Negotiation over the International Treaty on Business and Human Rights is one of the topics on the so-called international business and human rights agenda, which includes two other processes. The first and perhaps best-known process was developed by the Working Group on Business and Human Rights, established in 2011 with the publication of the United Nations Guiding Principles on Business and Human Rights (UNGPs). It seeks to implement the – voluntary – principles through National Action Plans (NAPs).

Homa, the Human Rights and Business Centre, has already conducted two studies on such NAPs in Europe and Latin America, with similar findings: the plans fall short when it comes to addressing the regulatory gap in transnational corporations’ activities. That is partly due to the way they have been developed – without proper participation, clear language or effective prevention and remediation strategies, but also as a result of gaps in the UNGPs themselves.

Another process which has gained momentum in recent years is the development of national frameworks based on human rights due diligence obligations. 'Value Chain Laws' are currently in force in France and Germany, and the European Commission has adopted a proposal for a legally-binding Directive on corporate sustainability due diligence. These milestones are still incipient, and so far they have been falteringly applied in specific cases. Brazilian civil society, with the active participation of Homa, drafted a National Framework Law on Human Rights and Business to establish effective prevention and remediation measures in the Brazilian context that go beyond due diligence obligations. However, these initiatives will hardly be able to close all the gaps, since transnational corporations’ de-territorialised operations mean that domestic regulation, although important, will never be enough.

In view of the low effectiveness of the UNGPs initiative, Resolution 26/9 was adopted in 2014 by the Human Rights Council, which triggered the negotiation process over the treaty. The Resolution itself is a victory for civil society. It was introduced by a group of countries in the Global South, and has suffered boycott and undermining attempts since its publication - mainly from the Global North. Then the Open-Ended Intergovernmental Working Group was created and charged with leading discussions about the document. It has been chaired by Ecuador since its inception.

One of the points facing strongest resistance during the negotiations is the idea of ascribing international obligations directly to companies. It has been removed from the Zero Draft, undermining the document. Although the drafts include states’ obligations, they do not say which obligations those states should impose on transnational corporations under their domestic legal frameworks, opening a dangerous margin for a race-to-the-bottom effect.

Other controversial points include extraterritorial jurisdiction and mechanisms for international legal cooperation, essential for effectiveness and inherent in an international instrument. Despite providing for states’ extraterritorial responsibility in prevention and remediation of violations, the current text does not establish specific points of connection. While it excludes the possibility of refusing jurisdiction on the basis that another court is better suited to hear the case (forum non conveniens), it fails to mention the possibility for a court to take jurisdiction in exceptional cases if there is no other court reasonably available to the victim to avoid a denial of justice (forum of necessity). It lacks cooperation obligations in terms of information-sharing among States, transparency of data on their companies, and ratification of other countries’ rulings. The mechanisms for implementing the treaty do not mention any court, and the status of the Committee provided for in the text is weaker than that of other human rights treaties because it cannot receive complaints from those affected.

In the 7th negotiation session in 2021, there was a new attempt to undermine the process by proposing a framework convention, which would be the summary of the UNGPs without any advance regarding their gaps - allegedly for the sake of international consensus.

Even so, we still believe in keeping and strengthening the process through popular activism together with states whose governments favour the creation of norms to regulate economic power. There were relevant gains when, in the 7th session, states including Palestine, Cameroon and Panama proposed amendments to the text in line with stances historically advocated by the Campaign to Dismantle Corporate Power.

Important next steps include creating strategies which prevent corporate capture of the process. With the new decision to set up a group of states entitled ‘Friends of the Chair’ to determine the changes to be made in the text, it is essential to prevent these countries from advocating the interests of transnational companies behind closed doors and to demand specific criteria for defining which proposals made by other states are left, withdrawn or changed in the drafts.

Finally, we stress the importance of the paradigm shift and the understanding that the Human Rights Council must commit to defining the primacy of these rights over any and all economic interests.

By Andressa Oliveira Soares, Manoela Carneiro Roland & Tchenna Fernandes Maso, Homa – Human Rights and Business Centre, Federal University of Juiz de Fora, Brazil