Original HRC document

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Document Type: Final Report

Date: 2018 Jan

Session: 37th Regular Session (2018 Feb)

Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

GE.18-01093(E)



Human Rights Council Thirty-seventh session

26 February–23 March 2018

Agenda item 3

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Report on the third session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights*

Chair-Rapporteur: Guillaume Long

* The annexes to the present report are circulated as received, in the language of submission only.

United Nations A/HRC/37/67

Contents

Page

I. Introduction ................................................................................................................................... 3

II. Organization of the session ........................................................................................................... 3

A. Election of the Chair-Rapporteur .......................................................................................... 3

B. Attendance ............................................................................................................................ 4

C. Documentation ...................................................................................................................... 4

D. Adoption of the agenda and programme of work ................................................................. 4

III. Opening statements ....................................................................................................................... 5

A. Keynote speeches .................................................................................................................. 5

B. General statements ................................................................................................................ 6

C. Debate: reflections on the implementation of the Guiding Principles on Business

and Human Rights and other relevant international, regional and national frameworks ...... 8

IV. Panel discussions ........................................................................................................................... 8

A. Panel I. General framework .................................................................................................. 8

B. Panel II. Scope of application ............................................................................................... 10

C. Panel III. General obligations ............................................................................................... 12

D. Panel IV. Preventive measures ............................................................................................. 13

E. Panel V. Legal liability ......................................................................................................... 14

F. Panel VI. Access to justice, effective remedy and guarantees of non-repetition .................. 15

G. Panel VII. Jurisdiction .......................................................................................................... 17

H. Panel VIII. International cooperation ................................................................................... 18

I. Panel IX. Mechanisms for promotion, implementation and monitoring ............................... 19

J. Panel X. General provisions ................................................................................................. 20

K. Panel. Victims’ voices ......................................................................................................... 20

V. Recommendations of the Chair-Rapporteur and conclusions of the working group ..................... 21

A. Recommendations of the Chair-Rapporteur ......................................................................... 21

B. Conclusions of the working group ........................................................................................ 21

VI. Adoption of the report ................................................................................................................... 22

Annexes

I. List of participants ......................................................................................................................... 23

II. List of panellists and moderators................................................................................................... 25

I. Introduction

1. The open-ended intergovernmental working group on transnational corporations and

other business enterprises with respect to human rights was established by the Human

Rights Council in its resolution 26/9 of 26 June 2014, and mandated to elaborate an

international legally binding instrument to regulate, in international human rights law, the

activities of transnational corporations and other business enterprises with respect to human

rights. In the resolution, the Council decided that the Chairperson-Rapporteur should

prepare elements for the draft legally binding instrument for substantive negotiations at the

commencement of the third session of the working group, taking into consideration the

discussions held at its first two sessions.1

2. The third session, which took place from 23 to 27 October 2017, opened with a

video statement by the United Nations High Commissioner for Human Rights. He

congratulated the former Chair-Rapporteur for successfully steering the first two sessions in

a manner that laid fertile ground for the preparation of the elements and recognized that the

treaty process had entered a new phase to discuss such elements. He noted that the Guiding

Principles on Business and Human Rights were an important step towards extending the

human rights framework to corporate actors. He stated that there was no inherent

dichotomy between promoting the Guiding Principles and drafting new standards at the

national, regional or international level aimed at protecting rights and enhancing

accountability and remedy for victims of corporate-related human rights abuses. He

reiterated his commitment and full support to the working group, and expressed his hope

that the recommendations from the accountability and remedy project of the Office of the

United Nations High Commissioner for Human Rights (OHCHR) could provide useful

contributions to the discussion during the third session.

3. The High Commissioner’s remarks were followed by a statement of the President of

the Human Rights Council, who emphasized the role that human rights must have in

relation to business in a globalized world. He noted that seeking consensus and engaging in

constructive cooperation and dialogue was the spirit of the first two sessions and would be

key to fulfilling the mandate provided by resolution 26/9. The President further recalled the

close link between the 2030 Agenda for Sustainable Development and the development of

human rights, which justified its use as a starting point to form the objectives of the

working group process.

4. The Director of the Thematic Engagement, Special Procedures and Right to

Development Division referred to the recommendations of the accountability and remedy

project, aimed at enhancing the effectiveness of national judicial systems in ensuring

accountability and access to remedy, including in cross-border cases, which could inform

the working group process. She expressed the willingness of OHCHR to provide further

substantial or technical advice to the working group as appropriate.

II. Organization of the session

A. Election of the Chair-Rapporteur

5. The working group elected Permanent Representative of Ecuador, Guillaume Long,

as Chair-Rapporteur by acclamation following his nomination by the delegation of Jamaica

on behalf of the Group of Latin American and Caribbean States.

1 See A/HRC/31/50 and A/HRC/34/47.

B. Attendance

6. The list of participants and the list of panellists and moderators are contained in

annexes I and II, respectively.

C. Documentation

7. The working group had before it the following documents:

(a) Human Rights Council resolution 26/9;

(b) The provisional agenda of the working group (A/HRC/WG.16/3/1);

(c) Other documents, notably a document setting out the elements for the draft

legally binding instrument on transnational corporations and other business enterprises with

respect to human rights (hereinafter, “the elements document”), a programme of work, and

contributions from States and other relevant stakeholders, which were made available to the

working group through its website.2

D. Adoption of the agenda and programme of work

8. In his opening statement, the Chair-Rapporteur explained how the third session

would involve substantive negotiations based on the elements document that was

distributed in advance of the session. The elements set out in the document were based on

deliberations during the first two sessions, as well as over 200 meetings held since 2014

involving multiple stakeholders. At the core of the elements was the protection of victims

of business-related human rights abuse, the elimination of impunity and access to justice.

He invited everyone to participate actively, including civil society, trade unions, national

human rights institutions and victims organizations, as their role was crucial to the success

of the process. He emphasized that future generations should have the right to live in a

world in which human rights took primacy over capital.

9. The Chair-Rapporteur presented the draft programme of work and invited

comments. A regional organization expressed its regret that consultations on the draft

programme of work had not occurred until 18 October, providing little time for

negotiations on such an important document. The delegation recalled that, despite the short

notice, all attendees had worked hard to find a compromise and praised the Permanent

Mission of Ecuador to the United Nations Office and other international organizations in

Geneva. According to the regional organization, a compromise had been tentatively

reached on 18 October, whereby there would be two additional elements included in the

programme of work. First, a debate reflecting on the implementation of the Guiding

Principles would be included at the start of the session. Second, a footnote that was

included in the programme of work of the second session would be reproduced, stating

“this programme of work does not limit the discussions of this intergovernmental working

group, which can include transnational corporations, as well as all other business

enterprises”. While the delegation acknowledged that the first element of the compromise

was mostly incorporated (albeit without panellists to lead the discussion), it was concerned

that the footnote had been excluded. It stressed that that was not a procedural issue, but a

substantive one with wide implications, as the inclusion of the footnote would ensure that

the working group could also consider abuses involving activities related to national

enterprises. Therefore, it requested an amendment to the programme of work to include the

footnote.

2 See www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Session3/Pages/Session3.aspx.

10. Several delegations intervened to express their support for the programme of work

as proposed by the Chair-Rapporteur and requested the flexibility of the regional

organization to adopt it to start negotiations. Some other delegations supported the proposal

of the regional organization and regretted the lack of consensus with regard to the

programme of work.

11. The delegations that rejected the proposal stressed that the mandate in resolution

26/9 — limited to transnational corporations — was clear and that there was no need to

advance substance or prejudge content to be discussed and negotiated. They considered that

that would improperly attempt to amend a Council resolution. Other delegations saw the

merit of including the footnote to broaden the scope of the discussions, in line with the

programme of work adopted for the second session.

