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22 Nov 2021

Dominic Renfrey, Center for Constitutional Rights (CCR)

Five take-aways from the 2021 Binding Treaty negotiations

Finally, the treaty is being drafted

For the first time in seven years the…(take a breath)..."open-ended intergovernmental working group for the elaboration of an International Legally Binding Instrument on Transnational Corporations and other Business Enterprises with respect to human rights" (IGWG), UN member states are finally sitting down and offering black and white textual content. Does it mean we’re now close to finalising the treaty? Hardly. But in the spirit of celebrating milestones along a long road - a road that began with the UN Commission on Transnational Corporations in 1974 - having states begin negotiating a treaty text is testament to the decades-long efforts of generations of people affected by corporate abuse to get us to this point.

The EU is negotiating (no matter what it says to the contrary!)

It’s 10:42am during the morning session of day two:
IGWG Chair: “European Union, you have the floor.”

EU: “Thank you. Again with the comment that the EU does not negotiate, as such, it would be very difficult to imagine that a final version of the instrument would be without a solid reference to the gender perspective...” [Fast-forward 90 seconds to the Chair, clearly puzzled, asking the EU if its comments can be registered].

EU: “Sorry Chair, we were just in a bilateral...errm, uh, feel free to register the comment. Thank you.”

Cue raised eyebrows!

After years of childishly coy diplomacy, the EU delegation jumps into the fray at last! This was a victory of sorts for the many EU members of the Treaty Alliance - the civil society umbrella coalition monitoring the IGWG - who have advocated non-stop across the continent for years to ensure the EU bloc is in the room during these negotiations. Well, now they are at the table. It’s becoming more likely, too, that before long the EU delegation in Geneva will have an official mandate from Brussels to negotiate, especially once the new EU mandatory due diligence regime comes online.

The US is paying attention too

Not only has the EU stopped playing games, the US even showed up (as did Japan, the UK and Israel!)

A few days ahead of the session the US delegation said it would attend and call on other UN member states to “consider alternatives”. Civil society was alarmed. Within 48 hours around 50 groups from over 20 countries issued a public statement calling on the US to respect the IGWG process, and not wreck the best chance in a generation to develop binding international rules to hold corporations accountable for human rights abuses. My organisation, the US-based Center for Constitutional Rights, wrote to the US State Department saying a similar thing, as did Sharon Lavigne, 2021 Goldman Environmental Prize winner from Louisiana, during the opening session of the IGWG. The US delegation clarified (at least to me outside of the session) that it isn’t calling for an alternative process but rather a different kind of instrument. While this might not bode well for the current text, some might say having them in the room is still progress. For others, the jury is still out.

Despite the odds, civil society was still present - albeit less welcome than before

For frontline organisers and movements to join UN processes like the IGWG in the COVID era they have to move proverbial mountains just to tick all the necessary bureaucratic boxes. After all, the “vaccine apartheid”, as it’s becoming known, is what triggered 1,500 civil society groups to call on the UN to postpone the COP26 climate summit in Glasgow.

Once in the room the atmosphere for civil society wasn’t exactly welcoming. In previous years the productive relationship between civil society and the Chair of the IGWG reaped benefits for all, such as the decision to make the proceedings available on the UN’s live streaming service - now so important in the COVID era. This year, gone were the meetings the IGWG Chair used to hold with the Treaty Alliance before and during the session. The Chair also excluded civil society from the informal discussions held by states on the final day - a departure from how similar discussions proceeded just a few years earlier. It was perhaps an example of how unwelcoming I felt the Chair was to civil society engagement when he cut off an Indigenous representative as she spoke about addressing access to justice issues - the only time I can recall him cutting anyone off during the week.

It’s about to get real, and there’s never been a better time to get involved

The average attendance of states at the IGWG was down by nine this year to 71 (but up 20 on last year’s COVID-affected session). Numbers don’t account, though, for the marked qualitative difference in the process when one of the states in the room is the largest economy in the world (joining China, which has been there for years), and the EU is negotiating on the text. While there will always be bystanders claiming every year that “there aren’t enough ‘home’ states involved”, the plausibility of the claim fades with each passing year. Some of us still remember the chorus of observers in 2014 saying the resolution needed to establish the IGWG would never be adopted. Whatever perspective you take on the IGWG, it does feel like the seeds of a new phase of its development are taking root. We’ve now passed "the end of the beginning" and future IGWG negotiations involving the US, EU, China and others are the standard expectation, rather than a surprising exception. It remains to be seen whether having the main home states of most of the world’s transnational companies will result in a treaty containing effective measures of protection, accountability and remedy for affected people - but the task of meeting that challenge is now before us. For those in civil society who’ve been on the sidelines so far, there’s never been a better time to get involved.


Dominic Renfrey is Advocacy Program Manager at the Center for Constitutional Rights, and joined with others in 2014 to co-found the Treaty Alliance - the civil society umbrella group monitoring the IGWG negotiations.