13-Flora Sapio on the Zero Draft of a Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprise (Article 14 Institutional Arrangements)

(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 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)
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 14. Institutional Arrangements
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Committee

1. 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 Convention

d. 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 Parties

5. 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

Article 14 of the Legally Binding Instrument on Transnational Corporations and Other Business En tyerprises was scheduled for discussion on Thursday 18 October 2018, from 15 to 18 PM, together with Article 1 (Preamble) 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 3 experts. Written comments specific to Article 1 were submitted by:

    • 5 states (China, Mexico, Namibia, Peru, Russian Federation)

    • 6 NGOs

Comments by Experts

Bradford Smith, Human Rights Treaties Branch, OHCHR: submitted the following comments on Article 14:

1(a): Here the full name of the Committee should be spelled out and it usually mirrors the title of the Convention.

1(b) You may wish to reflect language found in GA resolution 68/268 para 13:  “States parties shall give due consideration to equitable geographical distribution, the representation of the different forms of civilization and the principle legal systems, balanced gender representation and the participation of experts with disabilities. 

1(c): Regarding nominations, you may also wish to reflect language found in GA resolution 68/268, para 10: “States parties are encouraged to consider adopting national policies and processes with respect to the nomination of candidates for human rights treaty bodies.”  This would be novel but practical to encourage States to use processes, as some States do, to ensure that candidates have the appropriate background etc.

You may also wish to clarify whether members can be renominated and term limits. CRDP specifies that members are eligible for re-election once.  Other human rights treaties are silent and so you have members serving for 10 years or more, and some for even 20 years.  

Regarding Conference of States Parties in this section, there is no reference to a quorum – all HR treaties provide for two-thirds of States parties for a quorum – for elections and other matters (follows ROP of GA).

1(e):  In cases of a member dying or resigning, the draft provides that the State party may appointment a replacement subject to the approval of the majority of States parties– This could prove rather cumbersome to administer.  This would need to be done through depositary notification and then one would need to wait for States to respond which could take a very long time which is not practical.  The draft could provide for a simplified procedure so that if a majority of States do not object within 6 weeks from the date of the depositary notification that candidate is deemed approved.   This is the case of CED.   I note that NO other human rights treaty has this provision.  Instead the replacement candidate is subject to the approval of the Committee – and this is the case for CERD, CEDAW, CRC, CAT, and CMW. 

1(g):  Regarding meeting times – I note that meeting time is allocated based upon a formula which takes into consideration the number of reports, individual communications etc. pursuant to GA resolution 68/268.  It is not a decision of each individual Committee.   As such, I would suggest instead to use the standard language found in the human rights treaties that the Committee shall normally meet annually in order to consider reports submitted in accordance with article … of the present Convention.

2. Reporting periodicity – I would suggest every 5 years instead of 4 year.  Why - most States do not report on time, and  reporting requirements under numerous treaties are creating a burden on States.  While most human rights treaties are every 4 years after the initial report, CMW is 5 years. Such provisions also typically provide that the reports shall indicate factors and difficulties, if any, affecting the degree of fulfillment of the obligations under the relevant Convention, and shall also contain sufficient information to provide the Committee with a comprehensive understanding of the implementation of the Convention in the country concerned.  You may wish to consider adding this type of language.

3.  I would suggest that instead of the SG of UN shall transmit reports to all SPs that the SG makes available the reports of all States Parties which is in line with other human rights treaties and practice of the Secretariats.  Reports are available on webpage and through ODS.  In addition, other human rights treaties do have provisions obliging States parties to make their reports widely available to the public in their own countries and so I would suggest including this language. 

4:  The functions of the Committee are usually not delineated in text of treaty but in the Rules of Procedure.   I would suggest aligning the draft with other human rights treaties in this regard.  I would suggest a new article on Consideration of Reports as this is the main function of any Committee:  Each report shall be considered by the Committee, which shall make such suggestions and recommendations on the report as it may consider appropriate and shall forward these to the States parties concerned.  The State party may respond with any information it chooses to the Committee.  The Committee may request further information from States parties relevant to the implementation of the Convention.  I would suggest looking a relevant provisions of CEDAW and CRPD, with respect to articles on Reports, Consideration of Reports – including the issue of overdue reports; Cooperation between State Parties and the Committee, and Annual Report of the Committee. I would also suggest including an article on Relationship of the Committee with other Bodies which would cover specialized agencies and other UN bodies, and civil society, national institutions etc.

With respect to 4(e) – Committee may recommend to GA to request SG to undertake on its behalf studies on specific issues relating to the present Treaty - This provision does not exist in other HR treaties and to be frank I am not sure how the Committee would actually do this.  Typically, States parties would sponsor resolutions relating to the Convention and this request could go into such a resolution but this is done informally through working with the relevant States Parties.  This should be looked at more closely.   

Article 14 should be divided into several articles as alluded to already, for example:

• 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. 

Layla Hughes, Center for International Environmental Law:  in line with the UN’s own gender-parity strategy, gender balance in the monitoring of the treaty implementation should be achieved, rather than considered. Gender balance among human rights treaty bodies experts is still far from being reality.

