FIDH advocates for the adoption of an international legally binding instrument to regulate the activities of corporations in relation to human rights

There are several gaps in the international human rights framework to prevent, sanction and remedy abuses caused by the activities of business enterprises. Access to justice remains particularly difficult for the majority of victims. That’s why FIDH is engaged in the United Nation process for the elaboration of an international legally binding instrument to regulate the activities of corporations in relation to human rights.

History of the binding Treaty project

In June 2014, the UN Human Rights Council adopted the Resolution 26/9 which established the United Nations open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (IGWG), with a mandate to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.

The creation of a binding instrument is aimed to complement and go beyond the UN Guiding Principles on Business on Human Rigths (UNGP) of 2011, a set of soft-law Guidelines for State and companies to prevent, address and remedy human rights, established by the UN Special Representative on business and human rights, which, despite the many progresses, has not been able to eliminate major gaps in the protection of human rights from corporate abuses.

The resolution 26/9 follows the proposition of Ecuador and South Africa for the creation of a more robust and legally binding framework to hold businesses to account in 2013, as well as the joint civil statement of members of the International Network for Economic, Social and Cultural Rights (ESCR-Net).

The first two sessions of the IGWG took place in July 2015 and October 2016 and were dedicated to conduct consultations on the content, scope, nature and form of the future international instrument (all written contributions can be found on the OHCHR Website).​

It is encouraging to notice that more and more States and stakeholders are getting involved in interesting and constructive discussions, especially at the second session which marked a step forward towards an international treaty. However, at the same time we observe the failure of some key States to truly engage in the process, as expressed in March 2017 by FIDH and other NGOs [1] in a Joint Statement to the Human Rights Council.

The third session of the IGWG, from 23 to 27 October 2017, will be dedicated to start substantive negotiations on the Treaty according to HRC resolution 26/9. It is therefore necessary that all States think about concrete proposals and actively engage in the process in order to achieve an historical step towards global justice.

FIDH mobilization in the Treaty process

FIDH has been calling for many years for a reinforcement of legal standards at international, regional and national level and for the establishment of robust redress and enforcement mechanisms (see Position Paper of March 2014).

Following the Resolution 26/9 creating the United Nations open-ended IGWG, ESCR-Net and FIDH started the Treaty Initiative project, a two-year project aimed at establishing concrete legal proposals for the Treaty starting from priorities on the ground. Based on worldwide consultations in Asia Pacific, Africa and the Middle East, Latin America and online with activists, academics, groups representing affected people and others in civil society, the Legal Group composed of international legal practitioners came up with Ten Key Proposals for the Treaty, a legal resource aimed to support advocacy efforts, which was presented in the second session of the Working Group.

FIDH has actively engaged in the IGWG process in the first session as well as in the second session of the Working group, by submitting written contributions, giving oral statements and co-organizing side-events to present civil society organization’s perspectives on a binding treaty.

FIDH contribution to the first session :
- FIDH’s written submission to the first session of the IGWG : Business and Human Rights: Time for Genuine Progress Submission to the Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises
- Joint contribution by International Federation for Human Rights Leagues, Tides Center Project, International Network for Economic, Social and Cultural Rights (ESCR-Net)
- FIDH oral statement on general comments
- Joint CIDSE, FIDH, FoEE, IBFAN, GIFA, SOMO oral statement on social, economic and environmental impacts related to transnational corporations
- FIDH oral statement on scope (type of companies)
- FIDH oral statement on scope (type of human rights), in Spanish
- FIDH oral statement on content
- FIDH oral statement on responsibilities of business enterprises
- FIDH oral statement on legal liability of business enterprises
- FIDH oral statement on access to remedy

FIDH contribution to the second session :
- FIDH’s written submission to the second session of the IGWG
- ESCR-Net and FIDH’s Ten Key Proposals for the Treaty
- 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 statementon access to remedy

FIDH is also an active member of the Treaty Alliance, a global alliance of civil society organizations aimed to support and coordinate advocacy activities in developing a binding international instrument for transnational corporations and other business enterprises.

In May 2017 the Treaty Alliance issued its third collective Statement calling States to participate actively in negotiations of the international treaty for the Working group’s third session to come. FIDH invites civil society organisations and individuals to sign and widely support this statement. Sign here!

Besides, FIDH promotes and foster discussions among stakeholders on the adoption of a binding Treaty and it advocate for the meaningful participation of EU Member States in the process.

It is important to consider the Treaty process as complementary with other instruments such as the UNGPs and other processes at the national, regional or international level. In this respect, FIDH participates actively in the UN Forum on Business and Human Rights, which is the global platform for annual evaluation and lesson-sharing in the implementation of the UN Guiding Principles on Business and Human Rights. FIDH and other NGOs have submitted a joint letter for the 2017 Forum focused on “Realizing Access to Remedy”.

FIDH stance on the process, scope and content of the binding Treaty

FIDH position on the content and scope of the binding instrument is developed in the various oral statements and written contributions mentioned, as well as in the Ten Key Proposals for the Treaty. In short:
- FIDH calls on the Working group to ensure the Treaty process remains guided by the principles of inclusion, participation, transparency and legitimacy and that the Treaty responds to real needs of people in society by facilitating the meaningful engagement of women, indigenous people, persons with disabilities, children, and other sections of society disproportionately or differently affected by the operations of transnational company and other enterprises.
- FIDH firmly believes that a legally binding instrument must address all the human rights violations arising from the activities of all business enterprises that can potentially cause or contribute to human rights abuses;
- The Treaty should, as a priority, fill the existing gaps in access to remedy for victims of corporate related abuses. Provisions must be included to ensure affected people can – at a minimum – access effective remedies in their own States as well as in the home State of the business enterprise concerned. Provisions should also allow for all other States that may have jurisdiction over the concerned enterprise to ensure access to remedy and to cooperate in preventing, punishing and ensuring enforcement;
- The Treaty must require States to adopt policy and regulatory measures to effectively prevent corporate abuses. This includes requiring business enterprises to adopt due diligence process that seek to identify, prevent, mitigate and account for how they address their impacts on human rights, wherever those companies operate or collaborate.
- The Treaty should reaffirms that States have the obligation to respect, protect and fulfill the rights of all individuals, including human rights defenders in accordance, at a minimum, with the UN Declaration on Human Rights Defenders.

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