IGWG on TNCs and other businesses: Lack of consensus on scope and applicability of the Instrument

July 07, 2015

Source: http://www.treatymovement.com/un-eng/

By: Rebecca Bucherer

The willingness to contribute productively to the debate was expressed by all the states which have taken the floor this morning. However, a disagreement on how binding the instrument should be and which type of enterprises should be included permeated the session.

This disagreement could not only be observed in statements made by states but also by comments from institutions and non-governmental organisations. Whereas the Council of Europe did not speak in favour of adopting an international legally binding instrument, the OECD emphasized the need to take into consideration already existing national and international legislation.

Several non-governmental organizations reminded the member states that the guiding principles on Business and Human Rights are complementary since they define responsibilities of states but miss to include enterprises. The need to fill this gap with a new legally binding instrument which does include local and transnational enterprises, so, inter alia, the Treaty Alliance, is therefore the more necessary and important.

The panelists of the third panel on Coverage of the Instrument: TNC’s and other Business Enterprises: Concepts and legal nature in International Law, discussed a wide range of elements which deserve attention when proceeding with the development of an instrument.

The first panelist Ms Blankenberg reminded the audience that, even if the size of enterprises matter, the more important aspect to consider when talking about the coverage of the legally binding instrument, was the de facto extend of control enterprises have. Mister M. Congiu emphasized the need to further discuss the scale of the legally binding instrument. The needed considerations would include points such as the sort of norms which should be covered in the treaty and what sort of standards to comprise in order to elaborate on whether a norm has been violated or not.

C. Pitts, the third Panelist, tackled the issue from a different angle by reminding everyone that lawyers were trained to circumvent definitions which engenders that not too much weight should be put on specific definitions. He added that the need to include small as well as transnational enterprises was crucial, since both were equally able to commit serious violations of human rights law. C. Correa, the last panelist, ended the panel on a sour note by expressing doubts on whether the attempt to adopt an instrument including both, local and transnational enterprises, would not rather end in frustration instead of productive results.

States which subsequently took the floor diverged in their statements. Whereas some emphasized the need to focus on TNCs only, others preferred to include all enterprises. Despite the issue of definitions, a broad consensus was found with regard to the will to close the existing legal gap and to adapt an international instrument therefore.

SOMO, CIDSE, Brot für die Welt, IBFAN, IBFAN-GIFA and Global Policy Forum oral statement on Scope of the Treaty, 7 July 2015, 10-13:00

Thank you Madam Chair.

I am speaking on behalf of SOMO, CIDSE, Brot für die Welt, IBFAN, IBFAN-GIFA and Global Policy Forum, who together with Friends of the Earth Europe made a joint submission to this intergovernmental working group. Our organizations are also members of the Treaty Alliance, and are among the nearly 400 organizations from around the world who have signed the Treaty Alliance joint statement.

With regard to the scope of the businesses the treaty would cover – the footnote discussion – we have identified a *hybrid option *that we would like to share with you. Before explaining this hybrid option, I would like to thank Dr. Surya Deva for advising us and developing this idea. In short, the hybrid option entails that, conceptually, the treaty would NOT exclude any specific type of business, but, in its substance, it would focus on developing provisions for transnational operations, thereby addressing the current challenges to hold transnational corporations to account.

Let me briefly explain this idea. First of all, it is important to stress that the very reason to start negotiating the treaty is to address governance gaps related to transnational business operations and problematic home-host state dynamics that come with it, and that the bulk of the human rights impacts we seek to address occur in relation to such transnational operations.

Nevertheless, the footnote poses a number of challenges. First of all, it lacks conceptual clarity, for all companies – even TNCs – are registered under domestic law of some country. A second and more problematic aspect is that any attempt to define TNCs is likely to prove futile, because an entity could be considered “transnational” in view of multiple alternative variables, such as shareholding, operations, business relations, location of offices, nationality of shareholders and directors.

Our organisations fear that any attempt to limit the treaty’s scope by providing a definition of targeted corporations – thereby excluding a subset of companies – will inevitably result in lawyers advising enterprises how to bypass the given definitional contours, and would thus provide loopholes in the protection against business related human rights abuse. Therefore, the proposed international instrument in our view should not exclude any business category.