12. Another delegation did not agree that any compromise was reached at the 18

October meeting since many delegations had not been present and recalled that it was not

just one State against the proposal to include a footnote in the programme of work.

Additionally, that delegation found it peculiar that the same delegations voting against

resolution 26/9 were now calling for an expansion of the mandate with the intention of

blocking the session. Another delegation noted that the discussion was unreasonably

delaying negotiations and was ultimately harming those they were trying to protect through

that process.

13. The regional organization recalled that resolution 26/9, which they respected,

restricted the scope and, therefore, prejudged the outcome of the negotiations and that the

programme of work was a working modality to allow for an inclusive process. It found it

puzzling that one could object to its proposal, as it sent a message to civil society, human

rights defenders and victims that abuses by national enterprises should not be treated with

equal rigor. Additionally, the delegation reaffirmed that that was a compromise proposal

that nobody objected to during the consultations except for one State and that the footnote

was part of the programme of work for the second session. It stated that that unfortunate

situation raised serious questions as to whether any agreement on basic principles, let alone

language, could be forged in the future.

14. The Chair-Rapporteur shared the view that a compromise had not been reached to

amend the programme of work and pointed out that further discussion could take place

during the panel devoted to the scope of the treaty. He suggested that the working group

adopt the programme of work as presented and that all delegations’ views be reflected in

the report. As no delegation expressed objections to that proposal, the programme of work

was adopted.

III. Opening statements

A. Keynote speeches

15. María Fernanda Espinosa Garcés, Minister of Foreign Affairs of Ecuador, and

former Chair-Rapporteur of the working group, delivered a keynote statement that

explained the background to the establishment of the working group. Discussions

surrounding the regulation of transnational corporations at the international level dated

back to the 1970s. Since then, globalization had brought great power to transnational

corporations, leading to positive consequences for economic development, but also many

negative social consequences. Non-binding, voluntary rules had been valuable but had been

unable to ensure victims’ access to remedy in cases of corporate human rights violations.

The adoption of resolution 26/9 was a milestone, representing a paradigm shift in the

efforts to address corporate abuse. The working group process, led by Ecuador and South

Africa, to fill a gap in international law was supported by a wide range of stakeholders,

including a large number of civil society organizations. Serious companies supported it

since they wanted a level playing field. She stressed the importance of prevention in the

elements document, which could have been a key tool to avoid disasters like Rana Plaza,

pollution in the Niger Delta and the destruction of lives in the Amazon by Chevron-Texaco.

States supported it since they recognized that the two paths — one obligatory, the other

voluntary — were mutually reinforcing, as demonstrated by the recent French duty of

vigilance law and several other examples. Ms. Espinosa expressed her appreciation that

hundreds of people had signed up to participate in the process and hoped that everyone

would engage constructively and with respect for diverse viewpoints.

16. Dominique Potier, Member of the French National Assembly, highlighted the

importance of ethics in guiding any discussion on human rights. Historically, attempts to

fight slavery and provide labour protection were challenged as regulations leading to “the

end of the world”, but ended up being the dawn of a new era. Such efforts led to significant

decreases in abuse. The recent French duty of vigilance law was a contemporary regulation

that could serve as an inspiration for the working group. The law was based on United

Nations principles, including the Guiding Principles; was process-oriented; focused on

nationality rather than territory; and was progressive in that it targeted the largest

companies so they could lead by example. That pragmatic approach made the French law

acceptable for all, relevant and adequate to tackle human rights violations. It created a

national framework that had an impact all over the world.

B. General statements

17. Delegations congratulated the Chair-Rapporteur on his election and thanked the

former Chair-Rapporteur for successfully leading the first two sessions. Many delegations

expressed appreciation for what they considered a transparent and inclusive process and

reaffirmed their trust in the Chair delegation in overseeing the third session.

18. A delegation speaking on behalf of a regional group of countries reiterated its

commitment to resolution 26/9 and stressed that transnational corporations could not

operate in a legal void. According to that group, setting clear standards would provide a

level playing field and predictability. For the group, the work undertaken during the

sessions was complementary to the work on private military and security companies,

environmentally sound management of hazardous wastes and illicit flows. Therefore, they

stressed the need to regulate the operations of transnational corporations and other business

enterprises in a uniform manner.

19. Many delegations voiced their support for establishing a legally binding instrument

to regulate, in international human rights law, the activities of transnational corporations

and other business enterprises. While recognizing that business could and did have a

positive impact on human rights, especially with respect to economic development, several

delegations, including a regional group, and non-governmental organizations (NGOs)

stated that companies had undermined human rights and contributed to adverse human

rights impacts with impunity. Efforts to address that accountability gap had been ongoing

for over 40 years with little success.

20. Delegations recognized that initiatives such as the Guiding Principles had been a

large step forward, but found that soft law instruments and voluntary principles had not

been enough; a mandatory regulatory framework was needed to ensure accountability and

access to justice. Creating a legally binding instrument would be complementary to, and not

in opposition to, the Guiding Principles. Legal lacunae in the Guiding Principles could be

addressed with international obligations, and certain aspects of the Guiding Principles

should be made mandatory.

21. A legally binding instrument would benefit victims of business-related human rights

abuse by ensuring that companies were held accountable and that victims had access to

prompt, effective and adequate remedies. Additionally, several delegations considered that

such an instrument could be beneficial to business since it would create a level playing

field. Uniform rules across jurisdictions would create legal certainty that business would

appreciate.

22. Many delegations welcomed the elements document as being comprehensive,

imposing obligations on transnational corporations and other business enterprises and

contributing to victims’ access to justice.

23. One regional organization noted that the Chair-Rapporteur had opted for an all-

encompassing business and human rights negotiation, which, to their understanding, risked

delaying progress. The delegation reserved their position on the document.

24. Several other delegations, as well as some business organizations, voiced concern

about the elements document and regretted that it had been published three weeks before

the session, allowing insufficient time to fully analyse and formulate official positions on

the content.

25. One regional organization highlighted that the Guiding Principles recalled the

existing obligations of States and that full implementation would probably react to the

numerous cases documented by civil society and human rights defenders.

26. Some delegations thought that discussions on a legally binding instrument were

premature. The Guiding Principles had been unanimously endorsed six years ago, and more

time was needed to implement them. That process risked distracting attention away from

such implementation. Other delegations agreed that primacy should be afforded to the

Guiding Principles, but acknowledged that both the Guiding Principles and a legally

binding instrument would have common objectives, and that a smart mix of voluntary and

regulatory measures could be beneficial.

27. Many delegations agreed that States had the primary duty in protecting against

human rights abuses by third parties, including business enterprises, and commended the

elements document for reflecting that consensus. However, there was disagreement as to

which business enterprises should be covered by a legally binding instrument. Several

delegations expressed the view that national enterprises should be covered by the

instrument, a view shared by many NGOs. Given the complex nature of corporate

structures and the prevalence of nationally incorporated subsidiaries, those delegations

feared that transnational corporations could find ways to fall outside the scope of an

instrument regulating only transnational activities. While some delegations expressed the

view that resolution 26/9 and the proposed elements permitted all business enterprises to be

covered, other delegations rejected that as expanding the mandate in resolution 26/9 and

noted that national laws already regulated national companies.

28. Delegations disagreed about the extent to which an instrument should permit the

exercise of extraterritorial jurisdiction. One delegation suggested that the instrument could

incorporate extraterritorial obligations as laid out in the Maastricht Principles on

Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights,

while another delegation rejected the idea that a legally binding instrument should permit

States to exercise any form of extraterritorial jurisdiction.

29. Multiple delegations welcomed the fact that the elements document included

provisions on international cooperation and capacity-building. The legally binding

instrument should recognize the differing capacities of States and allow for assistance in

order to ensure effective implementation of the treaty.

