Intergovt. Working Group on proposed treaty needs to have an inclusive & consultative process

Linda Kromjong, Secretary General, International Organisation of Employers (IOE)

human_rights_council_2015_credit_IHRB

The most effective way to encourage respect for human rights and to enhance remedies for human rights violations is for host states to have robust human rights protection mechanisms.

This blog is part of the debate blog series on the proposed treaty and its complementarity with the UN Guiding Principles. We believe that an inclusive and open debate is crucial to make sure these initiatives deliver for everyone, and that the business & human rights movement continues its "unity in diversity".

The first meeting of the open-ended intergovernmental working group (IWG) on a UN treaty on business and human rights has attracted much attention. The International Organisation of Employers (IOE) jointly with major international business organisations ICC, BIAC and WBCSD submitted a paper as input to the work of the IWG, stressing willingness to constructively engage. Key demands of these business organisations are:

1. The UN treaty process should strengthen the implementation of the UN Guiding Principles by, for instance, requiring States to develop and implement National Action Plans (NAPs). In focusing on NAPs, the proposed instrument should also encourage States to use the NAPs guidance provided by the UN Working Group on Business and Human Rights. It would also be important to strengthen national implementation by requiring States to report back to the UN supervisory mechanisms about measures taken. The IWG could consider further measures to increase peer pressure between States to strengthen implementation.

2. The UN treaty process should address all companies – domestic and multinational, private, public and state-owned – not only multinational enterprises. The IWG should revise the scope of the treaty accordingly.

3. The UN treaty process should build on the UN “protect-respect-remedy” framework and respect the established division of roles between state and companies. The process must not undermine well-established norms for allocating responsibility to enterprises.

Business organisations also stressed the need to have an inclusive and consultative process. The first meeting of the IWG on 6-10 July 2015 was faced with major challenges in this regard. For example, because many business associations do not have consultative status in ECOSOC, they were not able to join the meeting. Although credit has to be given to Ecuador to include business representatives on the different panels, the problem remains that business representation is dwarfed by NGO representation in the IWG. It will now be all the more important for Ecuador to duly consult with business between IWG meetings and to take its position fully into account. Otherwise consultation will be perceived as biased.

Much debate arose in the IWG on the issue of access to remedy and the legal liability of MNEs. Business representatives made clear in the discussions that although it has been argued that transnational entities should be the focus of any treaty because domestic companies are already covered under domestic laws, the simple reality is that transnational companies are also covered by the existing laws and regulations in every jurisdiction in which they operate. Furthermore, it makes little practical sense to focus intergovernmental and other resources on developing a treaty for States that lack the infrastructure, the legal or political climate, for enforcement. The most effective way to encourage respect for human rights and to enhance remedies for human rights violations is for the host States to have robust human rights protection mechanisms. This would require:

1. Substantive alignment between the laws of the host State and human rights standards.

2. The host State should have clear rules defining which behaviours are expected, which are unlawful, and what the liabilities and penalties are for violations.

3. The host State must have effective and integral inspection and enforcement capabilities.

4. The legal system of the host State must provide for timely redress in the event of allegations and violations.

5. The legal processes and system of justice in the host State must be fair, and be legally and effectively open to all persons.

6. The host State should also have systems that assess and address barriers to remedies and consider non-judicial options such as adherence to the OECD MNE Guidelines and establishment of National Contact Points.

The first two meetings of the IWG are to serve to conduct “constructive deliberations on the content, scope, nature and form of the future international instrument”. After this first meeting, in which all actors delivered their key messages, the next meeting of the IWG will be decisive in paving the way for a compromise on scope, nature and form which is not only supported by all stakeholder groups, but also by a much bigger group of governments than is currently actively engaged in the discussion so far. The next meeting will need to prove that the process is not only open to a select few, but a serious undertaking, supported by a critical mass of States. The IOE as the largest global network of the private sector will continue to constructively engage in the IWG.

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Linda Kromjong is the Secretary General of the International Organisation of Employers (IOE).The International Organisation of Employers (IOE) was created in 1920 to advocate in the tripartite International Labour Organization (ILO) on behalf of the global employer and business community.

Today, from its headquarters in Geneva, the IOE continues to defend and promote these same interests across a wide range of UN agencies, including the Human Rights Council, as well as other international organisations and intergovernmental processes such as the G20.  With more than 150 employers’ organisation members worldwide, it is the global voice of business in social and labour policy at the international level.

For more information, please visit www.ioe-emp.org. Follow the IoE on Twitter: @ioebusiness