On October 27, 2020, second day of the 6th session of the Open-Ended Intergovernmental Working Group on Transnational Corporations, stakeholders discussed Articles 3, 4, 5, 6, and 7 of the second revised UN draft treaty on business and human rights.
(This article only focuses on States’ interventions and does not include interventions by other stakeholders such as NGOs. Proposed amendments below are non-exhaustive.)
Proposed amendments to Articles 3 and 4
| States remarks (by order of participation) | Article 3. Scope | Article 4. Rights of victims |
| Brazil | §3: Should reflect that only the provisions of treaties ratified by States parties should apply. | Recall the proposal that a provision on the principle of subsidiary be included in the text. |
| Mexico | §1: Delete “unless stated otherwise” as it suggests that there could be exceptions. §2: Replace “commensurate” by “proportionate” and clarify the criteria defining proportionality. §3: Review the provision as all States are not all parties to the same treaties. | §1: Wording too broad. §2e: Replace “retaliation” by “reprisal” to stick to the language of the Human Rights Council. §2g: Not necessarily relevant. |
| China | §1: Exceeds the mandate of the Working group. §3: Ambiguous as States have different interpretations of international recognised human rights. Should focus on the principle of complementarity and on the most frequent human rights violations with the biggest harm. | Should follow the principles of complementarity and equity. Should respect the national systems already established for the protection of victims and avoid excessive burden on States. §1: Reservation on the scope. §2: Delete. |
| Philippines | Scope should be limited to TNCs and OBEs in accordance with the mandate of the Working group. | §2b: Inclusion of “lawful” before “peaceful assembly”. Inclusion of the notion of non-discrimination of victims with regards to nationality of victim, protection and investigation should be extended not just to the nationals of the State party but to all persons involved. |
| Ecuador | §1: Make the statement “unless stated otherwise” more specific. §3: Stick to Principle 12 UNGPs | §2: Would be beneficial if procedural rights were distinguished from substantive rights. |
| Egypt | §1: Scope should be limited to TNCs and OBEs §3: Clarify “to which a State is a party”, does it refer to the State party to the treaty, the State where the violation occurred or the State in which the company is domiciled? | §2: Commend a victim-centered approach. Inclusion of the notion of non-discrimination of victims with regards to nationality of victim. |
| Armenia | §1: Delete “but not limited to”. | §1: Delete as human rights are universal and should be respected unequivocally. |
| Pakistan | Scope should be limited to TNCs and large skilled businesses. | The legal systems of developing States have not attained the level of preemptively legal assistance due to economic reasons, hence the obligation to providing legal assistance may be subject to domestic conditions and optional. |
| Cuba | §1: Vital to respect the scope of the mandate of the Working group. §2: Provisions related to other types of businesses (other than TNCs and OBEs) should be voluntary and applicable to States that do not have national legislation dealing with violations of human rights by enterprises that are not TNCs. | |
| Panama | Really important to distinguish provisions that apply to all enterprises and provisions that only apply to TNCs. §1: Delete “unless stated otherwise”. §3: “to which a State is a party” may impede access to justice to victims. | §2e: Need to take into account the vulnerabilities and needs of different age groups and so add “and age” before “responsive”. |
| Iran | Scope should be limited to TNCs and OBEs in accordance with the mandate of the Working group. | |
| Ethiopia | Scope should be limited to TNCs and OBEs in accordance with the mandate of the Working group. §3: Clarify “all internationally recognised human rights and fundamental freedoms” and “customary international law”. | Insert §4 “The scope of the LBI shall not impede States of their inherent rights to develop resources in their territory in accordance with national priorities and the appropriate relevant international legal instruments’. |
| Holy See | §2b: Inclusion of an explicit reference to the right to live in a safe, clean, healthy, and sustainable environment. §2c: Add reference to fair remediation to affected territories and the environment. | |
| Palestine | §1: Should stress that TNCs are subject to particularly focus. §3: Crucial that the scope includes the right to self-determination, international humanitarian law and international criminal law. | §1: Inclusion of “violations” after “abuses”. |
| Russia | Narrow the scope to TNCs. §3: Too broad. | |
| Namibia | Focus should remain on TNCs. §3: Fear that setting criteria of being a State party to the core human rights instruments may cause issues in the consistency of the application. | Add the right to a free and fair trial which includes the right to legal representation. |
Proposed amendments to Articles 5, 6 and 7
| States remarks (by order of participation) | Article 5. Protection of victims | Article 6. Prevention | Article 7. Access to remedy |
| Brazil | §2: Redundant and lack precision, what would amount to safe and enabling environment? | §1: Replace “all necessary legal and measures” by “adequate measures”. Should only apply to human rights protected by international instruments ratified by each party. §3d: Oversteps the international norm as stated under ILO Convention No 169. Should the language be maintained in the text, Brazil will not be able to sign the treaty. | §5-6: Need to clearly recognised the principle of subsidiary. Not convinced that §6 is really necessary. |
| France | Welcome the inclusion of the principle of proportionality but regrets the absence of threshold above which companies would be subject to due diligence obligation. | ||
| Russia | Prefers not to include a provision on preventive measures as it would be better to include them in recommendations. | ||
| Panama | §1: Reconsider limiting States’ obligations to effectively regulate the activities of businesses domiciled within their own territory or jurisdiction given that such wording would be forgetting digital online businesses. Replace “domiciled” by “operate”. §3b: Include the concept of age. §3c: Include reference to people of African descents and older persons. §3e: Include reference to health standards. | ||
| Mexico | §1: Delete “and other business enterprises that undertake business activities of a transnational character”. §7: Should also cover legislation and not only policies. | §4: Clarify that suitable cases will be all those cases that, because of their socio-economic conditions or because of their vulnerability status, will deserve the payment of all legal expenses. | |
| China | Should respect domestic legislation and should not impost new obligations on States parties. Avoid the upgrading of certain rights that do not make consensus. §2: No need to single out the environment as it is not an independent human right. | Should avoid imposing overweight obligation on enterprises and new obligations on States. §3e: Scope of information disclosure too broad, especially for non-listed companies. | §6-7: In conflict with many domestic legislation. |
| Philippines | §3e: Must only apply to environmentally critical project. | §6: In certain circumstances, reversing the burden of proof may contravene the principle of innocence and due process. | |
| Ecuador | Concept of “access to justice” instead of “access to remedy” would be more consistent with the Inter-American human rights convention. | ||
| Egypt | §2: Support the reference to the environment. §3: This obligation is not directly related to the protection of victims and instead includes a general obligation to investigate human rights abuse, therefore it should be a stand-alone article. | §3c: Add reference to rural and peasant communities. | |
| Namibia | Reiterate the importance of international cooperation. | §1: Replace “domiciled” by “operating”. | |
| Chile | §2: Should take into consideration the recommendations of the OECD. §3c: Add reference to the LGBTI community. | §1: Add reference to the concept of due process. | |
| Iran | §2d: Need clarification. | ||
| Palestine | §2: Due diligence should be an on-going process. §3c: Add a guarantee of non-interference in consultations. |
One thought on “Summary of the consultations on the UN draft treaty on business & human rights (day 2)”