Draft report on the third session of the open-ended
transnational corporations and other business
enterprises with respect to human rights
23 – 27 October 2017
link to page 3 link to page 4 link to page 4 link to page 4 link to page 4 link to page 4 link to page 6 link to page 6 link to page 6 link to page 8 link to page 8 link to page 8 link to page 8 link to page 11 link to page 12 link to page 14 link to page 15 link to page 17 link to page 18 link to page 20 link to page 21 link to page 22 link to page 23 link to page 23 link to page 23 link to page 24 link to page 24 link to page 25 link to page 27
Introduction ................................................................................................................................................. 3
II. Organization of the session ......................................................................................................................... 4
Election of the Chair-Rapporteur ........................................................................................................ 4
Attendance .......................................................................................................................................... 4
Documentation ................................................................................................................................... 4
Adoption of the agenda and programme of work ............................................................................... 4
III. Opening statements ..................................................................................................................................... 6
Keynote Speeches ............................................................................................................................... 6
General Statements ............................................................................................................................. 6
Debate: Reflections on the implementation of the United Nations Guiding Principles on Business
and Human Rights and other relevant international, regional and national frameworks ............................. 8
IV. Panel discussions ......................................................................................................................................... 8
Subject 1: General framework ............................................................................................................ 8
Subject 2: Scope of application ........................................................................................................ 11
Subject 3: General obligations .......................................................................................................... 12
Subject 4: Preventive measures ........................................................................................................ 14
Subject 5: Legal liability ................................................................................................................... 15
Subject 6: Access to justice, effective remedy and guarantees of non-repetition ............................. 17
Subject 7: Jurisdiction ...................................................................................................................... 18
Subject 8: International cooperation ................................................................................................. 20
Subject 9: Mechanisms for promotion, implementation and monitoring ......................................... 21
Subject 10: General provisions ......................................................................................................... 22
Panel: The voices of the victims ....................................................................................................... 23
V. Recommendations of the Chair-Rapporteur and conclusions of the working group ................................. 23
Recommendations of the Chair-Rapporteur ..................................................................................... 23
Conclusions of the working group .................................................................................................... 24
VI. Adoption of the report ............................................................................................................................... 24
I. List of participants ..................................................................................................................................... 25
II. List of panellists and moderators ............................................................................................................... 27
The open-ended intergovernmental working group on transnational corporations and
other business enterprises with respect to human rights was established by the Human
Rights Council in its resolution 26/9 of 26 June 2014, and mandated to elaborate an
international legally binding instrument to regulate, in international human rights law, the
activities of transnational corporations and other business enterprises with respect to human
rights. In the resolution, the Council decided that the Chairperson-Rapporteur should
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.1
The third session, which took place from 23 to 27 October 2017, opened with a
video statement by the United Nations High Commissioner for Human Rights. He
congratulated the former Chair-Rapporteur of the working group for successfully steering
the first two sessions in a manner that laid a fertile ground for the preparation of the
document of elements and recognized that the treaty process enters a new phase to discuss
such document. He noted that the UN Guiding Principles on Business and Human Rights
(UNGPs) 2 was an important step towards extending the human rights framework to
corporate actors. He stated that there was no inherent dichotomy between promoting the
UNGPs and drafting new standards at the national, regional, or international level aimed at
protecting rights and enhancing accountability and remedy for victims of corporate related
human rights abuses. He reiterated his commitment and full support to the working group,
and expressed his hope that the recommendations from the Accountability and Remedy
Project, conducted by the Office of the UN High Commissioner for Human Rights
(OHCHR), could provide useful contributions to the discussion during the third session.
The High Commissioner’s remarks were followed by a statement of the President of
the Human Rights Council, who emphasised the role that human rights must have in
relation to business in a globalized world. He noted that seeking consensus and engaging
in constructive cooperation and dialogue has been the spirit of the first two sessions and
will be key to fulfilling the mandate provided by resolution 26/9. The President further
recalled the close link between the 2030 Agenda and the development of human rights
which justifies its use as a starting point to form the objectives of the working group
The Director of the Thematic Engagement, Special Procedures and Right to
Development Division of the OHCHR referred to the recommendations of the OHCHR
Accountability and Remedy Project, aimed at enhancing the effectiveness of domestic
judicial systems in ensuring accountability and access to remedy, including in cross-border
cases, which could inform the working group process. She expressed the willingness of the
OHCHR to provide further substantial or technical advice to the working group as
II. Organization of the session
Election of the Chair-Rapporteur
The working group elected Guillaume Long, Permanent Representative of Ecuador,
as Chair-Rapporteur by acclamation following his nomination by the delegation of Jamaica
on behalf of the Group of Latin American and Caribbean States.
The list of participants and the list of panellists and moderators are contained in
annexes I and II, respectively.
The working group had before it the following documents:
Human Rights Council resolution 26/9;
The provisional agenda of the working group (A/HRC/WG.16/2/1);
Other documents, notably a document setting out elements for the draft
legally binding instrument on transnational corporations and other business enterprises with
respect to human rights (hereinafter “Elements Document”), a programme of work, and
contributions from States and other relevant stakeholders, made available to the working
group through the dedicated website.3
Adoption of the agenda and programme of work
In his opening statement, the Chair-Rapporteur explained how the third session will
involve substantive negotiations based on the Elements Document that was distributed in
advance of the session. The elements set out in the document were based on deliberations
during the first two sessions as well as over 200 meetings held since 2014 involving
multiple stakeholders. At the core of the elements is the protection of victims of business-
related human rights abuse, the elimination of impunity, and access to justice. He invited
everyone to participate actively, including civil society, trade unions, national human rights
institutions (NHRIs), and victims organizations, as their role is crucial to the success of the
process. He emphasized that future generations should have the right to live in a world
where human rights take primacy over capital and money.
The Chair-Rapporteur presented the draft programme of work and invited
comments. The European Union (EU)4 expressed its regret that consultations on the draft
programme of work did not occur until 18 October, providing little time for negotiations on
such an important document. Despite the short notice, it was the understanding of the EU
that a compromise had been reached over the objection of one State, whereby there would
4 Only delegations that explicitly requested attribution are named in this report.
be two additional elements included in the programme of work. First, a panel debate
reflecting on the implementation of the UNGPs would be included at the start of the
session. Second, a footnote that was included in the second session programme of work
would be reproduced, stating “this Program of Work does not limit the discussions of this
Intergovernmental Working Group, which can include TNCs as well as all other business
enterprises.” While the EU acknowledged that the first element of the compromise was
mostly incorporated (albeit without any panellists to lead the discussion), it was concerned
that the footnote was excluded. It stressed that this was not a procedural issue, but a
substantive one with wide implications, as the inclusion of the footnote would ensure that
the working group could consider abuses involving purely national companies. Therefore,
it requested an amendment to the programme of work to include the footnote.
Immediately after, several delegations intervened to express their support for the
programme of work as proposed by the Chair-Rapporteur, disagreeing with the EU
proposal and requesting the flexibility to adopt it to start negotiations. Some other
delegations supported the proposal of the EU and regretted the lack of consensus with
regard to the programme of work.
The delegations that rejected the EU proposal to amend the draft programme of
work stressed that the mandate in resolution 26/9 is clear and that there was no need to
advance substance or prejudge content to be discussed and negotiated. They considered
that the footnote to the programme of work would improperly attempt to amend a
resolution of the Human Rights Council.
The EU did not agree that including the footnote would prejudge the outcomes of
the negotiations or would amend resolution 26/9, which they respect, even though that
resolution restricts the scope and, therefore, prejudges the outcome of the negotiations. It
found objections to this proposal puzzling, as they sent a message to civil society, human
rights defenders, and victims that abuses by domestic enterprises should not be treated with
equal rigor. Additionally, it reaffirmed that this was a compromise proposal that nobody
objected to during the consultations except for one State and questioned the future of the
process and the trust in the ability to find an agreeable position.
