. International Monetary Fund, etc.) had been taken out of the draft and must be re-included with stronger language;

Business keeps putting the responsibility on states to fulfil human rights obligations and liability – which they can then challenge through Investor-State Dispute Settlements (ISDS) undermining states’ capacity to achieve their human rights obligations;

Corporate conflicts of interest thrive – in the UN as well – and the Framework Convention on Tobacco control should be looked to as inspiration for lobby control;

Language on when business must disengage from conflict areas should be included and strengthened to add ‘immediate, appropriate and protective measures’;

It is a matter of urgency that the EU immediately and constructively engage in the process as 2018 saw 247 human rights defenders (HRDs) killed in BHR cases;

Free Prior Informed Consent (FPIC) would be a better standard for indigenous engagement rather than ‘Consultation’. With regard to this, an indigenous woman from the Amazon exclaimed how their traditional lands have spiritual meaning and pleaded with the room that they must be respected.

Final Session: Informal Discussions on the Future Procedure

The final informal Session concerning the future of the process was not recorded or publicly streamed and will not form part of the official report. The following States were part of the negotiation in this session: Brazil, South Africa, Palestine, Egypt, Azerbaijan, China, Russian Federation, Cuba and the EU. Firstly, the Chairperson-Rapporteur distributed a copy of draft recommendations and conclusions from the Session.

The EU opted to endorse and support the draft recommendations and conclusions, requesting that the Secretariat include submissions such as questions made during the negotiations (ergo those by the EU and member states), and not only substantive submissions on content by the other states actively negotiating.

Regarding the future deliberations, Brazil sought to propose sessions without civil society involvement, referring to ‘inter-state’ negotiations and ultimately ‘state-only negotiations’, sentiments seconded by China. Push back against the suggestion came most clearly from Egypt and Azerbaijan, as well as from the EU which made reference to HRC Resolution 26/9 that contains wording acknowledging the importance of CSOs participation in the negotiations (thereby implying that if this were to change, a new resolution would be required).

In final recommendations, the format of the sixth session is indeed described as ‘state-led direct substantive inter-governmental negotiations’, while also guaranteeing that the session allows different stakeholders to present their views regarding the draft legally binding instrument’.

Overall, there seemed to be a clear desire from the room to ensure that negotiations would intensify moving forward; and that the methodology of experts – states – CSOs submissions be refined in order to favour more direct state negotiation per article and provision.

China requested that in the future Session two documents are provided, namely the draft text as well as a structure document outlining the draft Treaty. There were obvious concerns from some states that negotiations on the latter would potentially enable the deletion of entire articles or areas of the draft Treaty text. Brazil argued for the issue of scope to be finalised before the Text negotiations could finally and properly proceeds. Egypt came up with the compromise that the latter structure document would be used for instructive purposes to assist the negotiations and not itself be subject to negotiations, thereby securing the main focus on the Treaty draft articles to date.

The draft conclusions provided that written input on the current draft (including by civil society) would be open until February 2020 and that a next draft will be publicly provided by June 2020 at the latest.

This blog series on the UN treaty is supported by the Rosa Luxemburg Foundation.