BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

2.2 Efforts to elaborate on an international legally binding instrument Besides the UN Guiding Principles, which falls under international soft law, the UN Human Rights Council in 2014 established an open-ended intergovernmental working group with the mandate to draft an international legally binding instrument focusing on human rights aspects of transnational business activities. 23 The European Union has been especially sceptical about the usefulness of a legally binding treaty on this subject and all EU Member States that were represented in the Human Rights Council at that time opposed the establishment of the intergovernmental working group. Later they made their participation in the working group subject to two conditions. First, the scope of a new legal instrument shall not be limited to transnational corporations but shall also cover national and small and medium enterprises. Second, the UN Guiding Principles shall not be undermined. So far, three sessions of the intergovernmental working group have been held under the chairmanship of Ecuador. Only a limited number of states participate actively or openly support the idea of a treaty regulation on business and human rights, e.g. South Africa, India, the Philippines, Bolivia, Brazil, and Venezuela. 24 The USA, Canada, and Japan continue to boycott the process. 25 Russia argues rather against the treaty. Others, including the European Union, keep reserving their position and asking questions both on the process as well as on the substance. Shortly before the third session of the intergovernmental working group held in October 2017, its Ecuadorian chair released a document named “Elements for the draft legally binding instrument on transnational corporations and other business enterprises with respect to human rights”. 26 At first sight, the “Elements” represent a compilation of a range of proposals presented by some States, civil society and academia during previous sessions. Certain provisions reiterated existing international law, others the UN Guiding Principles. However, there were several provisions which were considered very problematic from the EU’s point of view. The EU opposes the idea that corporate legal liability should be established under international law, that extraterritorial jurisdiction should be required for the violation of any internationally recognized human right, and that a hierarchy of international legal norms should be established. It is still unclear how the process will continue as the resolution of the Human Rights Council establishing the intergovernmental working group foresees only three sessions. The engagement of the European Union will factor in the following elements: a) any potential international legal instrument should be consistent with the UN Guiding Principles and should apply to all companies – transnational and national; b) such a document should gain support from key economies to enter into force and it should enhance a level playing field. 23 Human Rights Council resolution 26/9 of June 2014. 24 Webcast available at: https://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Session3/Pages/Session3. aspx. 25 A/HRC/37/67 – information on participation on p. 23. 26 The document is available at http://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/ Session3/LegallyBindingInstrumentTNCs_OBEs.pdf.

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