Binding treaty: What we can learn from NGO strategies in other treaty-drafting processes
The negotiation of a business and human rights treaty is the result of a global NGO movement calling for greater corporate accountability for human rights abuses. In particular, the advocacy activities of the Treaty Alliance were pivotal to the UN resolution establishing the Intergovernmental Working Group (IGWG). NGO engagement in previous treaty-drafting negotiations provide models of successful strategies advocates can learn from.
Working through a coalition enables NGOs to exert greater influence on norms setting than through individual efforts alone.
Coordination of the NGO Coalition and National NGOs
The Treaty Alliance shares characteristics with previous successful NGOs coalitions, such as the Coalition for the International Criminal Court (CICC) or the NGO Ad Hoc Group for the Convention on the Right of the Child (CRC). These coalitions include a number of NGOs that are working independently in different regions on business and human rights issues. Core groups of the Treaty Alliance, such the International Commission of Jurists, ESCR-Net, and FIDH have years of experience in this area. Working through a coalition enables NGOs to exert greater influence on norms setting than through individual efforts alone.
During the lengthy drafting process, it is critical to keep an eye on short-term developments. It is important for NGOs to pressure states to implement the Guiding Principles at the national level during treaty negotiations. NGOs should pursue diverse advocacy strategies. Some, in particular the core members of the Treaty Alliance, should continue norms-setting advocacy and lobbying activities within the IGWG and between sessions. National NGOs should continue effort at the domestic level to implement policies and regulation to address corporate human rights abuses, including through the development of a National Action Plan.
Formal and informal engagement
While formal attendance and involvement in the IGWG sessions is important, the Treaty Alliance and individual NGOs should exercise their influence informally in side events, such as meetings, receptions, and workshops. Consultations provide opportunities for governments and NGOs to discuss key issues of the treaty drafting. For example, during regional consultations in Asia and Latin America, extraterritorial obligations, parent company liability, and participatory rights were raised. National NGOs simultaneously approached and lobbied key government representatives. These strategies link NGOs and states supporting the treaty, which in turn may prove critical for the adoption of the instrument.
Building a Common NGO-State Frame
Other NGO coalitions have employed both formal lobbying and informal networking techniques to develop a common NGO-state frame and influence the drafting phase of treaty negotiations. During the negotiation of the CRC Optional Protocol on a Communication Procedure, for example, the NGO Working Group built a group of ‘friendly states’ that supported core issues of the Optional Protocol. Similarly, during the ICC negotiations, an alliance developed between the NGO coalition and the ‘like-minded group’ of countries, supporting a resolution on the creation of an International Criminal Court. Treaty Alliance NGOs could develop a similar common frame between different NGOs and ‘friendly’ states supporting the business and human rights treaty, however other states would need to be taken on board; lobbying Western states that do not supporting the treaty’s development is critical.
Lobbying Western States
Between the first two sessions of the IGWG, NGOs campaigned and lobbied EU member states to participate constructively in the working group discussions. In the run up to the second session of the IGWG, Treaty Alliance organizations requested their governments to participate actively in the working group. The argument is that their criticisms of the treaty content could be more effectively addressed from within the IGWG. Some of the NGO advocacy work may have contributed to a change in the EU engagement during the second session of the IGWG in October 2016. Although the EU still adopted a conservative position and emphasized that a treaty must not undermine the Guiding Principles implementation, it welcomed without conditions the year programme of the working group.
An advocacy strategy to lobby Western states to support the treaty is to persuade them that a treaty would ensure a level playing field, which is currently lacking, in terms of human rights enforcement across jurisdictions for all companies and all states.
Despite opposition by key actors, and a lack of consensus on core elements of the treaty, agreements may develop over time. Lack of consensus in the early stages of the development of a new treaty is common in international law. Most treaties prompted significant disagreement among countries and were eventually drafted without the support of, and at times, with clear opposition from key states. The Rome Statute, for example, was adopted with seven countries voting against it. The same pattern may well be followed in the field of business and human rights. It is essential for NGOs to continue lobbying EU and other Western states as the support of both host and home countries would make the treaty process much more likely to succeed. NGOs now need to focus their energy to align, as much as possible, EU and other Western states position with NGOs goals. An advocacy strategy to lobby Western states to support the treaty is to persuade them that a treaty would ensure a level playing field, which is currently lacking, in terms of human rights enforcement across jurisdictions for all companies and all states.
Balance Between Need to Compromise and to Achieve Highest Standards
Previous negotiations prove that NGOs have the potential to impact norm setting processes when in alliance with supportive states. Despite this, NGOs may have to compromise if there are strong objections by states to proposals that threaten to disrupt the adoption of the treaty. In relation to the OP-CESCR, for example, NGOs achieved their goal of having complaints mechanisms adopted, but the price paid for the alignment was that some policy goals were not included in the protocol. For example, chose not to press states on the issue of extraterritorial obligations. The Treaty Alliance may have to reach similar levels of compromise in order to achieve the adoption of the treaty. They may have to compromise on issues of enforcement, for example extraterritorial application of law and binding obligations on companies, instead opting for a traditional approach of reporting, individual complaints and general comments. They could then pursue the stricter obligations as optional protocols in the future. A balance would have to be struck between drafting a text that enough states would ratify and maintaining the highest standard of human rights protection.
Corporate engagement in the negotiations would be essential to the treaty’s credibility.
Finally, because of the peculiarities of this international human rights treaty, which does not seek to protect a particularly vulnerable group, but seek to regulate the behaviour of companies, NGOs would have to develop distinctive lobbying strategies. In addition to states, NGOs could lobby companies and business organizations that may be willing to support the treaty. Corporate engagement in the negotiations would be essential to the treaty’s credibility. Indeed, some responsible companies are increasingly calling for regulation and incentives to create a level playing field and competitive neutrality by establishing binding international standards that apply to all businesses.