by Dr. Andressa Oliveira Soares and Letícia Paranhos

Two paths to hold transnational corporations accountable and ensure they comply with human rights marked the history of the discussions in the United Nations: one that sought a more binding and effective framework with a focus on liability, as advocated by civil society and affected peoples and communities; and another that went down the path of voluntary guidelines and self-monitoring, managed and sponsored by the companies themselves. Historically, corporations have held on tight to their influence on the international organisation. The UN favoured the voluntary approach during John Ruggie’s time as “Special Representative of the Secretary-General on the issue of Human Rights, Transnational Corporations and Other Business Enterprises” (2005-2011), during which “companies were in the driver’s seat”.

The UN Guiding Principles on Business and Human Rights were published in 2011, and loopholes soon emerged. Apart from being voluntary, the principles have serious weaknesses in their content, especially but not limited to perpetuating the logic of “multistakeholderism”.

Affected communities, social movements and international civil society networks, such as the Global Campaign to Dismantle Corporate Power, demanded a binding international framework and engaged in intense advocacy with states to this end. In June 2014, resolution 26/9 was adopted, creating the Open-Ended Intergovernmental Working Group (OEIGWG) with a mandate to draw up a legally binding instrument to regulate the activities of transnational corporations. This was undoubtedly a major victory for organised civil society. But with approval of a small margin, it was clear that there would be a difficult battle ahead.

Over the 11 years of negotiations, we have witnessed both advances and setbacks, with civil society groups being in the room at every session working through their differences and fighting for a strong document. Nevertheless, provisions that once gestured toward robust corporate accountability and enforceable obligations were softened into more flexible language, for instance article 8, liability, restricted the possibilities for holding business accountable focusing only on criminal conducts. What began as an effort to close accountability gaps risks becoming a document shaped by the lowest common denominator of political agreement. This is not unusual in international processes, but here the stakes are particularly high. A treaty designed to regulate transnational corporate power cannot afford to be normatively timid.

None of this means the process is without value. For the first time, there is sustained, institutionalised effort to articulate binding rules on corporations' conduct at the international level. Yet, the challenge is not only to keep the process moving, but to ensure it is moving in the right direction.

For that, we need to address a quiet paradox at the heart of global governance: the actors most in need of regulation are often those with the greatest influence over how regulation is designed. Nowhere is this tension more visible than in the ongoing negotiations for a UN binding international treaty on business and human rights.

Last year, Friends of the Earth International launched a report describing the system in which powerful corporate actors, often through lobbying organisations, gain privileged access to the treaty negotiations. These actors are not neutral participants. They represent corporations’ interests that may be directly affected by the treaty. Allowing them to shape its content creates a fundamental conflict of interest.

This scenario reflects a deeper imbalance in whose voices are heard. Communities affected by environmental harm, labour exploitation and displacement, because of funding or circumstances on the ground, are often marginalised in these discussions, while corporate representatives are treated as legitimate “stakeholders.”

The language of “multi-stakeholder dialogue” may sound inclusive, but in practice it can obscure asymmetries of power. When those with economic leverage sit alongside those seeking justice, the playing field is far from level. As the report suggests, this dynamic risks transforming the treaty from a tool of accountability into a vehicle for preserving the status quo.

There are precedents for doing things differently. In the negotiation of the WHO Framework Convention on Tobacco Control, actors representing the tobacco industry were excluded due to clear conflicts of interest. The logic was simple: those whose business depends on harmful practices should not be allowed to shape the rules governing those practices. The same reasoning applies here.

Excluding corporate lobbyists from direct participation is not about silencing business perspectives altogether, even because they have other mechanisms to exercise influence and have their voices heard. But companies should not be given a decisive voice in designing the constraints that will apply to them.

The treaty process offers a rare and crucial opportunity: to rebalance global governance in favour of accountability, justice, and the voices of those most affected by corporate activity. It reflects years of advocacy and the lived experiences of communities demanding access to remedies and recognition of their rights. That is why we insist on a process grounded in independence and human rights, so the treaty is not merely symbolic, but becomes truly effective.

Dr. Andressa Oliveira Soares
PhD in International and Comparative Law (University of São Paulo); Consultant with Friends of the Earth International and Legal Advisor to the Global Campaign to Dismantle Corporate Power

Letícia Paranhos
President of Friends of the Earth Brasil, Co-coordinator of the Economic Justice and Resistance to Neoliberalism Program at Friends of the Earth International and Co-facilitator of the Global Campaign to Dismantle Corporate Power