That having said, the treaty’s main objective and focus needs to be on provisions for transnational operations of business, such as the obligation of states to regulate the extraterritorial activities of business, and to provide mutual assistance between states in investigating violations and in enforcing judgements. It is these types of provisions we are looking for in the treaty, which clearly go beyond the domestic level.

To conclude: in our view this hybrid option could effectively avoid double standards and loopholes to escape the foreseen treaty regulation, while at the same time it would but put the energy where most of the pain is: at the level of transnational operations and TNCs. We hope this idea will constructively contribute to the debate. Thank you Madam Chair

FoEI oral statement on general procedures

Madam chair, thank you for giving me the floor.

My name is Anne van schaik and I am speaking on behalf of FoEI, which is a member of the TA and the Global Campaign to Dismantle Corporate Power and End Impunity, more than 1000 organisations and individuals, many of them here today.

The TA statement calls on states to actively participate in good faith and constructively the development of this treaty. There are also others, like the EP, who calls on the EU AND its MS to participate in a constructive way.

Madam chair, many of us have reached out to our governments, and we have done so as well in Europe. We have called on the EU many times to participate in a constructive way, and though we were content they were in the room, we failed to understand why the EU delayed the start of the program with extra conditions.

The EU needs to defend the rights of people this week in Geneva and we call again on them come to the panel sessions and share their views in an open, constructive and transparent way.

More so, because next week the EU is aggressively promoting rights for businesses in the TTIP agreement between the EU and the US which will take place next week in Brussels.

About UNGP: we see the UNGP as complementary to the Treaty. But they only define obligations of states, but the responsibilities of businesses remain voluntary. We urge this new instrument to spell out clear obligations for companies imposed by the states as well as direct legal liabilities for TNCs and other businesses.

On the statement of France, to include all relevant stakeholders, we’re strongly opposing this proposal. We want the existing rules for the participation of observers with ECOSOC status in the IGWG should be applied as a minimum standard to limit corporations’ influence on Treaty negotiations. Madam chair, CSOs have done their homework. We have mobilised our supporters to be here both inside as well as outside the UN. Aaprt from here, many people are following this process through the webcast. This process is not only for UN diplomats. The world is watching.

We are looking forward to the week to come. Thank you madam chair.

Anne van Schaik,

Friends of the Earth International

IBFAN, PANAP, FoEE, SOMO and GPF Oral Statement 1st session of IGWG on TNCs and human rights July 6, 10AM-1PM / General Comments

Thank you Chairperson. I am speaking on behalf of the International Baby Food Action Network, the Pesticide Action Network Asia and Pacific, Friends of the Earth Europe, SOMO and the Global Policy Forum, members of the Treaty Alliance.

We welcome the opening of the first session of the OEIGWG for the elaboration of an International Legally Binding Instrument on Transnational Corporations and other Business Enterprises with respect to human rights. We are very glad to see countries and civil society taking part in this crucial process and would like to encourage all States to engage constructively in the discussions.

This is a historical step for all citizens, particularly for those affected by corporate abuses, who have struggled for many years for justice. Therefore, we urge you to ensure meaningful involvement of these affected communities in the treaty process in order to ensure that their needs are met.

To date, millions if not billions of people are negatively affected by corporate activities. Abuses are more frequent and apparent in the South, although communities from the North are also suffering from corporate misconduct such as chemical contamination and promotion of unsafe or unhealthy food. In addition, negative external costs related to corporate activities, including adverse and irremediable impacts on health and environment, are often borne by affected communities themselves as well as by public institutions and national governments. Whenever the affected communities organize to claim their rights and seek for remedies, their leaders regularly face threats to their security and even to their life.

Besides, whistle-blowers are often harassed or fired for having reported or disclosed information on a threat or harm to the public interest. Human rights defenders and whistle-blowers are at the forefront to get corporations accountable and thus should be provided special protection by the treaty. During a side event that took place yesterday, we had the opportunity to hear about the experience of a whistle-blower, Dr Yasmine Motarjemi, former executive in charge of global food safety at Nestlé, who denounced existing corporate strategies to continue putting business interests ahead of human rights with impunity.

Therefore, we would like to stress the necessity to put in place adequate safeguards to guarantee that the treaty process is not unduly influenced by the private sector and thus, to ensure its independence, integrity and credibility. These safeguards should be set up as a priority, in a transparent manner, and should include concrete measures that help identify and eliminate risks of personal or institutional conflicts of interests.

