The process to elaborate a legally binding instrument (LBI) on business and human rights started nearly a decade ago, with the adoption of the 2014 Human Rights Council Resolution 26/9. Since then, momentum behind efforts to regulate corporate behaviour through legislation has risen steadily, thanks to growing political will, civil society determination and increasing public support across the globe.

Some countries, such as France and Germany, have adopted mandatory human rights due diligence (mHRDD) laws and other legislative initiatives are being elaborated, such as the recent EU Corporate Sustainability Due Diligence Directive (CSDDD), the Bill of Law 572 in Brazil and the African Commission resolution calling for regional regulation to address business-related human rights violations in Africa, with a particular focus on marginalised and vulnerable populations. The proposed LBI could function as an important additional tool, helping drive corporate accountability by creating a global level playing field and ensuring effective access to remedy for victims of corporate human rights abuses across the world.

In order to support and elevate efforts from civil society organisations, workers and communities, especially those in the Global South, to develop such a treaty, the Business and Human Rights Resource Centre and its partners recently convened a series of three webinars to foster critical thinking around the Binding Treaty. The webinar series, “Bridging the gap: A stronger Binding Treaty for all”, was organised along with Centre for Applied Legal Studies (CALS), the International Commission of Jurists (ICJ), Justica Ambiental (JA), Lawyers for Human Rights (LHR) and the Zimbabwe Environmental Law Association (ZELA) – and looked at issues such as the Treaty’s complementarity with other legal frameworks, regional concerns and outstanding matters necessary for the Treaty negotiations to cover. The key takeaway from these discussions was that the Treaty needs to be victim-centred and provide access to remedy for affected people. A broad summary of the robust engagements follows below.

The first webinar set the scene and was dedicated to the complementarity of the Treaty, National Action Plans (NAPs) and mHREDD legislation, led by speakers from the Philippines, Brazil and the EU. Participants agreed access to justice is key and courts should be able to hear a case when there is a compelling need, even if not the most convenient forum. A LBI will only be successful for the stakeholders it aims to protect if it is victim-centred and if the end goal is accountability and justice for affected communities. Speakers stressed that an LBI and advocacy at the domestic level for strong laws, such as Brazil’s proposed framework law 572, represent complementary approaches to enhanced corporate accountability, emphasising that international regulations are needed to address gaps not covered by national laws. The EU CSDD and the Treaty were also seen as reciprocally complementing each other to fill each other’s gaps. For instance, the Treaty could fill gaps of the EU CSDDD on access to justice, victims' rights and remedies. The EU CSDDD contains a mandatory environmental due diligence obligation and addresses environmental impacts, which is not currently the case in the draft LBI provisions.

The second webinar highlighted regional perspectives on the Treaty, led by speakers from Africa, Asia and Latin America. Speakers highlighted the devastating impact of transnational corporations in their respective regions and agreed the LBI should adopt a victim-centric approach, ensuring affected people receive the remedies they are owed. They also highlighted the importance of adopting a gender lens during the LBI negotiations to ensure the final text reflects this focus. Speakers argued for the Treaty to explicitly protect human rights defenders as they are facing increasing attacks globally, particularly in Latin America and Asia.

The final of the series addressed the issue of access to justice for affected communities in the proposed LBI. Speakers broadly agreed that the added value of the LBI is to set universal international binding standards. Therefore, increased reliance on provisions referencing consistency with domestic laws, as in the current draft of the Treaty, may undermine the LBI’s effectiveness and limit access to justice for affected people. However, a treaty could also compel governments to strengthen their domestic laws. Corporate liability remains a key issue for the negotiations. Speakers noted that a strict liability regime in certain cases, or inclusion of joint and several liability in the draft to ensure TNCs are held accountable for abuses even when committed by their sub-contractors, would be valuable steps forward.

As the 9th session of the Intergovernmental Working Group (IGWG) approaches, the Resource Centre has launched a new blog series, “Building momentum: Critical considerations in the Binding Treaty 2023 negotiations”, allowing readers to dig further into issues such as these. Experts from diverse backgrounds and regions will share their insights on the latest draft and the process to date of agreeing a proposed Binding Treaty. Blogs cover a range of topics, from the remaining gaps in the 2023 updated draft and the complementarity of a treaty and mHREDD initiatives, to what a binding treaty means for companies considering the current landscape of increasing mandatory regulations.

The 9th session of the IGWG in October is the opportunity for all stakeholders to align their messages and advocacy strategy to achieve a strong draft that protect affected communities and hold companies liable for human rights abuses.

Stay updated during the negotiating session in October through our Daily Updates, highlighting decisive movements of the debate.

By Elodie Aba, Senior Legal Researcher, Business and Human Rights Resource Centre