Wednesday, December 05, 2018

8-Flora Sapio on the Zero Draft of a Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprise (Article 12 International Cooperation)

(Pix © Larry Catá Backer 2018; Musée Ariana, porcelain figures Meissen 1725-1730 )

Flora Sapio (Comments on the "Zero-Draft"), and I (Making Sausages?: Preliminary Thoughts on the "Zero-Draft") have been considering the challenges posed by the Zero Draft.  But we wanted to dig deeper.  To that end we wanted to avoid the altogether too easy exercise of textual exegesis to suggest the challenges that this draft might construct for itself.

Rather than consider text, or text in light of the various mandates and principles purportedly manifested in the language used to build the Zero Draft, we thought it might be useful to consider text within the context of the initial commentary it might generate among Zero Draft stakeholders motivated enough to make them. These, then, might usefully inform the reading of text, and sharpen analysis of its structure and consequences. 

To that end, and in this and subsequent posts, Flora Sapio  presents summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.  These, then, will be woven together first to develop both a critique of the Zero Draft, and thereafter to suggest the value of an alternative, framework, model for such a project.

This Part 8 focuses on Article 12 of the Zero Draft (International Cooperation). 






Summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG
Article 12 (International Cooperation)
Flora Sapio 


On 14 July 2014, the Human Rights Council created an Open-Ended Intergovernmental Working Group (OEIGWG) on Transnational Corporations and Other Business Enterprises with respect to human rights (OEIGWG). According to Resolution 26/9, the Working Group has the mandate to: “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”

By “Other business enterprises” the Human Rights Council referred to all business enterprises having a transnational character in their operational activities. This designation does not apply to local businesses.

In establishing the OEIGWG, the Human Rights Council also decided that the first two sessions of the OEIGWG would be dedicated to conducting constructive deliberations on the content, scope, nature, and form of the future Treaty. Following deliberations, the Chairperson would prepare elements for the draft Treaty. Substantive negotiations on the Treaty would be held during the third session of the Working Group, based on the discussions held during the first two sessions.

The OEIGWG held its first session from 6 to 10 July 2015. A second session took place from 24 to 28 October 2016. Based on discussions held during the first two sessions, a third session was convened from 23 to 27 October 2017. During this session, the elements for the draft Treaty were discussed. Also, the OEIGWG requested the Chair-Rapporteur to complement the ongoing bilateral consultations with states and non-state stakeholders with informal consultations.

Following the third session, a Zero Draft of a Legally Binding Instrument (LBI) on Transnational Corporations (TNCs) and Other Business Enterprises (OBEs) was prepared by Ecuador. In July 2018 the Ministry of Corporate Affairs of India released the draft for public comments.

The Zero Draft of the Legally Binding Instrument (and a zero draft of an optional protocol to the binding instrument) formed the basis for a first round of substantive negotiations, held in Geneva from 15 to 19 October 2018. According to the program of work adopted by the OEIGWG, substantive negotiations saw experts, representatives of national states, transnational organizations, and NGOs comment on the Zero Draft.

In this and in following posts, I will be presenting summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG.


Article 1 – summary of discussions - Thursday 18 October 2018
Article 2 – summary of discussions - Monday 15 October 2018
Article 3 – summary of discussions - Wednesday 17 October 2018
Article 4 – summary of discussions - Wednesday 17 October 2018
Article 5 – summary of discussions - Thursday 18 October 2018
Article 6 – summary of discussions - Tuesday 16 October 2018
Article 7 – summary of discussions - Tuesday 16 October 2018
Article 8 – summary of discussions - Monday 15 October 2018
Article 9 – summary of discussions - Tuesday 16 October 2018
Article 10 – summary of discussions - Wednesday 17 October 2018
Article 11 – summary of discussions - Wednesday 17 October 2018
Article 12 – summary of discussions - Wednesday 17 October 2018
Article 13 – summary of discussions - Tuesday 16 October 2018
Article 14 – summary of discussions - Thursday 18 October 2018
Article 15 – summary of discussions - Thursday 18 October 2018

Article12 (International Cooperation)



1. State Parties recognize the importance of international cooperation and its promotion for the realization of the purpose of the present Convention and will undertake appropriate and effective measures in this regard, between and among States and, as appropriate, in partnership with relevant international and regional organizations and civil society. Such measures could include, but are not limited to:

a. promote effective technical cooperation and capacity-building among policy makers, operators and users of domestic, regional and international remedial mechanism,
b. Sharing experiences, good practices, challenges, information and training programs on the implementation of the present convention,
c. Facilitating cooperation in research and studies on the best practices and experiences for preventing violations of human rights in the context of business activities of transitional character.


Article 12 of the Legally Binding Instrument on Transnational Corporations and Other Business Enterprises  was scheduled for discussion on 17 October 2018, from 10  AM to 13 PM, together with articles 10 (Legal Liability) and 11 (Mutual Legal Assistance).

Written comments specific to Article 12 were submitted by:

  • 1 expert
  • 3 states (Costa Rica, Egypt, Namibia)
  • 2 NGOs


Comments by Experts

Surya Deva, UN Working Group on Business and Human Rights: article 12 contemplates partnership not only among States but also between States and civil society to raise awareness, build capacity, share good practices, and conduct research to promote business respect for human rights. We would suggest that NHRIs should also be part of such collaborative partnerships. To appreciate better the concerns of diverse rights holders, it would also be critical to engage civil society actors who work specifically on the rights of women, children, indigenous peoples, migrant workers, and persons with disabilities.

Written comments by Maddalena Neglia, FIDH, are not available on the OHCHR website.

Comments by States

Costa Rica: Costa Rica recognizes the importance of promoting the international framework for human rights at the national and international levels, and cooperation plays a key role. My country considers it important to be inspired by the Guiding Principles, to promote effective international cooperation schemes and share the best practices on the subject at hand.

Capacity-building and awareness-raising initiatives can play a decisive role in helping all States to to fulfill its duty of protection. Costa Rica agrees that collective action through multilateral institutions can help the States to level the situation with respect to the observance of human rights by companies in different States and this must be achieved by raising the level of States lagging behind. A very important challenge is to work in a cooperative scheme where TNCs are not included.

Egypt: article 12 is one of the important elements of the draft document and we propose strengthening it by including references to transnational corporations and enterprises so that awareness programs are organized on the principles and standards of human rights and the obligations of the host State and the mother country to ensure compliance with those obligations.

Namibia: articles 11 & 12 are clear and is clearly based on other international instruments, which provides for MLA and International Cooperation, and which have been implemented with great successes.

Comments by NGOs

International Association of Democratic Lawyers: international cooperation is strategic to guarantee the effectiveness of the Treaty, therefore the State obligation to facilitate homologation and compliance with foreign judgment must be guaranteed, despite arguments about sovereignty and national security, which do not contribute to the consolidation of a global community of norms of protection of human dignity.

International Organization of Employers: many provisions in the Zero Draft Treaty focus on imposing sanctions on companies on the one hand, while strengthening international cooperation and mutual legal assistance between States on the other hand. With its focus on transnational corporations and not domestic enterprises, the Zero Draft Treaty does not adequately consider how such State-to-State action will improve the situation for victims of any business-related harm in the jurisdiction where the adverse impact occurred and not just lead to a two-tiered system of compliance. The Zero Draft Treaty does not propose any "sticks" to accompany the "carrots" for States or other measures to increase peer pressure between States to ensure they meet their human rights duties at the national level. Improving State performance on human rights, such as by achieving policy coherence between existing standards and national laws, is a long-standing challenge. It is not clear that this Treaty would succeed where other similar instruments have not.




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