FIDH advocates for the adoption of an international legally binding instrument to regulate the activities of corporations in relation to human rights

13/11/2017

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Business and Human Rights

The international human rights framework to prevent, sanction and remedy abuses caused by the activities of business enterprises still has several gaps. Access to justice remains particularly difficult for the majority of victims. That’s why FIDH is engaged in the United Nations process for the elaboration of an international legally binding instrument to regulate the activities of corporations in relation to human rights.

History of the binding Treaty project

In June 2014, the UN Human Rights Council adopted Resolution 26/9 which established the United Nations open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (IGWG), with a mandate to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.

The elaboration of a binding instrument aims to complement and go beyond the UN Guiding Principles on Business on Human Rights (UNGPs) of 2011, a set of soft-law Guidelines for State and companies to prevent, address and remedy human rights abuses by corporations. The UNGPs were established by the UN Special Representative on business and human rights; in spite of allowing a lot of progress in this field, these efforts have not been able to eliminate major gaps in the protection of human rights from corporate abuses.

Resolution 26/9 follows the proposition made by Ecuador and South Africa in 2013, to create a more robust and legally binding framework to hold businesses to account, as well as the joint civil society statement of members of the International Network for Economic, Social and Cultural Rights (ESCR-Net).

The first two sessions of the IGWG took place in July 2015 and October 2016 and were designed as consultations on the content, scope, nature and form of the future international instrument (all written contributions can be found on the OHCHR Website).

The third session of the IGWG which took place in October 2017 in Geneva was marked by an important participation of Member States of the UN Human Rights Council, demonstrating the growing interest and urgency of adopting a treaty to regulate corporate activities vis-à-vis human rights. Member States took part in substantive discussions and negotiations during the session, based on the Elements for the draft legally binding instrument presented by Ecuador one month before the meeting. The report of the third session, written contributions and oral interventions are available here.

The fourth session was held in October 2018. For the first time, negotiating parties had a “draft zero” convention to discuss, which allowed States, panels of experts and civil society organisations to make substantive comments on specific provisions of the text. Additionally, the Chair-Rapporteur of the working group issued a draft optional protocol in September 2018, which is scheduled to be more thoroughly discussed at the fifth session in 2019. Oral statements, and other relevant documents for the fourth session are available here.

At the fifth session, in October 2019, negotiations resumed on the basis of a “Revised Draft” convention. Statements made by states and civil society as well as the report for the fifth session are available here. The report also contains the recommendations and conclusions adopted by the IGWG at the end of the session on the next steps in the process.

The sixth session took place under particular conditions amid the COVID 19 heath crisis in October 2020. States’ negotiations were impacted as they were conducted in a “hybrid” format where some states participated remotely. Discussions developed over the second revised draft of the legally binding instrument moving towards textual negotiations and without the direct intervention of panels of experts. FIDH presented a general statement emphasizing the positive developments but also gaps that persist in this new draft and also highlighted the need for strong provisions on prevention, liability and on jurisdiction. The report and the statements presented at this session can be found here.

It is encouraging to notice that, despite the sixth session conditions, more States and stakeholders have been getting involved in interesting and substantive discussions since the second session, which marked a step forward towards an international treaty. For example, at the fourth session, a record number of almost 100 states and over 400 members of civil society participated in the IGWG.

During the sixth session, many States, expressed their agreement on the continuation of the negotiations. For FIDH it is important that states, especially the EU and its member states commit to the process and engage in substantive work on the treaty in the next session. It also calls on all States to further engage in the process and to support the continuation of the IGWG’s work until its mandate “to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises” as referred in Resolution 26/9 of the Human Rights Council is fulfilled. At the end of the sixth session, FIDH and other NGOs submitted a Joint Statement expressing their concern at the delay in the negotiations in reaching concrete compromises in a context of pandemic which led to the exacerbation of global inequalities and of abuses linked to business activities.

At the seventh session in October 2021, again conducted in a "hybrid" format, a third revised draft of the legally binding instrument was discussed, on which States were able to register textual proposals article by article. FIDH presented a general statement recognising the importance of the work done over the last few years to elaborate a text but reminding States of the need to discard any proposal less ambitious than the one presented so far. FIDH, in coalition with several other organisations, strongly opposed the proposal for an "alternative instrument" proposed by the United States. This type of proposal would only delay the final adoption of a treaty whose last version discussed, despite some positive advances, still contains loopholes. In order to strengthen it, FIDH and other organisations have emphasised in particular the reversal of the burden of proof, access to information and to justice and the need to include the protection of the right to a healthy environment. You can find all the statements in which FIDH took part here.