30. Some delegations and multiple NGOs insisted that the treaty ensure specific

protections for certain vulnerable populations, such as indigenous peoples. Given the

disproportionate effect that human rights abuses had on women and girls, there was a call

for a gendered approach to the treaty.

31. Some delegations and NGOs also discussed the need for the instrument to take

account of conflict situations and provide special protection in cases of occupation and

other types of armed conflict.

32. While several NGOs called for the instrument to clearly assert the primacy of human

rights over trade and investment agreements, one delegation highlighted that there was no

hierarchy among norms in international law, with the exception of jus cogens norms.

33. There was wide consensus among most delegations and civil society that, going

forward, the process would benefit from a transparent, inclusive, and constructive dialogue

involving multiple stakeholders. Some delegations and business organizations expressed

concern that the business community had not been given sufficient opportunities to engage

meaningfully in the current session.

C. Debate: reflections on the implementation of the Guiding Principles on

Business and Human Rights and other relevant international, regional

and national frameworks

34. One regional organization expressed its appreciation for including the current

session in the programme of work. It recalled how in the last six years, there had been

numerous positive initiatives aimed at implementing the Guiding Principles. Since the

working group process could be expected to take some time to conclude, it was suggested

that States and business should take further steps to implement the Guiding Principles at the

time in order to prevent abuses and ensure protection for victims.

35. A number of delegations expressed their support for the Guiding Principles, as a

unanimously endorsed authoritative global standard. Additionally, delegations discussed

different initiatives implementing the Guiding Principles, in particular national action

plans. Support was expressed for the accountability and remedy project, the Working

Group on business and human rights, as well as the annual Forum on Business and Human

Rights.

36. Some delegations noted that the Guiding Principles were not purely voluntary since

they discussed the substantive obligations of States under international human rights law.

Other delegations and one NGO did not agree that the Guiding Principles could guarantee

the protection of human rights.

IV. Panel discussions

A. Panel I. General framework

37. The first panellist noted that the counterweight to the impunity of the transnational

corporations was the product of a strong grass-roots process. Consumers needed access to

information to influence business habits; thus, there should be transparent human rights due

diligence processes throughout supply chains. She noted that the European Parliament had

mandated its representative to maintain a constructive dialogue with the working group

because it believed that there needed to be a legally binding instrument regulating business

and human rights. The panellist invited the regional organization to engage constructively

in accordance with the common position of the European Parliament with respect to that

process.

38. The second panellist offered a development perspective to the discussion. He argued

that globalization distinctly disadvantaged developing countries, and that large financial

corporations posed barriers to development in the global South and affected inequality

within all nations. Furthermore, the predatory features of the current economy impeded the

Sustainable Development Goals, but there was a growing trend to combat that.

39. The third panellist addressed the accelerating pace of challenges faced by the global

community with respect to development and recognition of human rights. He found the

proposed elements reflected the main perspectives expressed during the previous two

sessions and highlighted three objectives in the document: (a) guaranteeing the respect,

promotion and fulfilment of human rights, (b) guaranteeing access to remedies, and (c)

strengthening international cooperation.

40. Some delegations argued that the chapter on the “General framework” in the

elements document should be more concise, while others expressed appreciation for the

comprehensive approach. To facilitate shortening the chapter, it was proposed merging the

subsections on “principles”, “purpose”, and “objectives”. Other delegations thought that

only the subsections on “purpose” and “objectives” should be merged and questioned what

the difference was between the two given the similar elements in both categories.

41. With respect to the “preamble”, several delegations commented on the selection of

instruments listed, with some arguing that there were too many instruments and others

arguing that certain instruments were missing. One regional organization and some NGOs

questioned why treaties were contained in the same list as non-binding instruments.

42. Some delegations suggested that there should be reference to the positive impact

business could have on human rights, while other delegations suggested including a

reference to the negative effects of transnational corporations in the context of

globalization. Additionally, NGOs recommended that language should be included

regarding corporate capture.

43. Several delegations appreciated the references made to the right to development and

economic, social and cultural rights. Additionally, delegations and NGOs welcomed the

reaffirmation of the Guiding Principles, showing that that process was complementary.

However, one delegation found it inappropriate to include a reference to the Guiding

Principles since they had not been developed and negotiated by States. One business

organization questioned why there was a reference to the norms on the responsibilities of

transnational corporations and other business enterprises with regard to human rights, when

that process was abandoned over a decade ago. The Chair-Rapporteur replied that many

elements contained in those norms were cited approvingly in the first two sessions.

44. Much discussion focused on the subsection on “principles”. Many delegations and

NGOs welcomed the recognition of the primacy of human rights obligations over trade and

investment agreements. However, one regional organization and other delegations

questioned the legal basis for that and wondered how it would apply in law and practice. It

was queried whether this would require the renegotiation of existing treaties, and whether

that implied that States could disregard provisions of trade and investment treaties, citing

human rights. One delegation asked how the primacy of human rights obligations would be

considered, taking into account the report on fragmentation of international law of the

International Law Commission.

45. Delegations questioned whether recognizing special protection of certain human

rights signalled a hierarchy of certain human rights over others. One regional organization

noted that that provision could potentially conflict with another provision discussing the

universality, indivisibility, interdependence and interrelationship of all human rights. The

Chair-Rapporteur clarified that the intention of the provision was not to create a hierarchy,

but to note specific rights that were more likely to be affected by business activities.

46. Some delegations voiced concern over the language used to recognize the special

protection of vulnerable groups. Acknowledging that certain groups required differentiated

treatment, it was feared that including a list of some groups could indicate the exclusion of

others. Others requested that the language be altered to reflect a more positive, empowering

tone.

47. One delegation noted that the reference to the duty of States to prepare human rights

impact assessments was inappropriate in that section since that was not a “principle”. The

same delegation also expressed concern about the provision recognizing the responsibility

of States for private acts since it believed it had been worded too generally and failed to

recognize that such responsibility only arose in certain circumstances.

48. Several elements under the subsection on “purpose” also received attention. Some

delegations approved a reference to the civil, administrative and criminal liability of

business. One delegation did not agree since many States’ legal systems did not criminally

punish legal entities, and thought that States should have discretion as to how to enforce the

treaty.

49. Delegations and NGOs welcomed the reaffirmation that States’ human rights

obligations extended beyond territorial borders, with some requesting that that be

elaborated in the instrument. One regional organization questioned whether that provision

conflicted with one in the preamble reaffirming the sovereign equality and territorial

integrity of States, including in relation to progress in the area of the responsibility to

protect. A business organization expressed concern about the inclusion of the term

“promotion”, saying that, while companies should respect human rights, they should not

have an international obligation to “promote” human rights.

50. Regarding the objectives of the instrument, delegations welcomed the reference to

international cooperation and mutual legal assistance, noting its importance for the

effective implementation of the instrument.

B. Panel II. Scope of application

51. The first panellist noted that the elements document referred to the transnational

activities of transnational corporations and other business enterprises, regardless of the

mode of creation, control, ownership, size or structure. That indicated an inclusive

approach in line with the Guiding Principles and rightly focused on activities rather than

their corporate ownership. Additionally, she supported the scope of application to cover all

internationally recognized human rights.

52. The second panellist also expressed support for extending the scope of application to

all internationally recognized human rights, reflecting their universality, indivisibility and

interdependence. The panellist questioned restricting the elements to acts of a transnational

character since, from the victim’s perspective, it was irrelevant whether an act was national

or transnational. Additionally, she suggested that the instrument apply to regional

organizations beyond economic integration organizations.

53. The third panellist emphasized that the working group was acting under a Council

mandate; thus, human rights must prevail, not investment and trade, and urged more focus

on human rights defenders. The panellist noted that a legally binding instrument should

address gaps in voluntary initiatives and explore direct obligations on business.

