USCIB Vice President for Corporate Responsibility and Labor Affairs Gabriella Rigg Herzog  traveled to Geneva last week to represent Employers at the United Nations Intergovernmental Working Group on transnational corporations and other business entities with respect to human rights (IGWG). Chaired by Ecuador, the meeting followed two IGWG sessions in 2015 and 2016 which entailed general discussions on issues including the scope and applicability of a proposed binding instrument. This third meeting focused on a “Draft Elements” paper which was drafted by the Chair and served as a deliverable from the first two sessions.

As in previous sessions, business and key governments clearly stated their view that a treaty was unnecessary, and could risk distracting time and focus from the established global consensus surrounding the primacy of the UN Guiding Principles on Business and Human Rights (UNGPs) as the authoritative global framework that sets out the roles for governments and business on protecting and respecting human rights, and the need for greater access to justice for victims of alleged corporate-related human rights abuse. Additionally, business and key governments stressed that focusing solely on transnational corporations was not appropriate, and that any future instrument should cover all business entities, in particular, national companies.

Herzog made two interventions during the proceedings, focusing on legal liability and on international cooperation. On legal liability, Herzog underscored that “States have the primary duty to develop strong national institutions, as well as promulgate and effectively enforce domestic laws covering ALL companies within its borders, regardless of whether they participate in global supply chains or not.” Given that, Herzog emphasized the need to “avoid creating a two-tiered compliance system, whereby individuals, communities or workers that suffer business-related alleged harms involving TNCs have greater protections, but the rest get lesser or diluted protections and remediation.”

On international cooperation, Herzog highlighted the power of peer pressure, and existing UN mechanisms that could be leveraged by governments to encourage other governments to fulfil their State duty to protect human rights  – including through the development of National Action Plans in accordance with the UNGPs. “Peer pressure between States can be realized under the existing architecture by better harnessing the Human Rights Council’s Universal Periodic Review process.” said Herzog. “We understand that States are starting to receive more recommendations from other States on the topic of business and human rights. This process could be used to encourage more “national action plans” (NAPs) on business and human rights that take note of the guidance prepared by the UN Working Group.”

According to Herzog, NAPs have not had as much attention in this third session because there is no explicit reference to them in the “elements” paper. “This is a pity,” she said in her intervention. “Taking aside the critique that some existing plans could have included more focus on the third pillar of the UN Guiding Principles, NAPs are a practical and useful tool.”

Herzog also emphasized in her comments that “international cooperation” is a broad topic that expands out beyond the specific discussions of this third session. The international business community is actively involved in a large number of initiatives on how to respond to social, labor and environmental challenges across the world, including the UN 2030 Agenda for Sustainable Development (SDGs). Human rights are a central part, and the SDG agenda explicitly seeks to harness global partnerships and bring together governments, the private sector, civil society, the United Nations system and other actors and mobilize all available resources.

This third meeting concluded with some confusion over next steps, with the Chair expressing the position that its IGWG mandate would continue until a treaty was drafted and agreed. Other key parties, however, believe the Chair needs to seek a renewal of its 3-year mandate next summer from the Human Rights Council in order to proceed with a fourth meeting. USCIB will continue to monitor developments on this issue closely.