Another delegation did not agree that any compromise was reached at the 18
October meeting since many delegations had not been present and recalled that it is not just
one State against the EU proposal. Additionally, the delegation found it peculiar that the
same delegations voting against resolution 26/9 are now calling for an expansion of the
mandate with the intention to block this session. Another delegation noted that the
discussion was unreasonably delaying negotiations and was ultimately harming those they
were trying to protect through this process.
The Chair-Rapporteur shared the view that a compromise had not been reached to
amend the program of work and pointed out that further discussion could take place during
the panel devoted to the scope of the treaty. He suggested that the working group adopt the
programme of work as presented and that all delegations’ views be reflected in the report.
As no delegation expressed objections to this proposal, the programme of work was
III. Opening statements
María Fernanda Espinosa, Minister of Foreign Affairs of Ecuador, and former
Chairperson-Rapporteur of the working group, delivered a keynote statement that explained
the background to the establishment of the working group. Discussions surrounding the
regulation of TNCs at the international level date back to the 1970s. Since then,
globalization had brought great power to TNCs, leading to positive consequences for
economic development but also many negative social consequences. Non-binding,
voluntary rules had been valuable but had been unable to ensure victims’ access to remedy
in cases of corporate human rights violations. The particular date of 26 June 2014 of the
adoption of resolution 26/9 was a milestone, representing a paradigm shift in the efforts to
address corporate abuse. The working group process led by Ecuador and South Africa to
fill a gap in international law is supported by a wide range of stakeholders including a large
number of civil society organizations. Serious companies support it since they want a level
playing field. She stressed the importance of prevention in the document of elements,
which could have been a key tool to avoid disasters like Rana Plaza, the Niger Delta
pollution, and the destruction of lives in the Amazon by Chevron-Texaco. States support it
since they recognize that the two paths of obligatory and voluntary are mutually
reinforcing, as demonstrated by the recent French law and several other examples. Ms.
Espinosa expressed her appreciation that hundreds of people have signed up to participate
in the process and hoped that everyone would engage constructively and with respect for
Dominique Potier, Member of the French National Assembly highlighted the
importance of ethics in guiding any discussion on human rights. At the heart of those
regulatory processes, there always was the respect for human dignity. Historically,
attempts to fight slavery and provide labour protections were challenged as regulations
leading to “the end of the world”, but ended up being the “dawn of a new era.” Such
efforts led to significant drops in abuse. The recent French duty of vigilance law was a
contemporary regulation that can serve as an inspiration for this working group. The law is
based on UN principles, including the UNGPs; is process-oriented; focuses on nationality
rather than be restricted by territory; and is progressive in that it targets the largest
companies so they can lead by example.
Delegations congratulated the Chair-Rapporteur on his election and thanked the
former Chair-Rapporteur on her success leading the first two sessions. Many delegations
expressed appreciation for what they considered a transparent and inclusive process and
reaffirmed their trust in the Chair delegation in overseeing this third session.
Many delegations voiced their support for establishing a legally binding instrument
to regulate, in international human rights law, the activities of transnational corporations
and other business enterprises. While recognizing that business can and do have a positive
impact on human rights, especially with respect to economic development, several
delegations, including a regional group, and NGOs stated that companies have undermined
human rights and contributed to adverse human rights impacts with impunity. Efforts to
address this accountability gap have been ongoing for over 40 years with little success.
Delegations recognised that initiatives such as the UNGPs have been a large step
forward, but found that voluntary principles have not been enough; a mandatory regulatory
framework was needed to ensure accountability and access to justice. Creating a legally
binding instrument would be complementary to, and not in opposition of, the UNGPs.
Legal lacunae in the UNGPs could be addressed with international obligations, and certain
aspects of the UNGPs should be made mandatory.
A legally binding instrument would benefit victims of business-related human rights
abuse by ensuring that companies are held accountable and that victims have access to
prompt, effective, and adequate remedies. Additionally, several delegations considered that
such an instrument could be beneficial to business since it would create a level playing
field. Uniform rules across jurisdictions would create legal certainty that business would
Many delegations welcomed the Elements Document put forward by the Chair
delegation as being comprehensive, imposing obligations on TNCs and other business
enterprises, and contributing to victims’ access to justice.
Other delegations voiced concern over the elements, believing there was a risk of
undermining the UNGPs. These delegations, as well as some NGOs, regretted that the
Elements Document was published three weeks before the session, allowing insufficient
time to fully analyse and formulate official positions on the content.
Some delegations thought that discussions on a legally binding instrument were
premature. The UNGPs were unanimously adopted six years ago, and more time was
needed to allow for States to implement the UNGPs. This process risked distracting
attention away from such implementation. Other delegations agreed that primacy should be
afforded to the UNGPs but acknowledged that both the UNGPs and a legally binding
instrument would have common objectives, and that a smart mix of voluntary and
regulatory measures could be beneficial.
Many delegations agreed that States have the primary duty to protect against human
rights abuse by third parties, including business enterprises, and commended the Elements
Document for reflecting this consensus. However, there was disagreement as to which
business enterprises should be covered by a legally binding instrument. Several delegations
expressed the view that transnational corporations and all other business enterprises should
be covered by the instrument, a view shared by many NGOs. Given the complex nature of
corporate structures and the prevalence of domestically incorporated subsidiaries, these
delegations feared that transnational corporations could find ways to fall outside the scope
of an instrument regulating only transnational activities. While some delegations expressed
the view that resolution 26/9 and the proposed elements permitted all business enterprises
to be covered, other delegations rejected this as expanding the mandate in resolution 26/9
and noted that domestic laws already regulate domestic companies.
Delegations disagreed about the extent to which an instrument should permit the
exercise of extraterritorial jurisdiction. One delegation suggested that the instrument could
incorporate extraterritorial obligations as laid out in the Maastricht Principles, while
another delegation rejected the idea that a legally binding instrument should permit States
to exercise any form of extraterritorial jurisdiction.
Multiple delegations welcomed that the Elements Document include provisions on
international cooperation and capacity building. The legally binding instrument should
recognize the differing capacities of States and allow for assistance in order to ensure
effective implementation of the treaty.
Some delegations and multiple NGOs insisted that the treaty ensure specific
protections for certain vulnerable populations, such as indigenous peoples. Given the
disproportionate effect that human rights abuse has on women and girls, there was a call for
a gendered approach to the treaty.
Some delegations and NGOs also discussed the need for the instrument to take
account of conflict situations and provide special protections in cases of occupation and
other types of armed conflict.
While several NGOs called for the instrument to clearly assert the primacy of human
rights over trade and investment agreements, one delegation argued that there is no
hierarchy between norms in international law, with the exception of jus cogens
There was wide consensus among most delegations and civil society that, going
forward, the process would benefit from a transparent, inclusive, and constructive dialogue
involving multiple stakeholders. However, some delegations and business organizations
were concerned that business was not well represented in the process.
Debate: Reflections on the implementation of the United Nations
Guiding Principles on Business and Human Rights and other relevant
international, regional and national frameworks
One regional group expressed its appreciation for including this session in the
Programme of Work. It recalled how in the last six years, there have been numerous
positive initiatives aimed at implementing the UNGPs. Since the working group process
can be expected to take a long time to conclude, it was suggested that States should take
steps to implement the UNGPs now in order to ensure protection for victims.
A number of delegations expressed their support for the UNGPs, as they were
unanimously endorsed as an authoritative global standard. Additionally, delegations
discussed different initiatives implementing the UNGPs, in particular national action plans.