54. With respect to the rights covered by a binding instrument, most delegations agreed

that all internationally recognized human rights should be included. Some delegations

mentioned specific rights, such as the right to development, the right to property and the

right to permanent sovereignty over natural resources. It was suggested that the instrument

should also ensure protection of nationally recognized rights. Another delegation suggested

that the wording of that provision in the elements document was overbroad by including

“other intergovernmental instruments” beyond human rights treaties, since those

instruments were neither binding nor universal.

55. Other delegations disagreed that all human rights should be included due to the lack

of universality of many human rights.

56. Regarding the provision covering acts subjected to the instrument’s application,

some delegations and NGOs were concerned that its scope was unclear and suggested that

the phrase “business activity that has a transnational character” be defined to ensure

effectiveness of the instrument. It was noted that if liability was involved, defining the

phrase was mandatory. While a delegation and panellist disagreed, it was suggested that

guidance could be drawn from international instruments covering transnational crime,

without borrowing definitions.

57. A regional organization indicated that, in addition to the lack of definition, there

were several questions as to whether that provision was aimed at the establishment of

causation, a contribution to an abuse or a linkage. They also noted the unclear language,

such as “indirectly controlled”.

58. A regional organization raised questions relating to the acts to be covered by a future

instrument, including whether the provision discriminated between foreign and national

companies if national companies were categorically excluded from the scope. In response,

a panellist disagreed that that would constitute discrimination since the provision focused

on conduct, not nationality. Another delegation recalled that when it came to national

enterprises, they were covered by national legislation, but the same did not apply to

transnational corporations, justifying the need to address such corporations. The main issue

regarded human rights abuses resulting from transnational corporate activity, access to

justice for victims and proper reparation. That was meant to protect human rights, and

drawing a distinction was not discrimination as it was clearly recognized in several

countries. According to that delegation, challenges existed in all type of companies, but the

growing size of value chains had resulted in the failure to respect human rights and a lack

of accountability. Therefore, a more effective reference could be linked to corporate

activity rather than to the company itself.

59. Concerning which actors should be subject to the instrument, some argued that only

States would be the proper subjects. Another delegation was open to the provision covering

organizations of regional economic integration but questioned why those were not

mentioned elsewhere in the document. Furthermore, there was concern that those

organizations would be difficult to regulate in practice given the relationship between

individual States and such institutions.

60. Several delegations considered that transnational corporations and other business

enterprises should be subject to the instrument but not national companies. One delegation

suggested that the focus should be on business activity in general, regardless of its

transnational nature. Other delegations noted that such companies were subject to national

laws and need not be included; in that regard, they emphasized that negotiations must go on

guided by the mandate of resolution 26/9. One regional organization pointed out that the

national laws of the countries they operated in regulated transnational corporations. It was

highlighted that national enterprises should be included as they could also be responsible

for human rights abuses. There was a call for the inclusion of online corporations in the

scope of application. Several delegations emphasized that the discussions about the scope

should continue within the mandate of resolution 26/9.

61. Some delegations voiced concern over the provision subjecting natural persons to

the instrument, noting that was unnecessary since international criminal law covered

individuals. Other delegations were of the opinion that individuals should be subject to the

instrument. An NGO emphasized the importance of tackling the question of the definition

of transnational corporations, in order to avoid confusion and loopholes that transnational

corporations could use to their advantage.

62. Some delegations emphasized the importance of including regulations of business

activities in conflict and post-conflict areas as businesses could exploit those situations for

natural resources.

C. Panel III. General obligations

63. The first panellist called for the treaty to clarify that States must regulate the

extraterritorial actions of companies domiciled within their jurisdiction, for instance by

ensuring that companies disclosed information about their transnational operations. With

respect to international organizations, the panellist noted that those organizations had a duty

to respect human rights and States must ensure that those organizations complied.

64. The second panellist did not support the content of the elements document and

voiced concern about imposing international law obligations on companies, as that could

lead to States delegating their duties to the private sector, undermining the full protection of

human rights. Furthermore, generally imposing such duties was impractical given the

number and diversity of the actors involved.

65. The third panellist decided to focus his remarks on gaps in the elements document.

With respect to the obligations of States, he regretted that concepts of corporate law, such

as separate legal personality, were absent, noting that a successful instrument must address

those issues. Furthermore, he suggested that the instrument should clarify what constituted

an actionable violation if placing binding obligations on corporations.

66. The fourth panellist emphasized workers’ support of the working group and noted

that labour rights must be included. She noted that the instrument should oblige companies

to exercise due diligence and provide remedies. While acknowledging that some provisions

in the elements document were vague, more detail could be developed during the

negotiation process.

67. While many delegations supported the proposed elements under “general

obligations”, some noted the need to continue with negotiations on certain specific

provisions, as provisions of a legally binding instrument must be worded clearly if legal

consequences would attach.

68. Regarding the provisions on “State obligations”, it was noted that many elements

seemed to restate existing obligations and their added value was questioned. There was

concern that the provisions requiring States to adapt national legislation and impose

restrictions on public procurement contracts interfered with the internal affairs of States, as

it should be up to each State to determine how to implement its treaty obligations.

Additionally, there were calls for more specificity in the provisions regarding reporting and

disclosure requirements, as well as the provision requiring States to ensure that human

rights be considered in their contractual engagements.

69. Other delegations commended the drafting of the section, specifically voicing

support for the recognition that States had the primary duty to protect human rights and

take measures to prevent, investigate, punish and redress violations to ensure that

companies respected human rights throughout their activities. Some welcomed the

provision requiring States to ensure that companies conducted human rights and

environmental impact assessments. However, one delegation expressed that it was beyond

the working group’s mandate to discuss environmental impact assessments.

70. Throughout the discussion, there were several suggestions for additional elements,

including a reference to international cooperation and mutual legal assistance, clarification

as to extraterritorial obligations, regulation of State-owned companies, mandatory gender

impact assessments by an independent entity, reference to conflict areas and the protection

of human rights defenders, as well as gender-specific provisions that took into account the

particular needs of women human rights defenders.

71. Concerning the inclusion of a section on “obligations of transnational corporations

and other business enterprises”, some delegations asked for information on the legal basis

for imposing international human rights obligations on companies. Additionally, questions

were raised as to how that would work in practice and whether that would be appropriate in

the absence of a structure capable of law enforcement. Other delegations found it

appropriate to impose international obligations on companies and referenced several

treaties establishing obligations on legal entities. In their view, such obligations were

necessary to ensure the effectiveness of the instrument.

72. Delegations suggested that additional obligations should be imposed on companies,

including to mandate human rights due diligence and reporting; ensure free, prior and

informed consent when operations could adversely affect communities; prevent corporate

capture; oblige companies to pay taxes in countries they operated in; and positively

promote human rights. An NGO highlighted the importance of establishing a general

obligation on transnational corporations and other associated actors, such as financial

institutions, to disclose the object and volume of their transactions, and to prohibit

channelling their operations through tax havens.

73. With respect to the section on obligations of international organizations, it was

questioned whether that provision belonged elsewhere since it appeared to concern an

obligation of States and not international organizations as such. To the extent that the

provision did create obligations for international organizations, some delegations expressed

their reservation in making limitations on bodies created by different instruments with

different mandates.

D. Panel IV. Preventive measures

74. The first panellist noted an existing accountability gap for victims and argued that

the instrument should oblige States to require effective and binding due diligence processes

from all companies covering the complete life cycle of a product, including its disposal. He

noted that several provisions in the section on preventive measures did not seem directly

relevant to prevention and suggested moving them to a more appropriate section.

75. The second panellist argued that preventive measures in the treaty should focus on

two components: (a) preventing acts by transnational corporations that adversely affected

human rights, and (b) preventing corporate capture. Regarding corporate capture, the

panellist proposed that States should ensure transparency and disclosure of documents and

contracts with transnational corporations. Additionally, States should prohibit political

contributions from transnational corporations and forbid outsourcing of security services to

companies.

