12-Flora Sapio on the Zero Draft of a Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprise (Article 1 Preamble)

(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.

These Commentaries form part of a larger Coalition for Peace and Ethics Project on the Effort to Elaborate an International Instrument on Business and Human Rights. Go to CPE Treaty Project Page: HERE.

This Part 12 focuses on Article 1 of the Zero Draft (Preamble). 





Summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG
Article 1 (Preamble)
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

Article 1 Preamble

The State Parties to this Convention,

Stressing that all human rights are universal, indivisible, interdependent and inter-related;

Upholding that every person has the right to equal and effective access to justice and remedies in case of risk or harm decisive for the enjoyment of their rights;

Recognizing the rules of international law and international human rights law with respect to the

international responsibility of States;

Stressing that the obligations and primary responsibility to promote, respect protect and fulfill human rights and fundamental freedoms lie with the State, and that States must protect against human rights abuse by third parties, including business enterprises, within their territory or otherwise under their jurisdiction or control, and ensure respect for and implementation of international human rights law;

Recalling the UN Charter articles 55 and 56 on international cooperation, including in particular with regard to universal respect for, and observance of, human rights and fundamental freedoms for all without distinction of race, sex, language or religion;

Underlining that all business enterprises, regardless of their size, sector, operational context, ownership and structure shall respect all human rights, including by avoiding causing or contributing to adverse human rights impacts through their own activities and addressing such impacts when they occur;

Upholding the principles of non-discrimination, participation and inclusion, and self-determination;

Desiring to contribute to the development of international law and international human rights law in this field;

Pursuing the fulfillment of the mandate established by the Human Rights Council Resolution 26/9;

Hereby agree as follows:

 

Article 1 of the Legally Binding Instrument on Transnational Corporations and Other Business Enterprises was scheduled for discussion on Thursday 18 October 2018, from 15 to 18 PM, together with Article 14 (Institutional Arrangements) and Article 15 (Final Provisions).

After an introduction by the Chair, Luis Gallego Chiriboga, permanent representative of Ecuador at the UN in Geneva, comments on Article 1 were submitted by 2 experts. Written comments specific to Article 1 were submitted by:

• 6 states (Azerbaijan, China, Mexico, Peru, Russian Federation)
• 1 observer state
• 4 NGOs

Comments by Experts

Bradford Smith, Human Rights Treaties Branch, OHCHR: treaties follow a well established pattern – title, preamble, and then the articles covering the main text and final clauses.  As such, Article 1 should follow the Preamble.  

I assume the title will be modified using the word Convention – For example Convention for the protection of the human rights of all persons in the context of activities of transnational corporations and other business enterprises.

 

Human Rights treaties deposited with the SG generally do not have article headings but the CRPD does and other treaties deposited with the SG do, and these can be very helpful. 

Human Rights treaties deposited with the SG typically use the term “Part” instead of Section.

 

Layla Hughes, Center for International Environmental Law: it is crucial that the treaty be rooted in the lived experiences of those who suffer most as a result of business activities. It is essential, therefore, that the treaty takes into account the different, often disproportionate, impacts on women’s rights, and the additional barriers women face in seeking access to remedies.

The preamble should make this point. It should acknowledge gender equality as a fundamental right, which is also a Sustainable Development Goal. It should also recall the obligations of State Parties under the Convention on the Elimination of All Forms of Discrimination against Women to protect women from business-related human rights abuses.

Comments by States

Azerbaijan: Insert “international humanitarian law” in paragraph three of the Preamble after “Recognizing the rules of international law”. The paragraph shall read “Recognizing the rules of international law, international humanitarian law and international human rights law with respect to the international responsibility of States;”.

The principle of sovereignty and territorial integrity is the primary principle that serves as a basis for any further engagement whether political or economic. This principle was also covered under the draft elements document that we were discussing last year. We therefore request inserting that principle in paragraph seven of the Preamble after “Upholding the principles of…”.

Paragraph eight of the Preamble shall also make reference to the international humanitarian law and shall read “Desiring to contribute to the development of international law, international humanitarian law and international human rights law in this field;”.