In conclusion, we would like to reiterate our support to this treaty process. We will continue to provide information to the IGWG and mobilize our respective networks at international, regional and national levels. Thank you.

Intergovernmental Working Group on TNCs and Human Rights: Day 2

Text: Diego de León

Translation: Rebecca Bucherer

The first session of the Intergovernmental working group on TNCs and other business enterprises with respect to Human Rights, tasked with developing an international legally binding instrument, just started its second day of debates.

Two different panels are announced in today’s agenda. The one in the morning will be dealing with the concepts and legal nature of TNCs and other Business Enterprises in international law and the one in the afternoon will elaborate on which human rights need to be covered under the Instrument with respect to the activities of TNCs and other businesses.

In today’s session interventions of experts, states and non-governmental organisations are expected. NGOs did not have the change to take the floor yesterday. Topics raise by organisations will include the necessity to adopt an instrument which obliges enterprises to respect human rights as well as how to assure access to remedy for victims of human rights abuses.

Yesterday, for the sake of finding an agreement on the programme of work, most negotiations between missions took place informally but took most part of the first day of discussions. The European Union proposed amendments which, in order to proceed with the debate, were partially accepted.

Up to the present, also due to the European Union’s agenda to exacerbate the adoption of the programme of work, the actual extend and effect of the overall stance of the European Union remains unclear.

The next few days will show to what extend agreements between different member states can be found, which in terms will help to understand whether the adoption of an international legally binding instrument is feasible or not.

Working group on TNCs and other businesses finally adopts programme of work | RIDH’s Blog

By: Rebecca Bucherer

After many hours of informal consultations among diplomatic missions, the intergovernmental working group in charge of discussing about an international legally binding instrument on business and human rights finally managed to agree on a programme of work. In order to disrupt the blockage, the Chairperson Ms Espinoza offered a new path, consisting in adding a first panel discussion on the Implementation of the UN Guiding Principles on Business and Human Rights, as initially proposed by the European Union.

The second motion set forth by the European Union, which aimed at broadening the range of applicability also to other businesses than just the ones mentioned in Resolution 26/9, was therewith put on hold.

Once consensus was found on the programme of work, the floor was opened for the first panel. It was the turn of Mr. Michael Addo, Chairperson of the Working Group of the Human Rights Council on business and human rights to address the audience. Since the diplomatic missions were not prepared for this first intervention, no reactions could be observed after his conclusion. Therefore, the Chairperson decided to proceed with the second panel. Discussions covered possible scopes, sort of entities and human rights to be included, as well as the applicability and jurisdiction which should be taken into consideration in the adoption of a legally binding instrument.

The additional general intervention as well as the specific comments on the panelists covered a broad range of opinions. While members such as Algeria, Pakistan and South Africa have emphasised the need to adopt a legally binding instrument, other members such as the Russian Federation and Switzerland consider the need to adopt a legally binding international instrument as subsidiary since the duty to protect human rights should primary lie with the states themselves.

After all, the European Union has not tried to further block the progressing discussion, therewith leaving space for constructive dialogue. As the panelist C. Pitts quoted: “With great power comes great responsibility”, the working group today seems to have gotten one step closer to fulfil its duty. The first part of tomorrow’s meeting will resume the statements, including those from member states and non-governmental organizations, and then continue with the regular programme of work.

IGWG on TNCs and other Businesses: No agreement reached, consultations are continuing | RIDH’s blog

By: Rebecca Bucherer | RIDH

After the rapid approval of Ecuador as Chairperson-Rapporteur of the Intergovernmental Working Group on TNCs and other Businesses, the session has stalled today at the UN headquarters in Geneva after proposals on the programme issued by the European Union (EU). At present no agreement could be found with regard to the adoption of the agenda and the programme of work. However, consultations among diplomatic missions are in progress and in the hope of finding agreement between the positions of some states, particularly the EU and the co-sponsors, Ecuador and South Africa.

United Nations High Commissioner for Human Rights, Prince Ra�ad Zeid Al-Hussein, opened this first session of the IGWG on TNCs and Human Rights with a video message. He expressed the need to tackle the issues globally and urged all participants to contribute to a fruitful discussion. The UN Guiding Principles on Businesses and Human Rights, so Zeid Al-Hussein, should not been considered as conflicting with this undertaking but rather as complementary.