76. The third panellist recommended ways to strengthen that section, such as by

including references to due diligence obligations relating to development institutions, the

use of independent impact assessments, the coverage of labour and environmental rights,

the inclusion of a gender perspective, the use of ex ante and ex post impact assessments,

and the inclusion of the free, prior and informed consent principle.

77. Delegations and NGOs highlighted the importance of prevention and welcomed a

dedicated section in the document. It was questioned whether, conceptually speaking, the

elements in that section should be linked with the one on obligations as the provisions

addressed the obligations of States and companies. Some sought more precision in the

wording of the provisions, wanting to know whether the terms “adequate” or “necessary

measures” took proper account of differing capacities among States. One business

organization expressed concern that the language used reopened an issue that had been

resolved in the Guiding Principles, potentially causing confusion and unintended

consequences.

78. Many delegations welcomed the provision whereby States required companies to

adopt and implement due diligence policies and processes. It was suggested that that

provision should ensure that States implement uniform, minimum standards. A delegation

and several NGOs thought risk assessments under that provision should address

environmental impacts. Concern was expressed that, since those measures were to apply to

all the transnational corporations and other business enterprises in a State’s territory or

jurisdiction, including subsidiaries and all other related enterprises throughout the supply

chain, it would allow States to exercise extraterritorial jurisdiction improperly. The Chair-

Rapporteur clarified that the due diligence obligation was meant for the parent company

domiciled in a State and that a company was to assess risks throughout its supply chain.

79. Concern was expressed about the provision requiring consultation processes, as one

delegation was unsure when that would be required and for what purpose. Other

delegations and several NGOs saw value in the provision. Some NGOs suggested that that

provision should clearly require the free, prior and informed consent of communities, in

particular indigenous communities, when transnational corporation projects threatened

adverse human rights impacts.

80. Concerning the provision requiring dissemination of the instrument to everyone in a

State’s territory in a language they could understand, some delegations stressed the

importance of the populace knowing their rights; however, one delegation felt that that

provision interfered with States’ right to determine how to implement the instrument.

81. Some sought clarification on the provisions requiring periodic reporting, with one

NGO indicating that that provision would have no teeth without an enforcement

mechanism.

82. Some delegations and NGOs suggested adding language in that section aimed at

preventing the capture of public institutions by vested business interests, and drew attention

to article 5 (3) of the World Health Organization Framework Convention on Tobacco

Control for guidance. Additionally, there was a call for the section to include enhanced due

diligence for businesses operating in the context of armed conflict.

E. Panel V. Legal liability

83. The first panellist emphasized that the instrument should cover environmental,

health and safety, and workers’ rights, as well as corporate complicity in State violations.

Given the difficulties with enforcing criminal liability, the focus should be on civil liability

for multinational parent companies. Several practical challenges arose in the civil context,

such as victims’ lack of access to information and legal assistance, and those should be

addressed to ensure that victims obtained redress.

84. The second panellist noted the comprehensive nature of the provisions on legal

liability and recognized how they could be relevant in a variety of legal systems. The

panellist described increasing recognition at the international and regional levels of

criminal liability of legal entities. He stressed the necessity of criminal liability to serve as a

deterrent, better protect individuals and communities’ rights, and provide access to justice

for victims.

85. The third panellist appreciated the inclusion of that section, particularly the

provision ensuring that civil liability not be made contingent upon a finding of criminal

liability. He cautioned against including provisions that mandated specific legal actions, as

that could be contrary to certain legal systems and counterproductive to the goals of the

instrument. He further suggested that the provision discussing due diligence procedures

should be placed in a different section.

86. Delegations signalled their approval for including a section on legal liability,

although some suggested that that section should be clearer and more concise. Some

recognized legal liability could also encompass natural persons. Most delegations and

NGOs agreed that criminal, civil and administrative liability should attach to legal entities,

and some delegations shared national laws that imposed those types of liability on

companies. It was noted that the different types of liability were complementary; however,

some delegations were concerned at the lack of differentiation among them. In their view,

differentiated language was needed to reflect whether a provision referred to criminal, civil

or administrative liability. Furthermore, it was noted that some legal systems did not allow

for the imposition of criminal liability on legal entities; thus, provisions requiring such

liability would be inappropriate. States should have the flexibility to choose how best to

incorporate the treaty into national law. Concerns were also raised about the

appropriateness of imposing international obligations on legal entities.

87. Some delegations called for greater detail and clear, minimum standards regarding

the measures States must take to establish the different forms of legal liability in their

jurisdictions. Others appreciated the flexibility provided for in the elements, allowing States

to adopt their own legal measures in accordance with their national systems.

88. It was noted that the two provisions dealing with the commission and attempt of

criminal offences were unnecessary given the general provision in the section covering

civil, criminal and administrative offences. It was also questioned why the term

“international applicable human rights instruments” was used in those sections when other

sections used different terminology.

89. Clarification was sought as to the meaning of the provision establishing civil

liability for companies for participating in the planning, preparation, direction of or benefit

from human rights violations caused by other companies, with one delegation suggesting

that that should cover indirect benefits as well. Similarly, some delegations called for more

precision as to the contours of the provisions dealing with immunities, State responsibility

for the actions of companies under their control, and complicity. Regarding the issue of

complicity, it was queried whether States would automatically become responsible for any

harm committed by a company.

90. One delegation also considered that the provision promoting decent work in supply

chains fell outside the scope of the mandate given by resolution 26/9.

91. It was suggested that that language should be added to the section to address parent

company liability. Additionally, an NGO suggested that international crimes should be

included in the section.

F. Panel VI. Access to justice, effective remedy and guarantees of non-

repetition

92. The first panellist noted that a binding instrument must build on and complement

existing international standards, such as the Guiding Principles. The remedy process should

be sensitive to the experiences of different groups of rights-holders, requiring consideration

of the gender dimension and preventing victimization of rights-holders and human rights

defenders seeking remedies. Furthermore, rights-holders must be able to seek, obtain and

enforce different types of remedies.

93. The second panellist suggested strengthening the provision on legal aid by

establishing an online resource that would provide information to victims, such as the

relevant law and the applicable burden of proof, and would link victims to NGOs and legal

aid. Additionally, the panellist noted the importance of recognition and enforcement of

judgments.

94. The third panellist discussed how important it would be for victims to have access to

courts in the home States of transnational corporations. To better confront problems such as

piercing the corporate veil, he recommended reversing the burden of proof and improving

victims’ access to disclosure. He also suggested that damages should be based on home

State calculations, the abolishment of the “loser pays” principle, and inclusion of proper

cost-recovery mechanisms to encourage legal representation.

95. Delegations and NGOs welcomed the inclusion of that section in the document,

noting that it was crucial to address gaps in legal protection and that doing so would

constitute important added value in a future instrument. In particular, efforts to remove

practical and legal barriers to effective access to justice were appreciated; however, some

NGOs warned that by listing specific barriers, it could be excluding those not mentioned. It

was suggested that the section should clearly state the right of everyone to have access to

remedy regardless of the perpetrator.

96. A regional organization indicated that the assessment in the chapeau seemed

acceptable but questioned whether the provisions mostly restated existing obligations.

Another delegation suggested the complete removal of the section, arguing that a more

holistic approach was warranted and that the current approach would force States to adopt a

system that could be inappropriate in local circumstances. A business organization noted

that the root problem regarding access to justice was a lack of the rule of law, and the

instrument would need to find ways of incentivizing States to implement existing

obligations.

97. States and many NGOs appreciated the inclusion of a provision emphasizing the

need for access to justice for vulnerable groups; however, it was suggested that more

empowering and positive language should be employed. Some NGOs recommended the

inclusion of language about the need for gender-sensitive access to justice and remedies.