China: the purpose, guidelines and principles set out in Resolution 26/9  should be confirmed in the Preamble. We propose to add the reaffirming of respect for the principles and purpose of the UN Charter, and to confirm the positive role of industry and commerce in development, to make the preamble more accurate and balanced.

Mexico: the Preamble should not be among the articles of this instrument. This position is coherent with Article 31 of the Vienna Convention. The Preable does not have the same force as the text.

We consider positive the wording of Paragraph 4. This is in harmony with the criteria and the principles of international human rights law. It is important that this Instrument obliges states to apply the Treaty not only in their territory, but in the spaces where states exercize any jurisdiction in accordance with international law, such as aircrafts and vessels, the areas adjoining the territorial sea, exclusive economic zones, protectorates or territories occupied de facto.

As the UNGPs are an internationally acknowledged and respected standard, we propose to replace, in paragraph 6 of the Preamble, “shall” with “should” to highlight the responsibility of all enterprises to respect all human rights, regardless of the size, sector, operational context, property structure. This responsibility exists independently of the effective implementation of state obligations.

Namibia: we concur with those delegations who requested for the preamble to not form part of the articles, but to be free standing followed by the Statement of purpose as Article 1. This is indeed in line with the drafting style of international instruments. We will also propose language to the drafters to streamline the new Article 1.

Peru: we suggest the inclusion of a paragraph on the committment of states to guarantee the universal respect of fundamental rights and freedoms as stated in the Universal Declaraion. We also suggest to include a reference to international humanitarian law in Paragraph 3.

Russian Federation: the terminology needs to be improved. Paragraph 8 of the Preamble refers to certain principles, but their significance for the purposes of this Treaty is unclear. It would be more logical for this paragraph to conform to the generally accepted principles and norms of international law.

We suggest deleting the reference to Resolution 26/9 as it is redundant and not typical of such international treaties.

Comments by Observer States:

The Holy See:  in shaping the Preamble, we cannot forget that we are called to a “responsible stewardship” of our common home. The Delegation of the Holy See would like to insert into the preambular language the following sentence: “stressing that the urgent challenge to protect our common home includes a concern to bring the whole human family together to seek a sustainable and integral development”.

Comments by NGOs:

APWLP and AWID: we suggest the preamble refers to Article 13 of the UN Charter.  Any incompatible law or obligations with the Instrument must be severed according to the doctrine of severability. The Instrument should embrace the principle of international solidarity to provide coherence and conceptual operational framework for the implementation of this Instrument based on the primacy of human rights We recommend the Instrument be explicit on direct obligations of TNCs. This will include TNCs’ obligation not to undermine states’ human rights obligation through their business activities. We recommend the Preamble to make specific reference to the multiple, intersecting and historically accumulated forms of discrimination women experience.  The next Draft should recognise the right to free, prior and informed consent (FPIC) as a corollary of the internationally-recognised right to self-determination and the right to development.

FIAN: the Preamble should state the primacy of human rights over international trade and investment agreements, reaffirming Article 103 of the UN Charter. The Draft Treaty does not seriously address gender discrimination.

International Association of Democratic Lawyers: Article 1 is contradictory, because it cannot be an article and a preamble at the same time. There exist contradiction between the principle of indivisibility, universality and interdependence of human rights, and the list of rights in Article 8.12.

The responsibility of states to protect human rights is not primary, but the responsibility of states and enterprises is separated, because enterprises have a responsibility to respect human rights. These obligations should be included in an additional article.

The preamble must acknowledge the obligations deriving from international human rights law, above all existing instruments, and in particular trade and investment treaties.

International Organization of Employers: it is not clear that direct international human rights obligations would apply only to State Parties and not to business in the Zero Draft Treaty. The language in the "preamble" contains an ambiguous sentence when it says that "all business enterprises… SHALL respect all human rights." Many jurisdictions have concluded that the word "shall" can mean "must" (as well as "will" or "may"). On top of this, while it is not certain that preambular paragraphs themselves are legally-binding1, this preamble is listed under the very first Article in Section 1 implying that it would be fully part of the Treaty.

The "preamble" speaks of "all business enterprises" but the rest of the Zero Draft Treaty uses the term "business activities of a transnational character." It is also illogical from both a practical and legal perspective when the preamble says that the Treaty would cover "all human rights.

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