14-Flora Sapio on the Zero Draft of a Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprise (Article 15 Final Provisions)

(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 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 )
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

 

 

Article 15. Final Provisions

Implementation

1. 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.

Depositary

7. The Secretary-General of the United Nations shall be the depositary of the present Convention.

Signature

8. 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 bound

9. 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 organizations

10. “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 force

12. 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.

Reservations

14. Reservations incompatible with the object and purpose of the present Convention shall not be permitted.

15. Reservations may be withdrawn at any time.

Amendments

16. 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.

Denunciation

19. 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 texts

20. 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.

Article 15 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 1 (Preamble) and Article 14 (Institutional Arrangements).

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:

    • 7 states (Azerbaijan, China, Mexico, Namibia, Peru, Russian Federation)

    • 1 observer state

    • 8 NGOs

Comments by Experts

Bradford Smith, Human Rights Treaties Branch, OHCHR: submitted the following comments on Article 15:

• 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

   

 

Layla Hughes, Center for International Environmental Law: Article 15 contains crucial provisions, which need to be fleshed out in other articles of the treaty to operationalize them. For instance, article 15 paragraph 4 on business-related abuses in conflict-affected areas should have corresponding obligations in article 9 on prevention, by imposing enhanced and mandatory due diligence on businesses in conflict-affected and high-risk areas.

Article 15.3 is fundamental to the successful implementation of the treaty. The undue, persistent influence of corporate interests on law and policy-making has adisproportionate impact on women.

Article 15 paragraph 5, which recognizes the heightened risks of violations of the rights of certain groups, does not sufficiently integrate a gender perspective. This provision looks like an afterthought, and instead, a gender dimension should be adopted throughout the treaty. This is fundamental.

Comments by States

Azerbaijan: we welcome article 15.5 as is.

China: this article should respect the autonomy of states to implement the Treaty in accordance with the framework of the Treaty.

Article 15.3 poses the risk of an opposition between business and human rights, and this issue should be considered from the consensus that “development and human rights are mutually connected and mutually reinforcing”.  The nature of the relationships governed by this document and the Framework Convention on Tobacco Control is different. In this document, business is an important engine of the promotion of economic development, and from this point of view it can promote human rights by promoting development. Naturally, adequate regulation is necessary to guarantee that business respects human rights, and to ensure a timely and effective remedy to acts of violations. This has also been confirmed by Resolution 26/9 therefore, we suggest to solve this issue in a more balanced and positive way. The relevant content can be moved from Article 15 to the Preamble, and content reflecting the contribution of business to development, and guaranteeing that business respects human rights in its activity can be added.

Mexico: it is appropriate to eliminate the reference, in Article 15.3, to the “vested rights”, because this may result in a violation of the general principles and norms of international law.

Paragraphs 4, 5 and 6 may be eliminated or they may be part of the Preamble. In relation to paragraph 12, it is extremely important to reach a number of ratification necessary for the entry into force of the Treaty, taking other human rights conventions as an example.

Namibia: Since it is the duty of States to safeguard the rights of the people, States are required to ensure that its policy and legal framework reflect the diligent execution of this duty, thus Article 15 (3) is valuable in this regard although the rights of all interested parties should be considered and carefully balanced. 

Peru: concerning Article 15.5, we believe it is important that the groups at most risk of violations and abuses of human rights be considered also in other articles of the Draft Treaty.

Russian Federation: the inclusion in the Draft Treaty of provisions on certain national mechanisms, as in paragraph 1, is superfluous. Each state has the right to independently decide through which national institutions it will ensure the fulfillment of its obligations.

Comments by Observer States

Palestine: Article 15.6 does not refer to the applicability, where appropriate, of international treaties and the principles and rules of international law, including the established principles of the international law of armed conflict. This would be essential addition to Article.7, particularly when we are addressing situations of conflict. In such situations, the treaty would benefit from reiterating state obligations under both international human rights law and humanitarian law to guarantee maximum protection for individuals and communities.

We commend the effort on adding special attention to cases of business activities in conflict- affected areas in provision 4 under Article 15. But unfortunately, we see that the language is not strong enough and needs to be strengthened. While we agree that a focus on gender-based and sexual violence is necessary in the treaty, we see that having a separate provision on this point is more appropriate than adding it to a provision that focuses on conflict-affected areas.

On provision 15.3, we are encouraged that this provision of the Zero draft is addressing concerns regarding the imbalances that states face from corporate representatives and other vested interests, and the undue influence they exert over government policies and laws. It is particularly concerning to see how some corporate representatives and other vested interests intervene in the foreign policy making process of some countries to encourage arms sales that perpetuate conflicts in many regions, in the interests of corporate profits.

We note the text of article 15.3 reflects the proven successful example of how to address corporate conflicts of interest contained in article 5.3 of the framework convention on tobacco control. 

