As the UN Open-Ended Intergovernmental Working Group (OEWG) under the Human Rights Council prepares to meet from 25-29 October 2021, the ICJ issues its comments and recommendations on the Third Revised draft of the proposed Legally Binding Instrument on Business and Human Rights, calling on all states to step up their efforts and engage meaningfully in negotiations to conclude this treaty.
The ICJ welcomes this third revised draft as a good basis for these negotiations and supports the work of the OEWG with a view to an expeditious agreement on the proposed treaty. As with the second Revised Draft that was the subject of the 2020 negotiations, the Third draft treaty incorporates mostly positive changes that complete, clarify and strengthen some of the provisions while maintaining the overall structure and organization of the text. The changes increase the overall coherence of the draft and add some precision in certain cases. On the other hand, it fails to address adequately certain of the most crucial outstanding questions concerning access to an effective remedy and legal liability for businesses’ human rights abuses, which are central to and effective outcome. While the ICJ continues to consider the Third Revised draft as an improvement that advances the negotiations, it still needs further work to gather the wider support necessary for its adoption.
The ultimate success of the conduct and conclusion of the negotiations will require the active participation from a broad range of States from various political and geographical groupings and other stakeholders. The ICJ regrets that many States, including notably most States of the Western and other group (WEOG), plus a few others, maintain their reluctance to participate meaningfully in negotiations. Such refusal is not compatible with stated commitments towards multilateral cooperation and universal respect for human rights. The ICJ continues to call on all States, and in particular the recalcitrant ones, to work to overcome political obstacles and make substantial progress towards completing its work on this much needed treaty.