Support was expressed for the OHCHR Accountability and Remedy Project, the Working
Group on Business and Human Rights, as well as the annual Forum on Business and
Some delegations noted that the UNGPs are not purely voluntary since they discuss
substantive obligations of States under international human rights law. Other delegations
and one NGO did not agree that the UNGPs could guarantee protection of human rights.
IV. Panel discussions
Subject 1: General framework
The first panellist noted that these negotiations are the product of a strong grassroots
process. Consumers need access to information to influence business habits; thus, there
should be transparent human rights due diligence processes throughout supply chains. She
noted that the European Parliament has mandated its representative to maintain a
constructive dialogue with the working group because it believes that there needs to be a
legally binding instrument regulating business and human rights. The panellist lamented
the position of the EU delegation as it goes against the common position of the European
Parliament and therefore does not represent it.
The second panellist offered a development perspective to the discussion. He
discussed the economist, Joseph Stiglitz, who has argued that globalization distinctly
disadvantaged developing countries, and that large financial corporations pose a particular
barrier to development in the Global South. Market failure and the dominant role of finance
not only affected inequality between nations, but also within nations, including within
advanced economies. The high prevalence of rent-seeking behaviour by corporations
creates a “winner takes most society.” For example, intellectual property rights have
become a way for corporations to corner markets and gouge citizens rather than being a
source of innovation and entrepreneurial drive. It was argued that the predatory features of
the current economy impede the SDGs, but that there is a growing trend to combat this.
For example, the United States is revisiting its long history of anti-trust legislation and the
OECD is attacking tax avoidance by large internet companies.
The third panellist addressed the accelerating pace of challenges faced by the global
community with respect to development and the recognition of human rights. He found the
proposed elements useful in reflecting the main perspectives expressed during the previous
two sessions. The panellist highlighted three objectives in the draft elements: (1)
guaranteeing the respect, promotion, and fulfilment of human rights, (2) guaranteeing
access to remedies, and (3) strengthening international cooperation.
Some delegations found that the chapter on the “General framework” in the
Elements Document should be made more concise, while others expressed appreciation for
the comprehensive approach. To facilitate shortening the chapter, it was proposed merging
the subsections on “Principles,” “Purpose,” and “Objectives.” Other delegations thought
that only the subsections on “Purpose” and “Objectives” should be merged and questioned
what the difference was between the two given that there were similar elements in both
With respect to the “Preamble,” several delegations commented on the selection of
instruments listed, with some arguing that there were too many instruments and others
arguing that certain instruments were missing (e.g., ILO Declaration on Social Justice for a
Fair Globalization, Sustainable Development Goals, environmental treaties and
declarations, Declaration on Human Rights Defenders, Declaration on the Rights of
Indigenous Peoples, and WHO Framework Convention on Tobacco Control). One regional
group and some NGOs questioned why treaties were contained in the same list as non-
Some delegations suggested that there should be reference to the positive impact
business can have on human rights, while other delegations suggested including reference
to the negative effects of TNCs in the context of globalization. Additionally, NGOs
recommended that language should be included regarding corporate capture.
Several delegations appreciated the references made to the right to development and
economic, social, and cultural rights. Additionally, delegations and NGOs welcomed the
reaffirmation of the UNGPs, showing this process is complementary to the UNGPs.
However, one delegation found it inappropriate to include reference to the UNGPs since
they were not developed and negotiated by States. One business organization questioned
why there was a reference to the norms on the responsibilities of TNCs when that process
was abandoned by the UN over a decade ago. In his response, the Chair Rapporteur pointed
out that many elements contained in those norms were cited approvingly in the first two
Much discussion focused on the sub-section of the elements on “Principles”. Many
delegations and NGOs welcomed the recognition of the primacy of human rights
obligations over trade and investment agreements. However, one regional group and other
delegations questioned the legal basis for this and wondered how it would apply in law and
practice. It was queried whether this would require the renegotiation of existing treaties,
and whether this implied that States could disregard provisions of trade and investment
treaties, citing human rights. Concern was also expressed whether this could result in the
fragmentation of international law.
Delegations questioned whether recognizing special protection of certain human
rights signalled a hierarchy of certain human rights over others. One regional group noted
that this provision could potentially conflict with another provision discussing the
universality, indivisibility, interdependence, and interrelationship of all human rights. The
Chair Rapporteur clarified that the intention of the provision was not to create a hierarchy
but to note specific rights that are more likely to be affected by business activities.
Some delegations voiced concern over the language used to recognize the special
protection of vulnerable groups. Acknowledging that certain groups require differentiated
treatment, it was feared that including a list of some groups could indicate the exclusion of
others. Others requested that the language be altered to reflect even a more positive,
One delegation noted that the reference to the duty of States to prepare human rights
impact assessments was inappropriate in this section since this was not a “principle.” The
same delegation also expressed concern about the provision recognizing the responsibility
of States for private acts since it believed it was worded too generally and failed to
recognize that such responsibility only arises in certain circumstances
Several elements under the section on “Purpose” also received attention. While
some delegations approved of a reference to the civil, administrative, and
of business, one delegation did not agree with the reference since many States’ legal
systems do not criminally punish legal entities. This delegation thought it should be up to
States’ discretion as to how to enforce the treaty.
Delegations and NGOs welcomed the reaffirmation that States’ human rights
obligations extend beyond territorial borders, with some requesting that the contours of this
should be elaborated in the instrument. One regional group questioned whether this
provision conflicted with one in the preamble reaffirming the sovereign equality and
territorial integrity of States.
Regarding the “Objectives” of the instrument, delegations welcomed the provision
referencing international cooperation and mutual legal assistance as necessary for the
effective implementation of the instrument.
Subject 2: Scope of application
The first panellist noted that the Elements Document refers to the activities of TNCs
and other business enterprises that have a transnational character, regardless of the mode of
creation, control, ownership, size or structure. This indicates an inclusive approach in line
with the UNGPs. The panellist also noted that the focus of the Elements Document is on
business “activities” rather than their corporate ownership. Thus, the legally binding
instrument will cover parents and subsidiaries so long as they operate across different
jurisdictions. Finally, she supported the scope of application to cover all internationally
recognized human rights.
The second panellist also expressed support for extending the scope of application to
all internationally recognized human rights, reflecting their universality, indivisibility, and
interdependence. She also supported reference to labour and environmental rights, as well
as corruption. The panellist questioned restricting the elements to acts of a transnational
character since from the victim’s perspective it is irrelevant whether an act is domestic or
transnational. She suggested that the instrument should make reference to omissions of
companies when these result in a deprivation of human rights. The panellist also suggested
that the instrument not be restricted to regional economic integration organizations and
apply to other national and regional organizations as well.
The third panellist emphasized that the working group is acting under a mandate of
the Human Rights Council; thus, human rights must prevail, not investment and trade.
There should also be more of a focus on human rights defenders. This panellist noted that a
legally binding instrument should address gaps in voluntary initiatives, and direct
obligations on business should be explored.
With respect to the rights covered by a binding instrument, most delegations agreed
that all internationally recognized human rights should be included. Delegations mentioned
that this covers certain rights, such as the right to development, the right to property, and
the right to permanent sovereignty over natural resources. It was suggested that the
instrument should also ensure protection of nationally-recognized rights. Another
delegation suggested that the wording of this provision in the Elements Document was
overbroad by including “other intergovernmental instruments” beyond human rights
treaties since these instruments were neither binding nor universal.
Other delegations disagreed that all human rights should be included due to the lack
of universality of many human rights.
