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Professor Flora Sapio

Comments to Article 2 of the Zero Draft of the Legally Binding Instrument to regulate the activities of transnational corporations and other business enterprises

Article 2. Statement of purpose

1. The purpose of this Convention is to:

a. To strengthen the respect, promotion, protection and fulfilment of human rights in the context of

business activities of transnational character;

b. To ensure an effective access to justice and remedy to victims of human rights violations in the

context of business activities of transnational character, and to prevent the occurrence of such


c. To advance international cooperation with a view towards fulfilling States’ obligations under

international human rights law;

Article 2 of the Legally Binding Instrument on Transnational Corporations and Other Business Enterprises was scheduled for discussion on Monday 15 October 2018, from 3 to 6 PM, together with article 8.

After an introduction by the Chair, Luis Gallego Chiriboga, permanent representative of Ecuador at the UN in Geneva, comments on Article 2 were submitted by 4 experts. Written comments specific to Article 2 were submitted by:

  • 9 states (Azerbaijan, Chile, China, Egypt, India, Mexico, Namibia, Peru, South Africa)

  • 5 NGOs.

Comments by Experts

Molly Scott Cato, Member of the European Parliament, expressed her pride for the work of the European Parliament in supporting the future Treaty, and her regret for the EU’s refusal to engage in the negotiations. She conveyed the testimony of a Mexican woman activist, who attempted to obtain remedy from the harm caused by the economic activity of a Canadian TNC, but Mexican “ laws are not strong enough to resist the power of massive global companies who are larger than many countries.” Chapters of trade agreements including protection for human rights and the rights of indigenous people are not parts of legally binding treaties.

Written comments by Ibrahim Salama (OHCHR) are not available on the OHCHR website.

Ana María Suárez Franco (FIAN) recommended including a reference to gender perspective in Article 2.

Gabriela Quijano (Amnesty International) suggested to more prominently articulate prevention as a purpose; to make corporate accountability a specific purpose of the future Treaty, and to add the key purpose of empowering individuals, communities and human rights defenders.

Comments by States

Written comments on Article 2 were submitted by 9 states: Azerbaijan, Chile, China, Egypt, India, Mexico, Namibia, Peru, South Africa

Azerbaijan: Article 2 should make a stronger reference to the obligations of TNCs under international law, as well as to differentiate between the definition of the host state and the owner state in order to avoid any further confusion and misinterpretation of the terms.

Chile: Article 2 should mention the United Nations Guiding Principles on Business and Human Rights. The future Treaty should include all enterprises, not only TNCs, because States obligation include all enterprises, regardless of the domestic or transnational nature of their business activities. Limiting the future Treaty to TNCs would limit its applicability.

China: the relationship between the three paragraphs of Article 2 needs to be further clarified. The focus should on be paragraph b of Article 2, because this paragraph states the purpose of the future Treaty. The wording about State obligations under international law is too broad. Different countries have ratified differen treaties, and therefore are under different obligations, therefore the word “applicable” should be added before “international human rights law”.

Egypt: paragraph c is not clear, and more of general nature that goes beyond the purpose and the object of the legally binding instrument. Egypt proposed to modify its language to link it with the activities of the TNC and OBEs and not to fulfill its obligations under international human rights law in general.

India: reserved comments on article 2 until the discussion on Article 4 would clarify the meaning of “business activities of a transnational character”. India believes the Treaty should not cover national enterprises, because India already regulates national enterprises through its domestic legislation.

Mexico: the standard of protection of the Treaty should extend to all enterprises within the jurisdiction of the State, without distinction between public or private enterprises, and regardless of the transnational or domestic character of their activities. The term “violation” should be used only in relation to actions or omissions of a State, while the term “abuse” or “adverse impact” should be used with reference to enterprises.

Namibia: States already have a duty to regulate the operations of national businesses and the focus of this treaty is on the extra-territorial operations of businesses, and on TNCs. In the interest of consensus, the Treaty could refer to all types of business entities.

Peru: the Treaty should not be limited to transnational enterprises, but include all business activities. Paragraph 1.b is ambiguous, and it should specify the human rights violations covered by the Treaty.

South Africa: the Treaty must recognize that TNCs and Other Business Enterprises must contribute to the requisite means of implementation for the realization of all human rights; for the eradication of poverty; and that they must adopt sustainable and ethical business practices.

Comments by NGOs

Asia Pacific Forum on Women, Law and Development and the Feminists For a Binding Treaty. (Representing 250 feminist organizations in Asia Pacific and globally): article 2 should state the primacy of human rights over any other type of law or obligations, including trade and investment agreements.

CCFD-Terre Solidaire, France Amérique Latine and Amis de la Terre France: Article 2 should include new obligations for States, and direct obligations for transnational corporations. The granting of these obligations stems from the “Protect, Respect and Remedy” report published in 2008 by the Special Representative on business and human rights John Ruggie, and the OECD Guidelines for Multinational Enterprises, the UN Convention on the Law of the Sea and the general observation 31 of the UN Human Rights Committee. The following wording was suggested:

“transnational corporations have obligations derived from International Human Rights Law. These obligations exist regardless of the legal framework in effect in Host, Home or Affected States, directly or through their supply chains”.

CETIM: Article 2 should include direct obligations for TNCs. It is important to highlight that existing international treaties, some investment treaties, and the law of the European Union already include such obligations for TNCs.

International Organizations of Employers: stated its position against the future Treaty. The focus of Article 2 is too narrow, it will not achieve the goal of human rights protection, and leave the vast majority of rights-holders outside of the Treaty’s mandate. Victims of harms caused by purely domestic companies or State-owned enterprises would not be afforded the same protection or remediation avenues. The text should adopt the term “abuse” instead of “violations” or at least state that companies would have a duty not to violate national laws that reflect the provisions of this Treaty. The purpose to advance “international cooperation with a view towards fulfilling States’ obligations” should be supported by measures increasing policy coherence between standards and national law; enabling states to address challenges in their jurisdictions; increase peer pressure between States to meet their human rights duties.

Institute of Policy Studies/Transnational Institute (TNI), Transnational Migrant Platform-Europe (TMP-E) as is part of the Global Campaign to Reclaim of Peoples Sovereignty, Dismantle Corporate Power and Stop Impunity: address the gap in the current draft Zero in relation to the obligations of TNCs with respect to human rights that are already established by UN Conventions.

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Professor Sapio is the holder of a research position at the University “Orientale” in Naples, Italy. The views and opinions expressed on this website are her personal views only.

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