An NGO also suggested that language from the United Nations Declaration on the Rights

of Indigenous Peoples should be included, in particular to recognize the different legal

systems and customs of certain communities. One delegation was concerned that specific

groups were being recognized at all, indicating that there would be unfair and special

treatment for those listed. A panellist disagreed, arguing that fairness dictated that different

groups be treated differently.

98. Clarification was requested regarding the provision concerning non-judicial

mechanisms not being a substitute for judicial mechanisms. It was mentioned that recourse

to non-judicial mechanisms could be in the interest of victims, as they were sometimes

faster and more appropriate. One panellist agreed that non-judicial mechanisms had a role

to play, but argued that they were complementary, noting that judicial mechanisms should

always be available.

99. Several NGOs appreciated the provision on reducing regulatory, procedural and

financial obstacles in access to remedy, in particular mentioning the importance of ensuring

class actions, access to information and limiting forum non conveniens. Many welcomed

the inclusion of a provision concerning the reversal of the burden of proof; however, one

business organization argued that that provision would upset the fair balance among the

parties and potentially violate due process. Panellists disagreed, noting that, in some cases,

raising a displaceable presumption would be appropriate, and that reversing the burden of

proof existed in some national systems.

100. Several delegations and NGOs welcomed a provision addressing the need to

guarantee the security of victims, witnesses and human rights defenders, although it was

questioned whether the provision went beyond what States were already obliged to do.

NGOs thought the provision could be stronger by prohibiting interference with human

rights defenders, and giving defenders a legal claim if they experienced retaliation.

101. States and NGOs also expressed support for a number of other provisions, including

on the different forms of remedy, the right to equality of arms and legal aid, and access to

information relevant to substantiating claims.

102. Multiple NGOs suggested that a provision addressing piercing of the corporate veil

should be explicitly included in the section.

G. Panel VII. Jurisdiction

103. While the first panellist welcomed the inclusion of a section on jurisdiction, she

noted that a number of key concepts related to State obligations still needed clarification.

She stressed that international law already allowed the exercise of prescriptive jurisdiction

extraterritorially, and careful language should be employed to avoid a restrictive

interpretation. In her view, enforcement jurisdiction should be given careful attention and

should be addressed in the section on international cooperation.

104. The second panellist expressed serious caution with regard to the broad approach to

the concept of jurisdiction adopted in the elements document and warned that asserting

extraterritorial jurisdiction over entities with a tenuous connection to the forum State could

raise issues related to the principles of international comity and exhaustion of local

remedies. He noted that enforcement of existing legislation remained an issue and attention

should be focused on strengthening incentives to enforce those laws.

105. The third panellist argued that States should address accountability gaps related to

transnational corporations by recognizing jurisdiction over national companies whose

activities had an impact abroad, and the instrument should clearly indicate when a cause of

action arose in the home State. Additionally, barriers to accessing justice should be

removed, in particular the doctrine of forum non conveniens since it was often used as a

delaying and obstructive tactic.

106. Delegations and NGOs agreed on the importance of having a section on jurisdiction

in the elements document as many transnational corporations and other business enterprises

escaped liability through jurisdictional challenges. The section was considered essential to

address accountability gaps, clarify when courts could consider claims for abuses occurring

abroad and enhance victims’ access to justice. Given the importance of that section, some

delegations emphasized the need for clarity. While many found that the elements formed a

good starting point, calls were made for more precision in the provisions. For instance,

some questioned the contours of the definition of “under the jurisdiction” in the chapeau,

asking for clarity as to the meaning of “substantial activities in the State concerned” and the

extent of control needed by parent companies. Some NGOs called for coherence among the

concepts in that section and references to “territory and/or jurisdiction” elsewhere in the

document, as well as the reaffirmation in the “purpose” section that State obligations did

not stop at their territorial borders.

107. Most of the discussion centred on whether the language should permit

extraterritorial jurisdiction and the extent of that jurisdiction. Several delegations and

NGOs found it crucial that the instrument permit courts to consider claims arising out of

activities abroad. Those delegations indicated that the use of extraterritorial jurisdiction had

been approved by a range of judicial bodies and instruments, including national court cases,

treaties and other international instruments. Other delegations suggested that clear

references to the bases for jurisdiction should be included. In their view, under international

law, extraterritorial jurisdiction could only be invoked exceptionally, duly justified by a

legitimate interest and when a real and substantial link existed between a forum and the

parties and claims concerned. That could be based on prescriptive jurisdiction principles,

such as nationality, passive personality and the protective principle. Going beyond

traditional bases of jurisdiction could raise several issues. For instance, too much reliance

on home State jurisdiction could act as a disincentive for host States in ensuring access to

justice. Additionally, an expansive view of jurisdiction had the potential to violate the

territorial integrity and sovereign equality of States, principles which were reaffirmed in the

preamble of the elements document. However, panellists considered that those risks were

overstated as that section did not authorize extraterritorial enforcement jurisdiction, and

risks associated with such jurisdiction were allayed with the inclusion of a section on

international cooperation.

108. With respect to specific provisions, delegations expressed most concern with the

provision authorizing jurisdiction over subsidiaries throughout the supply chain domiciled

outside States’ jurisdiction. Additionally, concern was raised about the provision permitting

jurisdiction over abuses alleged to have been committed by transnational corporations and

other business enterprises throughout their activities, including their branches, subsidiaries,

affiliates, or other entities directly or indirectly controlled by them. They argued that that

wording was too broad and could cover legal entities with little connection to the forum

State.

109. Clarification was sought as to the provision permitting claims by victims within a

State’s jurisdiction. It was queried whether that referred to nationals, residents or something

else.

110. Additionally, it was proposed that certain provisions be added to that section. Some

delegations and NGOs suggested explicitly prohibiting the use of forum non conveniens.

Another delegation and NGO recommended adding a provision to address the conflict of

laws. Calls were made to address conflict situations, as local courts were often unavailable

in situations of armed conflict. One delegation suggested that jurisdiction over online

enterprises be addressed. Furthermore, it was proposed that universal jurisdiction be

established for conduct constituting international crimes.

H. Panel VIII. International cooperation

111. The first panellist noted the importance of that section given our globalized,

fragmented economy. He suggested two ways to strengthen that section. First, by including

subsections addressing cooperation in investigative, prosecutorial, administrative systems,

and criminal and civil court systems separately. Second, by establishing a public register to

help with the coordination of research.

112. The second panellist discussed how cooperation should generally address treaty

implementation, helping States with national implementation and enforcement of

judgments. To ensure appropriate cooperation, States should (a) ensure access to

information for investigatory functions, (b) adopt rules to ensure mutual judicial

cooperation, (c) ensure adequate standards of due process, (d) consider reflecting the

principle of comity in the instrument, and (e) draw inspiration from existing instruments

and standards.

113. Many delegations and NGOs agreed on the importance of international cooperation.

One of the main obstacles to effective regulation of transnational corporations was the fact

that they operated in multiple jurisdictions; thus, cooperation between States was necessary

to ensure abuses were properly addressed. NGOs shared cases in which victims were

unable to obtain redress due to a lack of international cooperation. Major obstacles to

justice for those victims, such as difficulties in obtaining information, could be rectified

with proper cooperation among States. Thus, it was important for States to agree on certain

standards to ensure efficient investigation, prosecution and enforcement. Some delegations

referred to other processes and instruments for guidance, such as the United Nations

Convention against Transnational Organized Crime and the United Nations Convention

against Corruption. One delegation also said that regulating the recognition and

enforcement of foreign judgments under the treaty should not overlap with the work being

undertaken at the Hague Conference on Private International Law.

114. One delegation and a business organization argued that international cooperation

should be developed generally and not focus on the specific regime. There was a fear that

developing new obligations on international cooperation could conflict with other processes

or send contradictory messages as to United Nations standards and its broader activities.

