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 14 focuses on Article 15 of the Zero Draft (Final Provisions); the comments of China and Palestinian delegations are worth reviewing carefully.
Summaries of discussions on each article of the Zero Draft, based on the written submissions available on the website of the OEIGWG
Article 15 (Final Provisions )
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
Implementation1. States shall take all necessary legislative, administrative or other action including the establishment of adequate monitoring mechanisms to ensure effective implementation of this Convention.2. Each State Party shall furnish copies of its laws and regulations that give effect to this Convention and of any subsequent changes to such laws and regulations or a description thereof to the Secretary-General of the United Nations, which shall be made publicly available.3. In policies and actions pursuant to this Convention, Parties shall act to protect these policies and actions from commercial and other vested interests of the [business sector] in accordance with national law.4. Special attention shall be undertaken in the cases of business activities in conflict-affected areas including taking action to identify, prevent and mitigate the human rights-related risks of these activities and business relationships and to assess and address the heightened risks of abuses, paying special attention to both gender-based and sexual violence.5. In implementing this agreement, State Parties shall address the specific impacts of business activities on while giving special attention to those facing heightened risks of violations of human rights within the context of business activities, such as women, children, persons with disabilities, indigenous peoples, migrants, refugees and internal displaced persons.6. The application and interpretation of these articles shall be consistent with international human rights law and international humanitarian law and shall be without any discrimination of any kind or on any ground, without exception.Depositary7. The Secretary-General of the United Nations shall be the depositary of the present Convention.Signature8. The present Convention shall be open for signature by all States and by regional integration organizations at United Nations Headquarters in New York as of (date).Consent to be bound9. The present Convention shall be subject to ratification by signatory States and to formal confirmation by signatory regional integration organizations. It shall be open for accession by any State or regional integration organization which has not signed the Convention.Regional integration organizations10. “Regional integration organization” shall mean an organization constituted by sovereign States of a given region, to which its member States have transferred competence in respect of matters governed by this Convention.11. This Convention shall apply to regional integration organizations within the limits of their competence; subsequently they shall inform the depositary of any substantial modification in the extent of their competence. For the purposes of paragraph 17, and paragraphs 22 and 23 of this article, any instrument deposited by these organizations shall not be counted. Such organizations may exercise their right to vote in the Conference of States Parties with a number of votes equal to the number of their member States that are Parties to this Convention. Such right to vote shall not be exercise if any of its member States exercises its right, and vice versa.Entry into force12. The present Convention shall enter into force on the thirtieth day after the deposit of the [---] instrument of ratification or accession.13. For each State or regional integration organization ratifying, formally confirming or acceding to the Convention after the deposit of the ---- such instrument, the Convention shall enter into force on the thirtieth day after the deposit of its own such instrument.Reservations14. Reservations incompatible with the object and purpose of the present Convention shall not be permitted.15. Reservations may be withdrawn at any time.Amendments16. Any State Party may propose an amendment to the present Convention and submit it to the Secretary-General of the United Nations. The Secretary-General shall communicate any proposed amendments to States Parties, with a request to be notified whether they favor a conference of States Parties for the purpose of considering and deciding upon the proposals. In the event that, within four months from the date of such communication, at least one third of the States Parties favor such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of two thirds of the States Parties present and voting in the Conference of the Parties shall be submitted by the Secretary-General to all States Parties for acceptance.17. An amendment adopted and approved in accordance with paragraph 15 of this article shall enter into force on the thirtieth day after the number of instruments of acceptance deposited reaches two thirds of the number of States Parties at the date of adoption of the amendment. Thereafter, the amendment shall enter into force for any State Party on the thirtieth day following the deposit of its own instrument of acceptance. An amendment shall be binding only on those States Parties which have accepted it.18. If so decided by the Conference of States Parties by consensus, an amendment adopted and approved in accordance with paragraph 15 of this article which relates exclusively to the establishment of the Committee or its functions, and the Conference of States Parties shall enter into force for all States Parties on the thirtieth day after the number of instruments of acceptance deposited reaches two thirds of the number of States Parties at the date of adoption of the amendment.Denunciation19. A State Party may denounce the present Convention by written notification to the Secretary-General of the United Nations. The denunciation shall become effective one year after the date of receipt of the notification by the Secretary-General.Authentic texts20. The Arabic, Chinese, English, French, Russian and Spanish texts of the present Convention shall be equally authentic.21. In witness thereof the undersigned plenipotentiaries, being duly authorized thereto by their respective Governments, have signed the present Convention.
- The Final Provisions should be divided into articles which should be grouped under a Part entitled “Final Provisions”.
- The final clauses need to be sent to Treaty Section of OLA for review in accordance with ST/SGB/2001/7.
- Regional integration organization – Language should be included obliging such organizations to declare their competence in their instrument of formal confirmation or accession as well as modifications. Also language should be added that references to “States Parties” in the Convention shall apply to regional integration organizations within the limits of their competence to make it clear that obligations also extend to such entities.
- EIF of Convention and amendments, instruments deposited by regional integration organizations should not be counted and this draft has that language – we just need to make sure that the final numbering of the articles/paragraphs are properly cross-referenced to correspond to the articles on entry into force and amendments.
- Conference of States Parties, typically there is language to the effect that regional integration organizations in matters within their competence may exercise their right to vote in the Conference of States Parties with a number of votes equal to the number of their member States that are parties to the Convention BUT that such an organization shall not exercise its rights to vote if any of its members exercises their right and vica versa. I would suggest looking at the CRPD in this regard.
- Regarding the EIF: The trend is to have a lower threshold – all of the recent human rights treaties - CEDAW, CRC, CAT, CMW, CRPD and CED – have specified 20 ratifications/accessions for entry into force of the treaty.
- the obligation of States parties to furnish copies of its laws and regulations, this is an administrative function and not a depositary function which will fall to the Secretariat of the Committee to discharge. You may wish to encourage States parties to provide courtesy translations into official languages were possible in the text as without a specific budget for this, UNOG does not have the capacity to translate such documents into working languages. Further reflection may be needed here as there are budget implications. Again, UNODC maintains a repository of laws in English or French or Spanish with links to government webpages.
- I note that the depositary will circulate depositary notifications on the designated central authority but will not maintain lists as this is an administrative function and so you may wish to also include that such a list be maintained by the Secretary-General which will then be delegated to the Secretariat of the Committee for the convenience of States to locate such information. UNODC, for example has online directories of central authorities for treaties for which its performs secretariat functions
DKA Austria: as a children-based organization, we welcome the fact that children are explicitly named in article 15.5. Nonetheless, a profound children’s rights approach is not embedded in the zero draft itself. In general, it is challenging for children to obtain remedy in the courts or through other mechanisms, when their rights are infringed upon, even more so when their rights are violated by business enterprises. Given the broad range of children’s rights that can be affected by business activities and operations, we ask you to include this perspective in the ongoing work on the binding treaty. The situation of children should be taken into account in all relevant articles of the treaty, for example children’s access to justice and children’s rights due diligence. It is another important focus for us that the committee's work ensure, that children are heard and their situation is taken into account.
FIAN: Article 15.3 – the provision to combat corporate capture is extremely relevant, and we believe this article should detail the specific measures states should take in this respect. Means to avoid corporate capture should also be reflected in other articles, such as Article 8 and Article 9.
- the acknowledgement of the negative effects of TNCs specific to women
- a focus on gender justice, to help overcome historical prejudice, inequality and discrimination against woman and children [gendered female]
- specific mechanisms to protect human rights defenders