A general view during the 23th Session of the Human Rights Council. 27 May 2013. Photo by Jean-Marc Ferré

CIHRS Joins Global Civil Society in Advocating for and Negotiating a Legally Binding Instrument on Business Activities and Human Rights

In International Advocacy Program by CIHRS

From 26 – 30 October 2020, the Cairo Institute for Human Rights Studies (CIHRS) participated remotely in the sixth Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights to discuss and negotiate the second revised draft of the legally binding instrument on business activities and human rights.

During the session, CIHRS joined three oral interventions, particularly in relation to Articles 5, 6, and 7 of the draft treaty.

In a joint statement CIHRS, along with other organizations , made a strong recommendation to include and emphasize the right to self-determination, established in the context of decolonization and which continues to apply to peoples living under belligerent occupation and apartheid. In another joint intervention, recommendations were made regarding the protection of victims, access to information, as well as access to remedy and justice.

In the third statement, CIHRS and other civil society organizations stressed the importance of access to information and the protection of human rights defenders throughout the text of the draft treaty. In addition, the statement recommended that Article 6 covers the appropriate and necessary action required where businesses would have to refrain from or cease specific operations or business relationships in  instances where human rights due diligence cannot guarantee respect for human rights and the rules of international humanitarian law.

First Statement

Sixth session of the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (OEIGWG)
Joint Oral Intervention: Under Article6
Tuesday, 27 October 2020
Delivered by: Juana Toledo

Thank you, (Mr / Madame) Chair.

I deliver this statement on behalf of ESCR-Net – a network of over 280 organizations worldwide, including my own Consejo de Pueblos Wuxhtaj, based in Guatemala.

Our main recommendation under Article 6 is that it must include an operational paragraph on the right to self-determination. All peoples, particularly Indigenous Peoples, have a fundamental right to self-determination and to shape their own future. This right was first established in the context of decolonisation, but currently also applies to contexts in which peoples are living under belligerent occupation or under an apartheid regime, to name a few examples.

Under Article 6(3)(d), we welcome the amended language on consent but stress that all elements of FPIC must be highlighted under this provision, including that consent must be continuously attained at every stage of business activity and in correspondence to change in business plans, by providing genuine information and carrying out timely and meaningful consultations.

With regards to the right to access information, it would also be key to address access to information under Article 6. Most often, communities need information as a preventative measure or for purposes of monitoring and enforcing compliance of companies and State-sponsored business activities with international law. Accordingly, we propose adding operational paragraphs to Article 6 highlighting that access to information must be available at all stages of business activities.

Finally, the Treaty text must reflect a State requirement to conduct their own human rights and environmental impact assessments of all their policies, projects, and activities where it might be involved in business activities, whether via investments or as part of a State-owned enterprise.

Article 6 must also make clear that the obligation of States to prevent human rights abuses and violations must also require their prioritization of human rights in decision making processes.

Finally, the obligation for States to take precautionary measures in the case of serious or urgent situations of imminent human rights abuses or violations leading to irreparable harmshould also be reflected in this Article on prevention.

Second Statement

Sixth session of the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (OEIGWG)
Tuesday, 27 October 2020
Joint Oral Statement on Articles 5 to 7
Delivered by Sandra Epal-Ratjen

Thank you Chair, this statement is also on behalf of FIAN, FIDH and the Cairo Institute for Human Rights Studies.

Article 5. Protection of victims

We note with interest interventions such as the one by Namibia on access to justice instead of access to remedy for Article 7 and in which relevant parts of current articles 4, 5 and 7 could be gathered.

We already made comments on Article 5 earlier in conjunction with Article 4. So we have only two specific recommendations on Article 5 if it is kept as a separate article. We recommend changing the title of Article 5 to “Protection of victims and witnesses.” We also suggest deleting the phrase “where appropriate” in Article 5(3) in order to avoid States having discretion in implementing their obligations.

Article 6. Prevention

We note our previous concerns in regards to “all internationally recognized human rights” that is also used in subparagraph 1.

We further highlight that communicating “regularly and in an accessible manner to stakeholders” under Article 6(2)(d) is insufficient; We suggest having more explicit language in regards to access to information for communities. We note that access to information is included under Article 7(2); however, it is critical that it is also protected in relation to the prevention of human rights violations and abuses.

In regards to Article 6(2), we note that mitigation cannot be the core of prevention and is insufficient, and in certain cases, operation/activities should either not be entered in to or should cease.

We suggest that in Article 6(3)(a), “throughout their operations” is changed to “throughout different phases of operations,” so that planning, licensing, construction, expansion, closures and other stages are effectively included.

