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Op-ed: Same, same but different: reflections on binding treaty negotiations

- Anesu Dera

An attorney in the Business and Human Rights programme at CALS reflects on the treaty negotiation process at the United Nations in Geneva this year

A few months ago, I had the pleasure of attending (deep breath) the 7th session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights. I was part of a delegation of non-governmental organisations there to discuss the 3rd draft of the proposed treaty on business and human rights at the United Nations in Geneva.

This working group was established by the Human Rights Council to formulate a treaty to regulate businesses and their impact on human rights, so you can imagine what a surreal moment it was for me (a young African) to be there. It was time for me to be the change I want to see in the world and stand up for humanity, but, of course, if history has taught me anything, it is that nothing is ever the way you imagine it. Although most of us can agree that there is a regulatory gap that allows corporations to escape liability for human rights violations, how exactly to fix this is going to take a lot of time and patience.

The session was held from the 25th to the 29th of October 2021 and, during these five days, I had the privilege of presenting the views of African civil society organisations on the treaty. I also experienced first-hand how the negotiations of the text of a treaty take place, and it has left me wondering how we have so many treaties in the world.

The same disagreements that featured in previous sessions and discussions on the treaty appeared. These include the use of and distinction between terms like “responsibilities” and “obligations” in relation to business activity. Whilst the duties of states are framed as “obligations”, previous drafts have framed the duties of corporations as “responsibilities”. This difference in language is a point of contestation as the former has a stronger connotation than the latter, yet the treaty is meant to regulate business activity. The argument is that corporations must have human rights obligations grounded in the provisions of the treaty as the term “responsibility” seems more like a social expectation that is merely recommendatory as opposed to mandatory.

Countries like China, Mexico, Brazil, Chile and Panama seem to support the weaker term, which is concerning because China and Brazil are part of the BRICS coalition whose focus is to reform and improve the global economic situation which human rights are arguably an integral part of. Further, the mere fact that this issue is still being debated is a great cause for concern because therein lies the whole point of the treaty: to create a strong regulatory system for the interactions between human rights and business activity. Whilst states like Palestine and Cameroon seem to understand this as they lobbied and emphasised the primacy of human rights, it is going to be a while before the final version of the treaty is drafted.

The lack of consensus also flowed to other provisions of the treaty, from the earliest provisions defining key terms, right through to the access to remedy provisions. Suggestions made by countries like Brazil such as introducing the doctrine of exhaustion under the access to remedies provision and the narrowing of the definitions of terms like "victim" and "human rights abuse" arguably impact the effectiveness of the treaty as they ultimately restrict the application of the treaty. The doctrine of exhaustion would hinder access to justice, especially in the African context where courts are already struggling.

A notable difference, however, is that the United States of America (home to some of the world’s biggest corporations responsible for human rights violations and abuse) was finally in attendance at negotiations. Unfortunately, its presence sought to unravel seven years of work that has been done as it proposed “alternative ways” to regulate the relationship between business and human rights. Such an attitude, after years of silence, undermines the work and achievements of the working group, states, civil society, and all the individuals who have contributed to the drafting of the treaty thus far. It may have far-reaching implications on the attitudes of others given its global position and influence.

Although the presence of the U.S. at the session is a welcome development in some ways, I had rather hoped to see more of a united front from the Global South and an amplified voice from the African continent especially, as these countries are largely the ones affected by business activities given the extractive nature of their economies. This was, however, not the case: not only did the African states not have a unified voice, but very few were even present to begin with.

Instead, Egypt seemed to downplay the power of corporations, choosing words like “potential’ instead of “capacity” when referring to the ability of corporations to foster sustainable development while other African countries such as Cameroon called for states to acknowledge the “growing economic might of transnational corporations” and their impact on human rights. Out of 54 African countries, only 12 were present and this is rather disappointing because their input is a necessity. However, their absence may be justifiable given that the session was held in one of the most expensive cities in the world and most African states do not have the resources required to be present at such sessions. One could even argue that it is exclusionary and ironic that the session was held in Switzerland and not in a state in the Global South, which would be more representative of the victims of human rights violations and abuse.

Having said all this, it would be unfair to dismiss the progress that the 7th session represents. Whilst the event may not be how I imagined it would be, the fact that a third draft on a business and human rights treaty exists to discuss, and that countries showed up during a pandemic to discuss it, is a commendable step in the right direction.

Anesu Dera is an attorney in the Business & Human Rights programme at the Centre for Applied Legal Studies, Wits University