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.
This Part 4 focuses on Article 13 of the Zero Draft (Consistency with International Law).
Summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG
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.
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
- the linking of the domestic law of each country with international human rights law. Article 13.1 refers the principles of sovereign equality and territorial integrity. Only states can interpret what conforms to the Treaty and what does not. Article 13.3 refers to international law, and Treaties are to be interpreted in good faith, without enacting domestic legislation with the goal not to comply with Treaty obligations. This is an eclectiv position, and emphasizing the position of Article 13.1 or Article 13.3 is a political option.
- the linking of this Treaty, a human rights treaties, with trade and investment treaties. The Treaty does not establish the prevalence of human rights over trade and investment agreements. Article 13.7 allows States to interpret trade and investment agreements in a way “least restrictive” of their ability to respect the Treaty. This is an implicit reference to the fact that trade and investment agreements may impact over the human rights enshrined in the Treaty.
- to conduct independent human rights impact assessments and consult potentially affected peoples and human rights treaty bodies when negotiating trade and investment agreements
- Provide for an independent complaint mechanism with the competence to rule on any negative impact trade and investment may have on human rights, including when these impacts result from their dispute settlement mechanisms
- Require the Parties to ensure that trade and investment agreements oblige States, companies and investors to respect international human rights obligations and not only domestic laws
- Oblige the parties to ensure trade and investment agreements allow them to maintain adequate policy space to meet their human rights obligations
- Oblige the Parties to develop clean hands provision requesting investors to respect international human rights standards during all the duration of their investment and obliging them to remedy any negative impact, before to have access to any form of investor-State-Dispute-Settlement
- Oblige the Parties to protect and provide financial support to CSOs seeking to address the negative impacts trade and investment agreements may have on human rights, including from any SLAPP actions;
- Article 13.6 declares that future trade agreement “shall not contain provisions that conflict with the implementation of the convention and shall ensure upholding human rights in the context of the activities by parties benefiting from such agreements”. However, for greater legal clarity, the vague term of “upholding” should be replaced with “respect, protect and fulfill” and concrete measures such as human rights impact assessments should be added.
- According to Article 13.7, States shall interpret trade and investment agreements “in a way least restrictive on their ability to respect and ensure their obligations under the Convention”. This is certainly well intended. De facto however, the wording would legitimize derogations from human rights obligations and leave it to ill-prepared arbitrators of investment tribunals to interpret which restrictions are acceptable and which are not.
- Article 13.3 is highly problematic as it says that the Convention cannot restrict other domestic and international obligations. The unintended result would be that trade and investment agreements could restrict human rights while the human rights could not restrict trade and investment agreements. This would contradict General Comment N° 24 of the UN Committee on Economic, Social and Cultural Rights, Principle 9 of the UNGP and the EU Lisbon Treaty that obliges to respect and promote human rights in its trade and investment policy within and outside the EU.