Regarding the provision covering acts subject to the instrument’s application, the
EU and some NGOs were concerned that it was unclear what was included and suggested
that the phrase “business activity that has a transnational character” be defined to ensure
effectiveness of the instrument. It was noted that if liability is involved, defining the phrase
is mandatory. While a delegation and panellist disagreed, it was suggested that guidance
could be drawn from international instruments covering transnational crime without
The EU raised questions relating to the acts to be covered by a future instrument,
including whether the provision discriminated between foreign and domestic companies if
domestic companies were categorically excluded from the scope. In response, a panellist
disagreed that this would constitute discrimination since the provision focuses on conduct,
Concerning which actors should be subject to the instrument, some argued that only
States would be the proper subjects. Another delegation was open to the provision
covering organizations of regional economic integration but questioned why these were not
mentioned elsewhere in the document. Further, there was concern that these organizations
would be difficult to regulate in practice given the relationship between individual States
and such institutions.
Several delegations considered that TNCs and other business enterprises should be
subject to the instrument but not domestic companies. Other delegations noted that such
companies are subject to national laws and need not be included in the instrument; in this
regard, they emphasized that negotiations must go on guided by the mandate of resolution
26/9. One intergovernmental organization pointed out that TNCs are regulated by the
national laws of the countries they operate in. It was highlighted that domestic businesses
should be included as they can also be responsible for human rights abuses. There was a
call for the inclusion of online corporations in the scope of application. Several delegations
emphasized that the discussions about the scope should continue within the mandate of
Some delegations voiced concern over the provision subjecting natural persons to
the instrument, taking into account the mandate of resolution 26/9, noting this was
unnecessary since international criminal law covers individuals. Other delegations were of
the opinion that individuals should be subject to the instrument.
Some delegations emphasized the importance of including regulations of business
activities in conflict and post-conflict areas as businesses can exploit these situations for
Subject 3: General obligations
The first panellist explained that, under international law, States have the duty to
regulate business activity to protect human rights. A treaty could ensure that victims have
access to remedy by clarifying that States must regulate the extraterritorial actions of
companies domiciled within their jurisdiction. Additionally, States can ensure that
companies disclose information about their operations when acting transnationally.
Various domestic laws already require this, particularly for larger companies. The panellist
also discussed the obligation of companies to comply with internationally recognized
human rights law, regardless of whether the host State has ratified a particular convention.
With respect to international organizations, the panellist noted that these organizations
already have a duty to respect human rights and that States must ensure these organizations
comply. Given all of this, the elements largely reaffirm international human rights law, and
are therefore not unorthodox.
The second panellist did not support the content of the Elements Document and
voiced concern over imposing international law obligations on companies. Establishing
human rights obligations on companies could lead to States delegating their duties to the
private sector, undermining the full protection of human rights. Furthermore, generally
imposing such duties on all TNCs and other business enterprises was impractical given the
amount and diversity of the actors involved. This panellist warned that reopening the
debate on business and human rights would lead to confusion and could subvert the UN’s
authoritative voice on these issues.
The third panellist saw many positive aspects of the Elements Document but decided
to focus his remarks on gaps in the document. With respect to the obligations of States, he
regretted that concepts of corporate law, such as separate legal personality, were absent
from the ambit of the elements. Corporations are creatures of statute, and a successful
instrument must address these issues. Regarding the obligations of companies, it would be
important to go beyond the UNGPs by placing binding legal obligations on corporations.
However, for this to be effective, the instrument should clarify what constitutes an
actionable violation. Additionally, the instrument could impose positive obligations on
The fourth panellist emphasized workers’ support of the working group and noted
that labour rights must be included. States should uphold human rights in all legal
agreements and not support any legislation contrary to human rights. Furthermore, the
instrument should oblige companies to exercise due diligence and provide remedies. While
acknowledging that some provisions in the Elements Document are vague, more detail
could be developed during the negotiation process.
While many delegations supported the proposed elements under “General
obligations,” some noted the need to continue with negotiations on certain specific
provisions. More specifically, provisions of a legally binding instrument must be worded
clearly if legal consequences will attach.
Regarding the provisions on “State obligations,” it was noted that many elements
seemed to restate existing obligations, and it was questioned what added value there would
be from including these in the instrument. There was concern that the provisions requiring
States to adapt domestic legislation and impose restrictions on public procurement contracts
interfered with the internal affairs of States, as it should be up to each State to determine
how to implement its treaty obligations. Additionally, there were calls for more specificity
in the provisions regarding reporting and disclosure requirements, as well as the provision
requiring States to ensure that human rights be considered in their contractual engagements.
Other delegations commended the drafting of the section, specifically voicing
support for the recognition that States have the primary duty to protect human rights and
must take measures to prevent, investigate, punish, and redress violations to ensure
companies respect human rights throughout their activities. Some welcomed the provision
requiring States to ensure that companies conduct human rights and environmental impact
assessments. However, one delegation expressed that it was beyond the working group’s
mandate to discuss environmental impact assessments.
Throughout the discussion, there were several suggestions regarding what could be
added to this section, including reference to international cooperation and mutual legal
assistance, clarification as to extraterritorial obligations, regulation of State-owned
companies, reference to conflict-areas, and the protection of human rights defenders.
Concerning the inclusion of a section on “Obligations of transnational corporations
and other business enterprises”, some delegations asked for information on the legal basis
for imposing international human rights obligations on companies. Additionally, questions
were raised as to how this would work in practice and whether this would be appropriate in
the absence of a structure capable of law enforcement. Other delegations found it
appropriate to impose international obligations on companies and referenced several
treaties establishing obligations on legal entities. In their view, such obligations were
necessary to ensure the effectiveness of the instrument.
Delegations suggested that additional obligations should be imposed on companies,
including to mandate human rights due diligence and reporting; ensure free, prior, and
informed consent when operations could adversely affect communities; prevent corporate
capture; oblige companies to pay taxes in countries they operate in; and to positively
promote human rights.
With respect to the section on obligations of international organizations, it was
questioned whether the provision belonged under “General obligations” since it appeared to
concern an obligation of States and not international organizations as such. To the extent
that the provision did create obligations for international organizations, some delegations
expressed their disfavour in making limitations on bodies created by different instruments
with different mandates.
Subject 4: Preventive measures
The first panellist noted that, among the many allegations of human rights abuses
received as Special Rapporteur, most involved corporate activities and affected vulnerable
groups. In his view, this illustrated not only an existing accountability gap for victims, but
also the gross failure of States to prevent such human rights abuses. Thus, the panellist
argued that the instrument should oblige States to require effective and binding due
diligence processes from all companies. This should not be limited to the supply chain but
should include the complete lifecycle of a product, including its disposal. He also stressed
the need to clarify the types of activities to which preventive measures should apply. He
noted that several provisions in the section on “Preventive measures” did not seem directly
relevant to prevention and suggested moving them to a more appropriate section.
The second panellist argued that preventive measures in the treaty should focus on
two components: (1) preventing acts by TNCs that adversely affect human rights, and (2)
preventing corporate capture. Regarding corporate capture, the panellist proposed that
States should ensure transparency and disclosure of documents and contracts with TNCs.
Additionally, States should prohibit political contributions from TNCs and forbid
outsourcing of security services to companies.
The third panellist highlighted the essential character of preventive measures in the
instrument. She made several recommendations as to how the elements could be
strengthened in this respect, including by referring to due diligence obligations relating to
development institutions, the use of independent assessors in case of impact studies, the
coverage of labour and environmental rights, the inclusion of a gender perspective, the use
of ex ante
and ex post
impact assessments, as well as the inclusion of the free, prior, and
informed consent principle.
Delegations and NGOs highlighted the importance of prevention and welcomed a
section dedicated to it in the document. It was questioned whether, conceptually speaking,
the elements in this section should be linked with the section on obligations as the
provisions addressed the obligations of States and companies. Some sought more precision
in the wording of the provisions, wanting to know whether the terms “adequate” or
“necessary measures” took proper account of differing capacities among States. One
business organization expressed concern that the language used reopened an issue that had
been resolved in the UNGPs, potentially causing confusion and unintended consequences.
