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Build Back Better: OEIGWG Chair gives update on BHR treaty
(part 2 of a series)
Voltaire Veneracion
12 January 2021
Let’s join consultations and give inputs in 2021 on the evolving draft of a prospective treaty on Business and Human Rights (BHR).
This was the call issued to participants of a Day 3, 18 November 2020, virtual session of the 9th UN Forum on BHR by Ambassador Emilio Izquierdo.
Izquierdo is Chair-Rapporteur of the Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with respect to Human Rights (OEIGWG).
The session, moderated by Ms. Sandra Epal-Ratjen, international advocacy director and deputy executive director of Franciscans International, had the title, “Update on the process to elaborate a legally binding instrument on business and human rights, in light of the outcomes of the 6th session of the Open-ended Working Group of the Human Rights Council established by Resolution 26/9 .”
Due to an unexplained communication glitch, Izquierdo’s opening presentation was delayed and the other speakers ended-up giving their respective presentations first. They were:
- Anita Ramasastry, Chair, UN Working Group on Business and Human Rights;
- Surya Deva, Member, UN Working Group on Business and Human Rights;
- Humberto Cantu Rivera, executive director, Institute of Business and Human Rights, University of Monterrey; and
- Kinda Mohamadieh, senior researcher and legal adviser, Third World Network.
When Izquierdo was finally able to communicate with other session participants, we heard the unflappable career diplomat and Permanent Representative of Ecuador to UN Geneva enthusiastically explain how his Working Group has been seeking to balance the different positions of governments, business groups, and civil society organisations on the BHR Treaty (called in Human Rights Council Resolution 26/9 terms the “international legally binding instrument on transnational corporations and other business enterprises to regulate, in international human rights law, the activities of transnational corporations and other business enterprises” or LBI).
OEIGWG was established by HRC Resolution 26/9 of June 2014. Since 2015, it has conducted six annual sessions with the participation of states, regional bodies, international organizations, special procedures mandates, national human rights institutions (NHRIs), parliamentarians, unions, private sector groups, and civil society organisations.
Ecuador, in its capacity of Chair of OEIGWG, submitted the Zero Draft of the treaty in 2018 (focused on victims of negative human rights impacts of business operations); the Revised Draft (Rev.1) in 2019; and the Second Revised Draft (Rev.2) in 26 to 30 October 2020.
Over the past three years, for the 4th, 5th and 6th sessions, OEIGWG has sought to be more practical and inclusive by welcoming input, not just from governments, but also from industry groups and international civil society and seeking alignment of the evolving treaty draft with existing UN frameworks such as the UN Guiding Principles on BHR (UNGP), ILO Tripartite Declaration on Multinational Enterprises and Social Policy and other relevant ILO instruments, and the OECD Guidelines for Multinational Enterprises.
The 6th session held last October 2020 saw progress with the participation of 68 states, 10 intergovernmental organisations and NHRIs, and 79 international organizations and coalitions of civil society.
This 6th session concluded with the adoption of the recommendations of the Chair-Rapporteur and the conclusions of the Working Group. The latter included an invitation to states and other relevant stakeholders to fill in, no later than February 2021, two matrix templates from the Secretariat that would show:
- Concrete textual suggestions, requests for modifications (such as insertions and deletions), and expressions of support for provisions of Rev.2 and
- General comments and requests for clarification.
The Secretariat will collect inputs to the matrices and share them by the end of March 2021.
The Chair-Rapporteur will then prepare the Third Revised Draft, expected by the end of July 2021, which would serve as the basis for substantive intergovernmental negotiations led by states on the preparation of a Fourth Draft during the 7th Session of the OEIGWG.
The full report and the links to the webcast and documents of the 6th and previous sessions can be found at https://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Pages/IGWGOnTNC.aspx
Watch the above session here:
Build back better – UN Forum 2020 participants
(Part 1 of a series)
Voltaire Veneracion
24 November 2020
“4,000 registered participants from 140 countries have taken part, 40 per cent from business,”
tweeted independent BHR consultant Richard Howitt (@richardhowitt) last 19 November 2020, as the final curtain fell on the three-day UN Virtual Forum on Business and Human Rights 2020.
Held online instead of at UN Geneva for the first time because of COVID-19, the 2020 Forum allowed more participants than ever before to watch and make interventions in sessions that explored how the UN Guiding Principles on Business and Human Rights can be used by governments, businesses, and civil societies to build back better from crises brought about by COVID-19, environmental disasters and inequality.
