Will we eventually have a legally binding instrument at the international level to enhance business accountability for human rights impacts? Franciscans International (FI) and its civil society partners have long demanded that such an instrument be adopted to improve the protection of communities and the environment and obtain justice for those affected by harmful business conduct.
In this lengthy process, intergovernmental discussions resumed and slowly progressed in Geneva between 24 and 28 October 2022, with active participation from both States and civil society. FI thus seized the opportunity of the 8th session of the open-ended intergovernmental working group (IGWG) on that matter to defend the process itself and to provide textual suggestions to negotiating States, so as to improve the current draft text*. An updated draft Treaty is expected in July 2023, hopefully reflecting some important elements that were discussed in that week.
One of the most important articles that continued to be supported by some States and the overwhelming majority of civil society is Article 9.3, calling for States to “avoid imposing any legal obstacles...to initiate proceedings.” This should facilitate victims’ access to justice, including when their home State or that of the company is unable or unwilling to provide an appropriate remedy.
In addition to this article, FI presented oral statements** with proposals for other amendments on the draft, including with partner organizations and networks such as the Treaty Alliance, ESCR-Net, and Feminists4BindingTreaty. Many of the proposals were grounded by experiences relayed to FI from communities and individuals that have sought access to justice in cases of violations of human rights and environmental degradation brought by business operations. For example, FI’s intervention on Article 7 related to access to information, including in regard to reparations agreements in cases of environmental disasters, reflected concerns brought to FI by Franciscan and other partners in Brazil in light of the Brumadinho and Mariana disasters.
During the week, FI also organized the side event, “Towards Environmental Justice: The role of the Legally Binding Instrument for business accountability in combatting the triple planetary crisis.”*** The panel included powerful testimonies from women human rights defenders, including: Erika Mendes on gas projects in Mozambique; Viviana Tacha on La Colosa mine in Colombia; Layla Hughes on the impacts of oil and gas industries in the US; and, Debbie Stothard on the nexus between conflict and the environment in Asia. The Special Rapporteur on the environment and human rights, David Boyd, also joined the panel and underscored that voluntary, soft-law principles were insufficient, and that a binding instrument was needed to ensure accountability.
FI will continue to coordinate and work with its partners in the coming year, in hopes of strengthening the language of the draft Treaty to better protect victims of corporate abuses and tackle impunity. As part of this work, and included in the recommendations and conclusions for the 8th session, the Chair of the IGWG along with the “Friends of the Chair” (Uruguay, Indonesia, France, Portugal, Azerbaijan, and Cameroon) will hold consultations with States and civil society, towards advancing the process and obtaining an updated draft in July 2023. FI expects that it will participate in these talks and provide submissions based both on concrete cases at the grassroots and internal legal expertise.
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For background information on FI’s work on corporate accountability, including the treaty process, see also: Working toward business accountability at the United Nations
* Draft Treaty currently being negotiated (3rd draft): https://www.ohchr.org/sites/default/files/LBI3rdDRAFT.pdf
** List of FI’s oral statements at the 8th session of the IGWG:
- Opening Statement (October 2022)
- Statement on preamble to Article 3 (October 2022)
- Statement on Article 6 (October 2022)
- Statement on Article 7 (October 2022)
- Statement on Article 8 (October 2022)
- Statement on Article 9 (October 2022)
- Statement on Article 10 (October 2022)
- Statement on Article 15-24 (October 2022)
*** Supporting organizations for the event included: ALTSEAN; CIDSE; CIEL; DKA Austria; ESCR-NET; FIAN; FIDH; Friends of the Earth International; Justiça Ambiental; SIEMBRA; and the Latin American Network Initiative (LANI) of the Geneva Graduate Institute of International and Development Studies.