Delegations welcomed the provision requiring States to mandate companies to adopt
and implement due diligence policies and processes. It was suggested that this provision
should ensure that States implement uniform, minimum standards. A delegation and
several NGOs thought risk assessments under this provision should address environmental
impacts. Concern was expressed that since these measures were to apply to “all the TNCs
and OBEs in [a State’s] territory or jurisdiction, including subsidiaries and all other related
enterprises throughout the supply chain,” it would allow States to exercise extraterritorial
jurisdiction improperly. The Chair-Rapporteur clarified that the due diligence obligation
was meant for the parent company domiciled in a State, and that a company was to assess
risks throughout its supply chain.
Concern was expressed about the provision requiring consultation processes, as one
delegation was unsure when this would be required and for what purpose. Other
delegations and several NGOs saw value in the provision. Some NGOs suggested that this
provision should clearly require free, prior, and informed consent of communities, in
particular indigenous communities, when TNC projects threatened adverse human rights
Concerning the provision requiring dissemination of the instrument to everyone in a
State’s territory in a language they can understand, some delegations stressed the
importance of the populace knowing their rights; however, one delegation felt this
provision interfered with States’ right to determine how to implement the instrument.
Some sought clarification on the provisions requiring periodic reporting, with one
NGO indicating that this provision would have no teeth without an enforcement
Some delegations and NGOs suggested adding language in this section aimed at
preventing the capture of public institutions by vested business interests, and drew attention
to article 5(3) of the WHO Framework Convention on Tobacco Control for guidance.
Additionally, there was a call for the section to include enhanced due diligence for
businesses operating in the context of armed conflict.
Subject 5: Legal liability
The first panellist welcomed a section in the Elements Document on legal liability,
although he noted that a “sue and damages” approach should be complemented by
prevention. He emphasized that the instrument should cover environmental, health and
safety, and workers’ rights, as well as corporate complicity in State violations. Criminal
liability will be hard to enforce given a range of pragmatic difficulties, including lack of
motivation by regulators; thus, the focus should be on civil liability for multinational parent
companies. Several challenges arise in the civil context as well, particularly issues related
to extraterritorial jurisdiction, forum non conveniens
, lack of access to information, and
legal assistance. Unless these challenges are resolved, it will remain difficult for victims to
The second panellist noted the comprehensive nature of the provisions on legal
liability and recognized how they could be relevant in a variety of legal systems. Focusing
his remarks on criminal legal liability, the panellist described increasing recognition at the
international and regional levels of criminal liability of legal entities and their agents.
Specifically, he recalled the Optional Protocol to the Convention on the Rights of the Child
on the sale of children, child prostitution and child pornography; the Draft Protocol on
Amendments to the Protocol on the Statute of the African Court of Justice; and Council of
Europe Recommendation CM/Rec (2016)3 on human rights and business. He stressed the
necessity of criminal liability to serve as a deterrent, better protect individuals and
communities’ rights, and provide access to justice for victims.
The third panellist appreciated that the elements called for the adoption of legal
measures on the national level and recognized differences in national legal systems.
Additionally, he welcomed the inclusion of a provision ensuring that civil liability should
not be made contingent upon a finding of criminal liability. The panellist cautioned against
including provisions that mandate specific legal actions, as this could be contrary to certain
legal systems and counterproductive to the goals of the instrument. He further suggested
that the provision discussing due diligence procedures should be placed in a different
Delegations signalled their approval for including a section on legal liability,
although some suggested this section should be clearer and more concise. Some
recognized legal liability could also encompass natural persons. Most delegations and
NGOs agreed that criminal, civil, and administrative liability should attach to legal entities,
and some delegations shared national laws that imposed these types of liability on
companies. It was noted that the different types of liability were complementary; however,
some delegations were concerned at the lack of differentiation between them. In their
view, differentiated language was needed to reflect whether a provision referred to
criminal, civil, or administrative liability. Furthermore, it was noted that some legal
systems do not allow for the imposition of criminal liability on legal entities; thus,
provisions requiring such liability would be inappropriate. States should have the
flexibility to choose how best to incorporate the treaty into domestic law. Concerns were
also raised about the appropriateness of imposing international obligations on legal entities.
Some delegations called for greater detail and clear, minimum standards regarding
the measures States must take to establish the different forms of legal liability in their
jurisdictions. Others appreciated the flexibility provided for in the elements, allowing
States to adopt their own legal measures in accordance with their national systems.
It was noted that the two provisions dealing with the commission and attempt of
criminal offenses were unnecessary given the general provision in the section covering
civil, criminal, and administrative offenses. It was also questioned why “international
applicable human rights instruments” was used in these sections when other sections used
Clarification was sought as to the meaning of the provision establishing civil
liability for companies for participating in the “planning, preparation, direction of or benefit
from human rights violations” caused by other companies, with one delegation suggesting
this should cover indirect benefits as well. Similarly, some delegations called for more
precision as to the contours of the provisions dealing with immunities, State responsibility
for the actions of companies under their control, and complicity. Regarding the issue of
complicity, it was queried whether States would become automatically responsible for any
harm committed by a company.
One delegation also considered that the provision promoting decent work in supply
chains fell outside the scope of the mandate given by resolution 26/9.
It was suggested that language should be added to the section to address parent
company liability. Additionally, an NGO suggested that international crimes should be
included in the section.
Subject 6: Access to justice, effective remedy and guarantees of non-
The first panellist noted that a binding instrument must build on and complement
existing international standards, such as the UNGPs. Certain ambiguities exist in the
Elements Document, and he hoped that these would be resolved as negotiations progressed.
Regarding access to remedy, the panellist discussed the importance of national action plans
in facilitating victims’ access to justice. The remedy process should be sensitive to the
experiences of different groups of rights-holders, requiring consideration of the gender
dimension and preventing victimization of rights-holders and human rights defenders
seeking remedies. Furthermore, rights-holders must be able to seek, obtain, and enforce
different types of remedies.
The second panellist stated that there is a clear legal basis to establish liability, in the
and the elements could be made clearer on this. He also welcomed the provision on legal
aid. In order to strengthen this provision, he suggested that an online resource could be
established which would provide information to victims, such as the relevant law and the
applicable burden of proof, and which would link victims to NGOs and lawyers willing to
help. Additionally, the panellist noted the importance of recognition and enforcement of
The third panellist discussed how important it would be was for victims to have
access to courts in the home States of TNCs without experiencing delays caused by
jurisdictional challenges. To better confront problems such as piercing the corporate veil,
he recommended reversing the burden of proof and improving victims’ access to
disclosure. He also suggested that damages should be calculated based on home State
calculations, called for the abolishment of the “loser pays” principle, and hoped for proper
cost recovery mechanisms to encourage legal representation.
Delegations and NGOs welcomed the inclusion of this section in the document,
noting that it was crucial to address gaps in legal protection and that doing so would
constitute important added value of a future instrument. In particular, efforts to remove
practical and legal barriers to effective access to justice were appreciated; however, some
NGOs warned that by listing specific barriers, it could be read as excluding others not
mentioned. It was suggested that the section should clearly state the right of everyone to
have access to remedy regardless of the perpetrator, borrowing language from the UN
Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law.
The EU expressed approval of the wording of the chapeau of the section but
questioned whether the provisions mostly restated existing obligations. Another delegation
suggested the complete removal of the section, arguing that a more holistic approach was
warranted and that the current approach would force States to adopt a system that could be
inappropriate in local circumstances. A business organization noted that the root problem
regarding access to justice was a lack of the rule of law, and the instrument would need to
find ways of incentivizing States to implement existing obligations.
States and many NGOs appreciated the inclusion of a provision emphasizing the
need for access to justice for vulnerable groups; however, it was suggested that more
empowering and positive language should be employed. An NGO also suggested that
language from the UN Declaration on the Rights of Indigenous Peoples should be included,
in particular to recognize the different legal systems and customs of certain communities.
