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26 Okt 2022

Business & Human Rights Resource Centre and Lawyers for Human Rights

Day 3: Wednesday 26 October 2022

The session opened with a clarification from the Chair on the negotiation process, followed by statements from stakeholders on Articles 9 (Adjudicative Jurisdiction), 10 (Statute of Limitations), 11 (Applicable Law), and 12 (Mutual Legal Assistance and International Judicial Cooperation).  In the afternoon, States, CSOs and business and employer organisations then commented on Article 13 (International Cooperation) and the Preamble to the Third Revised Draft. Several States also provided statements on Articles 1 – 3 (Definitions, Purpose, and Scope).

Morning session

  • The Chair acknowledged concerns raised by a number of State delegations and CSOs regarding the 8th session’s negotiation process, including in respect of the Chair’s proposals and the text of the Third Revised Draft. He advised that participants will return to the original modality of assessing the text and requested that States accept this and make submissions relating to the content of the treaty in order to ensure that negotiations progress.
  • The Chair further noted that opinions expressed thus far regarding the process will be duly recorded and reflected in the report on the 8th session.
  • Shortly after the session, the Chair will call a meeting of interested delegations, the Friends of the Chair, representing all regional groups, including the African Group to debate the way forward.
  • A number of States made proposals in respect of Article 8 (Legal Liability), covered in Day 2 of the negotiations. South Africa, Namibia, and Palestine aligned on new proposed text stating that exhaustion of local remedies “shall not be applicable where the circumstances render it unreasonable to exhaust local remedies or where adequate or effective remedies are unavailable on the domestic level.” Uruguay submitted that Article 8.5 on compensation should include express reference to judicial costs; Palestine agreed.
  • In respect of Article 9, the US submitted that the Chair’s proposal was an improvement but argued for a “less prescriptive approach” through an optional protocol.
  • Latin American states Argentina, Brazil, Mexico, and Panama also made substantive proposals on Article 9.
  • CSOs reiterated that the Third Revised Draft is the only legitimate basis for negotiation during the session, and noted that Article 9 is key to ensuring an effective treaty.  Submissions reference to gaps in the EU CSDDD and the role that the treaty could play in addressing these shortcomings.
  • The International Organisation of Employers noted that the Third Revised Draft is “far from possible implementation” and expressed regret that the Chair’s proposals are not regarded as more of a basis of negotiation.
  • In respect of Article 11 (Applicable Law), the Chair recommended deletion of this Article, suggesting that it is more effectively covered by national law. Palestine and Mexico opposed this position.
  • The International Trade Union Conference expressed concern regarding the “lack of ambition” by some States to overcome jurisdictional issues in order to achieve a rights-centred, progressive treaty.

Afternoon session

  • Regarding business and human rights (BHR) abuses that occur in conflict zones, the US suggested replacing the phrase “international humanitarian law” with “armed conflict” in the Preamble. The US also recommended changing “victims” to “rightsholders” throughout the treaty. Both proposals were criticised by some states from the Global South and by CSOs.
  • Additionally, the US asserted that businesses could not be held liable under the treaty because they lack legal obligations under international law. It thus proposed changing “obligation” to “responsibility” in Preamble 11. This sentiment was welcomed by business and employers’ organisations.
  • States in the Global South affirmed their support for Palestine’s proposal of recognising the right to self-determination in Preamble 9.
  • Multiple states and CSOs endorsed Panama’s proposals of incorporating language to support the rights of the child and human rights defenders in Preamble 9 and 12, respectively.
  • Bolivia proposed inserting a phrase in Preamble 13 to acknowledge the impact that BHR abuses have on peasants and individuals working in rural communities. This proposal was supported by Namibia, South Africa and several CSOs.
  • The EU expressed support for the provision in Article 3 (Scope) stipulating that the treaty should apply to all types of businesses in a non-discriminatory manner, as this would be in line with the proposed Due Diligence Directive.

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