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Proposed Working Group Would Undermine Efforts to Implement Guiding Principles on Business and Human Rights
June 26, 2014

Explanation of Vote: A/HRC/26/L.22/Rev.1 on BHR Legally-Binding Instrument
Statement by the Delegation of the United States of America
UN Human Rights Council – 26th Session
Delivered by Stephen Townley
Geneva, June 26, 2014

Thank you, Mr. President.

We are extremely disappointed with the decision by Ecuador and South Africa to table this resolution.

We regret they have decided to proceed to action now, as we heard this morning that the core group on Business and Human Rights, consisting of Argentina, Russia, Norway, and Ghana, remains interested in seeking a consensus solution to the debates we have had at this session.

Indeed, as we understand it, the core group has proposed to the main sponsors of this resolution the establishment of an intergovernmental expert group, an idea that might have enjoyed consensus and made a meaningful difference, but which was rejected out of hand.

This action contradicts the consensus-based approach of John Ruggie’s mandate and the first few years of the UN Guiding Principles.

It will unduly polarize these issues, taking us back ten years to the days of the Commission on Human Rights.

We have not given states adequate time and space to implement the Guiding Principles.

Despite that lack of time, the Principles have already made a meaningful difference in raising standards across industry, promoting responsible investment, and encouraging further collaboration among stakeholders.

They have also helped to create a level playing field for companies.

Furthermore, individual states have taken a variety of steps in implementing the Guiding Principles to prevent corporate involvement in human rights abuses.

The Guiding Principles are a success, although they are only three years old.

Indeed, while we share and appreciate the concerns expressed by some delegations and civil society colleagues that we need to do more to improve access to remedy for victims of business-related human rights abuses, our concern is that this initiative will have exactly the opposite effect.

First, this resolution is a threat to the Guiding Principles themselves.

To be clear, it is not complementary to the resolution to be offered by the Business and Human Rights core group.

The proposed Intergovernmental Working Group will create a competing initiative, which will undermine efforts to implement the Guiding Principles.

The focus will turn to the new instrument, and companies, states, and others are unlikely to invest significant time and money in implementing the Guiding Principles if they see divisive discussions here in Geneva.

Second, on the substance, this initiative is unlikely to address the concerns that animate calls for a legally binding instrument, as a one-size-fits-all instrument is not the right approach to handling the complex fabric that is regulation of business.

It also would only be binding on the states that became party to it.

The IGWG will not benefit from the necessary and important voices of key stakeholders, including the private sector.

The United States will not participate in this IGWG, and we encourage others to do the same.

There are also a host of practical questions about how an internationally binding instrument would apply to corporations, which are not subjects of international law, and how states would implement such an instrument.

For one thing, we heard one of the sponsors during informals that it wishes to apply legal obligations directly to businesses, which are non-state actors.

What precedent will this set? Second, we see in this resolution an effort to define certain businesses.

How will this create a coherent set of legal rules if there are exceptions to what purports to be a human rights instrument?

For all these reasons, and because the main sponsors of this initiative did not appear to wish to have a consensus solution, we request a vote on this text and will vote no.

We urge others to do likewise.

Thank you, Mr. President.