The elephant in the room: reflections on the updated draft of the legally binding treaty

https://www.business-humanrights.org/en/blog/the-elephant-in-the-room-re...

by Andressa Soares, Director of Homa - Human Rights and Business Institute

Andressa Oliveira Soares

As we reach the ninth session of the Open-Ended Intergovernmental Working Group (IGWG) on a binding treaty which take place at the end of October 2023, the positions of countries and the interests and political scenario have altered significantly and may give the impression the process is not moving forward. Nevertheless, the increasing cases of human rights violations and the normative and judicial gaps show that non-binding instruments are no longer enough. Human rights violations committed by transnational corporations (TNCs) in their supply chain cannot be dealt with only at national level. This has been said repeatedly by civil society during the previous sessions, as many statements and written inputs by non-State stakeholders show.

Some states still try to diminish the importance of an international instrument, presenting national legislation as the main solution, citing the emerging due diligence laws as a key example. Although they are useful in their own right, and a complementary tool to the treaty, the argument some governments are making that it is a replacement are misguided. After years of struggles from civil society it has been shown that even good domestic legislation is insufficient to fill accountability gaps by itself. One concrete example is Brazil, which supposedly has one of the more advanced pieces of legislations regarding environmental protection, yet was also the location of some of the worst cases of violations in the last years, with increased deforestation, murders of human rights defenders. Domestic laws are also at the mercy of current governments and when former President Bolsonaro was in power these previously strong laws were weakened.

Over the years, we have observed a shift in the treaty discussion. In the first sessions states outlined the need for a treaty, now the main focus is on the content so the text can reach a consensus and a consistent number of signatory states. Many states are concerned a stronger text will not be widely ratified, especially by states where TNCs are usually domiciled. In this regard, it is important to highlight that, historically, the treaty was an initiative by Global South countries - the most affected by human rights violations perpetrated by TNCs - to obtain access to justice for victims and avoid the “race to the bottom” in which corporate pressure and capture could make these same countries lower their own protection framework to receive foreign investments.

The updated draft released in July was supposed to be based mainly on the third draft, but other inputs, such as the Chair Proposals for core articles, feature heavily, despite the fact their legitimacy was debated during the eighth session of the IGWG last year. Although it is possible to point out a few positive changes in the latest draft, important proposals from states which actively participated in the process were not considered, even when there was widespread support for them by a considerable number of other states and civil society. Disappointingly, this updated draft has been weakened despite the increasing interest of civil society and countries for a strong treaty as demonstrated by a rise in contributions during the sessions.

The articles about prevention, liability and jurisdiction - key to guaranteeing effectiveness - were largely reduced and copied from the Chair Proposals. For instance, the removal of the prohibition of the use of forum non conveniens doctrine i.e. the possibility to decline jurisdiction based on the fact that another court is better suited to hear the case, and the mentioning of the necessity forum jeopardises severely access to justice. More alarming is that several paragraphs disappeared, even when no delegation opposed the insertion or requested the deletion. This is the case of the paragraph in the Preamble that mentioned the primacy of human rights over trade agreements.

There seems to be a real mismatch: the international community and public opinion increasingly call for a strong treaty and work for it, while the text is losing crucial elements. The search for a consensus cannot come at the expense of the achievements already obtained by affected people and recognised by international human rights law. Now, the necessity for a legally binding instrument is clear, and it is time to have this discussion to guarantee the future of negotiations and the potential of the instrument.