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25 Okt 2022

Business & Human Rights Resource Centre and Lawyers for Human Rights

Day 2: Tuesday 25 October 2022

States and civil society organisations (CSOs) delivered their statements on Article 6 on Prevention, which outlines the state duty to regulate due diligence obligations for companies. In the afternoon, States, CSOs and business and employers’ organisations then commented on Article 7 (Access to Remedy) and Article 8 (Legal Liability) of the Legally Binding Instrument (LBI).

Morning session

  • The EU, despite not having a formal mandate from the Council to negotiate, remained engaged and referenced its February 2022 proposal for a Directive on Corporate Sustainability Due Diligence.
  • The US noted that the Chair’s proposals on Article 6 are less prescriptive than the wording of the Third Draft. But on Article 6.3. (principle of proportionality of due diligence), it proposed alternative language and recommended the deletion of the sub-items in 6.3 to leave more scope of action to the states.
  • Palestine - followed by many states from the Global South and CSOs over the session - noted that it is confusing to have two documents (i.e., the Chair’s proposals and the Third Draft) to work on and that it is crucial to move the session forward. It therefore suggested multi-sessional negotiations.
  • Many southern states, including Uruguay, consider that the scope of article 6.1. is too restrictive and it should pay more attention to the right of human right defenders.
  • CSOs largely suggested including in Article 6.1 a non-exhaustive list of other legal measures and in article 6.4 to include workers' representatives.

Afternoon session

  • The US proposed definitional and operational changes to Article 7 in order to consider various judicial systems and administrative restraints. It also proposed instituting optional protocols for Art. 7.3 and 7.4(c) to facilitate the treaty's implementation. Some CSOs rejected these proposals on the basis they would limit protections of vulnerable communities and human rights defenders.
  • Brazil suggested multiple textual changes to Articles 7 and 8 to narrow the scope of responsibility owed to victims of human rights violations.
  • States in the Global South, trade unions and CSOs endorsed Palestine’s proposals from both the 7th and 8th sessions regarding implementing criminal liability in domestic law and introducing the concept of joint and several liability.
  • CSOs continued to affirm the importance of incorporating the concept of free, prior and informed consent of Indigenous communities.
  • The EU reflected on the concept of legal liability through the lens of the EU’s proposed Corporate Sustainability Due Diligence Directive and member state obligations.
  • Business and employers’ organisations expressed concern that the Third Draft does not create sufficient incentives for companies’ compliance, and instead institutes punishments for their shortcomings. They argued that too many regulations on supply chains could lead to counterproductive consequences such as less business engagement.

The recording of the sessions is available on UN tv here (morning) and here (afternoon).