Reflections on a week of negotiations on a legally binding treaty on business & human rights
Last week, states and civil society organisations (CSOs) gathered in Geneva for the 9th session of negotiations dedicated to elaborating a legally binding instrument (LBI) on business and human rights. Negotiations this year – as always – were marked by robust debate between states and powerful contributions from civil society. Notable, however, was the shift in substance: arguments around the need for and legitimacy of a such an instrument have largely faded away, and states quickly got down to business: negotiating actual terms of the LBI. This is progress.
It also speaks to a broader contextual shift. Twelve years after their adoption by the Human Rights Council, the voluntary UN Guiding Principles on Business and Human Rights (UNGPs) have provided critical foundation for the pursuit of improved corporate accountability. But they have likewise proved insufficient on their own to drive the global shift in business behaviour required to ensure the most marginalised among us are protected and respected.
The LBI could be one of several tools to smartly mandate this improvement, alongside domestic and regional regulatory efforts gaining momentum across the globe. They all seek to locate human rights more centrally within business activities to reward corporate leaders that have already emerged and encourage others, by creating both legal certainty and a more level playing field to ensure laggards are not able to undercut those pursing more sustainable, rights-respecting business.
This year’s LBI negotiations reflected this seriousness of purpose, with strong participation from countries across the globe. African states were active throughout the negotiations, with strong participation by numerous Latin American countries; the US and the UK, as well as China, and to a lesser extent by the EU, having recently announced it is developing a negotiating mandate for the first time.
Over the past week, states negotiated only the first three Articles, with a significant focus on the preamble - foundational provisions, which give shape and meaning to the remainder of the treaty text. Article 3, which details the scope of the treaty proved most contentious, as in other years, given it will ultimately dictate which types of companies are covered by the instrument, as well as the human rights protected. The Chair of the Intergovernmental Working Group provided detailed reasoning as to why the LBI should apply to all enterprises, rather than just to transnational corporations (TNCs). State positions ranged from arguments firmly against extension of the scope beyond TNCs (including China, Russia and South Africa); to calls for the scope to encompass all businesses, regardless of their transnational character (including Chile, Mexico, Panama, the UK and the US); to the suggestion that the treaty should cover all business enterprises, but with a particular focus on TNCs (Brazil and some CSOs). Business advocacy organisations asked for references to “transnational character” to be removed throughout the text. Expect to see further debate next year on this article, and more concerted efforts by the Chair to find broad consensus around it, so the negotiation process can move forward
Debate during the negotiations on what is missing from the current draft was also telling. States (including Cameroon, Egypt, and Honduras) and the EU called for explicit reference to the protection of the environment to be included in the LBI, supported by a range of CSOs from across the globe, including CALS, CCR, Institute for Policy Studies, Lawyers for Human Rights, Feminists for a Binding Treaty, FIDH, FIAN International. Others expressed concern at the lack of consultations with trade unions in the process, and the new requirements in the treaty text prioritising the need for consistency of treaty provisions with domestic law. Calling for more robust provisions on gender, children, Indigenous Peoples, and other marginalised groups, CSOs noted some articles of the current draft are less protective of rightsholders than previous versions. In the current context of the Israel-Hamas conflict, several CSOs urged states to support the inclusion of international humanitarian law in the draft treaty text. It is essential for businesses operating in conflict zones to carry out heightened human rights due diligence to meet their responsibilities under the UNGPs.
At various points in the negotiations, states and CSOs alike emphasised that the treaty should be a victim-centred instrument. In their negotiations, all states would do well to recall this, and the need for real progress on critical articles on the rights of victims, access to remedy, and legal liability. Next year will mark 10 years since the adoption of Human Rights Council resolution 26/9 that allowed for the elaboration of treaty on business and human rights. This anniversary should provide the impetus for material progress on the LBI, which increasingly appears to have the potential to help mandate a global standard in corporate accountability.
The draft report of this year’s negotiations was adopted on the last day of the session, by consensus and without any recommendations or conclusions. The report will be presented at the 55th meeting of the Human Rights Council in March 2024.
By Elodie Aba and Michael Clements, BHRRC