Global village
“We are facing a disquieting present and an uncertain future to which there can be only one alternative: to build a better future,”said Michelle Bachelet, UN High Commissioner for Human Rights, last 16 November in her opening statement.
“And how can the business and human rights agenda help us achieve that?
“First, the protection of workers and other affected stakeholders, particularly those in the most precarious situations, should be at the core of States’ measures to support companies during the crisis.
“In addition,” continued Bachelet, “all businesses have an independent responsibility to respect human rights, even in times of economic hardship and public health crisis, and regardless of whether and how governments are meeting their own obligations.
“Both the State duty and the corporate responsibility are set out clearly in the UN Guiding Principles, which apply at all times and in all contexts.”
In light of global anxieties over interconnected crises, the theme of this 9th Forum was indeed timely: “Preventing business-related human rights abuses: The key to a sustainable future for people and planet.”
State duty to protect
Governments – traditionally considered in the UN system the primary duty-bearers for protecting human rights – had the opportunity to report on their progress in promoting the UNGP and developing their respective National Action Plans (NAPs) for BHR.
As reported in Gulf Times, for example, Quatar’s assistant foreign minister and spokesperson Lolwah AlKhater noted during the opening high-level plenary that Quatar has implemented reforms in policies on migrant labor.
She said Quatar recently ended the kafala system and replaced it with a contractual system. It had also removed restrictions on changing jobs and become the first country in the region to have a law that mandates a minimum wage.
She also shared that other Quatari measures include protecting workers’ wages by making it mandatory for all employers to transfer salaries through banks; the formation of a committee to settle labour disputes swiftly; and the establishment of a workers’ support and insurance fund.
Business obligation to respect
Prior to their 17 November session on the UN Working Group on Business and Human Rights’ UNGPs10+ project, nine global business organisations collected their respective insights in the document, “Compendium of Insights: Overview of reflections – UNGPs 10+.”
It was published online by The Global Business Initiative on Human Rights (gbihr.org).
One of the global organizations that contributed to the paper was the International Council for Mining Metals (ICMM), which gave the following feedback on their compliance with the duty of companies to respect rights:
“The UNGPs have become integrated into a wide range of industry standards and voluntary commitments. In early 2018, ICMM became the first industry association to make implementation of the UNGPs a condition of membership through our enhanced Mining Principles launched. Member companies are also required to implement, based on risk, a human rights and security approach consistent with the Voluntary Principles on Security and Human Rights. The Mining Principles strengthen social and environmental requirements through a comprehensive set of performance expectations, with implementation supported by robust site-level validation.”
Survivors’ need for access to remedies
Civil society organisations, as well as academics and individual human rights defenders, provided important perspectives on what communities-on-the-ground need.
In a session on UNGP and indigenous cultural communities, the Indigenous Peoples Caucus called on all states to ratify ILO Convention No. 169; act in accordance with the UN Declaration on the Rights of Indigenous Peoples; and demonstrate political support and commitment to implementing the UNGP on BHR in indigenous territories.
The IPC recommended the creation of a UN monitoring mechanism on Business and Human Rights for indigenous peoples, because of the systematic and specific problems they face, for instance, due to mining and internationally-funded development projects in their ancestral lands.
They also called on states and companies not to use COVID-19 as an excuse to criminalise legitimate protests or persecute indigenous human rights defenders.
Protecting defenders together
The importance of protecting human rights defenders was highlighted by the UN Working Group on BHR with a session on this very subject.
Greenfood’s head of Sustainability Lisa Isakson, spoke about her company’s collaboration with several other companies in helping a human rights defender in Ecuador and ensuring he did not suffer any unfair treatment.
A recent case involved human rights defender Jorge Acosta in Ecuador – and Greenfood defended him from false accusations. Mr Acosta faced the possibility of several years in jail for allegedly creating economic panic when he reported on issues concerning labour conditions in the banana sector.
Greenfood, in a statement, said it was an apparent attempt to silence him: it said if people couldn’t speak freely about risks in organizations’ supply chains, identifying and addressing those risks become more difficult.
Greenfood, Swedwatch and several other companies sent a joint letter to the Ecuadorian government, explaining that they rely on information from rights activists like Jorge Acosta. They called on the government to protect him in his role as a human rights defender and ensure he did not suffer any unfair treatment. After that, “the case was closed,” said Isakson.
Greenfood said that the case is a powerful example of collaboration between companies and civil society becominga powerful tool in solving social and environmental challenges faced by the world.
(To be continued)