European Union
UNITED NATIONS
HUMAN RIGHTS COUNCIL
Open-ended intergovernmental working group on transnational corporations
and other business enterprises with respect to human rights
3rd session (23-27 October 2017)
Opening remarks by the European Union
Geneva, 23 October 2017
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UNITED NATIONS
HUMAN RIGHTS COUNCIL
Open-ended intergovernmental working group on transnational corporations
and other business enterprises with respect to human rights
3rd session (23-27 October 2017)
Mr. Chairperson-Rapporteur,
The European Union would like first to congratulate you on your election today, and to thank the
outgoing Chairperson-Rapporteur, Minister Espinosa, for her leadership over the past two sessions
of this Intergovernmental Working Group. We would also like to thank the speakers in the opening
statements. We express our appreciation to the Secretariat for its work in preparation of this third
session.
Civil society organisations and human rights defenders worldwide are mobilized to remind the
international community that more remains to be done to prevent abuses in connection with
activities by enterprises, and to enable access to remedy when abuses occur. We acknowledge the
important role of civil society in highlighting protection gaps and agree that more needs to be done
to prevent, investigate, punish and redress adverse human rights effects of business activities. We
continue to take concrete steps to meet these shared objectives, the clear direction of our work
having been set out in the Council Conclusions of 20 June 2016* as we marked the 5th anniversary
of the UN Guiding Principles on Business and Human Rights. We also increasingly witness that
business companies see the merit of taking tangible steps to ensure respect for human rights
throughout their operations. Initiatives are also underway in the areas of trade, investment and
finance to name but a few.
The international community needs to respond in an appropriate and effective manner. Three years
have passed since resolution 26/9 was adopted and we hear growing concerns regarding the process.
*
http://www.consilium.europa.eu/fr/press/press-releases/2016/06/20-fac-business-human-rights-conclusions/
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Questions have been raised about the late circulation of the "elements for a draft legally binding
instrument" before us today, made available only three weeks before the start of this session, when
the document was initially announced for June 2017. There are also serious concerns regarding the
late availability of a Program of Work, which is meant to structure our discussions. We understand
that this delay has impacted negatively on the ability of States, international organisations and all
relevant stakeholders, including NGOs, trade unions and the business community, to prepare
adequately for this session.
Some may wonder why we insist on process, and our answer is straightforward: steering a process
impacts on substance and the likelihood to make progress. Hence, we insisted that the draft Program
of Work ascertains that this process does not undermine the much needed continued implementation
by all States across regions of the UN Guiding Principles on Business and Human Rights. We also
insisted that the Program of Work should acknowledge the need to widen the scope of the
Intergovernmental Working Group beyond transnational corporations to cover all other enterprises.
The discussion cannot be limited to transnational corporations as many abuses are committed by
enterprises at the domestic level. In today's globalized world, there are complex business networks
and many different modes of operation between transnational corporations and a vast number of
other enterprises operating at the domestic level. We regret that the Chairmanship refused to insert a
footnote in the Programme of Work to extend the scope of the discussion to all enterprises.
We are pleased to see that other UN tracks allow for pragmatic and tangible progress, with notably
a much needed focus on access to remedy. UN Human Rights Council resolution 32/10 (by the core
group Argentina, Ghana, Norway, the Russian Federation) on "Business and Human Rights:
improving accountability and access to remedy" sent the needed signal and commitment from all
States that effective and pragmatic steps can be taken without delay to ensure accountability and
access to remedy. Resolution 32/10 gave notably a new impetus to the OHCHR-led Accountability
and Remedy Project. More recently and also thanks to the leadership of Argentina, Ghana, Norway
and the Russian Federation, resolution 35/7 gave a clear direction of work to the UN Working
Group on Business and Human Rights. We welcome that the forthcoming Forum on Business and
Human Rights in Geneva on 27-29 November will focus on "Realizing effective access to remedy".
In our view, all these tracks are geared towards tangible and concrete progress for States to
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implement the wide range of their existing obligations, and business enterprises to meet their
responsibility to respect human rights.
As discussion on possible further legal developments begins, we would like to reiterate that we do
not currently operate in a legal vacuum. It is enough to quote the first UN Guiding Principle as an
illustration of existing obligations:
"States must protect against human rights abuse within their
territory and/or jurisdiction by third parties, including business enterprises. This requires taking
appropriate steps to prevent, investigate, punish and redress such abuse through effective policies,
legislation, regulations and adjudication". Full implementation of the existing human rights
obligations would probably respond to the numerous cases documented by civil society
organisations and human rights defenders. We need collectively to move forward for a proper
implementation of the existing obligations. We stand ready, including during this session, to share
our experience in the development of a smart mix of voluntary and regulatory measures, and to
continue to cooperate with States and stakeholders from across regions. We stand ready to discuss
how best to promote and clarify rules on judicial cooperation and on access to remedy in the
appropriate fora.
As discussion on possible further legal developments continues we would like to refer to a quote
from the architect of the UN Guiding Principles, Prof. John Ruggie, former Secretary-General’s
Special Representative for Business and Human Rights:
"Let there be no misunderstanding: this
debate is not about legalization as such. Nor is it about the tired dichotomy between voluntary and
mandatory measures. Treaties, after all, are voluntary in that no state can be forced to adopt one,
while the Guiding Principles, which are typically described as being voluntary, embody existing
mandatory requirements and have given rise to new ones. The debate instead is about carefully
weighing the extent to which different forms of legalization are capable of yielding practical results
where it matters most: in the daily lives of people around the world—and in the here and now, not
some far-off idealized state of being. From the vantage of victims, an all-encompassing business
and human rights treaty negotiation is not only a bad idea; it is a profound deception. In contrast,
international legal instruments as precision tools, reinforcing and building upon foundations that
have been painstakingly established, offer far greater promise."†
†
https://www.ihrb.org/other/treaty-on-business-human-rights/a-business-and-human-rights-treaty-international-
legalisation-as-precision
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We developed this argument at the second session and we continue to express our wish that the
discussion in this or other for a moves towards international legal instruments as precision tools.
The Chairmanship of the Intergovernmental Working Group seems to have instead opted for the
option of an "all-encompassing business and human rights negotiation" risking to delay progress.
Without prejudging the outcome of the upcoming discussion, we would like to reserve our position
on the document presented to us. We would like our position to be accurately reflected in the report
of this session and invite the Chairperson-Rapporteur to indicate already at this stage that that the
report will attribute the positions with a view of having a clear record.
The European Union recalls that the global consensus reached on the UN Guiding Principles on
Business and Human Rights came as a result of broad, sustained and in depth consultations with
States and all stakeholders. We believe that any possible further steps regarding the international
legal framework for business and human rights at UN level must be inclusive, firmly rooted in the
UN Guiding Principles and address all types of companies. With this understanding, we will do our
utmost to engage in this session and other fora. We look forward to meaningful discussions with all
States and relevant stakeholders, including civil society organisations, trade unions and the business
community.
I thank you Mr. Chairperson-Rapporteur
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