"Preliminary Comments on the Updated Draft Legally Binding Instrument in preparation for the Ninth Session of the IGWG", Oct 2023

...This publication summarises FIDH’s and 17 of its members’ main preliminary reflections on the Updated Draft.

The text in its current form contains many structural gaps that need to be filled in the course of the upcoming negotiations in order for the LBI to have relevance and represent a significant step forward in the protection of human rights from corporate abuses. These are the most essential or transversal issues which FIDH and its members identified in their preliminary reading of the Updated Draft:

The text frequently defers to domestic law or administrative systems or otherwise suggests adaptation of the treaty provisions to accommodate domestic frameworks. This significantly weakens the effectiveness of the provisions and undermines the purpose of the instrument as a binding international treaty...

The text fails to duly reflect the difference between human rights impacts which a business enterprise may ‘cause or contribute to through its own activities’...and which are ‘directly linked to its operations, products or services’...

Although the text is generally more streamlined, changes have introduced new confusion or contradictions. For example, it is unclear whether Article 8 contains a Paragraph 7 on parent company liability for acts committed by entities in its value chain. Article 8.7 is included in a part of the track-change version of the text, but appears to be missing from the clean version. This is either a drafting mistake or a worrying step back. Regardless, Article 8.7 limits parent company liability to situations where human rights abuses are committed by entities in their value chain that they control, manage or supervise...

...[The] text refers merely to abuses and not violations. References to violations should be added to ensure that state-led violations are covered by the instrument.

Many choices of terms have also gradually shifted from language typically used in international human rights law to “softer” terms used in the UN Guiding Principles on Business and Human Rights and other similar soft law instruments. Throughout the text, the “obligation” of businesses to respect human rights has become a “responsibility” or “responsibilities”...

...[I]t is essential that women in all their diversity be central to all stages of developing, implementing and monitoring the effective regulation of business activities. We therefore support the re-inclusion of specific provisions in Article 6 requiring consultation with potentially impacted women and gender-diverse people and women’s organisations in order to integrate a gender perspective in human rights due diligence... the protection of women rights defenders should be be explicitly included in the LBI...

...[W]e strongly regret the attempts to restrict the substantive scope of the text. It would have been necessary to clarify that the draft adopts a broad interpretation of “human rights and fundamental freedoms” in Article 3 and throughout the text. However, it seems that the opposite approach was chosen. FIDH and its members particularly regret the elimination of multiple references to business impacts on the environment and climate, especially in the context of the ongoing triple planetary crisis - climate change, pollution, and biodiversity loss...