Instead, States should focus on strengthening existing international cooperation

mechanisms and continue to develop national action plans. Another delegation stressed that

enhancing international cooperation could also benefit businesses. Furthermore, efforts

should be taken to increase peer pressure among States to strengthen implementation of the

Guiding Principles.

115. A regional organization stressed its advocacy for increased mutual legal assistance,

including for cross-border investigation. It noted that the provisions under that chapter were

interesting; however, it mentioned that already much was being done, for instance the work

of the OHCHR accountability and remedy project on cross-border cooperation. It also

questioned how the provisions in that section would allow for implementation given the

current constraints, such as the lack of resources of prosecutors’ offices to investigate cases

involving transnational corporations and other business enterprises. Some delegations and a

panellist suggested that provisions on technical assistance could be included to address

some of those challenges.

116. Delegations called for greater specificity in the provisions of that section, taking into

account that different levels of cooperation were required. There were multiple suggestions

to differentiate the section based on whether cooperation was needed for civil, criminal or

administrative matters, and to include more precise provisions on the means of cooperation

needed for these different types of regimes. Additionally, there were calls for more detail

into what processes should be required, in particular for evidence collection and sharing,

and reciprocal recognition of civil judgments. It was also noted that a provision should be

included to ensure reciprocity among States.

I. Panel IX. Mechanisms for promotion, implementation and monitoring

117. The first panellist suggested that drafters focus on four principles in that section.

First, accountability, lessons on which could be drawn from processes regulating business

conduct outside of the human rights context, such as the World Bank Inspection Panel.

Second, transparency, given the importance of access to information. Third, participation,

although caution should be exercised regarding abuse by the private sector. Fourth,

cooperation, which should be ensured at the national, regional and international levels.

118. The second panellist discussed cases in which victims were unable to access justice

through existing institutions. She argued for the creation of an international court for

affected individuals and communities to hold transnational corporations accountable. While

supportive of the creation of an ombudsman, as proposed in the elements, she claimed that

that would not be an adequate substitute for an international judicial body.

119. The third panellist welcomed that section in the elements document and noted that

international mechanisms were needed. Implementation lay foremost with national

jurisdictions, but a complementary, properly resourced international court should exist

when national jurisdictions fail. The treaty body proposed in the elements would also be

welcome and should be endowed with the ability to make recommendations, as well as

referrals to the international court.

120. Several delegations and NGOs welcomed the inclusion of that section and the

creation of mechanisms to promote, implement and monitor a future instrument. Many

called for the ability of victims to directly access those mechanisms, and an additional

provision to protect against retaliation by those who engaged those mechanisms was

mentioned. Some argued that, without enforcement mechanisms, the instrument would not

be properly implemented. Other delegations questioned the usefulness of creating a new

mechanism, arguing that the focus should be on strengthening existing institutions. One

delegation reiterated that States had the prerogative to decide on how to enforce its treaty

commitments. It was also noted that there should be more reliance on national action plans

in order to bring the treaty to the national level. One delegation asked how the instrument

could strengthen non-judicial mechanisms and what the role of national human rights

institutions could be in that regard.

121. Several delegations approved of the establishment of an international judicial

mechanism to hear complaints regarding violations by transnational corporations, including

through the establishment of special chambers in already existing regional courts, noting

that victims and certain States had been calling for the creation of such institutions for some

time. However, questions were raised as to whether an international court could be

effective or delay negotiations for years, and there were concerns regarding budgetary and

political issues involved with establishing a court. A question was asked whether that

referred to past deliberations over the International Criminal Court, whether it was an

appeal to broaden the jurisdiction of the Court and whether the proposal was feasible.

122. Delegations expressed support for the creation of an international committee to

monitor the treaty, and it was noted that the creation of a committee would not preclude the

creation of other institutions or the involvement of national human rights institutions and

ombudspersons. Some delegations approved of the proposed functions of that committee in

the elements, including examining periodical reports and individual and collective

communications. It was suggested that that body should consider victims as its centre of

attention, and that it could foster international cooperation, technical assistance and share

best practices. An expectation for a draft text of the treaty by the Chair-Rapporteur in the

next session was highlighted.

123. Additionally, some delegations proposed the establishment of a non-judicial, peer

review mechanism, and some NGOs suggested creating a monitoring centre that could be

jointly run by States and civil society.

J. Panel X. General provisions

124. One NGO welcomed a provision in the section on general provisions regarding the

primacy of a future instrument over other obligations from trade and investment legal

regimes. It also stressed the importance of allowing for the participation of civil society and

affected communities.

K. Panel. Victims’ voices

125. Five panellists provided introductory remarks, commenting on a range of issues,

including violations of indigenous peoples’ rights, abusive practices in drug patenting and

pricing, harm caused by agricultural projects, impunity relating to toxic pollution,

development projects displacing communities and the role of international financial

institutions in supporting harmful practices.

126. The panellists’ presentations were followed by interventions from delegations and

NGOs, highlighting specific cases of abuse and State failure to implement existing human

rights obligations. Some delegations defended the adoption of a balanced, victim-centred

document. It was highlighted that States should participate in that process and not stop

codifying just because existing treaties were not implemented. There was a call for

strengthening existing institutions and implementation of existing instruments, such as the

Guiding Principles; guidance in that regard could be drawn from initiatives such as the

OHCHR accountability and remedy project. Others expressed the view that existing

institutions and instruments were failing to ensure the protection of victims, and that the

creation of a legally binding instrument to oblige States and transnational corporations and

other business enterprises to comply with human rights standards, and the creation of

mechanisms to enforce such obligations, were necessary to address shortcomings in the

current system. Delegations and NGOs stressed the importance of victims’ participation in

those processes, the need to ensure that they obtained redress when their rights were

violated, and the importance of protecting human rights defenders. One regional

organization stated that those who had suffered human rights violations by States, as well

as those that were victims of abuses by non-State actors, had a right to access justice and a

right to effective remedy, and insisted that States must implement existing obligations.

V. Recommendations of the Chair-Rapporteur and conclusions of the working group

A. Recommendations of the Chair-Rapporteur

127. Following the discussions held during the first three sessions of the working

group, in particular the discussion on the elements for the draft legally binding

instrument on transnational corporations and other business enterprises with respect

to human rights presented by the Chair-Rapporteur, and pursuant to its mandate, as

defined in paragraph 1 of resolution 26/9, and acknowledging the different views

expressed, the Chair-Rapporteur should:

(a) Invite States and different stakeholders to submit their comments and

proposals on the draft elements document no later than the end of February 2018;

(b) Present a draft legally binding instrument on transnational corporations

and other business enterprises with respect to human rights, on the basis of the

contributions from States and other relevant stakeholders, at least four months before

the fourth session of the Working Group, for substantive negotiations during its

fourth and upcoming annual sessions until the fulfilment of its mandate;

(c) Convene a fourth session of the Working Group to be held in 2018 and

undertake informal consultations with States and other relevant stakeholders on its

programme of work.

B. Conclusions of the working group

128. At the final meeting of its third session, on 27 October 2017, the working group

adopted the following conclusions, in accordance with its mandate established by

resolution 26/9. The Working Group:

(a) Welcomed the opening messages of the United Nations High

Commissioner for Human Rights and of the President of the Human Rights Council

and thanked the Minister for Foreign Affairs of Ecuador, María Fernanda Espinosa

Garcés, and the Member of the French National Assembly, Dominique Potier, for

their participation as keynote speakers. It also thanked the independent experts and

representatives who had taken part in panel discussions, the interventions, proposals

and comments received from Governments, regional and political groups,

intergovernmental organizations, civil society, NGOs and all other relevant

stakeholders, which had contributed to the substantive discussions of the session;

(b) Took note of the elements for the draft legally binding instrument on

transnational corporations and other business enterprises with respect to human

rights, prepared by the Chair-Rapporteur in accordance with paragraph 3 of

resolution 26/9 and the substantive discussions and negotiations and the presentation

of various views thereof;

(c) Requested the Chair-Rapporteur to undertake informal consultations

with States and other relevant stakeholders on the way forward on the elaboration of

a legally binding instrument pursuant to the mandate of resolution 26/9.

