Re-cap: 2021 negotiations over binding treaty on business and human rights

From 25 until 29 October, states convened at the UN Human Rights Council  in Geneva to negotiate on the third revised draft treaty on business and human rights. Compared to the previous draft, this text includes a few additions and improvements, such as clearer requirements for corporations to prevent human rights abuses, and a State duty to enable access to remedy.

Going line by line: text proposals

Although several states have put forward textual proposals previously in this treaty process, this was the first session during which the treaty text(opens in new window) was reviewed article by article, and where State inputs were annotated on screen.

Some of the key aspects under discussion were the scope of the treaty, the rights and protection of victims, due diligence obligations for companies, access to remedy, legal liability, and jurisdiction. During the negotiations, SOMO and other civil society organisations regularly provided input to the states.

United States ‘engagement’; distracting and undermining

The United States have been notably absent from the treaty process until this year. When taking the floor in the Human Rights Council during last week’s negotiations they made explicit their opposition to the treaty text, without bringing textual proposals for its improvement. Instead, they proposed an “alternative process” without being concrete, and talking about exploring both binding and non-binding options. In response, civil society organisations published a joint statement stating it to be “shameful and unacceptable that the U.S. would try to use its political power to undermine an UN intergovernmental process with a clear mandate aimed at strengthening the international human rights system”. Interventions by the International Chamber of Commerce and the International Organization of Employers showed striking similarities with the interventions made by the United States, raising concerns(opens in new window) around corporate capture of the negotiation process.

Europe: ship without a captain

The European Union once again failed to join the negotiations with a negotiation mandate. The EU did make some interventions during the talks, using a disclaimer that it was not negotiating.

Members of the European Parliament Heidi Hautala (Greens/EFA), Maria Soraya Rodriguez Ramos (RENEW), Maria Arena (S&D) and Manon Aubry (The Left) published a joint opinion piece in which they criticised the EU for lacking direction in this process. They also say that “[t]he EU is missing out on a crucial opportunity to harmonise corporate accountability rules globally” as “there are many treaty provisions where the EU already has legislation that could justify engagement on the content.” With the EU’s forthcoming directive on sustainable corporate governance, to be published by the end of 2021, the EU can and must “ensure coherence and complementarity between the future treaty and EU legislation”.

SOMO’s contributions

Together with other civil society organisations, SOMO delivered oral statements on three articles of the draft treaty, to provide concrete textual proposals on:

• Article 6 on prevention, proposing improvements and clarification regarding due diligence requirements for both companies and for states when they operate as an economic actor.
• Article 7 on access to remedy, putting forward proposals to improve victims’ access to information and legal aid, and to clarify and strengthen the principle of the reversal of the burden of proof.
• Article 8 on legal liability, proposing text to improve aspects of sanctions, modes of liability, and to ensure that due diligence can never serve as a shield of liability.

What’s next?

A compilation of the statements and textual proposals submitted by states will be released by the end of December.

Furthermore, the Chair-Rapporteur of the treaty process will form a group of “Friends of the Chair”, comprised of Ambassadors in Geneva from different regions, to conduct consultations to help advance the draft treaty text. No later than end of July 2022, a new draft of the treaty will be released, incorporating the inputs from last week’s negotiations and the upcoming consultations.

In the final hours of the negotiations, the states agreed on the draft report of this IGWG session(opens in new window) , outlining the next steps of the treaty process. During these conversations, the EU pushed for more consultations of business organisations in the process, posing risks of corporate capture of the treaty process.

Moving forward, it will be critical to see constructive political commitment from states to further develop and strengthen the treaty text, in collaboration with the Friends of the Chair.