Obligations and responsibilities of TNCs-OBEs discussed during the third day of the IGWG

The third day of the IGWG on Transnational Corporations and Other Business Enterprises (TNC-OBEs) continued on the theme of obligations, this time focusing on the responsibilities of TNCs and OBEs with respect to human rights. Today’s session focused on existing international instruments addressing the obligations of private actors, as well as on approaches to clarify standards of liability of TNC-OBEs.

Ms Kromjong, Secretary General of the International Organization of Employers (IOE) opened the discussion by listing some existing regulatory instruments, including the ILO and OECD standards and the United Nations Guiding Principles (UNGP).

Her main argument was based on the idea that, fundamentally, governments hold the ultimate responsibility to respect and implement international human rights law, leaving aside any question of the responsibilities of companies by adding that the TNC-OBEs could support the efforts of governments in implementing international human rights standards but were not duty-bearers, a view backed by the IOE. This argument was challenged by Ecuador who argued that non-state actors are indeed covered by international human rights standards including the UDHR, among other international law instruments.

In the interventions from civil society, the collective view of over 60 ESCR-Net members was present on this issue, which referred to national constitutions in several countries, as well as Africa’s 2014 regional instrument, that recognises the legal responsibilities, and in some cases criminal liability, of non-state actors to respect human rights. Panellist Nomonde Nyembe, Attorney in Business and Human Rights, also recognised the power of constitutions to ensure that TNC-OBEs are responsible for their human rights.

Additionally, Mr Surya Deva, Associate Professor in Law at the City University of Hong Kong brought the room’s attention to the fact the UNGPs have a principle expressing that all business enterprises have an independent responsibility to respect human rights.

Latin American States have been particularly present in today’s discussion, while India has remained silent, although the State was noted for being one of the only countries in the world to have a corporate social responsibility ombudsman. Today, the focus shifted away from Brazil, after a lot of attention earlier in the week, on the domestic situation but was addressed in part during a side session of Brazilian NGOs that the Brazil delegation attended. Uruguay underlined the lack of human rights content within the OECD Guidelines for Multinational Enterprises, thereby emphasising the need for the elaboration of an international Treaty more inclusive of human rights semantics.

Cuba and Bolivia suggested that a monitoring mechanism should be set up to ensure the implementation of the future Treaty and provide access to remedy. This was also supported by civil society representatives, including ESCR-Net who stated: “the treaty should establish a complementary international system of accountability to support the effective operation of national and regional systems.”

Duty of care deriving from UK law was seen by Richard Meeran as an important aspect to include in the Treaty, while Michelle Harrison highlighted the need for a provision to eliminate “foreign non-convenience” and not to include a statute of limitation, a view which was backed by Bolivia. Michael Congiu, mentioned the need for resources dedicated to training and capacity-building for TNCs to comply with human rights standards.

National Contact Points (NCPs) proceedings for the implementation of the OECD Guidelines were considered to be insufficient by civil society and experts on the panel, in discordance with the IOE, who emphasised on the importance for the Treaty not to undermine the OECD Guidelines and the UNGPs.

Elise Golay, RIDH http://ridh.org/