By Lara Jesani, Lawyer, India

The last draft of the legally binding instrument on business and human rights was released in July 2023. While the process had some momentum until then, there has been little to no movement on the much-awaited treaty since. The upcoming 10th session of the UN Intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (IGWG) to discuss the binding treaty will take place in December 2024 at the UN in Geneva. With the IGWG constituted for this purpose in 2014, it has been a long decade in waiting.

Meanwhile, the conversations around business and human rights have been dominated by voluntary processes guided by the UN Guiding Principles on Business and Human Rights (UNGPs). The UNGPs provide the non-binding framework of ‘protect, respect and remedy’, which to some extent enable advocacy with companies to introduce human rights considerations in their management. States were also encouraged to release National Action Plans on business and human rights to disseminate and implement the UNGPs, and some states have launched them. But this last decade has shown none of this can substitute binding law.

Asia, which is at the centre of attention for corporate interests due to cheap labour, abundant natural resources and desire for fast economic growth at all costs, faces the brunt of this delay, with human rights standards ignored by states and business alike to accommodate private sector interests. Global free trade has led to changes in governance over time, which have not only removed existing barriers to economic trade but also prioritised economic growth over human development. Even where domestic policies exist, there are considerable gaps. Ensuring business accountability poses serious challenges. Asians facing corporate abuse are often left remediless in this scenario.

It is ironic that in the same period as conversations on legally binding instrument were set in motion at the international level, the region has witnessed drastic deregulation to facilitate ease of doing business and attract Foreign Direct Investment (FDI), taking accountability mechanisms backwards. Many changes made to protective legislations that safeguard socio-economic rights, including labour and environmental rights, fall contrary to the UNGPs, which presume the existence of a strong domestic legal framework to protect human rights. The enforcement of legal protections that exist is also poor. This has the effect of legalising wrongs, thereby impacting access to remedy for affected communities and victims of corporate abuse.

One critical area where these changes are felt is in the weakening of environmental laws, liberalisation of mining policy and easing of restrictions on land use. In India, massive dilution of environmental policy and safeguards has paved the way for business-led development and commercial activities. More than 100 amendments were made to the Environmental Impact Assessment Notification, 2006 alone - the law that mandates businesses obtain prior environmental clearance for their projects and activities. Some of these changes include exemptions for businesses from obtaining such clearance, conducting environmental impact assessments and public consultation. A spate of mining reforms were also brought in, starting with the controversial , to serve business interests in coal by allowing commercial mining. In 2019, the government allowed 100% FDI in the mining sector. Following this, 41 coal blocks were launched for auction remotely during the Covid-19 lockdown, allowing private investments in the mining sector affecting dense forests and proceeding without obtaining the free, prior and informed consent of the affected local and Indigenous Peoples’ communities. The forest conservation law was also amended to alter the definition of forests, thereby excluding critical forest areas from its protection and facilitating diversion.

While states’ prioritisation of immediate economic gains is myopic, the fast-developing climate scenario in the region calls for urgent action to stop such violations and enforce accountability. A binding and enforceable human rights treaty can aid this process by not only regulating transnational companies, but also pushing states to strengthen domestic laws and bring them in line with international legal standards. In Indonesia, the EU Directive on Deforestation Products, which requires exporters to prove commodities were not produced on recently deforested land and supply chains are free from human rights abuses and environmental violations, has brought some hope of providing incentive to producers to stop rampant deforestation enabled through domestic policy dilutions in Indonesia since 2020. The adoption of the EU Directive on Corporate Sustainability Due Diligence earlier this year will require large companies in and from the EU to establish due diligence procedures to address adverse impacts of their actions on human rights and the environment, including across their chains of activities worldwide.

It is high time that discussions on the international legally binding instrument on business and human rights restart in earnest. The suggestions made by community stakeholders, human rights defenders, Indigenous Peoples’, minority communities and marginalised groups, who are on the receiving end of corporate abuse and whose interests need to be safeguarded, still need to be foregrounded in these discussions. It is pertinent that the international community rallies together and acts expeditiously towards a robust law.

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Lara Jesani is a lawyer practicing in Indian courts, taking up cases of human rights violations, constitutional, environmental and development matters, and in defence of human rights defenders. She represents affected communities and civil society organisations in matters pertaining to environmental concerns and violations, disasters, pollution, destructive development projects and displacement. She also engages in public policy and advocacy work. She is part of People’s Union for Civil Liberties (PUCL), a national-level human rights group working on democratic rights and civil liberties issues in India.