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Transnational Corporations & Other Business Enterprises with Respect to Human Rights
General Statement of the United States of America
October 23, 2023

General Statement of the United States of America

At the Ninth Session of the Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights

Thank you, Chair. We thank the Government of Ecuador and members of the business and human rights community for bringing attention to the issues this treaty seeks to address.

We share the interest of all here today in finding ways to advance business and human rights. Much work remains to foster a world in which businesses, government, and civil society collaborate to ensure that economic development and growth includes respect for human rights.

For our part, we continue to promote the UN Guiding Principles on Business and Human Rights, or the UNGPs, and the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct, which we view as critical international frameworks on business and human rights. Some of the ways in which we are seeking to advance these important tools include our efforts to update and revitalize our National Action Plan on Responsible Business Conduct; developing forthcoming guidance on how online platforms can improve the safety of human rights defenders; and by chairing the Voluntary Principles Initiative.

As we implement the three pillars of the UNGPs, we note that pillar three is the least implemented thus far. We understand that one factor motivating the treaty process is the need for greater access to effective remedy. We agree that more needs to be done on this issue.

We have often said that the UNGPs are a floor, not a ceiling. We would like to work with this group to find a way to further business and human rights, including strengthening access to remedy, that is consensus based, is multi-stakeholder, and builds on the UNGPs.

We thank Ecuador for its work on this year’s text. In particular, for its transparency in showing where proposals originated, and for circulating the text well in advance of the meeting. We also appreciated that the Friends of the Chair process allowed for additional State voices to be heard.

As we turn to this year’s text, we note that many of the Chair’s proposals from last year and some suggestions raised by states with different views during the 8th negotiating session were incorporated. We welcome the continued inclusion of all business activities, including business activities of a transnational character, in the scope of the 4th draft as consistent with the UNGPs.

We observed last year that the Chair’s proposals appeared to reflect an effort to find a constructive path forward in light of diverse views. With the incorporation of many of the Chair’s proposals, the new draft appears to provide increased flexibility for implementation. Yet, we are concerned that, in a number of places where the Chair’s proposals have been incorporated, language has been removed that would have allowed implementation to be consistent with domestic legal and administrative systems.

We still have serious substantive concerns throughout the text. Provisions remain both unclear and overly prescriptive. The text retains overly broad jurisdictional provisions, unclear liability provisions, inconsistencies with international law, and potential criminalization of an ill-defined range of activity. These issues will make it difficult for many States to sign on to or implement the Treaty. A treaty implemented by only a few states would fail to improve access to remedy.

We recognize that some governments are adopting or considering mandatory approaches to business and human rights under domestic law, at different speeds and through different methods. To receive broad state support, a treaty must allow states flexibility to achieve their goals, rather than dictate only one way. The United States has not been alone in our concerns regarding the draft treaty. Many stakeholders, including a considerable percentage of States that are home to the world’s largest transnational corporations, have pursued only limited participation in these negotiations.

Going forward we would like to see the process invite fresh thinking about how to develop an instrument that could garner the necessary multi-stakeholder consensus.

The U.S. government is open to exploring alternative approaches that align with the UNGPs and are developed in collaboration with, and that ultimately reflect a broad consensus of business, civil society, and other relevant stakeholders. It could include some mechanism to offer states the option to opt into additional elements that do not have consensus, so that such a treaty would provide a baseline for what member states can all support.

Though our approaches may differ, we share your interest in protecting vulnerable communities and individuals from the adverse impacts of business activity, including with respect to human rights.

In closing, we want to work with the Group to identify a collaborative path forward to advance business and human rights that is consensus-based, builds on the UNGPs, and has multi-stakeholder support. Thank you.