A/HRC/40/48
more references to the direct obligations of transnational corporations and other business
enterprises in the preamble. Some delegations that were of the view that only transnational
corporations should be covered by the instrument called for the removal of the reference to
“all” business enterprises. A business organization asked whether it was consistent to include
the reference to all business enterprises when the rest of the draft referred to businesses with
activities of a transnational character. A delegation and an NGO suggested adding more
principles to the list of principles in the seventh preambular clause; however, another
delegation asked whether including some principles could be seen as favouring some over
others, while another delegation suggested referring to principles of international law
generally rather than listing specific ones. In addition, there was a call to delete the ninth
preambular clause, which referred to Council resolution 26/9.
85.
There were many suggestions for additions to the preamble. For example, several
delegations recommended making reference to the principles and purposes of the Charter of
the United Nations (one delegation suggested referring to the Charter as a whole). There were
also several calls for references to the importance of sustainable development and the positive
role that companies could play. Some delegations and many NGOs suggested including
stronger language with respect to gender. Many NGOs also requested references to the
primacy of human rights. There were calls by delegations for a number of other references,
including to fundamental rights and freedoms, the Guiding Principles and the right to a
sustainable environment.
86.
Some delegations and NGOs welcomed the provision, in article 14, for the
establishment of a committee, and suggested numerous powers that it should have, in
particular the ability to receive and review complaints and make binding decisions. Other
delegations expressed concern about the rush to create a new committee. It was suggested
that the working group consider the ongoing review of the treaty body strengthening process.
To reduce the risk of fragmentation and duplication of effort, some delegations suggested
relying on existing mechanisms for the implementation and interpretation of the future
instrument. Those delegations also raised the issue of the funding implications of establishing
a new body. Another delegation stated that it was premature to discuss the establishment of
a committee before reaching a stronger consensus on the substance of the draft instrument.
Some NGOs argued that the article should go further and establish more powerful
international bodies, such as a court or monitoring centre.
87.
With respect to specific provisions under article 14, some delegations called for the
inclusion of a clause prohibiting conflicts of interest in 14 (b). Other delegations said that
parties to the instrument should have five years to meet the reporting requirements
established in article 14 (2), instead of four. It was also suggested that article 14 (4) (e) be
removed or revised to provide for the conduct of studies by the committee itself.
88.
There was general approval of article 15, although one delegation suggested that the
first six paragraphs, on implementation, should form a separate article. Another delegation
considered article 15 (1) to be redundant and argued that States should be allowed to
determine how to fulfil their treaty obligations. Some delegations called for greater
consideration of the capacities of developing States and said that including article 15 (2), in
addition to the reporting requirements under article 14 (2), was unnecessary. Some
delegations and many NGOs welcomed the inclusion of article 15 (3), considering it
important to retain it in the instrument and potentially replicate it in article 9, the preamble
or both. However, it was argued that the rights of all interested parties should be considered,
and one delegation voiced concern that the provision could cause businesses to oppose the
human rights agenda. Another delegation suggested either deleting the provisions contained
in article 15 (4–6) or moving them to the preamble. However, some delegations and NGOs
requested that article 15 (4) be strengthened, in particular the references to gender-based and
sexual violence, which, in their view, deserved a stand-alone provision. Similarly, some
delegations and NGOs approved of article 15 (5) and requested its replication in other parts
of the draft. One delegation warned against another’s proposal to add groups to the list of
groups facing heightened risks of violations of human rights, as including one group could
be read as excluding another. A delegation and an NGO recommended that article 15 (10)
and (11) and the references to regional international organizations be removed. Some
delegations requested the working group to decide upon a reasonable number of ratifications
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