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24 Okt 2023

Business & Human Rights Resource Centre and Lawyers for Human Rights

Day 2: Tuesday 24 October 2023

Business & Human Rights Resource Centre

Morning session

The second day of the 9th session of the Open-Ended Intergovernmental Working Group commenced with states sharing their general comments on the updated draft of the legally binding instrument (LBI).

Multiple states stressed that, in line with the spirit of resolution 26/9 and recognising a gap in international human rights law, the LBI's scope should be limited to transnational corporations (TNCs), rather than a broad range of businesses.

Colombia, with Venezuela and Brazil, called for a victim-centered approach, while Egypt stressed the importance of the inclusion of peasants and environmental rights. Colombia highlighted the LBI's role in enabling rightsholders to seek justice and reparations, adding that actors along TNC value chains bear joint responsibility for human rights abuses.

The UK acknowledged the merits of introducing the LBI to strengthen business and human rights protections, but queried what outcomes the treaty could create for those impacted by abuses. It raised concerns regarding the requirement of mandatory due diligence in domestic law, noting states should be free to use a “smart mix” of legal and voluntary measures to regulate business.

China, recognising the negative impacts of some transnational business activity on human rights and the environment, referenced its support for the negotiation process, and the possible contribution of the LBI to strengthening corporate regulation and accountability, and providing timely and effective protection and remedy to victims.

Some CSOs voiced concern over the process leading up to the latest draft. CSOs also expressed concerns about the removal of references to the environment, environmental due diligence, lack of consultations with trade unions, and requirements for consistency with domestic law. Calling for more robust provisions on gender, children, Indigenous Peoples, and other marginalised groups, CSOs noted some articles are less protective of rightsholders than previous versions.

Business advocacy organisations pointed to the “lack of buy-in” by the US business community and maintained future legal developments may disrupt efforts of companies that are already implementing UNGPs.

The recording of the morning session is available on UN tv here.

Afternoon session

State-led negotiations moved to discussion of specific provisions of the Preamble. Contributions were highly specific, textual proposals and edits to the preamble, with particularly active participation by Latin American states, which were frequently aligned. Egypt was also an active participant.

Panama opened comments and, welcoming the Chairperson’s efforts to simplify the text, provided detailed contributions regarding nine provisions. Panama, supported by a number of other states, opposed reference to “core” human rights treaties and conventions as this may unnecessarily limit reference to other current instruments central to the treaty, as well as future developments in international human rights law.

The US reserved its position on provisions of the treaty at this stage, and that its comments from last year stand. It recommended inclusion of Article 3 of the Convention on the Rights of the Child, enshrining the best interests of the child. It supported the change from “obligations” to “responsibilities” in PP12 and 18, which is aligned with the UNGPs, and reflects that “generally, only states have obligations, under international law”.

The UK, Brazil, and Honduras proposed additions to a range of provisions in the preamble, addressing issues including business activities in conflict-affected areas, the obligations of states to protect human rights in business activities, and the specific responsibilities of TNCs. Cameroon proposed substantive additions to three provisions. This included a revised PP11, proposed jointly with South Africa, to highlight that TNCs have an obligation to ensure respect for human rights along the entire value chain.

The recording of the afternoon session is available on UN tv here.