Another round of negotiations in the Human Rights Council of the United Nations on a binding treaty, which shall impose due diligence obligations in respect of complying with human rights on companies, took place mid-October. The EU as such has no negotiation mandate and is therefore not actively involved in the negotiations. However, it is present and announced in the meeting that during the next EU Commission under Ursula von der Leyen, it would increase its attention concerning this issue.
Some MEPs and non-governmental organisations called for the Commission to be given a mandate for negotiating the UN Treaty, in particular given the fact that over 650,000 people have already declared their support for the campaign.
What is at stake regarding corporates’ responsibility to respect human rights?
Basically, the debate about corporate human rights responsibility wants to make companies responsible for their violations of human rights and also of associated rights such as those concerning environmental protection. This accountability is necessary along the entire supply and production chain. Even though the EU takes pride in its high standards, production outside the EU often is characterized by appalling working conditions and accidents. The United Nations has been negotiating since 2014 to create binding regulations. In the meantime, five negotiation rounds have taken place between interested countries. Also present are experts, foremost in legal questions, and representatives of non-governmental organisations, which are actively involved in drawing up the Treaty. The concrete discussion of the specific draft proposal, which shall oblige countries to issue binding national regulations on corporate due diligence, has already begun. However, some issues have not yet been resolved.
Lines of conflict within the framework of the 5th round of negotiations
Overall, the negotiations, with countless experts and representatives of the civil society and 54 nations, most of which welcomed the amendments of the draft proposal, began positive. Through the amendments the text was brought closer to the already existing UN Guiding Principles for Business and Human Rights. However, there were points of criticism, which have to be explained in more detail. Some countries criticised among other that the definition of companies was narrower that in the existing non-binding guidelines. In contrast, others preferred the narrower definition. Similarly, clarifications are also needed with regard to the definition of the victims of such violations. This involves the key issue whether the burden of proof should be transferred to companies in their capacity as the defendant party or not. In principle, this would not be uncommon for enforcing human rights. After all, most of the people affected are in a dependent relationship and do not have the necessary resources for a court case. Apart from that, people affected by corporate due diligence violations often come from countries of the Global South.
It furthermore needs to be clarified how many references should be made to existing human rights and to what extent environmental rights should be included. An agreement on environmental rights and gender specific aspects is currently not yet in reach. In very general terms, it must also be clarified how the activities of countries and companies should be defined and - based on this - how objective and subject of the Treaty should be outlined. The question as to how individual and collective violations should be dealt with is also still open.
What are the next steps?
Hence, the process is far from being complete but things are moving in the right direction. The countries present want to continue the process and submit and discuss a new draft proposal in June 2020. However, it will be some years until solutions have been found for all fields of conflict. However, from the AK’s perspective the issue is urgent and the EU should at last actively support it. The victims of human rights violations must be protected: they require access to courts and guidance to be able to proceed against multinational corporations. Companies, whose profits are generated through appalling working conditions, must be held accountable – irrespective of the country in which they produce. Human rights must take priority over profit interests.