By Stephanie Regalia, Bruna Singh, Angelina Widholm, George Kwame Gyan-Kontoh, Daniela Vallejo, K.S. and Gabriela Mancera, Centre for Human Rights Erlangen-Nuremberg (CHREN)

Where are the voices of progressive business in the UN Treaty negotiations? Research led by a team of the Centre for Human Rights Erlangen-Nürnberg (CHREN)’s Human Rights Clinic has taken a closer look at the participation of business representatives in the UN BHR Treaty negotiations. Our report highlights that while business has consistently been represented at each negotiation session, this has only happened through the participation of a select group of international business organisations: the International Chamber of Commerce (ICC), the International Organisation of Employers (IOE) and the United States Council for International Business (USCIB). Read more on these organisations’ role in the negotiations in Part 1 of this blog.

These organisations’ position statements have evolved over time to respond to the different treaty drafts. In the first negotiation session (2015), for example, the IOE highlighted the importance of adopting a victim-centred approach (“to be consistent with the UN Guiding Principles on Business and Human Rights (UNGPs)’ Pillar 3”). However, since the publication of the Elements paper in 2017 and subsequent drafts, business organisations have steadily expressed concerns over articles concerning corporate liability and victims’ rights, arguing that the Treaty is disproportionately focused on imposing legal obligations on businesses. In essence, business representatives have argued that the Treaty process marks a departure from John Ruggie’s “principled pragmatism” approach which favoured soft, non-binding norms in the drafting process of the UNGPs.

Yet our report also contrasts this with new forms of corporate activism which have seen various businesses take a stance in favour of binding norms on corporate accountability for human rights, including for laws which provide for civil liability and/or fines for non-compliant businesses. This apparent contradiction between business voices raises concerns that businesses advocating for mandatory regulation may not realise key business representatives in the UN Treaty negotiations have essentially opposed such regulation at the international level. This should lead us to question how exactly corporate interests are represented in Geneva.

The presence of business at the negotiation table is a sensitive topic. The business voices that have engaged in the Treaty negotiations to date have reflected a particular business perspective, focused on voluntary approaches and largely informed by the expectations of certain business communities in the Global North. The report also shows a lack of engagement and representation of Global South businesses and suppliers’ interests. Furthermore, civil society has documented how corporate lobbying led to weaker legal provisions in some of the European human rights due diligence laws and has played a strategic role in reducing the personal scope of the EU Corporate Sustainability Due Diligence Directive. The same risk exists with the BHR Treaty.

Yet the expertise and experiences of businesses implementing human rights due diligence – throughout the entire value chain – matters. Businesses can inform on both practical challenges of applying due diligence and possible damaging side effects, particularly for businesses located in the Global South or for SMEs, such as high compliance costs and dependency on certification schemes. Engagement with these perspectives is essential for developing tools that are sensitive and responsive to complex and diverse human rights and business contexts. Businesses play a central role in this process, for example by contributing to the development of model human rights due diligence clauses for business contracts, and could help inform the creation of a practice-based legally binding instrument. 

There are undoubtedly important risks as well as opportunities when considering further engaging corporate actors in the UN Treaty negotiations. Yet at a time where various governments are rolling back on their business and human rights agendas, our research questions whether the investment which companies have already made in enabling more sustainable value chains might perhaps be useful at the global level. Could greater engagement from a broader range of business actors in the Treaty process help ensure the adoption of binding norms at the international level?

The time has come for business in favour of mandatory due diligence to also speak up in favour of a strong UN BHR Treaty.