Morning session

The third day of the 11th session of the Open-Ended Intergovernmental Working Group continued with states’ proposals on Article 16 (Implementation). Several states opposed the proposed inclusion of a reference to persons with diverse sexual orientations and gender identities in Article 16.4, with many states, as well as the EU, expressing their support.

States also made extensive comments on Article 16.3, which prescribes special attention to business activities in conflict-affected areas, with several seeking to refine the wording or establish clearer obligations. Japan and the EU noted ambiguity as to whether the obligation applies to states or to companies.

Debate also centred on Article 16.6, which requires states to protect implementation of the draft legally binding instrument (LBI) from “undue political influence by businesses.” Some states, including Saudi Arabia, Iran and Algeria, called for its deletion, citing concerns over its vagueness and the impracticality of excluding businesses opinions, while the EU sought clarification on whether it could hamper engagement of key stakeholders. Cameroon and Russia proposed clearer wording, while Palestine and Colombia opposed the deletion.

The US Council for International Business (USCIB) and the International Organisation of Employers (IOE) heavily criticised what they deemed the “subjective” language of Article 16.6, arguing it threatens legitimate and necessary business engagement, and calling for a redraft. In contrast, civil society organisations (CSOs) highlighted the provision as pivotal and urged even stronger language.

The discussion moved then to the final provisions of the draft LBI, articles 17 to 24, which set out the framework for application, review and administration of the instrument, with states starting to share their suggestions.

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

Afternoon session

The afternoon session opened with non-state stakeholders’ comments on Articles 17 to 24 of the draft LBI. In relation to Article 20, which specifies the number of state ratifications required for the LBI to enter into force, civil society noted that the threshold should be set at 20 ratifications, which is general treaty-making practice. Several CSOs emphasised that reservations (Article 22) undermine the universal character of international human rights obligations. States made no further comments on Articles 17 to 24 of the draft LBI, and the review of the draft text concluded.

The Chair Rapporteur then invited comments on the summary report on the intersessional thematic consultations on Articles 4 to 11, and its annex, which puts forward 13 proposals for redrafting selected provisions. The Chair Rapporteur clarified that the proposals do not replace the draft LBI text, and related discussions do not replace formal negotiations; instead, their goal is to promote dialogue and progress in the negotiations. There was consensus among states and non-state stakeholders that there was insufficient time to consider the report, circulated the week before the 11th session.

The first proposal is in relation to victims’ right to protection from intimidation and reprisals (Article 4.2) and the corresponding state duty (Article 5.1). The UK noted that the rights in Article 4.2 are already enumerated in other international human rights instruments and that specifically enshrining them in the LBI would lead to fragmentation. Feminists for a Binding Treaty noted that the reworked language does not specifically refer to affected communities or human rights defenders. The business sector, represented by USCIB and the IOE, opposed the proposed changes, including on the basis that Article 4.2 places state duties on businesses.

The second proposal relates to victims’ right to seek precautionary measures and the corresponding state duty (Articles 4.4 and 5.4). The proposal included a reference to the “establishment of rapid response mechanisms”, which several states and non-state stakeholders requested clarity on. USCIB strongly opposed the proposal, arguing it significantly expanded the scope of the LBI.

The third proposal relates to states’ duty to investigate human rights abuses in the context of business activities (Article 5.3). Several CSOs opposed references to states’ domestic legal frameworks, arguing this undermines the implementation of the LBI if a state’s domestic legal framework is weak.

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