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

The international human rights framework to prevent, sanction and remedy abuses caused by the activities of business enterprises still has several gaps. 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 elaboration 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).​

The third session of the IGWG which took place in October 2017 in Geneva was marked by an important participation of Member States of the UN Human Rights Council, demonstrating the growing interest and urgency of adopting a treaty to regulate corporate activities vis-à-vis human rights. Member States took part in substantive discussions and negotiations during the session, based on the Elements for the draft legally binding instrument presented by Ecuador one month before the session. The provisional report of the third session, written contributions and oral interventions are available here, and contains also the recommendations and conclusions adopted by the IGWG at the end of the session.

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.

During the third session, many States, including those that were reluctant to this process two years ago, have expressed their agreement on the continuation of the negotiations, acknowledging the urgent need to answer to the request of justice for human rights abuses. FIDH calls on all States to remain engaged in the process and to support continuation of the IGWG’s work in order to fulfill its mandate “to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises” as referred in Resolution 26/9 of the Human Rights Council and to lead consultations at international and national level with stakeholders and civil society, prior to the next 4th session of the IGWG session in order to foster their position.

Civil society has proved to be a crucial actor in the negotiations. Indeed, civil society organizations (CSOs) has put a lot of energy in providing constructive inputs, fostering States participation in the process, and coordinated through several coalitions. Amongst those, the Treaty Alliance, of which FIDH is an active member, has been leading and coordinating advocacy efforts since 2013, gathering more than nine hundred organizations and one thousand individuals. In order to support civil society engagement in the Treaty process, ESCR-Net has published an advocacy factsheet providing useful informations and tools for CSOs to take action toward a strong treaty by forming national and regional alliance, advocating at the national and international level, engaging the media or using social media to raise awareness and coordinate advocacy efforts.

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.

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 and third 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 contribution to the third session :
- FIDH Preliminary Observations on the Elements for a Draft Legally Binding Instrument produced by Ecuador before the session
- Joint oral statement on human rights defenders (FIDH, Amnesty International, ICJ Franciscans International, Bread for the World, Lawyers for Human Rights, ISHR, WILPF, International Platform Against Impunity, SOMO, CISDE,Global Policy Forum and the CCR)
- Joint oral statement on scope (FIDH, Amnesty International, Dominicans for Justice and Peace, Franciscans International a voice at the UN, International Commission of Jurists and Lawyers for Human Rights)
- Joint oral statement on general obligations (WILPF, AWID, APWLD, IWRAW AP, FIAN International, CIEL, FIDH, supported by PODER, International Platform Against Impunity, and Consejo Internacional de Tratados Indios and Movimiento Juventud Kuna)
- Declaración oral junto sobre pueblos indígenas y los líderes y lideresas comunitarias (Swiss Catholic Lent Fund, el Humanist Institute for Co-operation with Developing Countries y su proyecto la Plataforma Internacional contra la impunidad; Franciscans Internacional, Fian Internacional, PODER, FIDH, WILPF and AWID)
- Joint oral statement on conflict affected areas (FIDH, the Cairo Institute for Human Rights Studies and Al-Haq)”

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.

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 legally binding instrument

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 and FIDH Preliminary Observations 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 instrument should, as a priority, fill the existing gaps in access to remedy for victims of corporate related abuses, taking into account the specific needs and challenges faced by women and indigenous peoples. 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 instrument 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 instrument should present provisions to address the wide range of gender issues arising in business and human rights cases, such as gender-specific impacts, restricted information and participation, or barriers in access to justice.

- The instrument 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. It should also include gender-specific provisions that take into account the particular needs of woman human rights defenders.

- The future instrument should also address the particular risk of gross human rights abuses in conflict affected areas, especially by ensuring that States require “enhanced due diligence” from businesses whose activities are directly or indirectly linked to conflict affected areas.

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