In their final conclusions, several civil society organisations stressed the importance of being more involved in the upcoming negotiation sessions. The session also concluded with the announcement by the Chair Rapporteur to establish a group of "Friends of the Chair" to conduct consultations among States on the proposed text in order to prepare the next session.

In October 2022, after two years marked by heavy limitations of in-person attendance, almost 70 states and over a hundred civil society delegates participated in the 8th session. This marks an increase in state participation, in a context of development of binding domestic and regional norms on business and human rights. Substantial discussions continued on the text of the Third Revised Draft Treaty, published in 2021 and updated with the concrete textual suggestions from the seventh session. For the first time, the United States actively negotiated the text (while still expressing an unfavourable position towards the current instrument) and the European union, still short of a negotiation mandate, took the floor significantly more often than in previous sessions. Through its advocacy work highlighting the importance of adopting complementary European and UN standards with different States, notably EU Member States, FIDH has contributed to the growing involvement of the EU in the negotiation process.

While several States made efforts to improve it, taking into account certain concerns expressed by civil society, others pushed to lower the level ambition of the draft treaty. FIDH expressed its position and contributed with oral statements during the session, providing substantive comments and textual suggestions on the draft.

As Cameroon joined the “Friends of the Chair”, the group is now geographically balanced and should become operational. Thus, the Chair, along with the “Friends of the Chair”, is now expected to hold consultations with States and civil society and publish an updated draft in July 2023, which will serve as the basis for negotiations during the next session.

Civil society has proven to be a crucial actor in the negotiations. Indeed, NGOs and social movements, coordinated through several coalitions, have put a lot of energy in providing constructive inputs and fostering States’ participation in the process. Among them, the Treaty Alliance, of which FIDH is an active member, has been leading and coordinating advocacy efforts since 2013, gathering more than nine hundred organisations and one thousand individuals. Additionally, in order to support civil society engagement in the Treaty process, ESCR-Net, another coalition in which FIDH participates, has published an advocacy factsheet providing useful informations and tools for CSOs to take action toward a strong treaty by forming national and regional alliance, advocating at the national and international level, engaging with media or using social media to raise awareness and coordinate advocacy efforts.

FIDH mobilisation in the Treaty process

FIDH has been calling for a reinforcement of legal standards at international, regional and national level and for the establishment of robust redress and enforcement mechanisms for many years.

Following Resolution 26/9 creating the United Nations open-ended intergovernmental working group, ESCR-Net and FIDH started the Treaty Initiative, a two-year project aimed at establishing concrete legal proposals for the Treaty starting from priorities on the ground. Based on worldwide consultations in Asia Pacific, Africa and the Middle East, Latin America and online with activists, academics, groups representing affected people and others in civil society, the Legal Group composed of international legal practitioners came up with Ten Key Proposals for the Treaty, a legal resource aimed at supporting advocacy efforts, which was presented in the second session of the Working Group.

After the release of the draft convention and optional protocol, FIDH published its Preliminary Comment on the legally binding instrument, providing detailed input on the first version of the texts. After the Revised Draft was published, FIDH released an updated comment. It also published Reflections on the Second Revised Draft. These documents aim at feeding into the negotiations and were used as a basis for advocacy.

FIDH has actively engaged in the IGWG process in the first, second, third, fourth, fifth and sixth session of the Working group, by submitting written contributions, giving oral statements and co-organizing side-events to present civil society organisation’s perspectives on a binding treaty.

“FIDH contribution to the first session:
– FIDH’s written submission to the first session of the IGWG : Business and Human Rights: Time for Genuine Progress Submission to the Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises
– Joint contribution by International Federation for Human Rights Leagues, Tides Center Project, International Network for Economic, Social and Cultural Rights (ESCR-Net)
– FIDH oral statement on general comments
– Joint CIDSE, FIDH, FoEE, IBFAN, GIFA, SOMO oral statement on social, economic and environmental impacts related to transnational corporations
– FIDH oral statement on scope (type of companies)
– FIDH oral statement on scope (type of human rights), in Spanish
– FIDH oral statement on content
– FIDH oral statement on responsibilities of business enterprises
– FIDH oral statement on legal liability of business enterprises
– FIDH oral statement on access to remedy

FIDH contribution to the second session:
– FIDH’s written submission to the second session of the IGWG
– ESCR-Net and FIDH’s Ten Key Proposals for the Treaty
– Joint FIDH SOMO CIDSE IBFAN FoEE oral statement on need for Treaty to address challenges posed by trade and investment agreements
– Joint FIDH and ICJ oral statement on legal liability of business entreprises
– Joint FIDH, Al Haq, BFTW, CIDSE, SOMO, ICJ, IBFAN-GIFA oral statement on scope
– Joint FIDH and ICJ oral statement on complementarity between the UNGPs and the Treaty process
– Joint FIDH, SOMO, CIDSE, FIDH, Friends of the Earth Europe, IBFAN-GIFA and BFTW oral statementon access to remedy

