Proposed binding treaty on business and human rights: Taking stock 8 years into negotiations
Momentum around the push for binding human rights standards to regulate corporate activity the world over has picked up considerable speed in the last few years, as civil society, labour, impacted communities, human and environmental rights defenders, certain investors – and even some businesses – increasingly call for legal consequences when corporations infringe on human rights. Legislative developments at the national and regional levels are on the rise, in particular in the EU and North America. In the UK, nearly 50 businesses have recently signed a statement calling for human rights due diligence legislation to be developed in that jurisdiction. Against this background, the proposed binding treaty on business and human rights represents another possible tool that could aid in bolstering corporate accountability for human rights abuses.
Eight years into the treaty negotiating process, which began in 2014, UN members states, civil society, and other stakeholders will gather in Geneva for the 8th session of the Intergovernmental Working Group (IGWG) to debate the contours of the draft treaty, 24 – 28 October 2022. In contrast to previous years, this session will have no new treaty text to consider. Instead, the Chair-Rapporteur has announced the discussion will be based on the “text of the third revised draft legally binding instrument with the concrete textual proposals submitted by States during the 7th session”. In other words, participants will consider the same treaty version as last year. Ecuador has also prepared an informal contribution with proposed amendments to selected articles of the draft treaty to facilitate the discussion.
As stakeholders prepare for this year’s session, the Business & Human Rights Resource Centre’s new blog series, “Taking stock: Reflections on the progress of the UN Binding Treaty”, is a rich repository of new perspectives on the treaty and the negotiation process, from academics, government, and civil society. It seeks to elevate voices from prominent experts on the ground, from key regions – including, in particular, the Global South – to highlight these contributions to the treaty debate.
As a co-sponsor of the binding treaty initiative, the South African Government expresses its concern about companies complying with human rights norms in the Global North, while being “reluctant or not willing to abide or to be bound by domestic laws of countries of the South prescribing human rights norms.” The Government also shares five key elements of the draft it will focus on during negotiations, namely scope, jurisdiction, rights of victims, prevention and international cooperation.
Professor Surya Deva, former member of the UN Working Group on Business and Human Rights, makes suggestions to move the treaty process forward. He insists that it should be based around the needs of rightsholders and that a future binding treaty should fill the gaps of the UN Guiding Principles, with regard to climate change, and free, prior and informed consent, among others. Professor Deva stresses that provisions should recognise that all business enterprises must respect human rights, and require states to bolster access to remedy for corporate human rights abuses. An agreement around the scope of a treaty also must be found for the treaty process to progress.
Other contributors share their ambitions for and concerns regarding the binding treaty process. Solidarity Center, outlines the persistence of labour violations in global supply chains and calls for any treaty to place workers and trade unions at the centre of the human rights due diligence process. Professor Doug Cassel of Notre Dame University discusses the balance of influence held by the Friends of the Chair - a group of ambassadors in Geneva, representing the five UN regional groups supporting the Chair in between sessions. The Centre for Applied Legal Studies (CALS) expresses its concern at the lack of a 4th draft of the Binding Treaty for those seeking to end corporate impunity for human rights abuses as a matter of urgency.
As negotiations drag on, affected communities will continue to lack the necessary binding international legal protection. CIDSE and Friends of the Earth Europe explain how the EU Directive on corporate sustainability due diligence and the treaty can complement each other. Pax Christi International outlines six key points from Latin America to discuss at the 8th session of the IGWG. Homa – Human Rights and Business Centre in Brazil presents challenges and perspectives on the process, and underlines the importance of preventing corporate capture of the process. Lawyers for Human Rights insists on placing communities at the centre of the treaty negotiation process, amplifying their call for “nothing about us without us”. The Uganda Consortium on Corporate Accountability argues that countries from the Global South that have limited capacity to regulate companies’ activities would in particular benefit from the support of an international binding treaty, highlighting that where voluntary measures are the only game in town, these have proven to be simply not enough. Additional contributions will be published before the session.
For perspectives on the treaty and the negotiation process, as well as our Daily Update to support stakeholders unable to be in Geneva, please visit our page dedicated to the 8th session of the IGWG.