UN business and human rights treaty negotiations continue: one step forward, two steps back?

The latest round of talks exposes significant divisions between states on how to ensure global companies tackle human rights abuses

Last month saw the conclusion of the latest round of UN negotiations concerning a proposed treaty on business and human rights. These negotiations took place during the eighth session of the intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (the Working Group). They focused on proposed amendments to the third iteration of the proposed treaty, released by the Working Group in August 2021 (the Third Draft) (see our previous posts  here and here).¹

The Working Group's eighth session highlighted the significant disagreements which persist regarding the content of the proposed treaty. Although the negotiations did not produce a new consolidated text advancing on the Third Draft, they serve as a notable record of States' divergent positions concerning the overall treaty project, as well as the Third Draft's provisions. This post outlines some of the key areas of contention.

THE DRAFT TREATY PROJECT AND THE NEGOTIATING PROCESS

Established in 2014 by the UN Human Rights Council, the Working Group is mandated to develop a treaty on business and human rights, formally entitled the "Legally Binding Instrument to Regulate in International Human Rights Law, the Activities of Transnational Corporations and Other Businesses." The proposed treaty would oblige States parties to regulate business activities to prevent and address business-related human rights abuses.

Negotiations on the proposed treaty have been marked by the sporadic participation of numerous States, broadly concerned with what they view as the unworkably prescriptive character of successive drafts, coupled with the perceived presence of serious ambiguities. Partly to allay such concerns, Ecuador, acting as Chair of the Working Group, released a set of  "informal" proposed amendments to certain key provisions of the Third Draft just prior to the eighth session (the Chair Proposals).² As detailed further below, the Chair Proposals suggested less prescriptive drafting.

This was viewed as encouraging by certain States, including the United States.³ Notwithstanding, both Australia and the UK maintained that the proposed treaty strayed too far from the approach of the UN Guiding Principles on Business and Human Rights.⁴ The EU only participated in a limited manner, having not been given a negotiating mandate by its Member States.⁵

Other States criticised the Chair Proposals as deviating inappropriately from the Third Draft's text. Ecuador eventually issued a clarification during the negotiations that their "formal basis" remained the Third Draft. Ecuador agreed to consult further with the "friends of the Chair" grouping of States on how best to consolidate the various textual proposals discussed during the eighth session into a new iteration of the draft treaty.⁶ The Chair Proposals nevertheless remain a useful point of contrast to the Third Draft.

KEY PROVISIONS DISCUSSED DURING THE EIGHTH SESSION

State Obligations to Prevent Business-Related Human Rights Abuses

A key issue discussed during the eighth session was the content of proposed obligations on States to prevent business-related human rights abuses. The Third Draft formulated this obligation as covering business enterprises within the "territory, jurisdiction, or otherwise under [the] control" of a State party (art. 6.1). The Third Draft would require States parties to introduce a legal requirement on businesses to conduct human rights due diligence (HRDD) (art. 6.3), and prescribed detailed requirements for adequate HRDD (arts. 6.3(a)-(d), art. 6.4).

By contrast, the Chair Proposals do not specify which businesses should be compelled to conduct HRDD. The Chair Proposals would retain the obligation on States parties to introduce mandatory HRDD, but would refrain from requiring specific HRDD measures. Instead, States parties would be required to introduce measures to ensure that businesses conduct HRDD in a manner which: is gender sensitive, particularly considers vulnerable groups, is informed by meaningful stakeholder consultation, ensures the safety of those at risk of retaliation, and complies with international standards of free, prior and informed consent where engagement with indigenous peoples takes place.

The United States proposed omitting these required features of adequate HRDD in their entirety, instead suggesting that States parties should merely be required to "take steps to encourage" proportionate HRDD to achieve the broad aim of ensuring and promoting business respect for human rights. Panama proposed retaining wording from the Third Draft prescribing that adequate HRDD should cover the publication of regular human rights, labour rights, environmental and climate change impact assessments.

Access to Remedy and Legal Liability

The Chair Proposals also suggested amendments to the Third Draft's provisions governing victims' access to remedy (art. 7) and legal liability (art. 8). A number of participants had expressed dissatisfaction with these elements of the Third Draft. For instance, Japan cited the Third Draft's access to remedy provisions as an area containing "fundamental flaws".⁷ The Chair Proposals on Articles 7 and 8 sought to reduce their granularity.

Article 7.1 of the Third Draft envisages that States parties "shall" confer the "necessary competence" on their courts and non-judicial mechanisms "to enable victims' access to adequate, timely and effective remedy". The Chair Proposals soften this language considerably. They would instead oblige States parties to implement effective policies to "promote" access to justice, "progressively reduce" obstacles to effective remedies, and ensure that State agencies "can either deliver, or contribute to the delivery of" effective remedies. Furthermore, the Chair Proposals would qualify this obligation such that States parties would only be required to take steps "consistent with [their] domestic legal and administrative systems."

The proposed obligation for States parties to introduce legal liability for business-related human rights abuses in Article 8.1 of the Third Draft is again qualified in the Chair Proposals as being subject to existing domestic legal and administrative systems. On liability for human rights abuses arising out of business relationships, the Chair Proposals provide specifically for the establishment of liability for conspiracy to commit and "aiding, abetting, facilitating and counselling" human rights abuses. The Third Draft envisages an obligation on States parties to impose a duty to take adequate steps to prevent business partners causing or contributing to human rights abuses, insofar as reasonably foreseeable or connected with activities overseen by the duty-bearer (art. 8.6).

COMMENT

The negotiations at the Working Group's eighth session illustrate that significant divisions remain between States on the form and content of the proposed treaty on business and human rights. It is not apparent that any significant breakthroughs were reached.

The Chair Proposals indicate a willingness, at least among some States, to consider changes to the Third Draft which move it, at least incrementally, towards the form of a framework agreement – a treaty which only sets out obligations at a general level, while providing for processes through which more detailed obligations might be agreed in a supplemental instrument. Indeed, such an alternative approach was raised by the United States during the eighth session, a proposal which was noted with interest by the UK.

However, the opposition of other States during the eighth session to the Chair Proposals means that the extent to which those proposals will feature in a future iteration of the draft treaty is unclear. The Draft Report on the Eighth Session adopted by the Working Group recommends that Ecuador's Chair-Rapporteur publish an updated draft treaty by the end of July 2023.

The EU, Japan and a number of other States took the opportunity during negotiations to highlight their new initiatives on business and human rights. Those developments (see our posts here and here) show that States are taking steps to mandate or encourage HRDD by companies, notwithstanding the slower progress of the treaty negotiations.

1. Third Draft available here. Third Draft including textual amendments proposed at Working Group's seventh and eighth sessions available here and here.
2. Chair Proposals and textual amendments proposed at Working Group's eighth session available here and here.
3. General Statement of the United States available here.
4. Oral statements of Australia and the UK available here (at 1:14:03 and 2:27:54 respectively).
5. General Statement of the EU available here.
6. See Draft Report on the Working Group's Eighth Session available here.
7. General Statement of Japan available here.