II. Background

The Working Group was established by the UN Human Rights Council in 2014, ‘to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’.Footnote ³ The mandate was controversial, polarizing emerging economies, including China and Russia, and industrialized states. The Permanent Representative of Ecuador, the resolution’s main sponsor,Footnote ⁴ was elected to the role of Chairperson-Rapporteur, a role Ecuador has retained subsequently.

The Working Group’s first two sessions were intended to address the ‘content, scope, nature and form of the future international instrument’.Footnote ⁵ Broadly speaking, discussions in 2014 and 2015 covered this ground, albeit beset by interlinked diplomatic and procedural disagreements. The most prominent of these, at the first session, turned on whether ‘other business enterprises’ should be interpreted as extending only to those businesses besides transnational corporations (TNCs) with ‘a transnational character in their operational activities’Footnote ⁶ or, as maintained by the European Union (EU) amongst others, and in line with the approach of the UN Guiding Principles on Business and Human Rights (UNGPs),Footnote ⁷ as encompassing ‘all business enterprises’. Given their mixed attitudes towards the mandate, participation by states during this period was low.Footnote ⁸

Resolution 26/9 further directed the Chairperson-Rapporteur to identify the key ‘elements’ of a draft legally binding instrument as a basis for ‘substantive negotiations’ during the Working Group’s third session.Footnote ⁹ While it attracted the highest level of state participation in the IGWG process,Footnote ¹⁰ late circulation of the ‘draft elements’ paperFootnote ¹¹ led to the reprise, at the third session of previous general exchanges of views, rather than the substantive negotiations called for.Footnote ¹²

Nonetheless, in July 2018 the Chairperson-Rapporteur published a ‘Zero Draft’ treaty (ZD)Footnote ¹³ and draft optional protocol providing for the establishment of ‘National Implementation Mechanisms’ and an individual communications procedure.Footnote ¹⁴ Interventions by states and other actors at the Fourth Session in October 2018 disclosed wide-ranging reservations to the specifics of the text, as well as enduring divisions on basic parameters, such as the scope of human rights and the class of business enterprises to be addressed; the UNGPs’ place in the instrument; and the balance to be struck between sovereignty and extraterritoriality.Footnote ¹⁵

III. Summary of the Fifth Session

In July 2019, a ‘Revised Draft’ (RD) of the ‘Legally Binding Instrument’ was published, once more as an intended basis for ‘direct substantive inter-governmental negotiations’,Footnote ¹⁶ and embodying numerous changes from the ZD.

First, the RD featured multiple additions to the Preamble, including explicit references to the UNGPs, to the principles of sovereign equality, territorial integrity and political independence of states; and acknowledgements of the contribution of business to sustainable development and to the role of human rights defenders. Second, the statement of purpose was re-oriented, giving greater emphasis to prevention, notwithstanding the retention of remediation as the primary focus overall.Footnote ¹⁷

Third, the scope was revised. To avoid the question of how to define ‘transnational corporation’, the ZD had introduced the notion of ‘human rights violations in the context of any business activities of a transnational character’. Further relaxing the focus on TNCs, the RD’s scope was extended to ‘all business activities, including particularly but not limited to those of a transnational character’. In addition, on scope, the ZD’s proposed restriction to ‘for-profit’ business activities was not sustained.Footnote ¹⁸

Fourth, the ZD’s reference to ‘all international human rights and those recognized under domestic law’ was substituted by a reference to ‘all human rights’.Footnote ¹⁹ Fifth, while the ZD assumed that states can ensure that companies, in turn, can always prevent human rights abuses linked to their business activities through the performance of due diligence,Footnote ²⁰ the RD refers rather to a state duty to ‘regulate effectively the activities of business enterprises within their territory or jurisdiction’. Sixth, the RD sought to connect the scope of the business responsibility to respect human rights to ‘contractual relationships’.Footnote ²¹

In line with the ‘Programme of Work’,Footnote ²² in format the fifth session consisted of introductory expert commentaries to the RD’s draft articles, then interventions by states, international organizations and other stakeholders. State participation was on a par with 2018.Footnote ²³ Major economies such as China, Brazil, Russia and Mexico intervened across the session albeit other large states remained absent, notably the United States, Japan, Canada, Australia and Turkey. Participation by other regionally significant states such as Nigeria and Indonesia was marginal. The EU was present throughout, its input, however, was still limited to an initial general statement. By contrast, civil society participation, as previously, was strong, and business associations and labour unions were both represented.

