Introductory Remarks

We are living an unprecedented historical moment with the beginning of the Third Session of the Open-Ended Intergovernmental Working Group (OEIGWG) on transnational corporations and other business enterprises with respect to human rights, between October 23^rd and 27^th 2017, bringing to the table the “Elements for a Legally Binding Instrument on Transnational Corporations (TNCs) and Other Business Enterprises (OBEs) with Respect to Human Rights”^[1], document proposed by the Chairmanship of the OEIGWG, resulting from the mandate established by Resolution 26/9 of the Human Rights Council^[2] and the discussions of the first two sessions^[3].

In this brief text we propose to comment about 3 important questions of the “OEIGWG Elements” pointing out some advances and some subjects that need more discussion and improvement for the elaboration of an effective framework for protecting human rights against abuses committed by TNCs, being a crucial step in the long run to stop corporate impunity and protect human rights.

For a more detailed analysis of the Elements and a comparative perspective with the Proposal that will be presented by the Campaign to Dismantle Corporate Power and Stop Impunity, we produced a comparative analysis available in Homa's website[4].

Comments on the OEIGWG Elements

1. Primacy of Human Rights Obligations over Trade and Investment Agreements - In the first part of the “OEIGWG Elements”, in point 1.2, it is displayed as a principle the “Recognition of the primacy of human rights obligations over trade and investment agreements”, being reaffirmed in point 1.4. The insertion of this principle in the Chairmanship document proposes a change in the current interpretation of the international human rights framework, making more difficult the prosecution of States by TNCs in the International Centre for Settlement of Investment Disputes (ICSID)^[5] for taking the necessary measures for the protection of human rights in the national level. We believe this provision from the OEIGWG is a normative deployment of the displayed in General Comment N. 24 on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities[6] adopted by the Committee on Economic, Social and Cultural Rights in this year of 2017. The mentioned comment stated that "The interpretation of trade and investment treaties currently in force should take into account the human rights obligations of the State, consistent with Article 103 of the Charter of the United Nations and with the specific nature of human rights obligations".

2. The transnational character of the business activity subjected to its application - The OEIGWG Elements solve very well the problem of the actors who can be subject to the jurisdiction of the proposed treaty, and the solution is the absence of definition. The polemic created around the footnote of Resolution 26/9^[7] only served to divert the debate from its real focus which is the scope of acts, violations and abuses that can be subject to the legally binding instrument. The focal point in this matter is the transnational nature of the activity and not the transnational nature of the corporation in itself. Regarding this, the OEIGWG Proposal explains in point 2 that “with regard to the subjective scope, the present instrument does not require a legal definition of the TNCs and OBEs that are subject to its implementation, since the determinant factor is the activity undertaken by TNCs and OBEs, particularly if such activity has a transnational character”^[8].

3. Extraterritorial obligations of States - The OEIGWG Elements does not state the terms of extraterritorial obligations of States in a very clear and specific way. The document reaffirms in point 1.3 that “State Parties’ obligations regarding the protection of human rights do not stop at their territorial borders”, mentioning the obligation of States to “adopt measures to ensure that TNCs and OBEs under their jurisdiction adopt adequate mechanisms to prevent and avoid human rights violations or abuses throughout their supply chains” (3.1.) and have a general obligation of international cooperation. When the Elements mention Access to Justice, point 6, they state that “State Parties shall adopt adequate mechanisms to reduce regulatory, procedural and financial obstacles which prevent victims from having access to effective remedy”, complementing that States should limit the use of the forum non conveniens doctrine. The absence of a more detailed normative proposal about this question represents a retrocession, considering that the international human rights framework clearly recognizes these obligations, mainly since the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography^[9]. The Committee on Economic, Social and Cultural Rights recognized in some occasions the existence of extraterritorial obligations of States concerning business activities[10], and the Committee on the Rights of the Children^[11], through the General Comment N.16, from 2013, addressed this question dedicating various paragraphs to this discussion recognizing the difficulties in making TNCs liable for the abuses committed^[12] and affirming that the primary responsibility to protect children’s rights lies with the host state’s jurisdiction, but the home state of the TNCs also has obligations regarding the activities of corporations based in its territory. The demonstration of a “reasonable link” between the home state and the abusive conduct abroad is sufficient^[13]. Considering all the advances in the Rights of Children Framework, we expected a more elaborated normative proposal in the OEIGWG Elements.

Final Remarks

In this moment of great opportunities to advance the international human rights law framework and of great pressure from the international civil society, represented mainly by the Treaty Alliance and the Campaign to Dismantle Corporate Power and Stop Impunity,^[14] which are bringing a civil society proposal for a legally binding instrument that is going to be launched this week during the Third Session, the OEIGWG Elements sets a good starting point for the debate.

As stated before, the Third Session and the OEIGWG Elements are a necessary step in the long run giving continuity to this process that has already been at the UN for over 40 years and creating a dynamic of possible progress and negotiations.

However, there are more points to address regarding the OEIGWG Proposal, such as the way due diligence is portrayed by the document, the need for more discussion about direct obligations for TNCs or the need for insertion of more specific provisions about international cooperation, but these questions can be addressed in the future, after the debates of the Third Session and as a preparation for the next sessions of the OEIGWG.

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Manoela Carneiro Roland is Coordinator of Homa - Human Rights and Business Centre; Adjunct Professor at Federal University of Juiz de Fora (Brazil).

Luiz Carlos Silva Faria Junior is Homa Associate Researcher and a PhD Student at the Pontifical Catholic University of Rio de Janeiro (Brazil).