Only the CEDAW Committee has more women than men. However, gender balance addresses formal inequality only. We also need the Treaty to require gender expertise as a criterion for the selection of experts, and to ensure that the committee adopts a gender-sensitive approach in discharging its mandate, given the highly gendered dimension of business-related human rights abuses.

Carlos Lopez, International Commission of Jurists: the Committee conforms to the practice followed by other states, but is insufficient, given the theme at stake. This model should be improved including a strong element of social participation in the composition and working of the Committee. A provision allowing participation by specialized organs and agencies of the United Nations could be added. Members of the committee should not have conflict of interest, and a mechanism to verify compliance with the Code of Conduct for Special Procedures Mandate-holders of the Human Rights Council.

The article on Conference of States Parties is extremely brief, and it is necessary to clarify or develop expressions as  “any further development needed towards fulfilling its purposes.”

Provisions on solving disputes among state parties concerning the interpretation and the application of the Treaty are absent, even though other international instruments contain these provisions

It would be appropriate, also with reference to the comments made by other delegations, to create an organ or an agency for technical cooperation and mutual legal assistance.

Comments by States

China: it is necessary to consider whether to establish a reporting committee reviewing the implementation of the treaty. This is has to coonform to the current process on strengthening human rights treaty bodies, and avoid functional overlaps between such bodies.

Mexico: we would like to better understand the vision of the Presidency about the Committee and its sustainability, in particular in the context of Article 14.1(h), given the challenges faced by human rights treaty bodies as a whole.

Namibia: we welcome the inclusion of “equitable geographical” representation in the Committee as set out in Article 14 (1) (b). We agree with Mr. Lopez on his point that there should be no conflict of interest of committee members. This is important for impartiality and fairness.

Article 14 (2) – We agree with Mr. Smith to increase the periodicy to 5 years, but this can depend on the complexity or simplicity of the reporting mechanism. In this regard, the challenges that States already have in complying with reporting obligations should be kept in mind.

Article 14 (5) and (6) on Conference of States Parties is not clear on the periodicy of the meetings, although (6) makes mention of a biennial meeting at the instance of the UNSG or the COSP. We propose harmonization of the two subsections. We also propose that Article 15 includes a sub article requesting States party to the treaty to declare their willingness to use this treaty as the basis for MLA and International Cooperation, thus providing, as in ICL, a common platform for such cooperation.

Peru: we believe the establishment of the Committee should take into account the review process of the treaty bodies, as it is normal practice in human rights conventions.

Russian Federation: before discussing the ideas of creating bodies within the Treaty, it is necessary to conduct a review of existing international mechanisms in the field of human rights, which could be sufficient to discuss business and human rights. Many international organizations and bodies are already engaged in the analysis of various aspects of the activities of TNCs. The mandate of the proposed Committee may conflict with the powers of the Human Rights Council itself.

The establishment of a permanent organ under the Convention is premature and creates risk of functional overlaps, fragmenting the efforts of the international community. It is also important to understand the financial implications of the creation of the Committee.

Comments by NGOs

ABIA: in the Draft Elements there were two control mechanisms: an International Court on Trasnantional Corporations and Human Rights, and the Committee. The effectiveness of existing human rights committees has been scarce or null. We propose the creation of an independent International Monitoring Centre for TNCs. In the rest of their submission, ABIA outlined the powers and functions of the International Monitoring Centre.

APWLD and AWID: we recommend the next Draft to re-insert and elaborate the possibility of the International Court on Trasnantional Corporations and Human Rights, raised in the Draft Elements.

CETIM: proposed the creation of an International Court on Transnational Corporations and Human Rights, outlining its powers and functions.

FIAN: observed how existing treaty-based bodies of the United Nations have not been fully effective in putting a halt to violations and abuses of human rights and allowing victims to access justice. Suggested that the recommendations and decisions of the Committee be binding, or at least have the same force of monitoring instruments. Suggested to include an obligation, for states, to include in domestic legislation reference to the binding force of Committee decisions.

Justiça Ambiental, Friends of the Earth International: we were disappointed to discover that many recommendations contained in the Elements Paper published last year were not included in this Draft. It is clear that the treaty must include direct legal obligations for TNCs, as firmly corroborated by some States as well as many civil society and experts’ interventions. This is a crucial aspect that we expect to see included in Draft One.

We need strong implementation mechanisms at the international level, and with this in mind we call for the establishment of an International Court on TNCs and Human Rights. A coalition of groups from Friends of the Earth Africa elaborated a concrete proposal that includes a model statute of this future Court.

We stand firm with civil society organisations here in the strong condemnation of the commercial retaliation that the IoE has threatened states in this room with, and highlight the impact it could have on the ongoing integrity of the activities of this working group if concrete proposals on protecting the process from corporate capture are not taken.

International Organization of Employers: we find the Article on Institutional Arrangements confusing not least because of the sudden release – without forewarning – of the Draft Optional Protocol weeks after the Zero Draft Treaty. Both should be seen alongside each other and both raise big concerns, which are in our Joint Business Response. We are also concerned about the proposal for a Convention of State Parties – in such loose language – especially with the term that says it would consider "any further development needed."

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