Opening the session, the UN Deputy High Commissioner for Human Rights praised the RD as a ‘solid basis’ for substantive negotiations.Footnote ²⁴ Yet few states publicly identified with this view.Footnote ²⁵ Some opening statements complimented the RD for acknowledging and seeking greater alignment with the UNGPs, and for extending the class of businesses addressed.Footnote ²⁶ More, however, signalled reservations to the RD’s overall purpose and form, as well as concerns deriving from specific provisions, including the following:

1. i. Multiple inconsistencies across the text with general principles of international law, other human rights treaties and international legal instruments, and ‘inaccuracies’Footnote ²⁷ relating to matters such as jurisdiction and legal responsibility.

2. ii. An overly broad definition of victim, given Article 1(1)’s references to alleged victims and victims’ relatives.

3. iii. The applicability to ‘all human rights’ under RD Article 3(3): while apparently scaling back the instrument’s scope of application by comparison with the ZD, states still found this formulation unclear given the failure to link it to specifically declined human rights instruments.

4. iv. The overall scope and description of the state duty to protect, also suggested as over-extensive, particularly from the point of view of TNC ‘home states’, and the potential for jurisdictional conflicts arising therefrom.Footnote ²⁸

5. v. An overly prescriptive approach as illustrated, for instance, by the RD’s provisions on the abolition of statutes of limitations, establishment of criminal corporate liability and reversal of the burden of proof,Footnote ²⁹ as well as those requiring the enactment by states of legislation requiring human rights due diligence by all business enterprises,Footnote ³⁰ criticised as failing to afford states sufficient discretion as to the manner in which they might choose to discharge the duty to protect.Footnote ³¹

6. vi. An assumption that human rights abuses or violations and ‘harm’ are co-extensive, and that the latter should automatically trigger international legal responsibility, whether of businesses or states.

7. vii. Linkage of the scope of the corporate responsibility to undertake due diligence to contractual relationships, entailing a retreat from the level of required protection indicated by the UNGPs.

8. viii. The elision of environmental rights and international humanitarian law with human rights across the RD.

9. ix. Inadequate differentiation of various forms of corporate involvement in human rights abuses and their corresponding legal consequences.Footnote ³²

10. x. Uncertainty over the instrument’s ultimate regulatory purpose, where states’ suggestions ranged from ‘filling gaps’ in the existing normative framework, enhancing protection and ensuring a ‘level playing field for companies globally’, coordinating ‘the promotion of development and human rights’, and aiming to ensure a ‘victims-oriented’ system of effective access to justice and remedy.

Finally, some states questioned the instrument’s overall political and diplomatic viability.Footnote ³³

IV. Looking Ahead

To date, the IGWG process has canvassed a kaleidoscopic range of approaches to regulating business and human rights in the international legal sphere. It would seem reasonable to ask, however, whether the time has come to distinguish more deliberately the plausible from the merely possible, and to narrow down options, in light of the constraints implied by the choice of human rights law as the regulatory medium and the UN as the legislative forum. In this context, States' views as expressed in their interventions at the Fifth Session should be seen as richly informative.

Further reflection is needed, in addition, on how a future business and human rights treaty can harness the resources already invested by governments, businesses, civil society and others in the three-pillar Framework and UNGPs. Even states currently opposed to a treaty remarked during the fifth session on measures they had taken to implement the UNGPs, for instance via National Action Plans.Footnote ³⁴ A future treaty should seek to reinforce, not to erase, the basis for such efforts.Footnote ³⁵ Such an approach, moreover, does not deserve to be disparaged as mere ‘pragmatism’. Only a treaty that is signed, ratified and implemented by both the world’s major capital exporting economies (a group no longer confined to North America and Europe), and host states for foreign investments, can truly promise justice for rights-holders as well as effective corporate and government accountability.

Encouragingly, the Chair-Rapporteur recommended the preparation, by the end of 2019, of a compilation of concrete textual suggestions delivered by states during the fifth session, and an ‘outline of key issues’, alongside a further revised draft during 2020. Presentation of this package of materials could support a more linear, and progressive, movement towards substantive negotiations in the IGWG in future. Yet such tools can only take us so far. Ultimately, if the treaty process is to reach a positive conclusion, parties on all sides now need to show greater readiness to compromise than has been observable so far.