The Deputy High Commissioner for Human Rights, Flavia Pansieri, subsequently welcomed all the participants and described the aim of the session to be, inter alia, the establishment of an effective way to address and end impunity. She urged all to participate in a constructive deliberation and to use the meeting to advance the shared goal of better human rights protection in the economic sphere.

The election of the Chairperson-Rapporteur took less effort than initially feared. Guatemala�s suggestion, in representation of the GRULAC, to elect Ms Maria Fernanda Espinosa, ambassador of Ecuador as Chairperson, did not encounter resistance and was therewith adopted unanimously.

Ms Maria Fernanda Espinosa, as addressing for the first time to the IGWG, expressed her gratitude for the election and support and declared the focus of this session to be the need to look for legal gaps in order to promote hope, equity and justice in the domain of human rights and businesses. The aim, so Espinosa, is not to negatively impact the economic sector but to provide the businesses with an opportunity to positively shape their image. The Guiding Principles on Businesses and Human Rights should be considered as a framework for reference and not as contradicting the ongoing discussions.

After Ms Victoria Tauli Corpuz, Special Rapporteur on the Rights of Indigenous people briefly addressed the audience, urging the necessity to continue the dialogue on finding an international legally binding instrument on businesses and human rights, the difficult task to adopt the agenda and programme of work was tackled. The European Union�s amendment, namely to widen the scope of the Working Group�s mandate to include all corporations, not only TNCs, has provoked a division among the member states. While France and Luxembourg clearly supported the European Union�s proposal, countries such as Cuba, South Africa and China strongly opposed the suggestion urging adherence to the current Resolution as currently stated. Until further consensus can be found, which seems unlikely so far, the intention to adopt a programme of work recedes in the distance. The break which was planned to last for only 10 minutes endured for an hour, depicting well the complexity of the issue. The morning debate was closed with this bitter taste, however, leaving space for further informal discussions.

During this break, NGOs present in the room, manifested their disagreement with the amendment made by the European Union.

« Today the EU has shown its real face by effectively blocking negotiations on a binding treaty, which would have meant access to justice for millions of affected people around the world, » said Anne van Schaik, Sustainable Finance Campaigner with Friends of the Earth Europe and member of the Treaty Alliance. « Next week the negotiations of the free trade agreement between the EU and US will take place in Brussels, where the EU will aggressively defend rights for TNCs. The EU only seems to care about human rights when it does not effect them or their businesses, » she added.

Brid Brennan, from TNI and Global Campaign Dismantle Corporate Power and Stop Impunity, stated:

�We believe the Head of the EU Delegation has no official formal mandate to corral 29 member states into silence on such an important matter as human rights and transnational corporations. As civil society organizations and social movements, present here in the UN today, we protest the disruptive behaviour of the EU, and we challenge the EU member states to declare their position on this matter, and not simply repeat the EU stance. The wellbeing of millions of people globally who have endured systematic corporate violations of their human rights depend on the work of the IGWG to be able to continue and fulfil its mandate�

The disappointment permeates also the statement made by Lola Sánchez, representative of Spain�s Political Party �Podemos� to the European Parliament:

« The EU is working more as an ambassador of big corporations than to defend the international human rights law. For example, with Foreign Trade Agreements and the Investment protection agreements that give the primacy of economic interests over human rights. But today we are full of hope because democracy cannot be stopped, with the referendum in Greece people has shown they want no more austerity and neoliberal politics »

The working group will gather again at 3 pm., attempting once more to agree on a common programme of work. Expectations are high, disappointments are unfortunately probable!

Votre commentaire

Entrez vos coordonnées ci-dessous ou cliquez sur une icône pour vous connecter:

Logo WordPress.com

Vous commentez à l’aide de votre compte WordPress.com. Déconnexion /  Changer )

Photo Google

Vous commentez à l’aide de votre compte Google. Déconnexion /  Changer )

Image Twitter

Vous commentez à l’aide de votre compte Twitter. Déconnexion /  Changer )

Photo Facebook

Vous commentez à l’aide de votre compte Facebook. Déconnexion /  Changer )

Connexion à %s

%d blogueurs aiment cette page :