October 30, 2020, marked the end of the 6th session of the Open-Ended Intergovernmental Working Group on Transnational Corporations (OEIGWG) and the discussions on 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 (day 5)
| States remarks (by order of participation) | Article 16. Implementation |
| Russia | Preference in establishing a procedure for the settlement of disputes on the implementation and interpretation of the treaty, exclusively on the basis of consultations and negotiations. §4: No need to include migrants. §5: Need clarification. |
| Philippines | §4: Include reference to urban poor people and older persons. |
| Chile | Necessity to introduce time frame for implementation. |
| Indonesia | §4: Include reference to local communities. |
| Panama | §2: What is the purpose? §3: Include reference to the use of child soldiers and the worst forms of child labour. §4: Include reference to African-descents people and elderly. §5: Preference in referring to general international law. |
| Azerbaijan | §3: Include reference to occupied territories. §4: Include reference to internally displaced people. |
Conclusion: What to keep?
1.The absence of the European Union and European States: While the EU is currently working on a Directive on mandatory human rights due diligence, and several European States are also working on strengthening their legislation to better regulate businesses, it is more than regrettable that none of these actors took part in the negotiations. As home States to a majority of TNCs which activities adversely impact human rights extraterritorially, European States must support and contribute to the work of the OEIGWG as tackling this issue requires filing gaps under international law and strong international cooperation.
2.Important concerns related to the scope of the treaty: Many delegations disagreeing on the scope of companies to be covered under the treaty, arguing that the draft exceeds the mandate established by the Human Rights Council resolution 26/9 (See Summary day 2) by applying to all business enterprises and not only TNCs and OBEs.
3.Issues related to criminal liability of legal persons: Several delegations raising concerns as such liability is not provided under all domestic legal systems (See Summary day 3).
4.Disagreement on jurisdiction and applicable law: Some States arguing that the draft allows for forum shopping while others calling for expanding jurisdiction to courts where victims are nationals or domiciled (See Summary day 3).
5.Questions on the necessity to establish a committee as its functions may overlap with existing bodies (See Summary day 4).
Elements provided during the negotiations will lead to the drafting of a 3rd draft treaty which should be presented no later than the end of July 2021 as stated in the final report of the session.