The last day of the second session of the IGWG on Transnational Corporations and other Business Enterprises started with a final panel on access to remedy, and then moved into the process of adopting the report of the session in the afternoon.
While often just a mere formality in such UN proceedings, the exchanges among states concerning the adoption of the draft meeting report was in a temporary state of high diplomatic tension.
Russia proposed to accept the draft report ‘ad referendum’, meaning on condition that there 14 days be set aside where states and others can provide input to the Chair of the meeting, who then in turn updates the report, finalises the text and report on it to the Human Rights Council in March.
While agreeing that the report be adopted, ad referendum, South Africa proposed an important qualification (contained in brackets in the following quote) to draft recommendation A (c) which stated that “the Chairperson-Rapporteur be entrusted with the preparation of a new programme of work [and a draft negotiating text for the commencement of the negotiations for the proposed legally binding instrument] based on the first and second session of the” IGWG “and to present this text before the third session…for consideration”. In what might seem bizarre in current international politics, Russia and EU were in alignment on their rebuttal to South Africa, as they suggested that third operative paragraph of the original resolution establishing the IGWG already gave the mandate to the Chair of the IGWG to “prepare elements for the draft legally binding instrument for substantive negotiations” at the third IGWG meeting in 2017.
In an attempt to mediate a compromise, Russia called for a 5 minute pause in proceedings for interested states to convene a discussion after which a proposal will be made to the Chair, which was agreed. After recommencing the debate, the Chair suggested that the draft report include reference to the purpose of the third session to particularly focus on “operative paragraph number 3” of the resolution establishing the IGWG. The nature of the discussion reflects the urgency with which South Africa wants the treaty process to proceed, and on the other side some reticence from states in support of the UNGPs implementation, but it can only hoped that the quick resolution to the impasse today portends well for the inevitably challenging debates that will come during the third session of the IGWG. There was certainly a quiet feeling of accomplishment among diplomats in Room XX after proceedings finished.
Earlier in the day access to remedy was the main theme of the discussions, and it had already been touched upon throughout but the panellists added additional themes to the discussion including the difficulties of establishing judicial remedies without separation of powers at the national level, and a prevailing lack of trust in national level courts. Mexico discussed this point by asking whether non-judicial human rights mechanisms could be a way to ensure access to remedy for affected people. One panellist in response though, Claudia Müller-Hoff from European Center for Constitutional and Human Rights, noted how these can generally be most effective as complementary to judicial mechanisms. She nonetheless recognised the fact that they may be more accessible, especially given the practical difficulties in reaching international mechanisms.
Namibia and Ethiopia were concerned by the lack of resources at the domestic level, especially in terms of technological skills for the gathering of evidence. Panellists, and later on civil society, highlighted the need to shift the burden of proof in order to attain justice.
Bolivia supported a view expressed by a panellist that the treaty consider justice for actions that damage the environment, arguing that too many resources were dedicated to clean up of damage caused by transnational corporations when they could be dedicated to fulfilling the right to development through the strengthening of public services and infrastructure. The importance of including the right to development in the future treaty was also mentioned by civil society, notably CETIM and the Legal Resource Centre.
Civil society organisations mentioned several issues that are key to them, including abolishing the corporate veil that separates parent companies within transnational corporations from the liability for acts committed by their subsidiaries. It was suggested instead that the treaty recognise transnational corporations as one corporate group, so that parent corporations can be held accountable for any acts by corporation in the group that commits human rights abuses.
Beth Sephens, Professor at Rutgers-Camden Law School raised the possibility of the treaty containing a committee that can handle complaints, suspecting that the establishment of an international civil or criminal court might take too long to set up.
The United Nations Working Group on Business and Human Rights took the floor to inform the IGWG that the issue of access to remedy was high on their agenda and would be the subject of their report to the UN General Assembly next year. They also encouraged stakeholders to issue communications to them in relation to this matter.
Once all proceeding of this second session of the IGWG were complemented the Chair-Person Rapporteur closed the proceedings with a quote from Martin Luther King Jr.: “Morality cannot be legislated, but behaviour can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless.”
Elise Golay / RIDHhttp://ridh.org