Discussions on scope of the treaty on day four of the intergovernmental working group session in Geneva

Two meetings were held on the fourth and penultimate day of this second session of the IGWG on Transnational Corporations and Other Business Enterprises (TNCs-OBEs), the first one on defining the scope of the future Treaty, and the second one on prevention, remedy, accountability and access to justice.

During the first half of the day, the Working Group discussed the scope of the future Treaty in relation, firstly, to the types of corporate actors who will be subject to the new Treaty, and secondly, to the scope of the rights that need to be included in the legally binding instrument. Little debate focussed on the second question, other than a handful of comments from the panellists supporting the need for the treaty to address the full range of human rights, which wasn’t brought into question by any state.

The debate on whether or not the Treaty should apply to TNCs or to all business enterprises had echoes of the discussion on this issue from last year, although there were more views shared by states. South Africa stated that it would be a “travesty of justice” if the treaty equated national companies with transnational corporations due to the latter’s ability to evade justice by shifting jurisdictions at will, and the gap in international law remains the application of international human rights law to the operations of transnational corporations. Other states that implicitly or explicitly supported the application of the treaty to transnational corporations included Venezuela, Pakistan, Indonesia and Cuba. Brazil and Bolivia both mentioned the challenge of defining transnational corporations, as did Russia by presenting the view that the design of uniform standards on TNCs would be extremely difficult as no real definition of TNCs exists. The delegation of Ecuador (in their individual capacity rather than acting as Chair) noted interestingly that the resolution that established the Intergovernmental Working Group provides clear guidance because it relates to ‘transnational corporations and other business enterprises’. Whether or not this is a tacit alignment with the EU’s demand on Monday for the process to cover all corporations is not entirely clear, but the dynamics are certainly shifting for states in this discussion. For its part, as opposed to last year, the European Union was present throughout, but stayed silent on this subject, although they made their views clear on Monday that the treaty should cover all corporations.

There was a plurality of views from civil society on this issue also. CETIM and ESCR-Net both agreed that the priority for the treaty should be governance over transnational corporations, although the latter argued that to exclude national corporations might generate a perverse incentive for transnational corporations to arrange themselves in a way that would avoid coverage by the treaty, and leave a gap in the international legal framework. CETIM echoed the views of some states that the treaty should solely focus on transnational corporations because national and state-owned businesses are already subject to domestic law.

On the question of the definition of transnational corporations being a challenge to developing a treaty due to the challenge with defining them, this point was challenged by panellists Khalil Hamdani from Lahore School of Economics in Pakistan and Carlos Correa from the South Centre. In his presentation, referred to various other instruments on transnational corporations, including the UNGPs and the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, which have not needed to develop a precise definition of transnational corporations.

The afternoon meeting focused on ways forward to implement the UN Guiding Principles (UNGPs) and their relation to the elaboration of the binding instruments. Lene Wendland, Adviser on Business and Human Rights, at the Office of the High Commissioner for Human Rights (OHCHR) presented the OHCHR Accountability and Remedy Project, which aims “to enhance the effectiveness of domestic legal systems in providing accountability and remedy in cases of business-related human rights abuses.” The EU took the floor to reiterate the importance of rooting the Treaty in the context of alignment with the UNGPs. Mexico, after echoing the views of the EU on UNGPs implementation, stressed the importance of finding consensus on the nature of transnational corporations’ responsibilities before negotiating the content of the treaty. Nonetheless, a common theme of the debate throughout the afternoon, expressed by panellists, states and civil society representatives that implementation is not the only issue surrounding the UNGPs, but it was noted that they lack proper means of ensuring access to remedy, and the legally binding instrument would complement the UNGPs with additional protection measures.

One panellist, Carlos Lopez of the International Commission of Jurists, also insisted on the importance of cooperation between states and expressed that the future Treaty provides a real opportunity for a legal framework in relation to mutual legal assistance and judicial cooperation. He added that the legally binding instrument could be inspired by the UN Convention against Corruption, which establishes obligations on inter-state cooperation, and the Optional Protocol to the Convention on the Rights of Child addressing the sale of children, which establishes the liability of legal persons.

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

Elise Golay Geneva Human Rights Agenda Project Officer

Rue Gardiol 8, Atelier N.307, Case Postale 158 1218 Grand-Saconnex, Suisse Tel. +41 (0)22 732 21 89 http://www.ridh.org http://www.ridh.org/