A/HRC/31/50
“transnational corporations” could be through jurisprudence, delegation to national
legislation or an intermediate referral system. Finally, the panellist stated that there were a
number of precedents in other areas of law that address the control of subsidiaries and
indirect control, for example, tax law, commercial law and intellectual property law.
58.
Some States pointed out that the nature of the operations of transnational enterprises,
their size and their corporate structure had an impact on human rights. Other States stressed
that the instrument should focus mainly on gaps to address human rights impacts of
transnational operations, as there was no clear definition of the term “transnational
corporations”.
59.
Several States highlighted that the instrument should focus on transnational
corporations because they can evade responsibilities for the extraterritoriality dimensions of
their operations. Another State noted that there had been no significant discussions over the
past decade regarding international liability for such corporations and that victims of their
activities were already waiting for redress. It also warned against having a fixed definition
because of the risk that a lack of agreement on definitions would entail. Likewise, it pointed
out that it was possible to reach common understanding and mentioned examples of
different instruments that did not use specific definitions when defining terms such as
investment.
60.
Several NGOs stressed the need for a treaty to focus on transnational corporations
because there was a clear gap with respect to their operations in international human rights
law.
61.
Some NGOs argued that all enterprises were susceptible of committing human rights
violations and that all victims needed protection and remedy regardless of the nature of the
enterprise committing the abuse, so a treaty must therefore cover all business enterprises.
They called for a treaty to address all businesses while focusing on the particular challenges
posed by transnational corporations.
D.
Panel IV. Human rights to be covered under the instrument with
respect to activities of transnational corporations and other business
enterprises
62.
Several participants noted that the activities of transnational corporations could
affect a wide array of human rights. They argued that there was no definition of grave
violations of human rights in international law. Therefore it would not be accurate to limit a
treaty to gross human rights violations, as it would signal that other violations are tolerated
or considered less serious. They also stressed that current rules were not sufficient and that
there was a need for an international response with extraterritorial competences. Some
States and panellists noted that all human rights were universal, indivisible and
interdependent as recognized in the Vienna Declaration and Programme of Action. One
panellist highlighted that human rights violations had a special dimension linked to poverty,
the rights of the child and gender.
63.
Several panellists, delegations and NGOs noted that all human rights should be
included in the binding instrument, since transnational activities had an impact on a wide
range of stakeholders, including the communities in which they operate. They argued for
the need to use an adequate methodology to identify corporate responsibility, such as a test
to identify the responsibility of a corporation when it violates a right or directly benefits
from the abuse of the right, and to identify the nature of the right and what it entails. From
this point of view, the emphasis relies on the victim’s rights, not on the agent of the
conduct.
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