Not a day goes by without fresh news of human rights violations resulting from the actions of big business: from instances of the denial of basic labour rights and retaliation against workers’ attempts to organise to evidence of failure to meet basic standards resulting in disasters that ruin environments and claim lives.

But there’s another story, of civil society’s efforts to secure rights and seek access to justice for victims, and to win commitments from businesses to clean up their act.

One important form these efforts take is litigation, which has yielded countless victories over the years. But far more violations occur than can be addressed this way, and the challenge is that many are perpetrated by transnational corporations and their affiliates, which now account for around a third of global GDP and two thirds of international trade, standing beyond the boundaries of national jurisdictions.

Hence the civil society pressure to develop international standards to subject businesses – particularly transnational corporations – to human rights obligations and hold them accountable for their violations. Longstanding pressure resulted in a process at the United Nations (UN) to produce a legally binding treaty on business and human rights.

Currently in its ninth year, this is an open-ended process. However, because every day without the treaty is another day of impunity, civil society is pushing for states to get the treaty ready for signature and ratification by 2025. But there are many obstacles still ahead. Global north states in particular – where many of the biggest companies are headquartered – are working to delay progress, make the treaty less ambitious and even questioning whether it should be legally binding at all.

The treaty process

The process was started by a resolution adopted by the UN Human Rights Council (UNHRC) in June 2014. This established an open-ended intergovernmental working group (IGWG) with the task of elaborating an ‘international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’.

The IGWG’s chair was charged with preparing a first draft of the treaty that would become the basis for substantive negotiations starting at the third IGWG session.

The process proceeded as planned, with the IGWG chaired by the government of Ecuador, which along with South Africa had sponsored the draft UNHRC resolution. In September 2017 the IGWG chair issued a document, Elements for the draft legally binding instrument, that was discussed at the session held the following month. The IGWG Chair then produced a Zero Draft that received further input at the IGWG’s fourth session in October 2018.

Successive rounds of conversations took place over the following years resulting in revised drafts, the latest of which is the Third Revised Draft, published in August 2021 and discussed at the seventh and eighth IGWG sessions in October 2021 and 2022.

As it stands, the current draft reflects civil society’s influence, but objections from powerful states threaten to either weaken the text or block the process. To ensure this results in an instrument that is fit for purpose, civil society is calling for a binding treaty containing clear rules, including operational accountability and redress mechanisms.

A force for ambition

Civil society has played a decisive role at every step, from pushing for the process to begin to maintaining ambition as it progressed and urging it to stay on schedule for completion.

Since the early days, a major role has been played by the International Network for Economic, Social and Cultural Rights (ESCR-Net), a collaborative initiative of more than 280 CSOs, social movements and activists from 75 countries working to secure economic and social justice. In 2013, ESCR-Net members at its Peoples’ Forum on Human Rights and Business outlined demands for a human rights-based approach to corporate regulation in a joint statement that would become the foundational statement of the Treaty Alliance.

The Treaty Alliance is a campaigning coalition mobilising for a treaty to regulate businesses and end human rights abuses, environmental harm and corporate impunity. Its statement calling for the creation of an IGWG to develop the treaty was backed by over 600 CSOs from around the world. ESCR-Net members and allies mobilised actions in over 20 capital cities and engaged with state representatives in Geneva. The 2014 UNHRC resolution creating the IGWG was the reward for these efforts.

Another key civil society player is the Global Campaign to Reclaim Peoples Sovereignty, Dismantle Corporate Power and Stop Impunity, known as the Global Campaign. Launched in 2012, it’s a network of over 250 social movements, CSOs, trade unions and local communities resisting land grabs, extractive mining, exploitative wages and environmental destruction caused by transnational corporations.

Once the battle to create the IGWG was won, civil society has mobilised to try to ensure a robust treaty emerges. It has advocated collectively at IGWG sessions and amplified the voices of affected communities, brought together experiences on the ground with expert knowledge, reviewed drafts and coordinated responses. It has consistently emphasised the disproportionate impacts of corporate abuses on Indigenous people, women and other excluded groups. And it has demanded more democratic spaces for civil society to engage with decision-makers and more leadership from global south states in the process.

Civil society found an ally in the UN Working Group on Business and Human Rights, established by the UNHRC in 2011 to promote, disseminate and implement the Guiding Principles on Business and Human Rights. As with other UN mandates, the Working Group is composed of independent experts bringing with them diverse skills and experience across a wide range of countries, issues and sectors. Most of them are drawn from academia and they’re often sympathetic to civil society.

Splits and disagreements

Even as it passed, the resolution that created the IGWG didn’t reflect a strong consensus. A majority of UNHRC member states voted against it or abstained: the resolution was passed with 20 votes in favour, 14 against and 13 abstentions.

Voting patterns reflected an enduring divide between global south and global north states, and between more established and emerging economic powers. All the states that voted for the resolution were from the global south, with a prevalence of African states, along with two global south powerhouses, China and India. All the states that voted against were from the global north, with a prevalence of European states, alongside Japan and the USA.

These dividing lines haven’t changed much over time – although states split a little differently when the proposed treaty’s scope changed: initially it was suggested it focus exclusively on transnational corporations but its reach has been extended to encompass other business entities. But in the main, several global north states have consistently taken the side of the private sector. They’re trying to avoid a text they characterise as too rigid or prescriptive and pushing to reduce the treaty’s scope on key issues such as Indigenous people’s rights.

Civil society is siding with the bulk of global south states to demand higher standards and clear, enforceable obligations. Civil society is also encouraging more consistent participation from African states, which have in the main been much less involved than those from Latin America.

Divisions among states also remain on such issues as the prevention of harm and access to reparations, environmental safeguards, complaints mechanisms, statutes of limitation and international judicial cooperation.

But the treaty is too important to be left exclusively to states, and it definitely shouldn’t be up to business interests: those that have played such a big part in creating the problem can’t be expected to offer the solution.

Limited civil society voice in the process has been as much of a challenge as inadequate buy-in from powerful states. Within these limitations, while pushing for both ambition and speed, civil society is clear that ambition shouldn’t be sacrificed for the sake of a quick conclusion of the process, and will continue demanding the highest standards possible.

At the same time, civil society is realistic that any resulting treaty won’t be a magic bullet. There will still be a need for civil society advocacy and commitment on all fronts. But to make the treaty as good as it can be will depend on the influence civil society can exert in the process. There’s a need to enable civil society to bring to the debate its experience, expertise and ability to amplify the voices of those most affected by the human rights violations that continue to be perpetrated by businesses day after day.