It would be helpful if some of the language in Article 6(3)(c) is clarified. While it is important to have broad consultations, the use of “other relevant stakeholders” has been interpreted by businesses and States in a manner to ensure that certain projects- with adverse human rights impacts- get approved, and would not necessarily include workers, NGOs, trade unions, or others that may be critical of the activity/operation. Accordingly, we note that it is critical for businesses to respect the results of the consultations, and take primary consideration of consultations with those whose human rights are or may be adversely impacted. An additional paragraph could be added on the need for States to take measures to ensure that individuals and communities whose human rights are at risk from business activities have access to effective precautionary measures to prevent imminent or irreversible harm.

Also in regards to Article 6(3)(c), we concur with the intervention by Palestine. It is also unclear as to how businesses will effectively consult with migrants, refugees, internally displaced persons, and others, especially those that may have an uncertain legal status in the area of operation.

The last line of Article 6(3)(c) should be changed to “protected populations in conflict areas, including situations of occupation.”

Article 6(3)(g) should be similarly streamlined to remove the word “occupied” so that the sentence reads “human rights abuses in conflict-affected areas, including situations of occupation.” This would be in line with the work of other UN mechanisms such as the Working Group on the issue of human rights and transnational corporations and other business enterprises, including in a Statement on the implications of the Guiding Principles on Business and Human Rights in the context of Israeli settlements in the Occupied Palestinian Territory that use “armed conflict-affected areas, including situations of occupation”, instead of the “occupied or conflict-affected areas”. This statement explains that: “A situation of military occupation is considered to be a conflict situation even if active hostilities may have ceased or occur periodically or sporadically.” It considers that an area under occupation falls within the term “conflict-affected area.”

Article 7. Access to Remedy

We suggest that language is added to Article 7(1) that ensures that seeking State-based non-judicial mechanisms are not a barrier to recourse via a State’s judicial system.

In regards to Article 7(6), we are concerned that “in appropriate cases” (for reversal of the burden of proof) is vague, and may negatively impact the victims’ ability to access justice. We note a wording as a possible source of inspiration for improvement of Article 7(6), that was raised by the UN Special Rapporteur on toxic wastes in his report in 2019:

“In cases in which decisions of violations depend on information available only to the State party or business implicated, the human rights treaty bodies and judicial bodies should consider the allegations to be well founded if the State party does not rebut them by providing satisfactory evidence and explanations.”[1]

In addition and related to this proposal, we wish to respond to some arguments made about the reversal of the burden of proof being against presumption of innocence. We want to highlight that such reversal is precedented and is in line with general principles of law and rights such as fair trail, procedural fairness and equality of arms, in the interest of justice.

[1]Report of the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes, 7 October 2019, UN Doc A/74/480, https://undocs.org/A/74/480

Third Statement

Sixth session of the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (OEIGWG)
Joint Oral Intervention
Tuesday 27 October 2020
Delivered by Alexa Leblanc

Thank you M. Chairperson,

I am delivering this statement on behalf of FIDH, Altsean Burma, and CIHRS

We recommend for article 5.1 to cover not only victims, but also “complainants, witnesses, representatives and families, (or) persons participating in any complaints”

In article 5.3, negotiators could add an explicit mention to the necessity for “State Parties to ensure access to information and effective participation of victims and their legal representatives. ” The reference to domestic law should be deleted.

We also recommend adding paragraphs at the end of article 5, on (4) the State’s duty to remedy its own failures, (5) the need to reflect the broad range of reparations that might be needed as a result of an environmental disaster and (7) for reparations processes established after such disasters be designed and implemented with the full participation of those affected.

In article 6, we propose:

  1. To align the steps of human rights due diligence with those found in existing international standards such as the UNGPs and OECD Guidelines. This means adding the obligations to () Track the effectiveness of their response (e.) Account for how they address their human rights impacts by communicating this externally (f.) Addressing impacts when they occur, including by adopting immediate and effective measures to cease ongoing violations or abuses and prevent further ones
  2. It is also paramount to clarify that companies should “prevent and mitigate risks” on the one hand and “prevent abuses” on the other. The suggested language is consistent with General Comment 24 of the ESCR Committee, par. 16
  3. To specifically address compliance with due diligence obligations for companies that provide goods and services to States or receive subsidies from States;
  4. To better include protection of human rights defenders as a key element for an effective prevention. We would like here to remember FikileNtshangase, , killed in South Africa last Friday because of her activism in opposing the extension of a coalmine
  5. It must be integrated in art. 6.3.g that appropriate action in these contexts may include refraining from or ceasing certain operations or business relationships in circumstances in which due diligence cannot guarantee respect for human rights and the rules of international humanitarian law.

Finally, in art. 7:

  • We recommend the use of the phrase “prompt and effective remedy,” and
  • To eliminate the ambiguous criteria of “consistency with the rule of law requirements” which risk only to limit the use of the burden of proof.

Thank you.

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