Morning session

The second day of the 10th session of the Open-Ended Intergovernmental Working Group commenced with civil society organisations (CSOs) and NGOs sharing their comments on Article 4 - Rights of Victims.

The International Organisation of Employers (IOE), in line with Russia yesterday, recommended a full redraft of Article 4 , as it supplants the state’s duty to protect human rights with the corporate responsibility to respect them, going against the essence of the UNGPs. It also raised concerns about the removal of the concept of “internationally” recognised human rights in 4(1) discussed yesterday, as this would extend the treaty to all human rights.

The US Council for International Business (USCIB) echoed the concerns raised by the IOE. It also pointed to the lack of provision recognising the rights of businesses during a complaint and called on states to recall the presumption of innocence as a fundamental tenant of the law.

Some CSOs showed concerns over the use of the term “victims”, which was deemed overly restrictive, and recommended using the word “rightsholders”, “stakeholders”, or adding “affected persons and communities” after it. Many underscored the need to refer to a “gender-sensitive” access to justice, and agreed with Palestine’s proposal yesterday to add a reference to conflict areas. When invited to react to proposals made on Article 4, most states agreed that the term “victim” is too narrow but disagreed on whether to refer to “rightsholders” or “victims, affected persons and communities” to broaden it. Colombia, Palestine and Ghana disapproved referring to “rightsholders” since this would include businesses and introduce confusion in the text, the LBI being about protecting the rights of people.

The legal experts took the floor to respond to questions asked yesterday to clarify the notion of “human rights abuses” which relates to adverse consequences resulting from business activities and “human rights violations” relating to those resulting from state actions or omissions in breach of their international obligations, including a future LBI.

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

Afternoon session

States discussed Article 5 - Protection of Victims, in the afternoon. A number of countries, including Algeria, South Africa, Mexico, and Cameroon endorsed Brazil’s proposal to add additional language protecting “affected persons and communities” in 5(1). Ghana’s recommendation to incorporate “gender-responsive” measures in 5(2) likewise enjoyed widespread support from Panama, Mexico, Cameroon, Bolivia, Colombia and Brazil, as well as CSOs.

The UK and US raised similar concerns to wording on collective rights found in 5(2) and suggested removing the phrase “groups and organizations” and replacing it with “individuals”. Ghana and several CSOs objected to these proposals, noting that precedent exists for collective rights in both regional frameworks and international law.

CSOs took to Palestine’s suggestion to introduce a 5(2) bis aimed at preventing abuses by public and private security forces against people protesting abuses linked to business activities. Many CSOs also welcomed Panama’s proposal to amend 5(2) to ensure that states take adequate and effective measures to guarantee a safe and enabling environment for “human rights defenders, including environmental human rights defenders”. However, the USCIB disagreed on the inclusion of persons, groups, or organisations that defend the environment in 5(2) notably due to the lack of international consensus on what environmental rights constitute.

States finished the session by beginning to review Article 6 - Prevention where Ghana proposed to reinstate climate change due diligence, which was in the LBI third revised draft.

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