Ref. Ares(2018)5987512 - 22/11/2018
Redactions made under Art. 4.1.B.
EU Expert meeting: preparation for an EU position regarding further developments
on Business and Human Rights
On 29 January 2018 the EEAS organized an expert meeting to discuss Business and Human
Rights. Following this example, another expert meeting is organized on 7-8 June 2018 to
contribute to ongoing work aimed at developing an EU position on the possibility of
developing a legally binding instrument.
The expert meeting aims to:
1) Take stock of the challenges/governance gaps in the field of business and human
rights where the EU/MS want to move forward on the implementation of the UN
Guiding Principles on Business and Human Rights (UNGPs).
2) Take stock of international legal instruments (existing or under negotiation) and
decisions of international courts (such as ECHR Nait-Liman) that are of relevance to
business and human rights issues, in particular concerning the remedy pillar and
explore if and how additional legally binding norms could potentially contribute to a
solution and to a more effective global level playing field in the interest of EU
business and stakeholders.
3) Provide insight into what the various options would mean in the EU/MS context, what
are advantages and disadvantages of different measures, in order to advance
towards a common EU position.
The discussion will build on the UNGPs pillars and existing practices to identify the
challenges which we want to address collectively. From there we can examine whether and
how a potential legally binding instrument or new norms on Business and Human Rights
could possibly complement the current implementation of the UN Guiding Principles on
Business and Human Rights. The below is an overview of potential challenges / governance
gaps.
Pillar 1 duty to protect
Governments around the world do not always fulfill their responsibility to protect human
rights1. In the words of
: “Each legally distinct corporate entity is subject to the
laws of the countries in which it is based and operates. Yet States, particularly some
developing countries, may lack the institutional capacity to enforce national laws and
regulations against transnational firms doing business in their territory even when the will is
there, or they may feel constrained from doing so by having to compete internationally for
investment. Home States of transnational firms may be reluctant to regulate against
overseas harm by these firms because the permissible scope of national regulation with
extraterritorial effect remains poorly understood, or out of concern that those firms might
lose investment opportunities or relocate their headquarters”.
1 http://www.undocs.org/A/HRC/8/5
Pillar 2 responsibility to respect
More and more companies operate internationally, where respect for human rights is not
adequately integrated in national legal systems and/or the law is not adequately enforced.
This creates challenges for companies to fulfill their responsibility to respect, especially
when their business models are linked to these legal or governance gaps in production
countries, such as absent or inadequate standards on fundamental rights at work, decent
working conditions or on minimum wage2. While some companies have made significant
progress over the past period, a large number of companies are still not aware of the UN
Guiding Principles on Business and Human Rights or have failed to operationalize them due
to a number of constraints.
Pillar 3 access to remedy
Victims of business-related human rights violations can face multiple problems when trying
to get access to remedy. For example, victims do not have the means and connections to
take large companies with extensive legal teams to court. ‘Home state’ courts do not
provide remedy because of corruption or lack of local legislation and ‘host state’ courts
cannot/do not establish jurisdiction3.
2 In the words of
: “some companies have made themselves and even their entire
industries targets by committing serious harm to human rights, labour standards, environmental
protection, and other social concerns.” http://www.undocs.org/A/HRC/8/5
3 The Council called for progress in the field of access to remedy: https://ec.europa.eu/anti-
trafficking/sites/antitrafficking/files/council conclusions on business and human rights foreign affairs council.
pdf and requested the EU Fundamental Rights Agency to study the gaps:
http://fra.europa.eu/en/opinion/2017/business-human-rights
Draft Program
Day 1 - Examining issues regarding access to remedy
08.45 – 09.15 welcome and coffee
09.15 – 09.30 Introduction – aims of the expert meeting
Lotte Knudsen – Managing Director EEAS
09.30 – 10.30 Removing legal barriers: collective action, ‘no cure no pay’, legal aid,
disclosure of evidence and ‘burden of proof reversal’
- DG JUSTICE
- Associate Fellow Chatham House
10.30 – 10.45 break
10.45 – 12.00 Discussion
12.00 – 12.45 Lunch
12.45 – 13.30 Extraterritorial jurisdiction – examples of other mechanisms (crimes against
humanity, corruption) applied to BHR
- DG JUSTICE
- Associate Fellow Chatham House
13.45 – 15.00 Discussion
15.00 – 15.30 break
15.30 – 16.00 Strengthening international state-based non-judicial mechanisms such as the
OECD NCPs and the ILO tripartite MNE Declaration
- OECD Working Party on Responsible Business Conduct and Chair of the
network of NCPs
- ILO
16.15 – 17.00 Discussion
17.00 – 17.15 break
17.15 – 17.45 International cooperation: improve accountability and access to remedies for
victims – example of the ILO Maritime Labour Convention inspection and certification
system
- ILO
17.45 – 18.30 Discussion + wrap up
4 https://sites.hks.harvard.edu/m-rcbg/CSRI/publications/workingpaper_59_zerk.pdf
Day 2 - Examining issues regarding the duty to protect & responsibility to respect
08.45 – 09.15 welcome and coffee
09.15 – 09.45 issues regarding due diligence – what would consequences of mandatory due
diligence in UN Treaty be? What can we expect in terms of implementation?
– OECD Due Diligence Expert
09.45 – 10.45 Discussion
10.45 – 11.15 break
11.15 – 12.00 interaction between NAPs, implementation of the UNGPs and a potentially
legally binding instrument
- Danish Institute for Human Rights
- German National Human Rights Institute (DIMR)
12.00 – 13.00 Discussion
13.00 – 13.45 Lunch
13.45 – 14.30 Lessons learned from treaty negotiations on the International Criminal Court
and United Nations Convention Against Corruption, what works and doesn’t work? What
form should a potential legally binding instrument have?
– UN Working Group on BHR
14.30 – 15.30 Discussion
15.30 – 16.00 Break
16:00 – 16.45 Issues to be taken into account from a trade and investment perspective –
– DG TRADE
16.45 – 17.45 Discussion + wrap up
5 https://www.humanrights.dk/projects/human-rights-business-treaty-question
6 http://www.institut-fuer-
menschenrechte.de/fileadmin/user upload/Publikationen/Stellungnahmen/Position Paper Building on the UN
Guiding Principles towards a Binding Instrument on Business and Human Rights 2018 03 20.pdf
7 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2736813