Participation in this second working group session increased compared to the first session of July 2015, both on the part of States and civil society organisations (CSOs). Dozens of CSOs from around the world actively participated, making numerous and very rich oral statements, laying out the issues to be addressed, but also suggesting potential solutions regarding how a Treaty could respond to these challenges. Businesses, through the International Organisation of Employers (IoE) and the International Chamber of Commerce, were present throughout the session and were particularly active in the first three days of the session.
“During the session, the participation of civil society from the Global South has been important to demonstrate, based on local experiences, that corporate self-regulation and corporate social responsibility do not provide effective prevention mechanisms in the face of human rights abuse by corporate powers. This helped to increase awareness on the necessity of adopting a legally binding instrument on this issue” , said Walter Vargas of FIDH’s member organisation in Peru APRODEH, who participated in the session.
States’ participation in the process improved, both in terms numbers and regarding content. The European Union, which had walked out of the IGWG session last year, participated in this second session. This undoubtedly constitutes a positive development. However, the EU kept a rather aloof attitude throughout the week, calling for a stronger implementation of the UN Guiding Principles on Business and Human Rights (UNGPs), without recognizing their inherent accountability and protection gaps, and without exposing its concrete views regarding content of the future instrument.
Certain States, especially from Latin America and Sub-Saharan African countries, were particularly active. They shared their experiences, asked questions to the experts invited to present on the different panels, and some made general proposals. Participation from Asian states was disappointing, and the US, Canada and Australia remained absent despite their deplorable record to make corporations accountable. Generally however, States’ comments demonstrated that they had not yet developed clear positions regarding content of the Treaty.
This second session allowed to address key issues such as access to remedies, corporate liability, extraterritorial obligations, and scope. Particular focus was put on how the UN treaty may reaffirm the primacy of human rights and address the adverse human rights impacts of trade and investment agreements. A contentious issue discussed in length was that of the reach of the treaty, States and/or businesses, with what kind of obligations, and which type of business to cover. How to deal with extraterritorial obligations, how to ensure efficient monitoring and effective enforcement, how to provide effective, direct and equal access to remedies, and the necessity to enhance cooperation between States were intensely discussed. The complementarity of the Treaty process with other instruments such as the UNGPs and other processes including at the national level was also an important component of the debate.
“Despite States, civil society and businesses’ differing views on some issues, all stakeholders agreed on the need to fill the existing gaps and loopholes, and on the need to prevent and remedy corporate human rights abuses wherever they occur. What remains to be found is a consensus on the means to this end. States have to start doing their homework immediately ” said Debbie Stothard, FIDH Secretary General and Altsean Burma coordinator.
According to HRC resolution 26/9 which established the IGWG, elements for the future treaty have to be presented during a third session, likely to take place next year. This means that all States must, as a matter of urgency, think about concrete proposals, actively engage in a process that is now well under way, and start negotiating what could be a historical step towards global justice.
FIDH actively participated in the second IGWG session, through written submissions and oral statements:
Joint FIDH SOMO CIDSE IBFAN FoEE oral statement on need for Treaty to address challenges posed by trade and investment agreements
Joint FIDH and ICJ oral statement on legal liability of business entreprises
Joint FIDH, Al Haq, BFTW, CIDSE, SOMO, ICJ, IBFAN-GIFA oral statement on scope
Joint FIDH and ICJ oral statement on complementarity between the UNGPs and the Treaty process
Joint FIDH, SOMO, CIDSE, FIDH, Friends of the Earth Europe, IBFAN-GIFA and BFTW oral statement on access to remedy