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UN Working Group on the Issue of Human Rights and Transnational and other Business Enterprises

In June 2011, the UN Human Rights Council decided to establish a Working Group on the issue of human rights and transnational corporations and other business enterprises (the Working Group) with a mandate, inter alia, to promote the effective and comprehensive dissemination and implementation of the UN Guiding Principles on Business and Human Rights worldwide.

At its 18th session in September 2011, the Council appointed five independent experts, of balanced geographical representation, for a period of three years, as members of the Working Group. The Working Group was formed in January 2012. The Working Group meets three times a year in closed sessions within which it can organise stakeholder consultations. Furthermore, it has the responsibility for organising a yearly Forum on Business and Human Rights. 

The UN Working Group on the Issue of Human Rights and Transnational and other Business Enterprises has been considering the issue of indigenous peoples within its mandate of giving special attention to persons living in vulnerable situations. Within this mandate, it produced a thematic report on the issue of indigenous peoples and the Guiding Principles, which was published in August 2013.

While there is broad agreement that indigenous peoples are, in many regards, particularly vulnerable, approaching this issue merely or primarily under the premise of vulnerability alone would be incomplete as it disregards the status of indigenous peoples as collective rights-holders and subjects of international law and thus risks overlooking the need to protect and respect specific rights ensuing from this status. 

It would also ignore the enormous contribution made by indigenous peoples in terms of sustainable practices, contributions to national economies, knowledge, conservation of biodiversity etc. Fortunately, the Working Group’s report does acknowledge indigenous peoples as rights-holders and therefore goes beyond the vulnerability-based approach. 

Indigenous peoples as rights holders 

In recent decades, international recognition of indigenous peoples as peoples endowed with the right to self-determination has made progress, expressed most clearly in the 2007 adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). 

There has also been increasing recognition of indigenous peoples and their human rights in the development and practice of regional human rights mechanisms such as the Inter-American Human Rights Commission and Court and the African Commission on Human and Peoples’ Rights as well as in the jurisprudence of international human rights monitoring bodies such as the UN Committee on the Elimination of Racial Discrimination (CERD). 

However, at the state level, the degree of recognition of indigenous peoples varies greatly, from states granting far-reaching autonomy to indigenous peoples to others rejecting the very existence of indigenous peoples within their boundaries or refusing to acknowledge their rights set out in the UNDRIP.

Indigenous Peoples as a priority

During its first year of work, the Working Group discussed the issue of indigenous peoples on several occasions, including, in particular, violations of their rights in connection with extractive industries operations and other types of business activities as well as challenges regarding the implementation of the Guiding Principles in this sphere.

At the first annual Forum on Business and Human Rights in Geneva the Working Group organized a panel discussion entitled “Business Affecting Indigenous Peoples – what are the critical implementation challenges for the Guiding Principles in the context of indigenous peoples?”

During the panel, participants expressed their concerns with the perceived weakness of existing remedies and emphasized that indigenous peoples are collective rights-holders under international law, entitled to self-determination and pointed out the pivotal importance of the concept of Free, Prior and Informed Consent (FPIC), stemming from this right. Furthermore, there was broad agreement that building the capacity and empowering indigenous communities to make effective use of the UN Guiding Principles is paramount.

Based on the outcomes of these discussions, the Working Group decided unanimously to declare the issue of indigenous peoples a priority in the work of the implementation of the Guiding Principles and to prepare its first thematic report to the UN General Assembly in 2013 on the topic of indigenous peoples’ human rights and business.

Stakeholder consultations

These consultations typically last around 3 hours and take place at the UN in Geneva. They are announced only 2-3 weeks ahead of the meetings, which limit the participation possibilities for organisations with no base in Geneva or Europe. Another way of providing input to the Working Group is through written submissions for which there are usually deadlines.

The first consultation in January 2012 provided for general information by the Working Group members about its mandate and its work plan. During the session, participants had the opportunity to read statements reflecting their priorities for the operation of the Working Group. A number of statements mentioned the importance of focusing on indigenous peoples and local communities, not only seeing the Guiding Principles as a business tool but rather focus on human rights violations and on the people that experience the severe impact of business operations on their lives.

Country visits

In October 2012, the Working Group carried out a country visit to Mongolia. In 2013, the Working Group conducted two country visits, one to Ghana and one to the United States. A visit to Russia was also scheduled but postponed, officially due to visa complications.

Towards a binding treaty on Business and Human Rights 

At the 26th session of the UN Human Rights Council in Geneva, a resolution sponsored by Ecuador and South Africa, and signed also by Bolivia, Cuba and Venezuela, calling for the development of an inter-governmental process to develop the form and content of a potential treaty on business and human rights, was tabled for adoption by the Council. On June 26, 2014, the UN Human Rights Council voted in favor of the resolution, which is tailored at transnational corporations, therefore limiting the scope of its application. The vote was 20 in favor, 14 no and 13 abstentions.