The United Nations Human Rights Council (HRC) adopted, through a vote, a historic and significant resolution to start a process for an international legally instrument on transnational corporations.
Officially entitled “Elaboration of an international legally binding instrument on Transnational Corporations and other Business Enterprises with respect to Human Rights” (A/HRC/26/L.22) the resolution was adopted on 26 June at the 26th session of the HRC.
The resolution was co-sponsored by Ecuador and South Africa, and also supported by Bolivia, Cuba and Nevezuela. In the vote on the resolution, 20 Members of the HRC supported the resolution, while 13 Members abstained, and 14 Members voted against it. Countries that supported the resolution include: Algeria, Benin, Burkina Faso, China, Congo, Cote D’Ivoire, Cuba, Ethiopia, India, Indonesia, Kazakhstan, Kenya, Morocco, Namibia, Pakistan, Philippines, Russian Federation, South Africa, Venezuela, Vietnam.
Countries that abstained include: Argentina, Botswana, Brazil, Chile, Costa Rica, Gabon, Kuwait, Maldives, Mexico, Peru, Saudi Arabia, Sierra Leone, and United Arab Emirates.
Countries that voted against the resolution include: Austria, Czech Republic, Estonia, France, Germany, Ireland, Italy, Japan, Montenegro, Republic of Korea, Romania, the former Yugoslav Republic of Macedonia, United Kingdom, and United States of America.
The resolution provides for the establishment of an open-ended intergovernmental working group (IWG) that is mandated with elaborating an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.
The resolution provides that the IWG shall hold its first session for five working days in 2015, before the 30th session of the HRC. The resolution also provides that the first two sessions of the working group shall be dedicated to conducting constructive deliberations on the content, scope, nature and form of the future international instrument.
The resolution mandates the Chairperson-Rapporteur of the IWG to prepare elements for the draft legally binding instrument for substantive negotiations at the commencement of the third session of the working group, taking into consideration the discussions held at its first two sessions. It recommends that the first meeting of the IWG serve to collect inputs, including written inputs, from States and relevant stakeholders on possible principles and elements of such an international legally binding instrument.
The resolution requests the IWG to submit a report on progress made to the HRC for consideration at its thirty-first session.The resolution explains in a footnote that the reference to ‘other business enterprises’ denotes all business enterprises that have a transnational character in their operational activities, while it does not apply to local businesses registered in terms of relevant domestic law.
The resolution also makes reference as well to the important role of civil society actors in promoting corporate social responsibility and in preventing, mitigating, and seeking remedy for adverse human rights impacts of transnational corporations (TNCs) and other business enterprises.
In presenting the resolution to the HRC, Ambassador Luis Gallegos Chiriboga of Ecuador stressed that the Council owes its existence to those who tirelessly fight to protect human rights and the victims of human rights violation, including those that are most needful for protection and support. He called upon the Council to correct injustices, including the lack of protection for victims of violations of human rights abuses carried out by TNCs. He noted that these corporations benefit from binding international protections. However, victims of harmful corporate activities lack access to legal protection, while only having available voluntary norms.
Ambassador Chiriboga focused on the importance of protecting victims, noting that victims of disasters, such as that by Union Carbide in Bhopal (India), Shell in the Niger Delta (Nigeria), and Chevron in Ecuador, among others, are still waiting for remedy and fair compensation. He underlined the support of more than 500 civil society organizations from around the world, European Parliamentarians, and the Vatican to the initiative towards elaborating a legally binding instrument on TNCs and other business enterprises with respect to human rights. Ambassador Chiriboga also stressed Ecuador’s support for implementation of the United Nations Guiding Principles on Business and Human Rights. [On 16 June 2011, the UN HRC endorsed by consensus the “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework” proposed by UN Special Representative John Ruggie (Resolution 17/4). More information available at: http://www.business-humanrights.org/SpecialRepPortal/Home/Protect-Respect-Remedy-Framework/GuidingPrinciples. At its 17th session, in resolution A/HRC/17/4, the HRC decided to establish a Working Group on the issue of human rights and TNCs and other business enterprises, consisting of five independent experts, with the mandate to promote the dissemination and implementation of the Guiding Principles. More information available at: http://www.ohchr.org/EN/Issues/Business/Pages/WGHRandtransnationalcorporationsandotherbusiness.aspx.
In a statement at the 17th session of the HRC in June 2011, the delegation of Ecuador noted its conviction that the United Nations should continue to work on the issue of establishing binding international standards on the activities of TNCs. Ecuador’s statement underlined that the Guiding Principles are “not binding standards”, “are just a guide”, and thus “are not mandatory”. At the September 2013 session of the HRC, the delegation of Ecuador delivered a statement on behalf of more than 85 countries stressing the need for a legally binding framework to regulate the work of TNCs. More on this statement is provided below.]
Speaking on behalf of South Africa, Ambassador Abdul Samad Minty noted that the government of South Africa accords special priority in regard to issues of TNCs, business, and human rights. He highlighted that the South African government holds a strong view that these entities, which are the primary drivers of globalization, cannot operate in a void. He added that TNCs and other business enterprises often operate in an environment where appropriate national legislation to effectively regulate their operations, or mitigate the propensity for their violation of human rights, is either absent or very weak. Experience shows that in countries of the North, where there are strong binding laws and regulations promulgated by national parliaments, the violations of human rights by corporations are significantly minimized, according to Ambassador Minty. He stressed that a universal regulatory framework in the form of a binding instrument to provide legal protections, effective remedies, as well as a range of other measures in quest for protections of victims, is desirable and imperative. He also recalled that global mass mobilizations by over 500 civil society organizations calling for such an instrument.