A/HRC/34/47
instruments for remedy. The Montreal Protocol on Substances that Deplete the Ozone
Layer set out general principles followed by articles on procedural aspects and included an
annex that could be expanded and modified at the meeting of the parties to ensure precision
and flexibility. The treaty could include a section on enhanced compliance, a section on due
diligence and a functional legal platform to provide support for national legal systems.
98.
The sixth panellist focused on the potential form of the treaty, suggesting several
possibilities: a detailed treaty setting out substantive and procedural matters, similar to the
Rome Statute; a framework treaty setting out key principles and approaches, such as the
United Nations Framework Convention on Climate Change; a core treaty with a series of
annexes to deal with supervisory mechanisms and developments, such as the Vienna
Convention for the Protection of the Ozone Layer; or an optional protocol to existing
human rights treaties. The treaty should expressly cover enterprises owned or controlled by
the State; it should also define the responsibilities of international organizations.
99.
One delegation expressed the need to agree on a definition of transnational
corporations before drafting a treaty and suggested using ILO or OECD definitions.
Another delegation objected, referring to concepts such as terrorism or violent extremism
that were not universally defined but were addressed in binding instruments.
100. Another delegation advocated for a clear reference to existing principles, including
the Guiding Principles, but also to instruments relating to the environment, social security
and transparency, among others.
101. Regarding the scope of the instrument, some delegations noted that the binding
instrument would need to be adaptive to ensure that transnational corporations were
prevented from evading their responsibilities. Some delegations pointed out that companies
with domestic dimensions that were subject to national regulations did not have the same
possibility to evade their responsibilities and could not be treated equally as compared to
transnational corporations, thus an instrument regulating transnational corporations,
including their subsidiaries, decision-making bodies and supply chain, would place
transnational corporations and domestic business enterprises on a more equal footing.
102. It was observed that there appeared to be a consensus that the treaty should cover all
human rights, including the right to development, as well as principles of universality,
indivisibility, interdependence, equality and non-discrimination. One NGO noted that the
experience of national truth commissions should also be considered in that context.
E.
Panel V. Strengthening cooperation with regard to prevention, remedy
and accountability and access to justice at the national and
international levels
103. The panel discussion opened with a video message by Nils Muižnieks, Council of
Europe Commissioner for Human Rights. Mr. Muižnieks recognized that business practices
could have a negative impact on a variety of human rights, citing several examples of
concern in that regard and expressing support for the Guiding Principles, which had formed
the basis for a recommendation on human rights and business adopted recently by the
Committee of Ministers of the Council of Europe. He recalled that the European Union had
also recognized the Guiding Principles as the authoritative policy framework in promoting
corporate social responsibility, and the European Commission had encouraged the
development of national action plans for the implementation of the Guiding Principles.
However, much remained to be done, including ensuring broad and inclusive participation
in the process of implementation, all of which would feed into the work of the working
group in elaborating an international legally binding instrument.
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