One delegation was concerned that specific groups were being recognized at all, indicating
that there would be unfair and special treatment for those listed. A panellist disagreed,
arguing that fairness dictated that different groups be treated differently.
Clarification was requested regarding the provision concerning non-judicial
mechanisms not being a substitute for judicial mechanisms. It was mentioned that recourse
to non-judicial mechanisms could be in the interest of victims, as they are sometimes faster
and more appropriate. One panellist agreed that non-judicial mechanisms have a role to
play, but argued they are complementary, noting that judicial mechanisms should always be
Organizations appreciated the provision on reducing regulatory, procedural and
financial obstacles in access to remedy, in particular mentioning the importance of ensuring
class actions, access to information, and limiting forum non conveniens
. Many welcomed
inclusion of a provision concerning the reversal of the burden of proof; however, one
business organization argued this provision would upset a fair balance between parties and
potentially violate due process. Panellists disagreed, noting that, in some cases, raising a
displaceable presumption would be appropriate, and that reversing the burden of proof
exists in some domestic systems.
Several delegations and NGOs welcomed a provision addressing the need to
guarantee the security of victims, witnesses, and human rights defenders, although it was
questioned whether the provision went beyond what States are already obliged to do.
NGOs thought the provision could be stronger by prohibiting interference with human
rights defenders, and giving defenders a legal claim if they experience retaliation.
States and NGOs also expressed support for a number of other provisions, including
on the different forms of remedy, the right to equality of arms and legal aid, and access to
information relevant to substantiating claims.
Multiple NGOs suggested that a provision addressing piercing of the corporate veil
should be explicitly included in the section.
Subject 7: Jurisdiction
While the first panellist welcomed the inclusion of a dedicated section in the
Elements Document on the topic of jurisdiction, she noted that a number of key concepts
related to State obligations and access to justice still need clarification. In this respect, she
mentioned that provisions on jurisdiction could also be included in other parts of the
instrument. Taking into account that this section was focused on the concept of
prescriptive jurisdiction, as opposed to adjudicative or enforcement jurisdiction, she
stressed that international law already allows the exercise of this type of jurisdiction
extraterritorially. Care should be taken when referring to territory and jurisdiction to avoid
a restrictive interpretation. In her view, enforcement jurisdiction should be given careful
attention in cases involving extraterritoriality or transnational elements and should be
addressed in the section on international cooperation.
100. The second panellist expressed serious caution with regards to the broad approach to
the concept of jurisdiction adopted in the Elements Document. Extending jurisdiction
beyond the host State ignores the reality of corporate relationships, where companies often
have no control over downstream suppliers. Asserting extraterritorial jurisdiction over
entities with a tenuous connection to the forum State could raise issues relating to the
principles of international comity and exhaustion of local remedies. He recommended that
voluntary efforts undertaken by companies to ensure their suppliers are compliant with
international standards should not be subject to a threat of liability but rather be positively
encouraged. Although many countries have relevant legislation, enforcement remains an
issue and attention should be focused on strengthening incentives to enforce existing laws.
The panellist insisted that the instrument address the particular situation of State-owned
enterprises and cautioned that sovereign immunity could attach to these entities.
101. The third panellist argued that States should address accountability gaps related to
TNCs by recognizing jurisdiction over domestic companies whose activities have impacts
abroad. She insisted on the need to establish relevant laws, ensure their enforcement and
recognize jurisdiction to address abuses. In particular, the instrument should clearly
indicate when a cause of action arises in the home State. Additionally, barriers to access of
justice should be removed, in particular the doctrine of forum non conveniens
since it is
often used maliciously as a delaying and obstructive tactic.
102. Delegations and NGOs agreed on the importance of containing a section on
“Jurisdiction,” in the Documents Elements as many TNCs and other business enterprises
escape liability through jurisdictional challenges. This section was considered essential to
address accountability gaps, clarify when courts could consider claims for abuses occurring
abroad, and enhance victims’ access to justice. Given the importance of this section, some
delegations emphasized the need for clarity. While many found that the elements formed a
good starting point calls were made for more precision in the provisions. For instance,
some questioned the contours of the definition of “under the jurisdiction” in the section’s
chapeau, asking for clarity as to the meaning of “substantial activities in the State
concerned” and the extent of control needed by parent companies. Some NGOs called for
coherence between the concepts in this section and references to “territory and/or
jurisdiction” elsewhere in the document, as well as the reaffirmation in the “Purpose”
section that State obligations do not stop at their territorial borders.
103. Most of the discussion centred on whether the language should permit
extraterritorial jurisdiction and the extent of that jurisdiction. Several delegations and
NGOs found it crucial that the instrument permit courts to consider claims arising out of
activities abroad. These delegations indicated that the use of extraterritorial jurisdiction has
been approved by a range of judicial bodies and instruments, including domestic court
cases, treaties, and other international instruments. Other delegations suggested that clear
references to the bases for jurisdiction should be included. In their view, international law
required a real and substantial link between a forum and the parties and claims concerned.
This could be based on prescriptive jurisdiction principles such as nationality, passive
personality, and the protective principle. Additionally, too much reliance on home State
jurisdiction could disincentive host States from ensuring access to justice. Concerns were
raised that an expansive view of jurisdiction had the potential to violate the territorial
integrity and sovereign equality of States, principles which are reaffirmed in the preamble
of the Elements Document. However, panellists considered that these risks were overstated
as this section did not authorize extraterritorial enforcement jurisdiction, and risks
associated with such jurisdiction were allayed with the inclusion of a section on
104. With respect to specific provisions, delegations expressed most concern with the
provision authorizing jurisdiction over “subsidiaries throughout the supply chain domiciled
outside [States’] jurisdiction.” Additionally, concern was raised over the provision
permitting jurisdiction over “abuses alleged to have been committed by TNCs and OBEs
throughout their activities, including their branches, subsidiaries, affiliates, or other entities
directly or indirectly controlled by them.” These delegations argued that this wording was
too broad and could cover legal entities with little connection to the forum State.
105. Clarification was sought as to the provision permitting claims by victims within a
State’s jurisdiction. It was queried whether this referred to nationals, residents, or
106. Additionally, it was proposed that certain provisions be added to this section. Some
delegations and NGOs suggested explicitly prohibiting the use of forum non conveniens
Another delegation and NGO recommended adding a provision to address conflict of laws.
Calls were made to address conflict situations, as local courts are often unavailable in
situations of armed conflict. One delegation suggested that jurisdiction over online
enterprises be addressed. Further, it was proposed that universal jurisdiction be established
for conduct constituting international crimes.
Subject 8: International cooperation
107. The first panellist noted that in a globalized economy, domestic legal systems
remain fragmented and disjointed, leaving room for TNCs to take advantage of a lack of
cooperation between States. Thus, a section on international cooperation was an important
means of addressing this fundamental problem. The panellist suggested two ways to
strengthen this section. First, he called for the inclusion of sub-sections to address
cooperation in the civil, criminal, and administrative contexts separately. Second, he
suggested that a public register be established to help with the coordination of research.
The panellist further encouraged delegations and NGOs to provide creative and pragmatic
models that could be used in the instrument.
108. The second panellist stressed the importance of international cooperation in ensuring
access to remedy. He discussed how cooperation should generally address treaty
implementation, helping States with national implementation, and enforcement of
judgments. Additionally, the panellist suggested five specific ways to ensure appropriate
international cooperation. First, States should ensure access to information for
investigatory functions. Second, rules should be adopted to ensure mutual judicial
cooperation. The European Convention on Mutual Assistance on Criminal Matters could
help in this regard. Third, States should ensure adequate standards of due process. Fourth,
States should consider reflecting the principle of comity in the instrument. Fifth,
inspiration for the means of international cooperation should be drawn from existing
instruments and standards.
109. Many delegations and NGOs agreed on the importance of international cooperation.
One of the main obstacles to the effective regulation of TNCs is the fact that they operate in
multiple jurisdictions; thus, cooperation between States is necessary to ensure abuses are
properly addressed. NGOs shared cases where victims were unable to obtain redress due to
a lack of international cooperation. Major obstacles to justice for these victims, such as
difficulties in obtaining information, could be rectified with proper cooperation between
States. Thus, it is important for States to agree on certain standards to ensure efficient
investigation, prosecution, and enforcement. Some delegations referred to other processes
and instruments for guidance, such as the UN Convention against Transnational Organized
Crime and UN Convention against Corruption.
110. One delegation and a business organization argued that the existence of these other
processes and instruments on international cooperation made a section on this unnecessary.
In their view, international cooperation should be developed generally and not focus on this
specific regime. There was a fear that developing new obligations on international
cooperation could conflict with other processes or send contradictory messages as to UN
standards. Instead, States should focus on strengthening existing international cooperation
111. The EU referred to the OHCHR Accountability and Remedy Project, as it provides
recommendations on how to strengthen international cooperation and identifies issues in
current regimes. One such issue was the lack of prosecutorial resources to investigate
TNCs, and this organization questioned how a future instrument could provide pragmatic
solutions to such issues. Some delegations and a panellist suggested that provisions on
technical assistance could be included to address some of these challenges.
112. Delegations called for greater specificity in the provisions of this section.
Specifically, there were multiple suggestions to differentiate the section based on whether
cooperation was needed for civil, criminal, or administrative matters, and to include more
precise provisions on the means of cooperation needed for these different types of regimes.
Additionally, there were calls for more detail into what processes should be required, in
particular for evidence collection and sharing. It was also noted that a provision should be
included to ensure reciprocity would be respected amongst States.
Subject 9: Mechanisms for promotion, implementation and monitoring
113. The first panellist suggested that drafters focus on four principles when developing
the section on “Mechanisms for promotion, implementation and monitoring.” The first is
accountability. The panellist suggested drawing lessons from other processes that regulate
business conduct outside of the human rights context, such as the World Bank Inspection
Panel. The second principle is transparency. Access to information is so important, the
panellist thought it could warrant its own section in the instrument. Third, the principle of
participation deserves attention, but the panellist cautioned against abuse by the private
sector. Finally, a principle of cooperation should be ensured at the national, regional, and
114. The second panellist discussed cases where victims were unable to achieve justice
through existing institutions. Noting this lack of judicial oversight over TNC abuses at the
national level, she argued for the creation of an international court for affected individuals
and communities to hold TNCs accountable. While supportive of the creation of an
ombudsman, as proposed in the elements, she claimed that this would not be an adequate
substitute for an international judicial body.
115. The third panellist welcomed this section in the Elements Document and noted that
international mechanisms are needed. Implementation lies foremost with national
jurisdictions, but a complementary international court should exist when national
jurisdictions fail. This court should have enough resources to ensure its proper functioning.
The treaty body proposed in the elements would also be welcome and should be endowed
with the ability to make recommendations, as well as referrals to the international court.
116. Several delegations and NGOs welcomed the inclusion of this section and the
creation of mechanisms to promote, implement, and monitor a future instrument. Many
called for the ability of victims to directly access these mechanisms, and it was mentioned
that a provision should be included to protect against retaliation by those who engaged
these mechanisms. Some argued that without enforcement mechanisms, the instrument
would not be properly implemented. Other delegations questioned the usefulness of
creating a new mechanism, arguing that the focus should be on strengthening existing
institutions. One delegation expressed the view that States have the prerogative to decide
how to enforce its treaty commitments and argued against establishing any mechanism. It
was also noted that there should be more reliance on national action plans.
117. Several delegations approved of the establishment of an international judicial
mechanism to hear complaints regarding violations by TNCs, noting that victims and
certain States have been calling for the creation of such institutions for some time.
However, questions were raised as to whether an international court could be effective, and
there were concerns of budgetary and political issues involved with establishing a court.
Regarding the provision suggesting expanding the jurisdiction of existing institutions, a
questions was asked whether this referred to past deliberations over the International
Criminal Court and whether the proposal was feasible.
118. Delegations expressed support for the creation of an international committee to
monitor the treaty, although it was noted that the creation of a committee did not exclude
the possibility of creating other institutions. Some delegations approved of the proposed
functions of this committee in the elements, including examining periodical reports and
individual and collective communications. It was suggested that this body could also foster
international cooperation, technical assistance, and share best practices.
119. Additionally, some delegations proposed the establishment of a non-judicial, peer
review mechanism, and some NGOs suggested creating a monitoring centre that could be
jointly run by States and civil society.
Subject 10: General provisions
120. One NGO welcomed a provision in the section on “General provisions” regarding
the primacy of a future instrument over other obligations from trade and investment legal
regimes. This organization also stressed the importance of allowing for the participation of
civil society and affected communities.
121. Another NGO thanked the working group for the opportunity to participate in the
session and requested clarification as to the next steps of the process.
Panel: The voices of the victims
122. Five panellists provided introductory remarks, commenting on a range of issues,
including violations of indigenous peoples’ rights, abusive practices in drug patenting and
pricing, harms of agricultural projects, impunity relating to toxic pollution, development
projects displacing communities, and the role of international financial institutions in
supporting harmful practices.
123. The panellist presentations were followed by interventions from delegations and
NGOs, highlighting specific cases of abuse as well as lack of State implementation of
existing human rights obligations. Some delegations called for the strengthening of
existing institutions and implementation of existing instruments, such as the UNGPs, and
noted that guidance in this regard could be drawn from initiatives like the OHCHR
Accountability and Remedy Project. Others expressed the view that existing institutions
and instruments are failing to ensure protection of victims, and that the creation of a legally
binding instrument to oblige States and TNCs and OBEs to comply with human rights
standards, and the creation of mechanisms to enforce such obligations, are necessary to
address shortcomings in the current system. Delegations and NGOs stressed the
importance of victims’ participation in these processes, the need to ensure that they obtain
redress when their rights are violated, and the importance of protecting human rights
V. Recommendations of the Chair-Rapporteur and conclusions
of the working group
Recommendations of the Chair-Rapporteur
124. Following the discussions held during the first three sessions of the OEIGWG,
in particular discussion of the elements for the draft legally binding instrument on
transnational corporations and other business enterprises with respect to human
rights presented by the Chair-Rapporteur, and pursuant to its mandate, as spelled out
in operative paragraph 1 of Resolution 26/9, and acknowledging different views
expressed, the Chair-Rapporteur should:
Invite States and different stakeholders to submit their comments and
proposals on the draft element paper no later than the end of February 2018.
Present a draft legally binding instrument on transnational corporations
and other business enterprises with respect to human rights, on the basis of the
contributions from States and other relevant stakeholders, at least four months before
the fourth session of the Working Group, for substantive negotiations during its
fourth and upcoming annual sessions until the fulfilment of its mandate.
Convene a fourth session of the Working Group to be held in 2018 and
undertake informal consultations with States and other relevant stakeholders on its
programme of work.
Conclusions of the working group
125. At the final meeting of its third session, on 27 October 2017, the working group
adopted the following conclusions, in accordance with its mandate established by
The Working Group welcomed the opening messages of the United
Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein and of the
President of the Human Rights Council, Joaquín Alexander Maza Martelli, and
thanked the Minister of Foreign Affairs of Ecuador, Minister María Fernanda
Espinosa Garcés, and the Member of the French National Assembly, Dominique
Potier, for their participation as keynote speakers. It also thanked the independent
experts and representatives who took part in panel discussions, the interventions,
proposals and comments received from Governments, regional and political groups,
intergovernmental organizations, civil society, NGOs and all other relevant
stakeholders, which contributed to the substantive discussions of this session.