Since Article 15.3 holds the potential to be a powerful preventive measure to defend the public policy and law-making arena from the undue influences of corporations and vested interests, we would recommend that the text of article 15.3 be moved to the section of the instrument dealing with preventative measures.  

We recommend removing the words ‘in accordance with national law’ from article 15.3 for fear it would weaken the efficacy of this article.

Comments by NGOs

Al-Haq, ALTSEAN-Burma, AWID, CIHRS, ESCR-Net, FIDH, WILPF, ACCA, SOMO:  despite the inclusion of conflict areas under Article 15 of the Draft Treaty, it is imperative that such language is expanded and strengthened.  The current text seriously fails to sufficiently prioritize the rights and protections afforded to individuals, communities and peoples against corporate abuses; victim’s access to remedy; and corporate accountability in conflict areas.

Article 15(4) on Final Provisions should be reinforced and echo the UNGPs which recall a set of existing obligations for states under international law, including humanitarian and criminal law, applicable to situations of conflict.

We call on you to enhance the Treaty’s provisions on conflict areas to allow for a genuine alternative avenue for accountability during situations of conflict where impunity for perpetrators often prevails.

APWLD and AWID: we are concerned over the convergence of conflicts over resources, use of militarism to facilitate corporate profits and systematic oppressions on democratic civil resistance.  This directly links to access to justice of victims, and the protection of women, environmental and human rights defenders in the context of resisting corporate abuse and exercising their freedom of expression and right to democratic participation.  Ex-ante, periodic and ex-post human rights, gender and environmental impact assessment particularly of existing and future trade and investment agreements can serve as a fundamental preventive measure. We recommend Article 15 paragraphs 4 and 5 to be moved under Article 9 and clearly be linked to Article 2.

Economic integration policies of regional integration organisations conflict with States’ human rights obligations and undermine policy coherence. We recommend Paragraphs 10 and 11 be removed from the Zero Draft.

The Center for Constitutional Rights and the Adalah Justice Project:  our organisations have a strong focus on the activities of a powerful lobbying group called the American Legislative Exchange Council, or ALEC.  ALEC has pushed hard for the adoption of an infamous law in many US states called the 'Stand Your Ground' law. This law lead to the acquittal of a man who shot and killed an unarmed Black teenager named Trayvon Martin in Florida. 

We also witness corporate pressure on intergovernmental processes as well. In this very room today we are witnessing a craven attempt by the International Organisation of Employers to threaten states with commercial retaliation if they ratify the future treaty.  The IoE released THIS additional analysis with an annex that reads – and I quote - “This appendix illustrates the major exports of selected treaty proponent countries that may be placed at risk from treaty ratification”.  The countries listed are Ecuador, South Africa, Pakistan, Philippines, Venezuela, Nambia, Azerbaijan, Nicaragua, Benin, Morocco and Burkina Faso.  

It is for these reasons that we strongly support the inclusion of article 15.3, and any other measures that OHCHR and the Chair can take to protect this process.  We commend the Working Group for responding to the will of those states and civil society organisations that have recommended the treaty include a provision similar to article 5.3 of the Framework Convention on Tobacco Control .

To ensure this provision is as strong as possible we do however recommend the removal of the words ‘in accordance with national law’ from the provision, and ask the Working Group move the article to the section of the treaty dealing with preventive measures.

Corporate Accountability: it is necessary to develop means to protect governments from the interests of TNCs, and the Working Group shouls base its work on the Framework Convention on Tobacco Control, as suggested on Tuesday by Mr. Nicolas Guerrero, of the Framework Convention’s Secretariat. We also recommend that measures against corporate capture of the Treaty be integrally included in the text, and to develop concrete means to improve transparency, develop codes of conduct for public officials, afford protection against conflict of interest, and prohibit the system of revolving doors. These should be obligations of states, and obligations directed to enterprises. Likewise, article 15.3 should reflect these means and be part of Article 9.

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. 

Article 15.4 – a clearer language should be used to refer to conflict areas. The beginning of this sentence should be: “states are under the obligation to respect and protect human rights in those cases when enterprises operate in areas affected by conflict” (Los estados están obligados a respetar y proteger los derechos humanos en casos donde las empresas operan en zonas afectadas por conflicto).

Article 15.5 – we recommend the explicit mention of  provisions about groups in a situation of vulnerability and human rights defenders, as well as agricultural workers (campesinos/campesinas) and other persons working in rural areas.

We recommend an additional clause stating that when parliaments cannot ensure a timely compliance with their legislative function, or do not legislate to implement the Treaty, courts can directly apply the treaty, in accordance with Paragraph 4, General comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities.

International Association of Democratic Lawyers: we want to notice how Article 15.4 is insufficient   [to regulate] the activities of enterprises in conflict areas. We want to reiterate how we consider the treatment of women under Article 15.5 inappropriate. We want to receive a special attention. We want the text to adopt a gender approach including:

• 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

International Organization of Employers: It is not clear when the Chair envisages that the Zero Draft Treaty and the Draft Optional Protocol would enter into force.