By Stephanie Regalia, Bruna Singh, Angelina Widholm, George Kwame Gyan-Kontoh, Daniela Vallejo, K.S. and Gabriela Mancera, Centre for Human Rights Erlangen-Nuremberg (CHREN)

As the Treaty enters its 11th year of negotiations, the Centre for Human Rights Erlangen-Nuremberg (CHREN) Human Rights Clinic has examined corporate participation in the negotiations for a legally binding instrument on business and human rights (the “BHR Treaty”). While the Treaty aims to hold businesses accountable for human rights abuses in their activities, little attention has been paid to businesses’ stance on it. The CHREN Clinic’s new report “Corporations in the UN Business and Human Rights Treaty Negotiations” sheds light on the organisations that speak on behalf of business at the UN.

Meet the IOE, ICC and USCIB: The organisations representing businesses during negotiations

Human Rights Council Resolution 26/9 established the open-ended intergovernmental working group (IGWG) mandate, and explicitly recommended that the IGWG collect inputs from States “and other relevant stakeholders”. Since then, States, NGOs and business associations have been present at each negotiation session. Business interests during the negotiation of the BHR Treaty have mainly been represented by three organisations: the International Chamber of Commerce (ICC), the International Organisation of Employers (IOE), and the United States Council for International Business (USCIB). While these organisations have issued statements in collaboration with other business associations, these three organisations have shown the most consistent participation in the treaty process.

The IOE holds a formal consultative status within the UN. The ICC has received a standing invitation to participate as an observer in the sessions of the UN General Assembly and maintains a permanent office at the UN in Geneva. Meanwhile, the USCIB has a special consultative status at the UN Economic and Social Council, as well as an official observer status with other UN bodies such as the UNFCCC or UN Environment Programme. These are powerful business associations with experience lobbying at the international level. However, our research reveals a lack of transparency on how these organisations draft their statements in preparation for the BHR Treaty negotiation sessions. While these organisations claim to be the voices of international business, it is unclear – based on publicly available documentation – how and to what extent their members are consulted in the process.

Nevertheless, their statements throughout the negotiations paint a fairly consistent picture: they are pushing for voluntary frameworks for corporate accountability, despite the purpose of these negotiations being to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”

Voluntary trumps mandatory: Corporate lobbying for diluted treaty provisions

The report showcases that while there have been nuances in statements from business associations, their arguments often focus on the following thematic concerns:

1. Shifting state duties to business: Business associations have warned on multiple occasions that the treaty drafts shift the duty to protect human rights away from states onto corporate actors. However, the drafts (from the Zero Draft to the latest Updated Draft) have focused on establishing due diligence obligations on companies and ensuring access to remedy for victims within domestic legal systems rather than imposing direct international human rights duties on businesses.
2. A threat to the UN Guiding Principles on Business and Human Rights (UNGPs): Business associations have claimed the Treaty undermines the UNGPs by replacing voluntary due diligence with binding obligations. While the UNGPs are voluntary, their author John Ruggie reaffirmed on multiple occasions that human rights due diligence may be translated into binding legal norms for corporations, though he highlighted that this process requires more contextual and textual specificity than the UNGPs’ broad framework offers.
3. High compliance costs: Business groups warn of excessive compliance costs, though the financial impact of sustainability-related due diligence remains a debated topic in practice, 

While these positions reflect a certain business perspective on binding norms for corporate accountability, they stand in contrast to many recent business-led initiatives in favour of binding regulation, such as mandatory human rights due diligence laws. In Part 2 of our blog, we question whether the time has come for more diverse business representation at the negotiations sessions in Geneva.