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30 Sep 2022

Anesu Dera and Ariella Scher, Centre for Applied Legal Studies (CALS), Wits University, South Africa

Reflections on the missing 4th draft

Since 2014, civil society organisations from all regions of the world have committed enormous time and resources to support the vital work of the Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with respect to human rights (OEIGWG). There have been many obstacles in the wake of the Covid-19 pandemic that stalled the progress towards the drafting of a Legally Binding Instrument to Regulate in International Human Rights Law, The Activities of Transnational Corporations and Other Business Enterprises (the Treaty). However, the seventh session of the OEIGWG in 2021 brought hope with its revised third draft, and many civil society organisations longed to see the fourth draft after the substantive textual contributions made last year.

Almost 11 months have passed since the end of the session, and many of the commitments made by the Chair-Rapporteur remain elusive. The failure to fulfil these commitments is a massive blow to the hard work States and civil society have invested over the past seven years in support of the vital work of the OEIGWG. The lack of progress means the people and communities whose daily reality comprises human rights abuses by corporations continue to suffer sustained injustice, while the violators are afforded impunity. People everywhere, especially in the Global South, are prejudiced by the delay – any stalling of the vital work of the OEIGWG is thus unacceptable!

The Chair-Rapporteur, Ecuadorian Ambassador Emilio Izquierdo, issued a letter dated 7 September 2022 in which he set out the reasons behind this delay. The letter confirms Ambassador Izquierdo made efforts to form a regionally-balanced ‘Friends of the Chair’ forum between February and July 2022. He claimed, however, it was “impossible to confirm the representation of at least one of the regional groups” and later confirmed the regional group which failed to confirm its representation was the African region. The letter notes further that, due to the absence of an African regional representative on the ‘Friends of the Chair’ forum, no new full revised draft of the Treaty text will be made available in advance of the eighth session of the OEIGWG, and the Chair-Rapporteur shall rather release an “informal contribution” to advance the eighth session discussions.

It is regrettable the failure to release a revised draft of the Treaty in advance of the eighth session is being blamed on the African region. The African region includes the original co-originator of the Resolution which gave rise to the OEIGWG and the drafting process (namely South Africa), and has furthermore consistently been a strong, supportive voice in the drafting process, while African civil society organisations have worked tirelessly to fight against corporate impunity. We remain concerned about this, and have written to both the Chair-Rapporteur and the relevant regional representative in this regard.

Furthermore, it is concerning the Chair-Rapporteur is relying upon delays in convening a sufficiently representative ‘Friends of the Chair’ forum to delay the drafting process in its entirety. This while the convening of this forum is not a pre-requisite for the progression of the drafting process.

The effect of the delay is that communities everywhere who have resisted and survived the most egregious violations and abuses will continue to go without the necessary binding international legal protection for years to come. The delay also means that a fourth draft will not be available as a basis for negotiation during the eighth session. The negotiations will likely be premised on the Chair’s “informal contribution”, which is scheduled for release only shortly before the negotiations. It is worth noting that the “informal contribution” consists of only contributions made in real-time to the third draft by states during the 7th session. This means that civil society continues to be excluded from both making substantive changes to the text, and participating in intersessional activities, including those of the ‘Friends of the Chair’ forum. If the work of the OEIGWG is to continue on this path, the contributions and life-experiences of Indigenous communities, workers, women, people with disabilities, immigrants, transgender persons, and gender non-conforming people, people of African descent, and other historically marginalised sectors of society, will be undermined.

Last but not least, the delay undermines the great progress previously made towards the drafting and finalisation of the Binding Treaty, and preclude momentum at a crucial time where existential threats exist to the process itself from forces in the Global North (home to some of the world’s corporations which are most responsible for human rights violations and abuse). Civil society will, however, never lose hope; we will continue our extensive work and fruitful engagement in the coming weeks in advance of the eighth session, towards our ultimate goal of promoting human rights and ending corporate impunity.

Update on 13 October 2022: The Chair-Rapporteur of the IGWG responded to the letter on 10 October 2022. That response can be accessed here.

By Anesu Dera and Ariella Scher, Centre for Applied Legal Studies (CALS), Wits University, South Africa

Taking stock: Reflections on the progress of the UN Binding Treaty

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