VI. Adoption of the report

129. At its 10th meeting, on 27 October 2017, after an exchange of different views on

the report and some of its elements, the working group adopted ad referendum the

draft report on its third session and decided to entrust the Chair-Rapporteur with its

finalization and submission to the Council for consideration at its thirty-seventh

session.

Annex I

List of participants

States Members of the United Nations

Algeria, Angola, Argentina, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belarus,

Belgium, Bolivia (Plurinational State of), Botswana, Brazil, Burundi, Central African

Republic, Chile, China, Colombia, Costa Rica, Croatia, Cuba, Cyprus, Czechia, Democratic

Republic of the Congo, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia,

Germany, Ghana, Greece, Guatemala, Haiti, Honduras, India, Indonesia, Iran (Islamic

Republic of), Iraq, Ireland, Israel, Italy, Côte d’Ivoire, Jamaica, Jordan, Kazakhstan, Kenya,

Lesotho, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malta, Mauritania, Mexico,

Monaco, Morocco, Mozambique, Myanmar, Namibia, Netherlands, Nicaragua, Nigeria,

Norway, Pakistan, Panama, Peru, Philippines, Portugal, Qatar, Republic of Korea, Republic

of Moldova, Russian Federation, Rwanda, Saudi Arabia, Serbia, Singapore, Slovakia,

Slovenia, Somalia, South Africa, Spain, Sudan, Sweden, Syrian Arab Republic,

Switzerland, Thailand, the former Yugoslav Republic of Macedonia, Trinidad and Tobago,

Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom of Great Britain and

Northern Ireland, Uruguay, Venezuela (Bolivarian Republic of), Zambia.

Non-member States represented by an observer

Holy See, State of Palestine.

United Nations funds, programmes, specialized agencies and related

organizations

United Nations Conference on Trade and Development.

Intergovernmental organizations

European Union, International Chamber of Commerce, International Development Law

Organization, Organisation of Islamic Cooperation, South Centre.

Special procedures of the Human Rights Council

Working Group on the issue of human rights and transnational corporations and other

business enterprises, Special Rapporteur on the implications for human rights of the

environmentally sound management and disposal of hazardous substances and wastes,

Independent Expert on the promotion of a democratic and equitable international order.

National human rights institutions

The National Human Rights Council of Morocco, German Institute for Human Rights,

Danish Institute for Human Rights.

Non-governmental organizations in consultative status with the

Economic and Social Council

Academic Council on the United Nations System; Al-Haq; Law in the Service of Man;

American Bar Association; Amnesty International; Asia Pacific Forum on Women, Law

and Development (APWLD); Association for Women’s Rights in Development (AWID);

Centre Europe — Tiers Monde — Europe-Third World Centre (CETIM); Center for

International Environmental Law (CIEL); Comité Catholique contre la Faim et pour le

Développement (CCFD); Conectas Direitos Humanos; Coopération Internationale pour le

Développement et la Solidarité (CIDSE); Corporate Accountability International (CAI);

Fondation pour l’étude des relations internationales et du développement; FIAN

International e.V.; Franciscans International; Friends of the Earth International; Geneva

Infant Feeding Association; Global Policy Forum; Indian Movement “Tupaj Amaru;”

Indigenous Peoples’ International Centre for Policy Research and Education (Tebtebba);

Institute for Policy Studies (IPS); Instituto Para la Participación y el Desarrollo-INPADE-

Asociación Civil; International Association of Democratic Lawyers (IADL); International

Commission of Jurists; International Federation for Human Rights Leagues (FIDH);

International Institute of Sustainable Development; International Organisation of

Employers (IOE); International Service for Human Rights (ISHR); International Trade

Union Confederation; IT for Change; iuventum e.V.; Legal Resources Centre; Oxfam

International; Public Services International (PSI); Réseau International des Droits Humains

(RIDH); Sikh Human Rights Group; Social Service Agency of the Protestant Church in

Germany; Society for International Development; Stichting Global Forest Coalition; Swiss

Catholic Lenten Fund; Tides Center; Verein Sudwind Entwicklungspolitik; Women’s

International League for Peace and Freedom (WILPF).

Annex II

List of panellists and moderators

Monday, 23 October 2017

Keynote speakers

• H.E. María Fernanda Espinosa, Minister of Foreign Affairs of Ecuador, and former

Chairperson-Rapporteur of the open-ended intergovernmental working group

• Dominique Potier, Member of the French National Assembly

Subject I General framework (15:0018:00)

• Lola Sánchez, Member of the European Parliament

• Richard Kozul-Wright, Director of the Division of Globalization and Development

Strategies, UNCTAD

• Vicente Yu, Deputy Executive Director, South Centre

Tuesday, 24 October 2017

Subject II Scope of application (10h0013h00)

• Kinda Mohamedieh, South Centre

• Sigrun Skogli, Professor, University of Lancaster

• Manoela Roland, Professor, Universidade Federale de Juiz de Fora

Subject III General obligations (15h0018h00)

• Olivier De Schutter, Professor, Université de Louvain

• Linda Kromjong, Secretary-General of the International Organization of Employers

• David Bilchitz, Professor, University of Johannesburg and Director, South African

Institute of Advances Constitutional, Public, Human Rights and International Law

• Makbule Sahan, representative of the International Trade Union Confederation

Wednesday, 25 October 2017

Subject IV Preventive measures (10h0013h00)

• Baskut Tuncak, UN Special Rapporteur on hazardous substances and wastes

• Iván González, representative of the Confederación Sindical de Trabajadores de las

Américas, CSA

• Ana María Suárez-Franco, FIAN International

Subject V Legal liability (10h0013h00)

• Richard Meeran, Partner, Leigh Day & Co.

• Carlos López, International Commission of Jurists

• Humberto Cantú Rivera, Professor, University of Monterrey

Subject VI Access to justice, effective remedy and guarantees of non-repetition

(15h0018h00)

• Surya Deva, Chairperson of the United Nations Working Group on Business and

Human Rights

• Gilles Lhuilier, Professor, Ecole Normale Supérieure (ENS) Rennes, France

• Richard Meeran, Partner, Leigh Day & Co.

Thursday, 26 October 2017

Subject VII Jurisdiction (10h0013h00)

• Sandra Epal Ratjen, International Advocacy Director, Franciscans International

• Lavanga Wijekoon, Littler Mendelson

• Gabriela Quijano, Amnesty International

Subject VIII International cooperation (10h0013h00)

• Harris Gleckman, Center for Governance and Sustainability, University of

Massachusetts, Boston

• Vicente Yu, Deputy Executive Director, South Centre

Subject IX Mechanisms for promotion, implementation and monitoring (15h00

18h00)

• Baskut Tuncak, UN Special Rapporteur on hazardous substances and wastes

• Anne van Schaik, Friends of the Earth Europe

• Melik Özden, CETIM

Subject X General provisions (15h0018h00)

Friday, 27 October 2017

Panel The voices of the victims (selected cases from different sectors and regions)

(10h0013h00)

• Alfred de Zayas, United Nations Independent Expert on the promotion of a

democratic and equitable international order

• Lorena di Giano, Red Latinoamericana por el Acceso a los Medicamentos

• Mohamed Hakech, La Vía Campesina MENA region

• María del Carmen Figueroa, Asamblea Nacional de Afectados Nacionales

• Hemantha Withanage, Friends of the Earth — CEJ