FIDH contribution to the third session:
– FIDH Preliminary Observations on the Elements for a Draft Legally Binding Instrument produced by Ecuador before the session
– Joint oral statement on human rights defenders (FIDH, Amnesty International, ICJ Franciscans International, Bread for the World, Lawyers for Human Rights, ISHR, WILPF, International Platform Against Impunity, SOMO, CISDE,Global Policy Forum and the CCR)
– Joint oral statement on scope (FIDH, Amnesty International, Dominicans for Justice and Peace, Franciscans International a voice at the UN, International Commission of Jurists and Lawyers for Human Rights)
– Joint oral statement on general obligations (WILPF, AWID, APWLD, IWRAW AP, FIAN International, CIEL, FIDH, supported by PODER, International Platform Against Impunity, and Consejo Internacional de Tratados Indios and Movimiento Juventud Kuna)
– Declaración oral junto sobre pueblos indígenas y los líderes y lideresas comunitarias (Swiss Catholic Lent Fund, el Humanist Institute for Co-operation with Developing Countries y su proyecto la Plataforma Internacional contra la impunidad; Franciscans Internacional, Fian Internacional, PODER, FIDH, WILPF and AWID)
– Joint oral statement on conflict affected areas (FIDH, the Cairo Institute for Human Rights Studies and Al-Haq)”
– Joint contribution of the Feminist for a Binding Treaty (FIDH, Asia Pacific Forum on Women, Law and Development (APWLD), Association for Women’s rights In Development (AWID), FIAN International, International, Women’s Rights Action Watch Asia Pacific (IWRAW AP), Project on Organizing, Development, Education, and Research (PODER), and Women’s International League for Peace and Freedom (WILPF))

FIDH contribution to the fourth session:
– FIDH Preliminary Comment on the Zero Draft Convention and Optional Protocol produced by the Chair before the session
– Maddalena Neglia’s (FIDH) Blog Article on the Zero Draft Convention and Optional Protocol
– Oral statement given on FIDH’s general comments on the Zero Draft Convention
– Joint oral statement on the rights of victims (FIDH, Justiça Global, LHR, Al-Haq, ESCR-net, SOMO)
– FIDH oral statement on trade and investment agreements and the treaty
– Joint oral statement on legal liability of business enterprises (FIDH, Greenpeace and SOMO)
– FIDH oral statement on scope (business included in the treaty)
– Joint oral statement on conflict-affected areas (Al-Haq, ALTSEAN-Burma, AWID, CIHRS, ESCR-Net, FIDH, WILPF, ACCA, SOMO)
– Declaración oral sobre el alcance subjetivo del tratado
– Watch Maddalena Neglia, head of the Globalisation and Human Rights Desk speak about liability issues on the panel of experts of the intergovernmental working group below.

FIDH contribution to the fifth session:
– FIDH Preliminary Comment to the Revised Draft
– ESCR-net position paper on the Revised Draft
– Oral statement given on FIDH’s general comments on the Revised Draft Convention
– Joint oral statement by FIDH, Franciscans International, FIAN and ESCR-Net on the Preamble and Definitions of the treaty
– Joint oral statement by CELS, ESCR-net, Franciscans International, Al-Haq and FIDH on Rights of Victims
– Oral statement on the scope of the Revised Draft Convention
– Joint oral statement by WILPF, FIDH and members of the #Feminists4BindingTreaty on Scope and Rights of Victims
– Joint oral statement by Al-Haq, ESCR-Net, FIDH, SOMO and Trocaire on Prevention
– Joint oral statement by FIDH, Amnesty International, OECD Watch, ICJ and SOMO on Prevention and Human Rights Due Diligence
– Joint oral statement by FIDH, Franciscans International and SOMO on liability.
– Joint oral statement by Franciscans International, FIDH, FIAN, Amnesty International, CELS, CIDSE, TROCAIRE, MISEREOR, CAFOD, CCFD, and SOMO on liability.
– Joint oral statement by Al-Haq, FIDH, SOMO, and Trócaire on Conflict-Affected Areas and Occupied Territories.
– Joint oral statement by Manushya Foundation, ESCR-Net, and FIDH on Adjudicative Jurisdiction.
– Oral statement on articles 7 and 8.
– Joint oral statement by WILPF, FIDH and members of the #Feminists4BindingTreaty on implementation of the instrument.
– Closing statements made with #Feminists4aBindingTreaty and a coalition of 11 NGOs.
– Joint oral statement by Franciscans International, FIDH, FIAN, on articles 1 to 5 during inter-sessional consultation of May 2020.

