IGWG Day 2 | Summary

Day two of the second meeting of the open-ended intergovernmental working group (IGWG) on transnational corporations and other business enterprises (TNC-OBEs) with respect to human rights proved electric, yet collaborative.

The morning downpour failed to dampen the spirits of civil society, while panellists fired shots in Panel II on primary obligations of states. After first hearing from non-governmental organisations (NGOs) who were unable to speak yesterday, the discussions turned to state obligations with respect to TNC-OBEs.

Daniel Aguirre of the International Commission of Jurists highlighted the innumerable obstacles faced in terms of human rights protections in Myanmar. He spoke of the recently enacted investment law that failed to follow due process, and the domestic lacuna of human rights protection.

A communal sharp intake of breath from the back rows of Room XX was audible when Ariel Meyerstein of the US Council for International Business asserted that investor-state dispute settlement (ISDS) is a “form of human rights protection” – a statement which was later countered by Ana María Suárez Franco.

Ana María Suárez Franco of FIAN International explained the relevance of the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights for elaborating the extra-territorial obligations (ETOs) of states in the binding instrument. She pointed out that the UNGPs are ambiguous regarding ETOs and that this is an important gap that the binding instrument should fill.

Juan Hernandez-Zubizarreta of the University of the Basque Country highlighted the need to regulate the localisation and de-localisation of companies. He argued that the human rights system must be used to level the playing field in terms of competitive advantage, otherwise rights violations such as child labour will be permitted to persist.

In the afternoon, Panel II continued to cover important ground through the topic of jurisprudential and practical approaches to elements of extraterritoriality and national sovereignty.

David Bilchitz of the University of Johannesburg posed the question of what happens if in a situation of corporate human rights abuse, a state fails to implement a legal framework to protect its citizens, and so the corporation is left to act without accountability. He argued that corporations must have human rights obligations imposed directly on them.

Harris Gleckmann of the University of Massachusetts considered different systems for affected peoples (including national and subnational legal systems, interveners such as ombudsmen, home country responsibilities via extra-territorial obligations, and an international court dealing with corporate human rights abuses). He asserted that it is an illusion that states can exercise control over TNCs as, inevitably, key documents and assets lie outside the jurisdiction of the state, making the notion of “full control” a fallacy.

Kinda Mohamedieh of the South Centre looked deeper into the concept of ETOs, arguing that factors such as the location of assets help establish a link between a state and a corporate entity. She contended that using such factors to address the nationality of an actor under a future binding instrument will be necessary for establishing jurisdiction of home states to ensure their corporations comply with human rights standards when functioning abroad.

Leah Margulies of Corporate Accountability shared insights from the creation of the Framework Convention on Tobacco Control, showing the need for data to support the treaty provisions which demonstrates the costs of human rights abuses by TNCs which are born by the governments themselves. She drew on article 5(3) of the Framework, explaining the need to avoid conflict of interests.

Gianni Tognoni of the Peoples Tribunal contended that there is a shared conception among states and TNCs crimes linked to the economy are not perceived to be crimes under international law. He also considered the challenges of remedies, and explained that the right to a decent salary is linked to the right to life.

Fortunately no states have walked out of the second IGWG so far, and differences are being tabled and worked through. The absence of countries such as Canada, the United States of America, Australia and New Zealand is, however, to be noted.