by Anaïs Schill, Legal Adviser – Business & Human Rights, French National Consultative Commission on Human Rights (CNCDH)

The negotiation process – initiated 10 years ago – to elaborate an international legally binding instrument on business and human rights (LBI) reached an important milestone with the adoption of Human Rights Council’s (HRC) Decision 56/116 in 2024. This resolution enhancing the support capabilities of the intergovernmental working group (OEIGWG), adopted by consensus, illustrates both the relevance and necessity of adopting an LBI, which is no longer seriously contested, and the willingness to give new impetus to the work of the OEIGWG. To implement this decision, the Chair-Rapporteur presented a road map for 2025, which includes intersessional thematic consultations to help overcome remaining major divergences, with the assistance of selected legal experts.

What are the key considerations ahead of the first consultations? The current state of play presents several crucial points of opportunity, ambition and relevance.

Opportunity 

These consultations offer an opportunity to find compromises to move the treaty process forward and build broader cross-regional support. As independent state institutions with a broad mandate to promote and protect human rights, including in the context of business activities, National Human Rights Institutions (NRHI) are committed to providing their support to this end. Whether individually (see for example the CNCDH) or through global, regional and francophone networks, NHRIs regularly point out the need for an LBI to address the widely recognised protection gaps in global value chains and the governance disparities at global level that foster unfair competition.

Ambition

Recognition of the need to adopt an LBI means discussions should aim to pursue two interrelated objectives.

First, the needs and interests of rightsholders who are (actually or potentially) adversely affected by business activities must be prioritised. This would ensure human rights are the actual compass guiding the process. The LBI can also enhance legal certainty and create a level playing field worldwide, in favour of businesses striving to be more virtuous and of widespread change in business practices.

Second, the focus should be on closing gaps, to strengthen the prevention of human rights violations and foster access to remedy in the context of business activities. While ensuring the provisions of the LBI do not fall short of existing international human rights law and business and human rights frameworks, they should reflect the lessons learnt from the implementation of the United Nations Guiding Principles on Business and Human Rights (UNGPs), as well as recent developments in the field of business and human rights, including the adoption of mandatory human rights and environmental due diligence legislations.

With this in mind, the first cluster of Articles to be discussed during the next consultations represent a twofold interest.

Relevance

Articles 4, 5 and 7 of the draft LBI intend to strengthen the protection and participation of affected rightsholders and to help provide them the necessary means to enforce their rights. Together with other provisions, these Articles are therefore relevant both to the prevention of human rights violations and access to effective remedy. They are essential in consideration of the reality of persistent human rights violations in value chains of companies still too focused on their own risks, and the importance of implementation of Pillar 3 of the UNGPs, identified as “major and urgent” for the road ahead.

NHRIs have made a number of recommendations relating to these provisions, including the following:

• To use the broader term “rightsholders”, rather than “victims”, when referring to all persons or groups of persons likely to be affected, actually or potentially, by business activities, taking into account the different impacts on certain groups of persons and integrating a gender perspective;
• To (further) strengthen information rights, since access to information is fundamental to prevention and access to remedy;
• To keep provisions aimed at addressing power imbalances between parties (potential shift of the burden of proof, possibility to submit representative or class actions, legal aid…);
• To preserve provisions protecting against reprisals, especially given the scale of attacks faced notably by human rights – including environmental – defenders who warn of irresponsible business practices;
• To require a broad remedy ecosystem of judicial and non-judicial mechanisms to avoid impunity and denial of justice;
• To ensure that references to national laws do not impede the LBI’s effectiveness and ability to harmonise obligations.

Significant challenges remain for the adoption of the LBI, including the lack of an EU negotiating mandate. The April 2025 consultations provide an opportunity for states and other stakeholders to translate momentum into concrete progress towards the adoption of an ambitious LBI that places human rights at the heart of a truly fairer and more sustainable global economy.