Business and human rights framework
With the exception of constant yet somewhat marginal critiques of capture by CSOs within the Guiding Principles and Binding Treaty processes, the discussion of capture is not widespread in either of these processes.
In many ways, as described by the ESCR-Net’s Corporate Accountability Working Group (CAWG) and others, the United Nations business and human rights work has split into two camps: the insiders — represented by States, multinational corporations, and international NGOs — and the outsiders — represented by smaller States in the Global South, social movements, human rights organizations, and community-based organizations. The insiders, on one hand, have pushed and continue to work for the implementation at the national level of the Guiding Principles on Business and Human Rights (UNGPs), a voluntary set of guidelines adopted in 2011. The outsiders, on the other hand, have placed their bets on the Binding Treaty, seeking an obligatory mechanism with extraterritorial jurisdiction that allows for stronger accountability and remedy for corporate-sponsored human rights violations in both home and host States.
Within the framework of these two mechanisms — which comprise a variety of laws, national action plans, and voluntary initiatives — the core recommendation gleaned from our interviews and literature review is to ground policymaking in and measure its effectiveness using human rights outcomes in both the social and environmental spheres. The thinking is that both the UNGPs and the Binding Treaty are expressions of commercial logic — particularly the emphasis on corporate respect and remedy for business impacts —, which does not prioritize human rights outcomes above all other policy goals; if we could flip this, then a significant reduction in corporate capture and impunity would follow.
Latin American Civil Society Platform on Business and Human Rights
The Plataforma Latinoamericana de la Sociedad Civil sobre Derechos Humanos y Empresas is an example of how civil society organizations, social movements, and other rightsholders are using the business and human rights framework as an opportunity to organize and advocate collectively with a more powerful voice for human rights outcomes in these processes. Similar efforts already exist at the national level — for example, the Civil Society Working Group on Business and Human Rights in Mexico and the Human Rights Roundtable Against Business Power in Colombia — and in other regions — for example, theAfrican Coalition for Corporate Accountability.These examples are models of how civil society can innovate to advocate more forcefully within multi-stakeholder or policymaking fora.
The Latin American Platform was formed in 2022 but became more active in October 2023 at the VIII U.N. Regional Forum on Business and Human Rights. Its members includeInternational Network for Economic, Social and Cultural Rights(ESCR-Net),Human Rights Roundtable Against Business Power, Business and Human Rights Resource Center (BHRRC),Project on Organizing, Development, Education, and Research(PODER), OXFAM, ProDESC,andConectas,among 16 others. As a coalition, its advocacy and capacity-building activities include promoting due diligence laws, socializing how to use global laws and mechanisms, and sharing individual case work. The range of issues that it works on include: due diligence, finance and human rights, extractive industries and the energy transition, human rights defenders and the Escazú agreement, agribusiness and responsible business conduct, and critical analysis of both U.N. processes.
NAPs and resulting legislation
Following the adoption of the UNGPs in 2011, the U.N. Working Group on Business and Human Rights began working with States — and with multi-stakeholder groups at the country level — to adapt and implement the Guiding Principles around the world.This is known as Pillar 1 implementation.The plan was for States to develop National Action Plans(NAPs), in which they would identify legislative and regulatory changes that needed to happen in order to fully comply with the UNGPs.
To be sure, this process is much slower than anticipated. As of early 2024, only 31 countries had officially published a NAP and 25 others were taking steps in the right direction. Of the 31 countries with NAPs, the vast majority rely almost exclusively on voluntary approaches to compliance. Only a handful of countries — France, Netherlands, Norway, Germany, and Switzerland — have implemented into law even a portion of the UNGPs, all five of these being due diligence laws in compliance with Pillar 2 of the UNGPs. A dozen or so other countries and regions have passed parallel laws — or are in the process of debating them legislatively — on issues ranging from forced labor to supply chain due diligence.
Some countries, such as Brazil, have already proposed business and human rights legislation even before adopting a NAP. Other countries in Latin America, for example Chile, Colombia, Mexico, and Peru, also have due diligence or similar laws pending in their legislatures. In Africa, despite some on-going NAP processes in 10 countries, only two States have adopted NAPs, Kenya and Uganda. Notably, the Kenyan Human Rights Commission has done important work pushing for better laws there as a result. And, in Asia, only four countries have adopted a NAP.
According to Conectas, “Guiding documents such as the United Nations Guiding Principles on Business and Human Rights, the UN Working Group on Business and Human Rights Recommendations, the Organization for Economic Cooperation and Development Guidelines for Multinational Enterprises and the Guidelines can be more explicit. We have already seen the exhaustion of self-regulation initiatives and voluntary practices, and these documents do not contain coercive obligations to identify corporate capture. Against this backdrop, a Human Rights and Business Treaty becomes an instrument that could encourage states to improve their legislation and public policies to protect human rights in the face of corporate power.”