The Working Group took note of the elements for the draft legally
binding instrument on transnational corporations and other business enterprises with
respect to human rights, prepared by the Chair-Rapporteur in accordance with
operative paragraph 3 of HRC Resolution 26/9 and the substantive discussions and
negotiations and the presentation of various views thereof.
The Working Group requests the Chair-Rapporteur to undertake
informal consultations with States and other relevant stakeholders on the way
forward on the elaboration of a legally binding instrument pursuant to the mandate of
Human Rights Council Resolution 26/9.
VI. Adoption of the report
126. At its 10th meeting, on 27 October 2017, the working group adopted ad
referendum the draft report on its third session and decided to entrust the Chair-
Rapporteur with its finalization and submission to the Human Rights Council for
consideration at its thirty-seventh session.
List of participants
States Members of the United Nations
Algeria, Angola, Argentina, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belarus,
Belgium, Bolivia (Plurinational State of), Botswana, Brazil, Burundi, Central African
Republic, Chile, China, Colombia, Costa Rica, Croatia, Cuba, Cyprus, Czechia, Democratic
Republic of the Congo, Ecuador, Egypt, Estonia, Ethiopia, Finland, The Former Yugoslav
Republic of Macedonia, France, Georgia, Germany, Ghana, Greece, Guatemala, Haiti,
Honduras, India, Indonesia, Iran (Islamic Republic of), Iraq, Ireland, Israel, Italy, Ivory
Coast, Jamaica, Jordan, Kazakhstan, Kenya, Lesotho, Liechtenstein, Lithuania,
Luxembourg, Madagascar, Malta, Mauritania, Mexico, Monaco, Morocco, Mozambique,
Myanmar, Namibia Netherlands, Nicaragua, Nigeria, Norway, Pakistan, Panama, Peru,
Philippines, Portugal, Qatar, Republic of Korea, Republic of Moldova, Russian Federation,
Rwanda, Saudi Arabia, Serbia, Singapore, Slovakia, Slovenia, Somalia, South Africa,
Spain, Sudan, Sweden, Syrian Arab Republic, Switzerland, Thailand, Trinidad & Tobago,
Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom of Great Britain and
Northern Ireland, Uruguay, Venezuela (Bolivarian Republic of), Zambia.
Non-member States represented by an observer
Holy See; State of Palestine.
United Nations funds, programmes, specialized agencies and related
United Nations Conference on Trade and Development.
European Union, International Chamber of Commerce, International Development Law
Organization, Organisation of Islamic Cooperation, South Centre.
Special procedures of the Human Rights Council
Working Group on the issue of human rights and transnational corporations and other
business enterprises, Special Rapporteur on the implications for human rights of the
environmentally sound management and disposal of hazardous substances and wastes,
Independent Expert on the promotion of a democratic and equitable international order.
National human rights institutions
The National Human Rights Council of Morocco, German Institute for Human Rights,
Danish Institute for Human Rights.
Non-governmental organizations in consultative status with the
Economic and Social Council
Academic Council on the United Nations System; Al-Haq; Law in the Service of Man;
American Bar Association; Amnesty International; Asia Pacific Forum on Women, Law
and Development (APWLD); Association for Women's Rights in Development (AWID);
Centre Europe – Tiers Monde – Europe-Third World Centre (CETIM); Center for
International Environmental Law (CIEL); Comité Catholique contre la Faim et pour le
Développement (CCFD); Conectas Direitos Humanos; Coopération Internationale pour le
Développement et la Solidarité (CIDSE); Corporate Accountability International (CAI);
Fondation pour l'étude des relations internationales et du développement; FIAN
International e.V.; Franciscans International; Friends of the Earth International; Global
Policy Forum; Indian Movement "Tupaj Amaru;" Indigenous Peoples' International Centre
for Policy Research and Education (Tebtebba); Institute for Policy Studies (IPS); Instituto
Para la Participación y el Desarrollo-INPADE-Asociación Civil; International Association
of Democratic Lawyers (IADL); International Commission of Jurists; International
Federation for Human Rights Leagues (FIDH); International Institute of Sustainable
Development; International Organisation of Employers (IOE); International Service for
Human Rights (ISHR); International Trade Union Confederation; IT for Change; iuventum
e.V.; Legal Resources Centre; Oxfam International; Public Services International (PSI);
Réseau International des Droits Humains (RIDH); Sikh Human Rights Group; Social
Service Agency of the Protestant Church in Germany; Society for International
Development; Stichting Global Forest Coalition; Swiss Catholic Lenten Fund; Tides
Center; Verein Sudwind Entwicklungspolitik; Women’s International League for Peace and
List of panellists and moderators
Monday, 23 October 2017
• H.E. María Fernanda Espinosa, Minister of Foreign Affairs of Ecuador, and former
Chairperson-Rapporteur of the open-ended intergovernmental working group
• Dominique Potier, Member of the French National Assembly
Subject I – General framework (15:00-18:00)
• Lola Sánchez, Member of the European Parliament
• Richard Kozul-Wright, Director of the Division of Globalization and Development
• Vicente Yu, Deputy Executive Director, South Centre
Tuesday, 24 October 2017
Subject II – Scope of application (10h00-13h00)
• Kinda Mohamedieh, South Centre
• Sigrun Skogli, Professor, University of Lancaster
• Manoela Roland, Professor, Universidade Federale de Juiz de Fora
Subject III – General obligations (15h00-18h00)
• Olivier De Schutter, Professor, Université de Louvain
• Linda Kromjong, Secretary-General of the International Organization of Employers
• David Bilchitz, Professor, University of Johannesburg and Director, South African
Institute of Advances Constitutional, Public, Human Rights and International Law
• Makbule Sahan, representative of the International Trade Union Confederation
Wednesday, 25 October 2017
Subject IV – Preventive measures
• Baskut Tuncak, UN Special Rapporteur on hazardous substances and wastes
• Ana María Suárez-Franco, FIAN International
• Iván González, representative of the Confederación Sindical de Trabajadores de las
Subject V – Legal liability (10h00-13h00)
• Richard Meeran, Partner, Leigh Day & Co.
• Carlos López, International Commission of Jurists
• Humberto Cantú Rivera, Professor, University of Monterrey
Subject VI – Access to justice, effective remedy and guarantees of non-repetition
• Surya Deva, Chairperson of the United Nations Working Group on Business and
• Gilles Lhuilier, Professor, Ecole Normale Supérieure (ENS) Rennes, France
• Richard Meeran, Partner, Leigh Day & Co.
Thursday, 26 October 2017
Subject VII - Jurisdiction (10h00-13h00)
• Sandra Epal Ratjen, International Advocacy Director, Franciscans International
• Gabriela Quijano, Amnesty International
• Lavanga Wijekoon, Littler Mendelson
Subject VIII – International cooperation
• Harris Gleckman, Center for Governance and Sustainability, University of
• Vicente Yu, Deputy Executive Director, South Centre
Subject IX - Mechanisms for promotion, implementation and monitoring
• Baskut Tuncak, UN Special Rapporteur on hazardous substances and wastes
• Anne van Schaik, Friends of the Earth Europe
• Melik Özden, CETIM
Subject X – General provisions (15h00-18h00)
Friday, 27 October 2017
Panel – The voices of the victims (selected cases from different sectors and regions)
• Alfred de Zayas, United Nations Independent Expert on the promotion of a
democratic and equitable international order
• Lorena di Giano, Red Latinoamericana por el Acceso a los Medicamentos
• Mohamed Hakech, La Vía Campesina MENA region
• María del Carmen Figueroa, Asamblea Nacional de Afectados Nacionales
• Hemantha Withanage, Friends of the Earth – CEJ