Let’s seize the opportunity to ensure a strong, international binding treaty on business and human rights

Four years after the United Nations Human Rights Council adopted a Resolution to begin negotiations on a binding international treaty on business and human rights, today we commence discussions on the Zero Draft of the Binding Treaty, which was published this summer, together with an Optional Protocol, by the chairmanship of the Inter-Governmental Working Group (IGWG) tasked with developing the instrument.

This is no small feat.

The original Resolution was only adopted by a recorded vote of 20 to 14, with 13 abstentions. The vote, which clearly reflected divisions based on ideology and economic power, was a harbinger of what was to come. In the last three years, the United States, amongst others, rejected the process entirely while the European Union merely kept a watchful eye over proceedings. The business lobby, led by the International Chamber of Commerce and the International Organization of Employers, also did their best to frustrate the process. Considering the tragic fate of the UN’s two previous attempts at regulating business and human rights at the international level (namely the proposed Code of Conduct for Transnational Corporations and the Draft Norms on the Responsibilities of Transnational Corporations) many considered the Binding Treaty’s demise a fait accompli.

Despite these serious obstacles, the chairmanship of the IGWG ably kept the process alive and produced the Zero Draft thanks also to the sustained advocacy of the international trade union movement and civil society organisations.

The series of consultations hosted by the Permanent Mission of Ecuador, on behalf of the chairmanship of the IGWG, during the intersessional period also gave stakeholders an ample opportunity to contribute on process and substance.

So, what do trade unions’ think about the Zero Draft? While not looking like a binding treaty that can effectively realign the normative asymmetry between the legally enforceable rules that protect corporate interests and the soft law approaches to business and human rights, the Zero Draft is certainly a step in the right direction.

Indeed, the unions cautiously welcome the following key provisions of the Zero Draft:

  1. Coverage of international human rights law, including international labour standards
  2. Mutual legal assistance and international cooperation
  3. State obligation to adopt regulatory measures to:
  • Require businesses to adopt and apply human rights due diligence policies and procedures;
  • Ensure access to effective judicial recourse for victims of human rights violations; and
  • Provide for parent-based extraterritorial jurisdiction

However, in order to truly close the major gap that exists in international human rights law (with a view to ending corporate impunity), it is imperative that the next draft of the Binding Treaty captures the following points:

  1. A re-statement of the business duty to respect human rights throughout their operations
  2. An explicit recognition of the primacy of human rights obligations over trade and investment agreements
  3. The need to overcome jurisdictional barriers by limiting the use of the doctrine of forum non conveniens
  4. Alignment of due diligence provisions with Pillar II of the UN Guiding Principles on Business and Human Rights to reduce some definitional and operational ambiguities
  5. The need for a strong international enforcement mechanism beyond the frameworks set out in the Zero Draft and the Optional Protocol

While the Zero Draft is clearly an attempt at compromise, this week’s session of the IGWG presents a golden opportunity to improve the existing text. Indeed, it is high time for governments, business, trade unions and civil society to collectively engage in meaningful and constructive dialogue to address the existing accountability gaps with respect to corporate human rights obligations.

There is certainly evidence to suggest that the tide is turning.

Two weeks ago, the European Parliament expressed its support for the Binding Treaty and called on the European Union to engage in the process. In 2017, the French Minister of Foreign Affairs clearly stated that the French government would promote further negotiations and discussions with other EU member states on the Binding Treaty. In the business world, companies in Finland recently launched the #ykkösketjuun campaign calling on their government to adopt mandatory human rights legislation. This is by no means a first with multinationals like Nestle and ASOS having previously supported legislation on modern slavery and child labour due diligence in the Netherlands and Australia, amongst others.

We must all unite in the interests of human rights and work constructively towards achieving a strong Binding Treaty. This is a once-in-a-generation opportunity.

Let’s not let it slip away.