A/HRC/37/67
treatment, it was feared that including a list of some groups could indicate the exclusion of
others. Others requested that the language be altered to reflect a more positive, empowering
tone.
47.
One delegation noted that the reference to the duty of States to prepare human rights
impact assessments was inappropriate in that section since that was not a “principle”. The
same delegation also expressed concern about the provision recognizing the responsibility
of States for private acts since it believed it had been worded too generally and failed to
recognize that such responsibility only arose in certain circumstances.
48.
Several elements under the subsection on “purpose” also received attention. Some
delegations approved a reference to the civil, administrative and criminal liability of
business. One delegation did not agree since many States’ legal systems did not criminally
punish legal entities, and thought that States should have discretion as to how to enforce the
treaty.
49.
Delegations and NGOs welcomed the reaffirmation that States’ human rights
obligations extended beyond territorial borders, with some requesting that that be
elaborated in the instrument. One regional organization questioned whether that provision
conflicted with one in the preamble reaffirming the sovereign equality and territorial
integrity of States, including in relation to progress in the area of the responsibility to
protect. A business organization expressed concern about the inclusion of the term
“promotion”, saying that, while companies should respect human rights, they should not
have an international obligation to “promote” human rights.
50.
Regarding the objectives of the instrument, delegations welcomed the reference to
international cooperation and mutual legal assistance, noting its importance for the
effective implementation of the instrument.
B.
Panel II. Scope of application
51.
The first panellist noted that the elements document referred to the transnational
activities of transnational corporations and other business enterprises, regardless of the
mode of creation, control, ownership, size or structure. That indicated an inclusive
approach in line with the Guiding Principles and rightly focused on activities rather than
their corporate ownership. Additionally, she supported the scope of application to cover all
internationally recognized human rights.
52.
The second panellist also expressed support for extending the scope of application to
all internationally recognized human rights, reflecting their universality, indivisibility and
interdependence. The panellist questioned restricting the elements to acts of a transnational
character since, from the victim’s perspective, it was irrelevant whether an act was national
or transnational. Additionally, she suggested that the instrument apply to regional
organizations beyond economic integration organizations.
53.
The third panellist emphasized that the working group was acting under a Council
mandate; thus, human rights must prevail, not investment and trade, and urged more focus
on human rights defenders. The panellist noted that a legally binding instrument should
address gaps in voluntary initiatives and explore direct obligations on business.
54.
With respect to the rights covered by a binding instrument, most delegations agreed
that all internationally recognized human rights should be included. Some delegations
mentioned specific rights, such as the right to development, the right to property and the
right to permanent sovereignty over natural resources. It was suggested that the instrument
should also ensure protection of nationally recognized rights. Another delegation suggested
that the wording of that provision in the elements document was overbroad by including
10
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents