Discussing the scope of application of a prospective instrument

A meeting of a UN Human Rights Council working group recently discussed a treaty on the human rights effects of transnational corporations and other business enterprises. Below is the second part of the report on the meeting, focusing on discussions concerning the scope of a prospective treaty.

By Kinda Mohamadieh and Daniel Uribe

Resolution A/HRC/RES/26/9 adopted by the United Nations Human Rights Council on 25 June 2014 established an open-ended intergovernmental working group to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises” (Operative paragraph 1, Resolution A/HRC/RES/26/9).

It also recommended that “the first meeting of the open-ended intergovernmental working group serve to collect inputs, including written inputs, from States and relevant stakeholders on possible principles, scope and elements of such an international legally binding instrument” (Operative paragraph 5, Resolution A/HRC/RES/26/9).

The first meeting of the open-ended intergovernmental working group (OEIWG) discussed the scope of a prospective instrument over two consecutive sessions. One session addressed the businesses to be covered by the Instrument, including the concepts and legal nature of transnational corporations and other business enterprises in international law. Another session addressed the scope of human rights to be covered under the Instrument.

A clear message that came out of the deliberations at the OEIWG was that a prospective Instrument should cover all human rights and human rights violations. On this topic, it was noted that the UN Guiding Principles pointed that business enterprises can have an impact on virtually the entire spectrum of internationally recognized human rights (see commentary to UNGP 12). It was also underlined that human rights are universal, indivisible and interdependent as recognised in the Vienna Declaration and Programme of Action (1993). Furthermore, it was noted that there is no clear definition of gross violations of human rights under international law (for more details of the discussions on this point, see part I of the report entitled “Business and Human Rights: Commencing historic discussions on a legally binding instrument”, SOUTHNEWS, No. 93, 14 July 2015 available at: http://us5.campaign-archive1.com/?u=fa9cf38799136b5660f367ba6&id=62fa395837&e=[UNIQID]).

This part of the report will focus on the deliberations concerning the businesses to be covered by a prospective instrument. These discussions particularly tackled a footnote in the preambular section of resolution A/HRC/RES/26/9, which provides that “”Other business enterprises” denotes 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”.

The concept note for the first OEIWG session¹ indicates that “[This] issue has already triggered a lively debate. Some States and other stakeholders have requested a broad interpretation of the footnote, not limited only to businesses with a transnational character, but applied to all business enterprises”. The concept note adds that “States and relevant stakeholders are invited to engage in a substantive and constructive discussion in order to address this concern. Therefore Member States and other stakeholders are invited to provide their views and positions on this matter during the first session of the OEIWG”.

Highlights from the discussions

Three interrelated issues were tackled by the interventions of experts, states, and civil society organizations in this session, including: (1) whether a prospective instrument should be applied to all business enterprises or to transnational corporations only, including a discussion of the meaning and interpretation of the footnote in resolution A/HRC/RES/26/9, (2) the possibilities and approaches to defining the notion of ‘transnational corporations’ under international law and (3) the legal status of transnational corporations under international law, mainly with regard to the possibility of recognising corporations as subjects of liability under international human rights law.

CONTRIBUTIONS FROM EXPERTS

Four experts participated on the panel including Stephanie Blankenburg, head of the Debt, Development and Finance work at the United Nations Conference on Trade and Development (UNCTAD) Division on Globalization and Development Strategies; Michael Congiu, shareholder, Littler Mendelson PLC; Chip Pitts, lecturer at Stanford Law School; and Carlos M. Correa, special advisor on trade and intellectual property at the South Centre.

Stephanie Blankenberg noted that from a macro-economic point of view, the size of corporations does matter. When comparing corporate sales and countries’ gross domestic product (GDP) over recent years, it can be noted that around half of the leading 100 economies have a size comparable to transnational corporations (TNCs). If we measure companies’ impact in value added, she added, about one third to one fourth of the world’s largest economies would be comparable to companies’ sizes. According to the Financial Times Stock Exchange multinational index, which is composed of the largest multinationals that derive 30% or more of their revenue from outside their domestic region (i.e. the region where they are incorporated), the net market capitalization for 700 constituent companies account for around USD 30 trillion. Most of these companies are incorporated in the US, followed by Japan, the United Kingdom, and France. American multinationals account for USD 11 trillion in net market capitalization. By contrast, the GDP of China was close to USD 10 trillion in 2013, and that of India was around USD 2 trillion in the same year.

Stephanie Blankenberg pointed out that two elements should be taken into account when discussing corporations. One is the size of their operations; this element is not enough to clarify the impact that companies have in the world economy. Another is the extent of control that these companies can exert over “economic, as well as social and political decision-making relative to other stakeholders, that is relative to national governments, civil society constituents, employees, and international organizations.”

Ms. Blankenberg added that “[w]hat makes transnational corporations subjects of potential concerns […] is not the companies themselves, not their size nor their reach… what makes them subject of potential concerns is the absence of countervailing power that can channel their productive capacities towards constructive collective outcomes”.

Ms. Blankenberg explained that the immediate post war period witnessed a fast expansion of TNCs’ role in the global economy. This period was associated with policy cooperation between advanced economies and the emergence of the Bretton Woods system that favoured the rapid expansion of international trade. Since then, there has been a fundamental shift in power relation between TNCs and states. This shift was driven by technologies that facilitated management of large companies across borders, the deregulation of many economic activities, and the financialization of the global economy as a parallel process affecting TNCs that favour ‘short-termism’ in investment strategies. The shift in power of TNCs vis-a-vis states is also reflected in the mechanisms available to corporations under trade agreements and investor-state dispute settlement mechanims, added Ms. Blankenberg.

While TNCs from developing economies are on the rise, Ms. Blankenberg pointed out that national accounting often does not give reasonable figures that reflect the relative weight of developing economies in the global economy. She gave an example of China, where 90% of the high technology exports are produced by foreign companies, thus controlled directly or indirectly outside China.

Ms. Blankenberg pointed to the legal instruments available to companies, such as limited group liability and the ability of large companies to use existing legal instruments in order to negotiate the responsibilities that they have.

In principle, she added, it is important to recall that not a single economist ever argued for private market economies not to be regulated. In conclusion, Stephanie Blankenberg stressed that “there is a strong argument in favour of international regulation in the globalized international economy […] to channel the potential of private – and large companies in particular – into a path of inclusive and sustainable growth for the benefit of all”.

Michael Congiu, of Littler Mendelson and expert on international labour rights and business and human rights, observed that defining multinational corporations is very difficult. He added that it is “very difficult for a multinational entity to understand where it has individual members in its supply chain, where particular products are coming from and to control those individual entities on a daily basis in order to ensure that they are obeying their human rights obligations”.

Mr. Michael Congiu considered that there has been important progress in the area of business and human rights, pointing to the experiences of the UN Guiding Principles (UNGP), the OECD Guidelines, national action plans adopted by the United Kingdom, and consultations carried out by the United States and the Netherlands, among other examples.

Mr. Congiu stressed that “The UNGPs are rather clear that those principles apply to every business entity, whether it is a small entity, a large entity, a transnational entity, a domestic entity, a state owned entity or a private entity”. He added that “any treaty process that moves forward should also be of that same scope; it should cover every entity that does business”.

In the case of a treaty that has some sort of liability attached to it, “if you focus all of the liability at the very top of the supply chain or value chain, the entities that are within the supply chain, domestic entities in particular, need to be incentivized to comply with their human rights obligations”, Mr. Congiu noted.

On the issues of scale, Mr. Congiu proposed a two-fold process: first addressing the “norms that are going to be covered by the treaty”, and secondly, “the standards that will be used to determine whether a particular norm has been violated”.

Michael Congiu referred to the case of the Alien Tort Statute of the United States. He explained that under this statute it is necessary to be “able to establish that there is an international consensus as to whether a norm can be applied against a corporation, and also to determine the standard by which that norm has been violated or has not been violated”.

Mr. Congiu was of the opinion that “there is no international consensus whether corporations can be held liable under international law, as it is a widely debated issue”. According to Mr. Congiu, the only norms identified as having “sufficient international consensus to hold corporations accountable on a legal level are what are known as jus cogens norms, or gross human rights violations”.

Professor Chip Pitts of Stanford University noted that “there is actually not much divergence, globally or in the United States, and certainly among the scholarly community, about whether corporations can be subjects of international law”. Professor Pitts argued that the concept of the ‘law of nations’, which is literally quoted in the US Constitution, in the bill of rights, and referenced in the Alien Tort Statute is more of a universal concept, and definitely involves more than state actors.

In addition, Professor Pitts described the deep history of international courts in enforcing international rights. He mentioned the study carried out by Professor Jenny Martinez² in regard to “courts that were sitting between Britain and other countries, including Latin American countries, and ultimately the United States, in the XIX Century […] they heard over 600 cases, applied international law against both State and non-state actors to free over 80 thousand slaves”. The modern slavery act of the UK “is intended to apply throughout the supply chain to try to stamp out trafficking and slavery”, Professor Pitts noted.

Likewise, Professor Pitts also recalled the opinion of Judge Posner in interpreting the Alien Tort Statute of the United States. According to Professor Pitts, Judge Posner “had no questions whether corporations can be subjects of international law, and can be held civilly and criminally liable”. Professor Pitts added that “from a comparative law perspective, in every region of the world there are patch work decisions in that same vein, sometimes it is under tort law […] sometimes it is customary international law”.

For these reasons “as a technical legal matter, there is no barrier to corporations being subjects of international law, and it would be one of the considerations of this international working group whether to make that possibility a global reality”, Professor Chip Pitts concluded.

Professor Carlos Correa of the South Centre pointed out that the central issue to be addressed concerns the objective of the international instrument. If the aim is to resolve the issues raised by the international operations of TNCs and their ability to commit violations in some countries where there is lack of sufficient remedy to tackle the damage that might have been caused, then the footnote in Resolution A/HRC/RES/26/9 explains the intention of the States that started the process towards a legally binding instrument. Such objective would “focus on the issue of lack of jurisdiction and the issues arising from cases of transnational corporations trying to escape their responsibility through benefiting from complex corporate structures”.

On the other hand, if the aim is to “strengthen in a binding way the principles to ensure that all commercial businesses comply with their human rights obligations, this would be a conceptually different objective which has very different practical implications”, Professor Correa noted. In such a case,“[M]onitoring will be impossible, due to the thousands of local businesses that might be subject to the binding instrument, and furthermore these businesses would be subject to domestic systems”, Professor Correa added.

Professor Carlos Correa recognised that “at a national level, there are many examples of legislation and jurisprudence that deal with the issue of control of subsidiaries and indirect control over businesses, in addition to numerous examples in tax law, commercial law and intellectual property law”.

Additionally, Professor Correa noted how corporations under investment law managed to establish “mechanisms to link the activities of some apparently independent companies with those companies that control them”. He added that “the doctrine of economic unity allows us to tackle the true relations that exist among companies that are formally independent”. Professor Correa concluded that these precedents “might be valuable when we try to establish the rules for the operation of this instrument”.

On definitions, Professor Correa noted that if the aim of the instrument is to address the conduct of TNCs, then “it is necessary to define transnational corporations on the basis of the precedents we have at national and international levels”. He argued that there are examples in international agreements that have dealt with these issues; for example one approach might be not to have a specific explicit definition of transnational corporations.

Professor Correa explained that there are international agreements that have generated substantial impact, which do not have specific definitions. As an example, he mentioned the International Centre for Settlement of Investment Disputes (ICSID) convention³, specifically Article 25, which refers to investment but does not define what an investment is. The “definition has been established by jurisprudence, through what came to be known as the Salini test⁴, Professor Correa held. Other approaches mentioned by Professor Correa include delegation to national law, whereby each country would define the term ‘transnational corporations’, or an intermediate referral system by which “a basic definition might correspond to national laws, subject to control by international law under internationally agreed rules”. He added that different models can be adopted here.

Professor Carlos Correa highlighted that reaching an agreed definition of ‘transnational corporations’ could be difficult and it would be important to opt “for simpler options which will allow for a swift and more effective way forward”. He also pointed to precedents under the Draft UN Code of Conduct on Transnational Corporations, ILO’s Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, and the OECD Guidelines.

CONTRIBUTIONS FROM STATES

The representative of Bolivia called attention to the importance of “legal certainty and swift progress in negotiations”, adding that the discussions must focus on “[making] sure that transnational corporations cannot evade their human rights responsibilities”. Bolivia added that “due to the transnational nature of their operations, size and structure …transnational corporations have high impact on human rights and […] many of them have been able to escape their responsibility and duty to respect human rights on the basis of jurisdictional grounds, using complex structures to evade laws”. For Bolivia, the scope of coverage of a prospective instrument should reflect the mandate of Resolution A/HRC/RES/26/9.

The representative of Namibia noted that the prospective instrument should focus on transnational corporations, but not exclude other companies. Namibia added that “most operations of transnational corporations in host states are through locally incorporated subsidiaries”. The delegation of Namibia considered that “a level playing field, or uniform international human rights standards for all businesses, across and within all states, would be in the interest of all of us”. Namibia stressed that the objective of the process is “to protect the weak amongst us, both host states with little or no regulatory frameworks, as well as affected workers and communities …”.

Pakistan highlighted that the “scope of application of a prospective instrument is directly related to the primary objectives of the instrument and [should] redress the gaps and imbalances in the international legal order, in order to ensure that transnational companies and other foreign companies do not escape liability based on jurisdictional grounds”. The delegation of Pakistan also noted that UN Guiding Principle 14, while recognizing that “the responsibility to respect human rights applies to all enterprises regardless of their size, sector, operational context, ownership and structure”, also provides that “… the scale and complexity of the means through which enterprises meet their responsibility may vary according to these factors”. In this regard, “domestic businesses are covered by national laws, and unlike transnational corporations, they cannot wind down their economic activity in one country and move to another in order to avoid fulfilling their obligations”, Pakistan added. For Pakistan, it is this supranational status of transnational corporations that need to be specifically addressed while outlining the prospective legally binding instrument. Any attempt to change this basic scope can be detrimental and could have serious impact on the working of any future dispute resolution mechanisms.

The representative of Cuba considered that the main objective of this process should be to fill the legal gaps that persist in human rights law and other areas of international law regarding universal norms for transnational corporations. Cuba added that the importance of filling these gaps requires focusing on the transnational types of enterprises. The delegation of Cuba noted that different alternatives could be considered in this regard; a definition of transnational corporations could be one choice, but another possibility could be no including a definition of transnational corporations. Cuba added that they are open to discuss the matter and listen to the different opinions with a view to reaching “a common vision that we can then reflect in a legally binding instrument”.

Ecuador underlined that “the main objective should be to fill existing gaps in international human rights law” which should “generate international norms for transnational corporations …”. Ecuador stressed that the phenomenon of transnational corporations “is not diminishing, but is growing”, noting that the past decades lacked a serious discussion on “how these corporations can be monitored”. “This body [the OEIWG] in fact seeks specifically to address this issue and find solutions to these questions”, Ecuador added. The delegation of Ecuador noted that “it is not always possible to come to agreement on a definition of a specific term under international law. Nevertheless, it is possible to arrive to a common understanding on the operational use of concepts”. “Many definitions may go out of date as things change … but this should not be an obstacle to reaching operational agreements that work in practice”, the delegation explained.

The delegation of the Russian Federation stressed that the scope of the discussion “should focus on the phenomenon of the transnational activities of corporations”, because the difficulty of accountability in extraterritorial operations are related to these transnational activities. The Russian Federation noted that “there is no definition of what a transnational corporation is, which is universally accepted”. While recognising that there are many definitions depending on different factors, the Russian Federation stressed that “there is no single universal definition, and for any treaty, a definition will be necessary”. The Russian Federation also raised a question pertaining to the legal status of transnational corporations, noting that “presently transnational corporations do not have legal standing under international law”.

CONTRIBUTIONS FROM CIVIL SOCIETY ORGANIZATIONS

With respect to the definition of transnational corporations (TNCs), CIDSE⁵, on behalf of a group of civil society organizations⁶, considered that attempts to define TNCs are likely to prove futile, as an entity could be considered “transnational” in view of multiple alternative variables such as shareholding, operations, business relations, location of offices, nationality of shareholders and directors. Moreover, CIDSE noted that “any attempt to limit the treaty’s scope by providing a definition of targeted corporations – thereby excluding a subset of companies – will inevitably result in lawyers advising enterprises how to bypass the given definitional contours, and would thus provide loopholes in the protection against business related human rights abuse”. CIDSE presented a proposal for the application of a hybrid approach, which entails that “conceptually, the treaty would not exclude any specific type of business; but in its substance, it would focus on developing provisions for transnational operations, thereby addressing the current challenges to hold transnational corporations to account”. CIDSE underlined that the objective of negotiating a treaty is “to address governance gaps related to transnational business enterprises and problematic home-host state dynamics that come with it”. Thus, the “treaty’s main objective and focus needs to be on provisions for transnational operations of business, such as the obligation of states to regulate the extraterritorial activities of business, and to provide mutual assistance between states in investigating violations and in enforcing judgements. It is these types of provisions we are looking for in the treaty, which clearly go beyond the domestic level”, according to the statement made by CIDSE.

CETIM pointed out that in the globalized economy, TNCs have become major and powerful actors, and their activities are often associated with human rights violations. Several hundred TNCs control most of the production and marketing of goods and services, and around 80% of trade takes place within global value chains (GVCs) controlled by TNCs, CETIM added. The group noted that some TNCs are more powerful than states. The group pointed to the case of British Petroleum (BP), which was forced by the US government to pay USD 18 billion in compensation for the damages resulting from the Gulf of Mexico oil spill in 2010. However, in other cases, such as the environmental damage due to Chevron’s operations in Ecuador, victims are still waiting for compensation even after they received a court judgement in their favor. CETIM stressed that TNCs cannot be above the law. The mandate of the working group provides an opportunity to fill in the gaps in international law, the group stressed. The prospective Instrument should clearly establish the obligations of TNCs to comply with international standards in the area of human rights, labor rights and environmental protection. It should also establish the joint responsibility of TNCs with subsidiaries, sub-contractors, licensees and local enterprises that they de facto control, CETIM added.

The representative of the International Network for Economic, Social and Cultural Rights (ESCR-NET), speaking on behalf of 16 organisations⁷, stressed that “in principle all conduct by all types of business enterprises, whether local or transnational, should be addressed in the legally binding instrument”. The statement by ESCR-NET stressed as well that “[T]he footnote in the preamble [of Resolution A/HRC/RES/26/9] should not be interpreted as limiting in any way the scope of possible discussions in the Intergovernmental Working Group or any analysis or recommendations that may be reported back to the Council on a future treaty”. The statement by ESCR-NET added that “a ‘full scope’ approach to the future instrument is consistent with the current practices and understandings within the United Nations, and addressing TNCs and all business enterprises does not mean a ‘one – size – fits –all’ approach. The concern about the application of certain standards as a ‘one-size-fits-all’ approach was considered by the experts in the former UN Sub-Commission on the Protection of Human Rights when they drafted the Norms and Principles of Human Rights applicable to TNCs and other business enterprises. It was also a concern for the Special Representative of the Secretary General on TNCs and other business enterprises, John Ruggie. Both mandates made it clear that while human rights standards were addressed to all business enterprises, they would be applied in a differentiated manner”.

FIAN International (FoodFirst Information and Action Network) underlined that “the treaty has to focus on TNCs”. The representative of FIAN underlined that an “existing gap is the lack of determination of liability of parent and controlling companies under the jurisdiction of states other than those of the affected [communities]”. For these reasons, FIAN considers that the treaty must set “clear regulations on the separate and joint extraterritorial obligations of states, in line with the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights”. “Legally, this will imply setting standards for national companies belonging to TNCs and economic groups”, FIAN added.

FIDH (The International Federation for Human Rights) considered that a “legally binding instrument must address the human rights violations arising from the activities of all business enterprises”. FIDH added that “[T]he treaty must address the transboundary nature of corporate related human rights abuses at the same time as addressing ways to ensure accountability for parent companies, subsidiaries, outsourcing firms, contractors (whether corporate or government contractors) and entities in the supply chain”. FIDH pointed out that the “situations [FIDH] investigate are often complex and involving both domestic and transnational corporations. In Brazil, FIDH investigated a case involving the direct and indirect responsibility of a transnational corporation and the direct responsibility of four domestic companies. In the Occupied Palestinian Territories, FIDH looked at business relationships between a French transnational corporation and an Israeli telecommunications company. In Ecuador, FIDH documented abuses linked to the operations of a Canadian junior company subsequently acquired by a Chinese consortium but which remains registered in Canada…”.

The Women’s International League for Peace and Freedom (WILPF) called for an instrument that has “a wide scope and covers all kinds of business enterprises”. All companies, domestic or transnational may violate human rights and should be covered by the instrument, according to WILPF. The group noted that “special attention should be given to transnational companies. Whereas one single country may be successful in preventing human rights violations by domestic enterprises, the same task cannot be successful for transnational companies unless international agreements, such as the one foreseen, are elaborated. Thus, a more extensive part of this instrument should be applicable to transnational companies…”.

Endnotes:

¹ The concept note was proposed under the responsibility of the designated Chair, Ambassador María Fernanda Espinosa, Permanent Representative of Ecuador to the United Nations in Geneva. The concept note is available at this link: http://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Pages/Session1.aspx.

² Jenny S. Martinez, “Antislavery Courts and the Dawn of International Human Rights Law”, The Yale Journal 117:550 (2008), pp. 550-641. Web version: http://www.yalelawjournal.org/pdf/628_ok11d7z9.pdf (accessed on 16 July 2015).

³ Convention establishing the International Centre for Settlement of Investment Disputes, adopted on 18 March 1965, and entered into force 14 October 1966.

⁴ See: Salini Costruttori S.P.A. and Italstrade S.P.A. v. Kingdom of Morocco, ICSID Case No. ARB/OO/4, Decision on Jurisdiction (2001), paras. 51-58.

⁵ An international alliance of Catholic development agencies.

⁶ The group included SOMO, Brot Fur Die Welt, IBFAN, IBFAN-GIFA, Global Policy Forum and Friends of the Earth Europe.

⁷ Amnesty International, The Center for Legal and Social Studies (Argentina), CIDSE, Colombian Commission of Jurists, Due Process of Law Foundation (USA), ESCR-Net Corporate Accountability Working Group, Earthrights International, The Global Initiative for Economic, Social and Cultural Rights (USA), Franciscans International, International Accountability Project, International Commission of Jurists, Mining Watch Canada, National Economic & Social Rights Initiative (USA), Project on Organizing, Development, Education and Research (Mexico), Video Volunteers (India).

Highlights of some elements of discussion and points of view shared during the OEIWG’s session

In regard to the subjective scope of a prospective Instrument:

• There is a common understanding that the prospective Instrument should address the gaps and imbalances in the international legal order in order to ensure that business enterprises do not escape liability on jurisdictional grounds, given the complex corporate structures, which often leads to lack of effective remedy for victims;
• Generally, there is agreement among legal experts that there are no legal limitations to recognizing corporations as subjects of international law;
• The discussion about corporations should address the size of their operations and the extent of control that these companies exert in society. The UN Guiding Principles recognise that “the scale and complexity of the means through which enterprises meet their responsibility may vary according to these [size, sector, operational context, ownership and structure] factors”;
• There are differentiated views on the subjective scope of a prospective Instrument and the type of businesses that the Instrument will cover; fundamentally, whether the Instrument should focus on transnational corporations or cover all business enterprises. However, there is overall agreement that all entities linked to a transnational corporations, including subsidiaries and entities in their supply chain, should be covered by a prospective Instrument;
• Several stakeholders were of the view that the footnote in Resolution A/HRC/RES/26/9 does not necessarily limit the possible discussions in the OEIWG in regard to scope and coverage of a prospective binding Instrument on business and human rights. Others were keen to pursue an explicit interpretation of the footnote with the purpose of ensuring that all business enterprises are to be covered under a prospective Instrument;
• Even though reaching an agreed definition of the term ‘transnational corporations’ could be difficult, different options for a common understanding on the operational use of this concept could be developed. It was suggested that the operational use of concepts would depend on the aims set for the prospective Instrument;
• Some participants suggested that the prospective Instrument could avoid excluding any type of corporation, but concentrate on the transboundary nature of human rights abuses, and adopt an approach based on the doctrine of ‘economic unity’ to address the accountability of parent companies, subsidiaries, outsourcing firms, contractors, among others, as already applied in several domestic and international law regimes.

In regard to human rights to be covered under the prospective Instrument:

• All human rights are universal, interrelated and interdependent, thus the prospective Instrument could reflect that through covering all human rights violations;
• Violations of human rights by TNCs often involve economic, social, and cultural and environmental rights, in addition to the right to water, health, food and development among other rights;
• The role of transnational and other business entities in the international sphere allows them to enjoy benefits and protections, such as under international investment treaties, and gives rise to an equal responsibility in relation to human rights. Within this context, some argued that a prospective Instrument should cover the widest scope of human rights, including the right to development;
• Generally, there was agreement among participants that a prospective Instrument should cover all human rights. Limiting a future instrument to address some gross violations of human rights would be equivalent to tolerating certain violations.