Morning session

The morning session on the third day of the 9th session of the Open-Ended Intergovernmental Working Group began with the continuation of State-led negotiations on the Preamble of the legally binding instrument (LBI), including CSO contributions, and finally, marked the beginning of negotiations on Article 1 (Definitions). African states, including Ghana, Egypt, South Africa, Malawi, and Namibia, were active participants over the morning.

Multiple states began their interventions by thanking the Chair for management of the proceedings and efforts leading up to the session. Numerous states voiced their support for replacing “business enterprises” with “transnational corporations” in Preamble paragraphs. Stating that corporations bear the obligation to respect human rights, Colombia, supported by Malawi and opposed by Peru, proposed the change from “responsibility” to “obligation” in PP12. States continued to request removal of a specific number of “core” human rights treaties in the text, and expressed their support for adding references to additional human rights instruments in the Preamble, such as the UN Declaration on the Rights of Peasants, Durban Declaration and Programme of Action, and the International Covenant on Economic, Social, and Cultural Rights, among others. Palestine, opposed by Panama, proposed that the Preamble should recognise the primacy of obligations derived from international human rights law when conflicting with other obligations. In relation to PP8, Colombia, supported by Egypt and Iran, opposed the UK’s proposal to remove reference to UN Charter articles. Ghana registered support for all proposals made thus far by Cameroon, and proposed adding various financial actors, such as investors and banks, when it comes to TNCs’ obligations in relation to global production chain.

Civil society groups called for stronger provisions concerning gender and age sensitivity, the best interests of children, labour and health standards, as well as the protection of human rights and environmental defenders. They welcomed States’ proposals in these areas. A number of organisations urged States to support the inclusion of international humanitarian law in the text. Business advocacy organisations voiced concerns over the feasibility of the LBI, arguing that the Preamble blurs the line between States and corporations, and seeks to hold businesses accountable for actors beyond their control.

As for the negotiations on Article 1 (Definitions), the Chair Rapporteur explained that the article proposes some amended definitions from previous sessions to simplify and facilitate a better understanding of the terms used in the LBI. States provided specific and detailed contributions. Mexico, supported by Panama, commended the definition of “victim” in Article 1.1 and suggested expanding it. Additionally, Mexico proposed the inclusion of environmental rights in the definition of “human rights abuse” and suggested introducing “extraction” in the definition of “business activities”. Brazil requested amendment to the definition of “victim” before the session closed.

The recording of the morning session is available on UN TV here

Afternoon session

States continued to provide comments on Article 1 as well as Article 2 of the LBI during the afternoon session. Regarding Article 1, there was significant debate around definitions of “victim”, “human rights abuse”, “adverse human rights impacts”, “remedy”, as well as “business activities”, including a proposal by Côte D’Ivoire (on behalf of the Africa Group) in respect of this definition. Ghana proposed including a specific reference to “global value chains”, supported by some CSOs, with business advocacy organisations cautioning against using vague terminology in respect of this proposal.

Brazil’s proposal on defining “effective remedy” was supported by several states, including Ecuador and Malawi. Emphasis was placed on building a victim-centred approach, with dialogue on the inclusion of the terms "reparations" and "restitution" in the LBI, as understood within the Inter-American court system.

States considered Mexico’s proposal on whether “victims” should be defined to include families of victims, and persons who provide assistance to victims, amongst others. Business advocacy organisations, as well as Saudi Arabia, supported China’s proposal for a narrower definition of victims owing to concerns of legal uncertainty.

Colombia, in evaluating Articles 1.2 and 1.3 strongly argued against creating hierarchies for State and company obligations, and pressed for a standardised approach, towards replacing the term human rights “abuse” with “violations”, as contained in international human rights law. This sentiment received support from multiple states and CSOs.

A number of CSOs also supported inclusion of the right to a healthy and sustainable environment in Article 1.3, in line with previous versions of the text, with at least one CSO highlighting the “inextricable link between the environment human rights and gender equality”.

The Chair introduced Article 2, concerning the LBI’s Statement of Purpose, towards the end of the session. He noted that the Working Group kept the fundamental elements from the 3rd version of the treaty text, but has made linguistic amendments in line with suggestions made in previous sessions to improve the quality and consistency of the text. He reiterated the main goal of the LBI – to be reflected in this article –  is to bridge a gap in international human rights law by creating legally binding measures for the protection and promotion of human rights in context of business activities and related effective access to justice and remedy. States began commenting on Article 2, to continue the following session.

The recording of the morning session is available here.