On October 26, 2020, the Open-Ended Intergovernmental Working Group on Transnational Corporations (OEIGWG) begun its 6th session which will take place until October 30, 2020 to discuss the second revised UN draft treaty on business and human rights.
On the first day, stakeholders presented their general statements on the draft treaty and amendments to the preamble, Articles 1 and 2.
(This article only focuses on States’ interventions and does not include interventions by other stakeholders such as NGOs. Proposed amendments below are non-exhaustive.)
General statements
25 states shared their general views on the work undertaken by the OEIGWG and the 2nd revised draft treaty. From those statements it should be noted that:
- The UK considers the draft being incompatible with several key principles of international law including the principle of sovereignty and is skeptical as to whether the text will gather political support.
- Switzerland announced that it will obverse the proceedings but will not participate to the negotiations.
- Chile stressed the need to focus more on international cooperation and to include standards attainable by every State.
- Argentina pointed out the absence of reference to LGBT people in the text.
- Ecuador considers that the treaty should include the establishment of a committee to receive complaints.
- Egypt welcomed the inclusion of environmental rights and called for the inclusion of peasant communities.
- Several States raised concerns regarding the scope of the draft treaty, as going beyond the mandate of Resolution 26/9 of the Human Rights Council.
Proposed amendments
| States remarks (by order of participation) | Preamble | Article 1. Definitions | Article 2. Statement of purpose |
| Brazil | General reference to human rights treaties should be preferred over reference to specific treaties. Rights that are not currently internationally recognised should be excluded. §17: Add a recognition to the complementary role of the UNGPs. | §1: Concerns over the inclusion of the collective character of victims. §2: Reference to “omissions” could lead to controversy in criminal legal system such as the one in Brazil which is based upon the material conception of the illicit. Failure to distinguish harms based on their gravity. Need to raise the bar to actionable offences to serious harms. §5: Not feasible to maintain that there should be an indirect liability along the supply chain. | |
| Iran | Need to include the issue of differentiated treatment. | §4: “substantial effect” needs clarity. | |
| Namibia | §1: Proof of dependency may be problematic. §3: “or other activities” needs clarity. | Need to make more specific reference to businesses undertaking activities of a transnational character rather than the general context of business activities. | |
| Russia | §1: “any harm”, “substantial impairment of human rights” are vague terms. §2: Environmental rights are not internationally recognised, and reference to “economic damage” would allow anybody to claim violation of their rights. | ||
| Mozambique | §4: Reference to UNDRIP problematic. §19: No need to refer to States’ obligations. | Add a definition of human rights violations. Add a definition of business enterprise. | §a: Opposition §b: Add a reference to human rights violations. §d: Replace “business activities” by “TNCs”. |
| Panama | §3: Add international and regional agreements in the field of the environment that are relevant. §9: Add additional grounds to read “race, colour, gender, language, religion, political opinion or of any kind, national or social origin and economic position”. §14: Add reference to people of African descents. §15: Add reference to age. | §1: Concept of economic loss needs clarity as it could be interpreted as granting rights to companies. §3: Add reference to financial and investment institutions. §5: Refer to “trade relationship” instead of “contractual relationship”. | |
| Mexico | §14: Add reference to Afro-descendants after indigenous people. | §3: Delete “for profit”. | §a: Replace “promote” by “fulfil”. |
| China | §1: Reasonably define the scope of victim which is too broad. Delete reference to “emotional suffering” as it overlaps with “mental injury”. §2: Should not use concept that do not have general consensus (i.e environmental rights). §3: No need to single out “State-owned enterprises”. §4-5: Too broad, would result in almost unlimited liability for enterprises. | ||
| Philippines | Add definition of TNCs and OBEs §1: Add “irrespective of nationality or place of domicile”. | Add the objective of providing a mechanism for the development of international standards surrounding business and human rights. | |
| Ecuador | §12: Delete “directly”. | ||
| Armenia | §8: Delete “or otherwise under their control”. | §1: Replace “emotional suffering” by “emotional distress”. | Add § on the role of business enterprises. |
| Ethiopia | §14: Replace “indigenous people” by “local communities”. | §1: Delete “emotional suffering”. §2: Delete “environmental rights”. §3: No need to single out “State-owned enterprises”. §4: Delete. | |
| Holy See | Introduce the concept of stewarship. | ||
| Palestine | Affirm the primacy of human rights over trade, finance and investment agreements. | §b: Add reference to conflict and non-conflict areas. |