Article by PBI-Canada

On May 29 and June 12, civil society organizations will have an opportunity to participate virtually in informal consultation sessions on a legally binding instrument that would regulate the activities of transnational corporations.

Timeline

The United Nations Human Rights Council resolution (26/9) that launched this process was adopted in July 2014, a Zero Draft (first draft) of the Treaty was released in July 2018, and a revised draft was released in July 2019.

That draft will serve as the basis for the 6^th session of intergovernmental negotiations that will be held in October 26-30, 2020 in Geneva.

The Zero Draft and human rights defenders

After the Zero Draft was released, the International Network for Economic, Social and Cultural Rights (ESCR-Net) expressed its concern that there was no specific reference to human rights defenders. It stated: “Failing to formally recognize and protect HRDs and activists by the provisions of the Treaty risks harming one of the Treaty’s core objectives: to strengthen and ensure corporate accountability.”

The Revised Draft

The preamble in the revised draft states: “Civil society actors, including human rights defenders have an important and legitimate role in promoting the respect of human rights by business enterprises, and in preventing, mitigating and seeking effective remedy for the adverse human rights impacts of business enterprises.”

Key demands still sought in the Binding Treaty

While the revised draft was seen generally as an improvement over the Zero Draft, ESCR-Net has listed key areas of concern that need to be addressed.

ESCR-Net notes: “As it relates to the situation of human rights defenders, the Treaty must ensure consistency with the UN Declaration on the Rights of Human Rights Defenders to avoid gaps and foster harmonization with the spirit of the declarations.”

It has further noted among its recommendations that the Treaty must guarantee the right to free, prior and informed consent of indigenous peoples, that mandatory enhanced due diligence is necessary, and that it must reflect the primacy of human rights obligations over those under bilateral or multilateral trade, investment, or other agreements.

PBI supports the call for a Binding Treaty

The Treaty is an effort to build on the Guiding Principles for Business and Human Rights, which were endorsed by the Human Rights Council in June 2011.

By September 2018, the Peace Brigades International-Mexico Project had commented: “After 7 years of the Guiding Principles being in force, PBI has not witnessed an improvement in the situation of risk for human rights defenders on the ground.”

PBI-Mexico highlighted: “On the contrary, there has been a spike in attacks against land, territory and environmental defenders, indicating that the implementation of the Guiding Principles, mainly through voluntary codes of conduct, has not had the desired affect and that further action may be required.”

PBI-Mexico further noted: “PBI believes that a Binding Treaty has the possibility to contribute to greater accountability for companies in relation to human rights abuses and could potentially lead to greater protection of human rights defenders working on business and human rights cases throughout the world.”

The open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (OEIGWG) was established by the Human Rights Council in 2014 to elaborate the Treaty.

Speaking in March 2018, prior to the 4th session of the OEIGWG and prior to the release of the Zero Draft, PBI-Switzerland Advocacy Coordinator Kim-Mai Vu stated: “PBI reiterates the importance of the participation of civil society and human rights defenders as crucial to the success of the process.”

Consultations

As noted above, there will be virtual “open informal consultation” on May 29 and June 12 on the Binding Treaty. The registration information for the session on May 29 is now available here. It is open to NGOs with ECOSOC consultative status.