Almost a decade after the adoption of Resolution 26/9 of the Human Rights Council, which created a working group to elaborate a legally binding instrument to regulate the activities of transnational corporations (TNCs) in international human rights law, we face a critical moment. During nine years of negotiations, states, civil society organisations (CSOs) and communities affected by the activities of TNCs provided valuable contributions to impose clear human rights obligations on corporations. However, the 2023 updated draft document ignores many of these contributions, diminishing the strength of the political process and undermining the effectiveness of the legal instrument being drafted and negotiated.

Last July, the chair of the working group (Ecuador since the beginning of the process), published an updated draft with serious and concerning problems of substance and form, which affect both the negotiation process and its legitimacy. These problems have been evident since the eighth session in October 2022. Ahead of the session, the chair issued a document of informal proposals to be discussed together with the third draft, creating confusion in the session, and delaying the discussion of substantive issues.

For the upcoming session, the Chair published an updated draft containing "clean" articles for the legally binding instrument. Although the document contains the suggestions of states (in brackets) submitted during the eighth session, as well as the observations that some states made on his informal proposals, it is difficult to understand why the Chair accepted or discarded certain proposals to develop his own articles in the updated draft. His informal proposals have been perceived as arbitrary for the basis of the negotiation, as the Global Campaign declared in the first impressions statement on the updated draft treaty on TNCs and human rights. These procedural problems affect the substance of the discussion, as the "clean" document weakens the legally binding instrument in many respects. We highlight three instances of particular concern.

1. The first relates to the scope of application of the treaty, as the president unilaterally decided in the March 2023 Guidelines that the treaty should apply to all companies and businesses, overlooking the fact that this is a major discussion point. This position, as the Global Campaign has explained, weakens the treaty by ignoring the asymmetry of power between states and transnational corporations. We need a strong treaty which provides tools for states to reclaim their sovereignty and, through democratic processes, establish liability and sanctions for transnational corporations that currently operate with impunity, protected by trade agreements which give them enormous prerogatives. Among them, for example, the right to sue the states before the investor-state dispute settlement system, while states do not have similar tools in international law.
2. The second element of concern lies in the lack of human rights focus  an international human rights instrument should have. This is reflected in the elimination (in the preamble) of the provision affirming the primacy of international human rights law over trade and investment agreements. But it is also evident in the language and concepts used, which are more akin to corporate law than to international human rights law. For example, the text welcomes the concept of "human rights abuse" over that of "human rights violation". These are not cosmetic issues. The prevalence of international human rights law over trade rules is the backbone of the instrument and the idea that inspired its inception. Therefore, the concepts embraced by the legally binding instrument must reflect a human rights approach and not a business or commercial one.
3. The third element of concern in the updated draft relates to the centrality of human rights due diligence, especially in Article 6 on Prevention. This approach echoes the agendas of states in the Global North that seek to make the treaty a sort of framework instrument to guide national legislation, and not a treaty with clear and enforceable obligations for TNCs, whose non-compliance results in liability. In this regard, this approach is insufficient for the realities of the states of the Global South, which require national and international instruments for access to justice. Both the legally binding instrument and national laws must be much more ambitious than the corporate due diligence approach to human rights.

SIEMBRA emphasises the importance of the negotiation process to adopt, at the international level, a legally binding instrument for TNCs in human rights. We consider the discussions this negotiation process brings, both politically and legally, are of the utmost relevance for States like Colombia. Our country continues to be guided by discourses which endorse the notion of voluntariness, guiding principles and national action plans. It is also impacted by corporate violence and violence by armed actors for which voluntary instruments are insufficient. The ninth round of negotiations must strengthen this weakened process, discuss the updated draft together with the observations and contributions of all the states, and take the CSO inputs on board. With these procedural clarifications, we can move on to the substantive discussions necessary to deliver a strong and effective instrument to fight corporate power.

by Viviana Tacha, Centro Sociojurídico para la Defensa Territorial SIEMBRA

Viviana Tacha is the Executive Director of the Socio-legal Center for Territorial Defense SIEMBRA. She is a lawyer from the National University of Colombia and has a Master in Sociology of Law from the International Institute for Sociology of Law – Oñati, Basque Country.