The Elements for the treaty on business & human rights: Is it a step forward?

Carlos Lopez, International Commission of Jurists (ICJ)

The chair of the 3rd Session of the Intergovernmental Working Group (IGWG) in charge of elaborating a treaty business and human rights has published the “Elements for the Draft Legally Binding Instrument” on Transnational Corporations and Other Business Enterprises with respect to Human Rights.

This comprehensive document touches upon a number, if not most, of the relevant issues that have been discussed so far: general principles, obligations for States, obligations for Transnational Corporations (TNCs) and Other Business Enterprises (OBEs), corporate legal liability, jurisdiction, access to remedy, international cooperation, international monitoring, and even options for international tribunals for corporations.

The paper is not drafted in the structure of an actual treaty, nor does it use treaty language.

The publication of the “Elements” document, which many doubted would ever come into being, would be a motive for great optimism if it were not for the mix of questions and confusion that the “Elements” create. The paper adopts a “kitchen sink” approach, where most possible elements are included, presumably with a view to allow for maximum room to manoeuvre in future negotiations. There is no doubt there are many well explored and valuable concepts and formulas that reflect the discussions that took place during the previous two sessions of the IGWG in 2015 and 2016 and various stakeholder consultations undertaken by Ecuador outside of the formal sessions. The setting out of these elements constitutes a step forward from the more abstract discussions of the first two sessions. However, these positive items are at times overshadowed by the imprecise technique in several paragraphs, gaps, and some exaggerated formulations. Moreover, because it is presented as a list of individual elements, it is difficult to discern a vision for making the element cohere in a unified instrument.

The “Elements” paper is a key step in the process towards drafting a treaty. Its elaboration as a basis “for substantive negotiations” was mandated by Human Rights Council Resolution 26/9 creating the IGWG and establishing a road map until the start of substantive negotiations during the third session. Regarded as a much-awaited document by many civil society groups actively supporting the process, the publication of the “Elements” received a mixed welcome. One thing is almost sure. There will be little, if any, of the “substantive negotiations” that the “Elements” were supposed to facilitate. Substantive negotiations entail focussed discussions and the start of the “give and take” among governmental delegations. Given the comprehensive and complex nature of the “Elements” and the limited time available for delegations to consult, adopt positions and prepare, many delegations will likely prefer to provide general remarks only and remain in “listening mode”.

The “Elements” cover a large range of themes relating to business and human rights. During recent debates three areas of concern emerged as areas where positions were distinctively opposed. These are the issues relating to the scope of the treaty, the direct vs indirect international obligations for business enterprises, and the question of international monitoring vs justice mechanisms. The “Elements” do not provide conclusive answers or clarity on these three issues.

On the issue of scope of the treaty, controversy is likely to persist between two positions: the one that the existing Resolution 26/9 seems to put forward that restricts the scope of application to transnational corporations and other business enterprises whose “activities are of transnational character”, and the position that suggests that a broader scope is necessary to fill the existing accountability gaps. The “Elements” suggest that the thorny issue of a definition of what a transnational corporation is can be avoided if the focus is shifted from the actor to the “activity”, i.e. is an activity at issue transnational in character? This approach however neglects to define the meaning of an “activity of transnational character”. Critically, it would still leave a gap for the many people whose human rights are adversely affected by activities of companies that are national in character, which is certainly unsatisfactory as a matter of principle and of course for the victims concerned.

The “Elements” suggest a few but broad and far reaching obligations that would apply directly to “TNCs and OBE”. Distinctively located under a separate heading on “Obligations for TNCs and OBE” these obligations would in fact make it legally mandatory for enterprises to comply with large parts of the United Nations Guiding Principles on Business and Human Rights (UNGPs)’s Pillar II: The corporate responsibility to respect human rights. However, the “Elements” are not clear as to how these obligations will be applied, by whom and what effects non-compliance by companies will entail nor who will make accountability effective.

On the last page, the “Elements” outline also some monitoring and adjudicatory mechanisms as possible options to consider. Treaties in the human rights field have traditionally made a crucial contribution to implementation, monitoring and oversight of the application of treaty provisions by States Party to the treaties. The mechanisms adopted have become more and more sophisticated and their effectiveness has increased over time. The “Elements”, perhaps unwittingly, leave this crucial area to a brief and superficial treatment that does not make justice to its importance in the process. It can only be hoped that the discussions to come will remedy this situation.

As governments and a large number of civil society groups are gathering in Geneva for the third session of the IGWG (23-27 October), the “Elements” for a treaty published only three weeks ago would seem condemned to background stage in a discussion that will continue to be essentially political, until the experts of each delegation have the time to fully understand the import of its content and assume a more active stance.

The political obstacles to a treaty remain formidable. The divide between the main sponsors of the process and the more sceptical States, including from the EU, who prefer to retain the UNGPs as the only valid option, remains palpable. The EU has decided to engage in the Working Group sessions, though it remains to be seen whether this engagement will be pitched at a deeper level than the paltry contribution during previous sessions.

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Carlos Lopez is Senior Legal Advisor at the International Commission of Jurists (ICJ).