FIDH contribution to the sixth session:
– FIDH Reflections on the second Revised Draft
– Oral statements made during the session
– FIDH General Statement
– FIAN, FIDH, SID & FI (joint statement)
– Joint Statement (Preamble, Articles 1 and 2) FIDH, Fian and others
– FIDH Oral Statement (Article 5, 6 and 7)
– FI-FIAN-FIDH-ESCR-Net Joint Statement (Article 8)
– FIDH Oral Statement (Article 9, 10 and 11)
– FI-FIAN-FIDH-ESCR-Net -CIDSE Joint Statement (Article 12, 13 and 14)
– Concluding Remarks (Joins Statement) by FIDH, FI, ESCR-net, Altsean Burma, LHR; ECCJ & WILPF

FIDH contribution to the eighth session:
– FIDH Opening statement
– FIDH – Franciscan International Joint oral statement (Preamble to Article 3)
– FIDH Oral statement (Article 9)
– FIDH Oral statement (Article 11)

FIDH contribution to the ninth session:
– FIDH Reflections on the Updated Draft published in July 2023
– FIDH Opening statement jointly with Justiça Global
– FIAN International Oral statement (Preamble) jointly with FIDH
– FIDH Oral statement (Article 1) jointly with Association for Human Rights of Spain (APDHE), the Kenya Human Rights Commission, Justiça Global and Lawyers for Human Rights
– FIDH Oral statement (Article 3) jointly with Association for Human Rights of Spain (APDHE) and Lawyers for Human Rights

Besides, FIDH promotes and fosters discussions among stakeholders on the adoption of a binding Treaty and it advocates for the meaningful participation of EU Member States in the process.

As emphasized by members of the Working Group on the issue of human rights and transnational corporations and other business enterprises and the drafter of the UNGPs himself, it is important to consider the Treaty process as complementary with other instruments such as the UNGPs and the OECD Guidelines and other processes at the national, regional or international level. In this respect, FIDH actively participates in the UN Forum on Business and Human Rights, which is the global platform for annual evaluation and lesson-sharing in the implementation of the UN Guiding Principles on Business and Human Rights. FIDH and other NGOs have submitted a joint letter for the 2017 Forum focused on “Realizing Access to Remedy”.

FIDH’s stance on the process, scope and content of the legally binding instrument

FIDH position on the content and scope of the binding instrument is developed in the various oral statements and written contributions mentioned, as well as in the Ten Key Proposals, FIDH Preliminary Observations for the Treaty and the Preliminary Comment on the Zero Draft Treaty. In short:

– FIDH calls on the Working group to ensure the Treaty process remains guided by the principles of inclusion, participation, transparency and legitimacy and that the Treaty responds to real needs of people in society by facilitating the meaningful engagement of women, indigenous people, persons with disabilities, children, and other sections of society disproportionately or differently affected by the operations of transnational company and other enterprises.

– FIDH firmly believes that a legally binding instrument must address all the human rights violations arising from the activities of all business enterprises that can potentially cause or contribute to human rights abuses. The operational part of the text should therefore reaffirm the general duty for all businesses to respect human rights ; it should also ensure the inclusion of state-owned enterprises under the scope of the treaty.

– The instrument should, as a priority, fill the existing gaps in access to remedy for victims of corporate related abuses, taking into account the specific needs and challenges faced by women and indigenous peoples. Provisions must ensure that affected people can – at a minimum – access effective remedies in their own States as well as in the home State of the business enterprise concerned. Provisions should also better allow for all other States that may have jurisdiction over the concerned enterprise to ensure access to remedy and to cooperate in preventing, punishing and ensuring enforcement.

– The instrument must require States to adopt policy and regulatory measures to effectively prevent corporate abuses. This includes requiring business enterprises to adopt due diligence process that seek to identify, prevent, but also mitigate and account for how they address their impacts on human rights, wherever those companies operate or collaborate.

– The instrument should present provisions to address the wide range of gender issues arising in business and human rights cases, such as gender-specific impacts, restricted information and participation, or barriers in access to justice.

– The instrument should reaffirm that States have the obligation to respect, protect and fulfill the rights of all individuals, including human rights defenders in accordance, at a minimum, with the UN Declaration on Human Rights Defenders. It should also include further protection for defenders as well as gender-specific provisions that take into account the particular needs of woman human rights defenders.

– The future instrument should also better address the particular risk of gross human rights abuses in conflict affected areas, by reinforcing the provisions on “enhanced due diligence” for businesses whose activities are directly or indirectly linked to conflict affected areas.

– Lastly, the optional protocol and convention should establish a strong and effective monitoring and enforcement mechanism to ensure respect for the treaty provisions.

International Federation
for Human Rights