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 13 focuses on Article 14 of the Zero Draft (Institutional Arragements).
Summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG
Article 14 (Institutional Arragements)
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 14. Institutional Arrangements
Committee1. There shall be a Committee established in accordance with the following procedures:a. The Committee shall consist, at the time of entry into force of the present Convention, (12) experts. After an additional sixty ratifications or accessions to the Convention, the membership of the Committee shall increase by six members, attaining a maximum number of eighteen members. The members of the Committee shall serve in their personal capacity and shall be of high moral standing and recognized competence in the field of human rights, public international law or other relevant fields, who shall serve in their personal capacity.b. The experts shall be elected by the States Parties, consideration being given to equitable geographical distribution, the differences among legal systems, gender balanced representation.c. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties, they shall be elected for a term of 4 years. Each State Party may nominate one person from among its own nationals. Elections of the members of the Committee shall be held at the Conference of States Parties by majority present and voting. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within two months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties.d. The initial election shall be held no later than six months after the date of the entry into force of this Convention. The term of six of the members elected at the first election shall expire at the end of two years; immediately after the first election, the names of these six members shall be chosen by lot by the chairperson of the meeting referred to in this article.e. If a member of the Committee dies or resigns or for any other cause can no longer perform his Committee duties, the State Party which nominated him or her shall appoint another expert from among its nationals to serve for the remainder of his or her term, subject to the approval of the majority of the States Parties.f. The Committee shall establish its own rules of procedure and elect its officers for a term of two years. They may be re-elected.g. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under this Convention. The Secretary-General of the United Nations shall convene the initial meeting of the Committee. After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure.h. With the approval of the General Assembly, the members of the Committee established under the present Convention shall receive emoluments from United Nations resources on such terms and conditions as the Assembly may decide.2. States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of the Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken and such other reports as the Committee may request.3. The Secretary-General of the United Nations shall transmit the reports to all States Parties.4. The Committee shall have the following functions:a. Make general comments on the understanding and implementation of the Convention based on the examination of reports and information received from the States Parties and other stakeholders.b. Consider and provide concluding observations and recommendations on reports submitted by State Parties as it may consider appropriate and forward these to the State Party concerned that may respond with any observations it chooses to the Committee. The Committee may, at its discretion, decide to include this suggestions and general recommendations in the report of the Committee together with comments, if any, from States Parties.c. Provide support to the State Parties in the compilation and communication of information required for the implementation of the provisions of the Conventiond. Submit an annual report on its activities under this Convention to the States Parties and to the General Assembly of the United Nations.e. The Committee may recommend to the General Assembly to request the Secretary-General to undertake on its behalf studies on specific issues relating to the present Treaty.Conference of States Parties5. The States Parties shall meet regularly in a Conference of States Parties in order to consider any matter with regard to the implementation of the Convention, including any further development needed towards fulfilling its purposes.6. No later than six months after the entry into force of the present Convention, the Conference of the States Parties shall be convened by the Secretary-General of the United Nations. The subsequent meetings shall be convened by the Secretary-General
- One article on the Committee which would cover its establishment, membership, initial elections, elections, vacancies, ROP etc.
- Another article on Reports by States Parties;
- Another article on Consideration of Reports;
- Another article on the Report of the Committee to the GA; and
- Another article on Conference of States parties.
- You may wish to place all of these articles under a Part entitled “Application of the Convention”
- I would suggest looking at the relevant provisions of the Convention on the Rights of Persons with Disabilities for guidance in this regard.