Day 3: 10th session of the IGWG elaborating a legally binding instrument on business and human rights
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Welcome to our recap of yesterday's discussions at the 10th session of negotiations on the binding treaty. The day began with state-led negotiations on Article 6 - prevention, before discussions moved to Article 7 - Access to Remedy in the afternoon.
Morning session
The third day of the 10th session of the Open-Ended Intergovernmental Working Group began with continued state-led negotiations on Article 6 – Prevention, followed by comments from civil society organisations (CSOs).
Several states, including South Africa, China and Colombia, along with some CSOs, supported Indonesia’s proposal to limit the scope of Article 6 from ”all business enterprises” to “transnational corporations and other business enterprises of a transnational character” throughout Article 6. The US Council for International Business and the International Organisation of Employers raised their concerns about the divergence of Article 6 from the UNGPs in many respects and stressed that Article 6(1) should apply to all businesses, not just those of transnational character.
Panama, Mexico, Pakistan and CSOs expressed reservations about using the term “local communities” alongside “Indigenous Peoples” in Articles 6(2) (d) and 6(3) (f), emphasising the need to clearly recognise and distinguish the rights of Indigenous Peoples’ to avoid confusion.
While supporting Brazil’s proposal to specifically include the financial sector in Article 6(2) (c), Panama proposed to further include the arms sector, which resonated with several states and CSOs. Furthermore, Panama called to reinstate the right to a clean, healthy, and sustainable environment in Article 6(3), which had previously been removed. This gathered support but the US argued that the LBI was not the appropriate forum to debate human rights such as the right to a clean, healthy and sustainable environment. Ghana’s proposal to reinstate Cameroon’s proposal of Article 6(8), aimed at protecting government processes from undue influence by commercial or private interests, respectively, was welcomed by some CSOs, along with Palestine’s suggestion to reinstate enhanced due diligence in conflict affected areas.
CSOs emphasised the need to enshrine human rights and environmental due diligence across the entire value chain, advocating for a gender-responsive approach, as well as protection of human rights defenders and children’s rights, to be reflected in Article 6. They also proposed retitling the Article to include "Prevention, Mitigation, Cessation, and Remediation."
The session concluded with legal experts addressing questions from Day 2, including those from South Africa and Panama, regarding Article 5(3) on the scope of state obligations to investigate, and the placement of specific provisions within Article 6 of the LBI.
The recording of the morning session is available on UN TV here.
Afternoon session
In the afternoon, states began discussing Article 7 - Access to Remedy. Multiple countries disliked the term “State agencies” found throughout the Article. Morocco proposed “judicial and non-judicial mechanisms” as an alternative, which Cameroon, Mexico, the US, and the UK among others, endorsed in various sub-provisions. Brazil recommended the word “authorities”, and South Africa, Colombia and Cameroon also expressed their preference for this phrasing.
Colombia, Panama, Mexico and the UK welcomed Ghana’s ongoing efforts to mainstream “gender-responsive” considerations in the LBI. Brazil continued pushing for language protecting “affected persons and communities” in addition to “victims”, a move endorsed by Cameroon, South Africa and Mexico.
CSOs voiced their concern that protections in Article 7 were diluted compared to previous drafts. Several groups rejected the phrase “non-judicial mechanisms” over concerns that this would limit access to courts. Organisations representing business interests criticised Article 7.4(d)’s reversal of the burden of proof as a violation of due process and procedural fairness.
States briefly began discussing Article 8 - Legal Liability at the end of the session. The EU presented their comment on this provision through the lens of the EU Corporate Sustainability Due Diligence Directive. The UK stated it has broad reservations on the Article in its current form with concerns related to its lack of legal specificity.
The recording of the afternoon session is available on UN TV here.