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26 Oct 2023

Business & Human Rights Resource Centre and Lawyers for Human Rights

Day 4: Thursday 26 October 2023

Business & Human Rights Resource Centre

Morning Session

The morning session on the fourth day of the 9th session of the Open-Ended Intergovernmental Working Group began with the continuation of State-led negotiations on Article 2 (Statement of Purpose) of the legally binding instrument (LBI), including CSO contributions, and ended with negotiations on Article 3 (Scope).

Cuba, supported by Colombia and Iran, expressed its support for including references to TNCs and transnational dimensions of business activities in Article 2. This was opposed by the UK and the US, as businesses without transnational character often contribute to human rights abuses, and for reasons of consistency with the UNGPs. Arguing that only States bear human rights obligations, the US proposed to retain the term “responsibility”, while Cuba and Colombia suggested its replacement with “obligation”. Several states endorsed Panama’s proposal to add “disability-inclusive” in Article 2(d) concerning access to justice and remedy.

Civil society groups noted that the LBI should reflect the views of Global South countries given the extent of corporate human rights violations occurring in those countries. Asserting that there is no acceptable level of human rights violations, CSOs proposed removing the term “mitigate” and also called for provisions on environmental protection. Several CSOs stated that given the binding nature of the instrument, “obligation” should be retained, arguing companies also have obligations to respect human rights. Business advocacy organisations asked for references to “transnational character” to be removed throughout the text.

As for Article 3 (Scope), the Chair noted that the article retains main elements from the LBI’s 3rd revised version along with slight amendments to ensure more support from States. The Chair gave highly detailed reasons as to why the LBI should apply to all enterprises. Most states underscored the key role of Article 3 in shaping the LBI. Owing to the significance of the article, multiple states noted that further discussions with experts are needed during intersessional periods. States making proposals as to the scope can be grouped into three categories: 1) Those suggesting that the scope of the LBI shall encompass all business enterprises, irrespective of their transnational character (Mexico, Panama, Chile, Peru, USA); 2) Those invoking resolution 26/9 to limit the scope to TNCs and other business enterprises of transnational character (multiple states, including Ghana, Russia, China and South Africa); 3) Those suggesting that the scope of the LBI could apply to all business enterprises, with a particular focus on TNCs (Brazil).

Ghana, joined by South Africa, proposed adding an explicit reference to value chains.

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

Afternoon session

In the afternoon session, negotiations on Article 3 (Scope) concluded, and the discussion then focused on potential future steps to facilitate the treaty process.

Multiple civil society organisations expressed concern about the scope of the treaty in Article 3 and the text as a whole. Many asserted that the text should focus on TNCs, as these entities are not currently regulated by international law. Nevertheless, several NGOs called for compromise between states on the treaty’s scope to move the negotiation process forward while respecting human rights of all parties impacted by business activities.

The Chair highlighted that political will is essential to make progress. He raised the possibility of drafting a new Resolution for the Working Group’s mandate as a follow-up to Resolution 26/9 as a way to generate more support and resources for the LBI. The new resolution should contain clear and unequivocal definition of certain aspects, such as the scope of the instrument and time periods for achieving these goals. States expressed surprised at the Chair’s proposal, and many noted that they would need to discuss the idea with their respective governments before commenting on it. Ghana, Saudi Arabia, Iran, Indonesia, Cuba and Palestine said they did not wish to renegotiate or expand the mandate established in Resolution 26/9. Civil society also expressed concern about altering the mandate. Colombia, South Africa, Mexico, Chile, Honduras, the US and France welcomed the Chair’s desire to move the treaty process along. The Chair then clarified multiple times that his proposal was solely a suggestion, and he had not proposed expanding the scope of the mandate.

The recording of the afternoon session is available here.


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