A legally binding instrument on transnational corporations with respect to human rights: challenges and hopes

by María Fernanda Espinosa

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Since January 2015, Ambassador María Fernanda Espinosa is the Permanent Representative of Ecuador to the United Nations in Geneva, and since July 2015, she is the chairperson and rapporteur of the open-ended intergovernmental working group with the mandate to elaborate an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights. Previously Espinosa held several minister posts in her country and was professor at the Latin American Faculty of Social Sciences.

In June 26, 2014, the Human Rights Council of the United Nations (HRC) adopted resolution 26/9, which established an open-ended intergovernmental working group with the mandate to elaborate an international legally binding instrument on transnational corporations (TNCs) and other business enterprises with respect to human rights. Among the triggers for this initiative, the current international legal order evidences gaps and imbalances with respect to the relationship between human rights and corporations, particularly when dealing with victims’ access to justice and effective remedy in cases of human rights abuses perpetrated by corporations. As evidence shows, some of those abuses remain in impunity, and non-binding rules, while useful, have not been enough to bring justice to victims.
Following resolution 26/9, the working group held its first session in Geneva, from 6 to 10 July 2015, and the second took place from 24 to 28 October 2016, both under the chairmanship of Ecuador. The two sessions were structured in different panels covering the possible principles for a legally binding instrument, the implementation of the UN Guiding Principles on Business and Human Rights, the coverage of the instrument with respect to the objective and subjective scope, the obligations of States, the responsibilities and liability of TNCs and other business enterprises, and the design of national and international mechanisms for access to remedy for victims of human rights abuses perpetrated by TNCs and other business enterprises.


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The first and second sessions allowed the participants to engage in constructive deliberations on the content, scope, nature and form of the future international instrument, as provided by operative paragraph 2 of resolution 26/9. This experience was not free of challenges, such as the absence of some Parties during the first session, due mainly to concerns on the way in which the UNGPs would be taken into account in the treaty process, and based on issues such as the subjective scope of the legally binding instrument. As for the first one, it is the view of the chairmanship that both processes are mutually reinforcing and complementary, as the existence of binding regulations can be complemented by non-binding guidelines. Regarding the scope, the debate is based in the contents of the footnote of resolution 26/9, which expressly states that “other business enterprises” refers to “all business enterprises that have a transnational character in their operational activities, and does not apply to local businesses registered in terms of relevant domestic law.” While some Parties support this view, others would like the inclusion of all business enterprises, without distinctions. The solution to this concern is one of the main challenges in this process.
Other issues have also captured attention in the debate and will need more reflection and discussion. They refer to the scope of human rights to be included, the obligations of States, including the possibility of extraterritorial obligations, the legal liability and responsibility of TNCs towards human rights, and the need for national and international mechanisms for access to remedy. These are also challenges that lie ahead and will need a careful management in the negotiations.
The second session had a broader and significant participation, showing that the process has gained momentum and traction, and the expectancies have grown, as the chairperson of the working group “should prepare elements for the draft legally binding instrument for substantive negotiations at the commencement of the third session”, as provided in resolution 26/9. In fact, the third session has been scheduled to take place in Geneva, from 23 to 27 October 2017, and while the mandate is “open-ended” in nature, and therefore there is not a specific date or period to achieve its objective, it is foreseeable that the process will last as long as the political will of Parties may allow to find common grounds of understanding


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It is worth to mention that besides the support of States, the civil society, particularly through the Treaty Alliance, has played a crucial and active role on behalf of the process, showing conviction and hope in the contribution that a legally binding instrument may mean to avoid or reduce cases of corporate impunity. In this field, strong attention has been put in the protection to be provided to vulnerable groups and potential victims, such as women and girls, children, persons with disabilities, indigenous peoples, among others, as they are usually the most affected by business enterprises’ abuses. In this respect, the Treaty Alliance defines itself as an “alliance of committed networks and campaign groups around the world (…) to collectively help organise advocacy activities in support of developing a binding international instrument to address human rights abuses committed by transnational corporations and other business enterprises.”
Other stakeholders in this process have been international organizations, intergovernmental organizations, national institutions of human rights, representatives of business enterprises, victims of corporate abuses, scholars, experts and students. All of them have participated in accordance to the rules of the HRC for this kind of working groups, and their voices have enriched the discussions.
It is also worth to clarify that the treaty process does not have any intention to affect neither investment, nor trade, nor any way in which the private sector may contribute to the economy of countries. The purpose on the contrary, is to provide a set of clear, general and common rules which will provide predictability and transparency when making business, respecting human rights at the same time, everywhere the activities take place.
Under this very general framework, the way forward is envisaged as a constructive and inclusive exercise where States and other relevant stakeholders will participate in a democratic manner, and will contribute to fill the current gap of the international rules of human rights, but moreover, will find international ways to better protect those who historically have been and presently are affected by the abuses of transnational corporations and other business enterprises (22 March 2017).

Further reading

Human Rights Council, resolution A/HRC/26/9 “Elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights”, adopted on 26 June 2014.

Human Rights Council (2016) “Report of the first session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, with the mandate of elaborating an international legally binding instrument”, document A/HRC/31/50, distributed on 5 February 2016.

Human Rights Council: “Report on the second session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights”, document A/HRC/34/47, distributed on 4 January 2017.


Written contributions to the first session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights. 

Written contributions to the second session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights.

Webcast of the second session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (during the week of 24 to 28 October 2016).

Webcast of the first session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (during the week of 6 to 10 July 2016).


Treaty Alliance, Global Movement for a Binding Treaty