This blog is part of the debate blog series on the proposed treaty and its complementarity with the UN Guiding Principles. We believe that an inclusive and open debate is crucial to make sure these initiatives deliver for everyone, and that the business & human rights movement continues its 'unity in diversity'.

The first session of the intergovernmental working group (IGWG) on a legally binding instrument on transnational corporations and other business enterprises ended with both its Ecuadorian Chair and other States reiterating the importance of civil society’s input to the process.

NGO submissions and interventions had enriched the debate in Geneva, with strategic proposals responding to ground-level realities. Nonetheless, more must be done by all States to ensure that their future participation is both easier and safer, as well as to guarantee that the protection of human rights defenders and the creation of an enabling environment for their work is at the core of any binding treaty.

Making human rights defenders central to the process: preparation, participation, protection

The Human Rights Council resolution 26/9 establishing the IGWG rightly recognises the important and legitimate role of civil society actors. Whether communities documenting and denouncing abuses carried out in the name of business; individual victims demanding remedy for violations; or NGOs working to prevent abuses and mitigate their impact when they occur, human rights defenders are the motors for change on the ground and should provide the moral compass for IGWG negotiations.

Ecuador and the OHCHR secretariat made important efforts to facilitate the participation of human rights defenders at the first session, but more must be done to safeguard their contribution.

Firstly, better preparation of the IGWG will allow for broader and stronger civil society input. It is laudable that the Ecuadorian mission in Geneva repeatedly took the time to engage informally with civil society regarding plans for the session. Nonetheless, the fact that the proposed plan of work was circulated just a week before proceedings, with panellists confirmed only at the last minute, made it impossible for grassroots activists to arrange travel to Geneva and for NGOs to adequate submissions and interventions to specific panels. Next time, the draft plan of work should be subject to informal consultations months in advance and circulated well ahead of schedule.

Secondly, civil society participation can be enhanced and institutionalised by maintaining and adding to the good practises seen in July. Resolution 26/9 contemplated no budget for webcasting, something which must be rectified in any future resolutions on the treaty process. However, Ecuador responded to civil society requests and paid for the first session to be streamed, meaning that human rights defenders around the world could follow the debate live, ensuring an audio-visual record of proceedings. This important transparency mechanism must be maintained.

Of course, with business and human rights an issue of burning importance for grassroots activists and communities, there is an argument that participation in the IGWG should be opened to civil society organisations beyond those accredited with ECOSOC consultative status by the UN. The majority of NGO voices at the first session appeared happy with the compromise arranged by Ecuador of allowing non-ECOSOC accredited organisations to make written submissions prior to the IGWG, whilst limiting verbal interventions to those with accreditation. Nonetheless, the window for receiving submissions was narrow, leaving many defenders unable to deliver reports on time. In future, civil society should be given several weeks to send such contributions, which must then be fully integrated into the report of the session.

It is also important that Ecuador, with the secretariat, develop new modalities for the IGWG sessions in order to integrate civil society interventions into the debate and give them an equal footing to those of States. At the first session, civil society had to intervene towards the end of each panel, when they could be interspersed with States to ensure a more vibrant discussion, as happened during the Human Rights Council’s institution-building process. Several diplomats commented in private that the interventions of civil society served to pull the discussion away from politics and towards practical needs and solutions. What better, then, than to integrate those interventions into the intergovernmental debate itself?

The Chair has the prerogative to define the modalities that she sees fit. However, all States which value civil society interventions should be active in encouraging this alteration, regardless of their political position towards other elements of the treaty process.

At this session, civil society space was briefly under threat as the Ecuadorian Ambassador announced that all NGO interventions from two panels would be merged and some postponed. In future, guarantees must be made that NGOs are able to speak to the panels they have signed up to and should not be subjected to pressure to keep to time limits where States are not. Regarding protection: It is vital that human rights defenders can participate safely in the work of the IGWG, particularly given that those who work on violations related to business have been identified as some of the most at-risk in the world.

The Chair and secretariat must therefore put in place a clear process to prevent acts of intimidation or reprisals against individuals participating, or seeking to participate, in the IGWG. This process should include methods to address alleged cases of intimidation or reprisals directly with the concerned State or non-State actors, including business, in order to seek guarantees of no-repetition. Current practises by the President of the HumanRights Council may be illustrative in this regard. A channel for reporting reprisals should be made public on the IGWG website. 

 It is vital that human rights defenders can participate safely in the work of the IGWG, particularly given that those who work on violations related to business have been identified as some of the most at-risk in the world.

Guaranteeing an outcome that benefits defenders: State duty, business obligation

One reason why the participation of human rights defenders in the IGWG is so crucial, is that a successful treaty process must serve to expand not only the protection of human rights by affected communities and individual rights holders on the ground, but also to enhance their capacity - and that of those defending them - to claim those rights safely. In other words, the protection of human rights defenders should be at the core of any binding treaty on business and human rights.

A prospective treaty should reaffirm the State duties to protect and support defenders working on corporate accountability, and to create a safe and enabling environment in which they can operate free from hindrance or fear. The obligation to investigate and provide accountability for crimes against defenders, victims and communities should also be reiterated.

The outcome of the IGWG also ought to reaffirm the business obligations to engage with defenders, to refrain from interfering with their work, and to act proactively to protect them if a failure to act would lead to avoidable harm. With over a year until the next round of talks, Ecuador, the OHCHR and other States have time to make the changes necessary to protect human rights defender participation in the IGWG. At ISHR we constantly hear testimony that the roots of human rights violations in the context of business are found in the lack of a free, prior, informed and safe consultation and consent of communities, civil society and human rights defenders.

If the IGWG’s methods and outcome are to be emblematic of the hope and aspirations that exist for a future of greater respect for human rights in the context of business enterprises, then they must guarantee that this dynamic of the past is not replicated. Instead, civil society and human rights defenders must be central to both the working group’s process and its outcome.

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