Building momentum to negotiate a stronger binding treaty for all

The process to elaborate a legally binding instrument (LBI) on business and human rights started nearly a decade ago, with the adoption of the 2014 Human Rights Council Resolution 26/9. Since then, momentum behind efforts to regulate corporate behaviour through legislation has risen steadily, thanks to growing political will, civil society determination, and increasing public support across the globe.  The proposed LBI could function as an important additional tool in the effort to drive corporate accountability by creating a global level playing field and ensuring effective access to remedy for victims of corporate human rights abuses across the world.   

In order to support and elevate the efforts of civil society organisations, workers, and communities towards the development of such a treaty, especially those in the Global South, the Business and Human Rights Resource Centre and its partners recently convened a series of three webinars “Bridging the gap: A stronger Binding Treaty for all” to foster critical thinking around the binding treaty – from its complementarity with other legal frameworks, to regional concerns, to outstanding matters for the treaty negotiations to cover. The key takeaway from these discussions is that a treaty needs to be victim-centred and aims to provide access to remedy to affected people.  

As the 9th session of the Intergovernmental Working Group (IGWG) approaches, we have launched a new treaty blog series “Building momentum: Critical considerations in the Binding Treaty 2023 negotiations” to allow readers to dig further into these and related issues, as experts from diverse backgrounds and regions share their insights on the 2023 updated draft and the process to date of agreeing a proposed binding treaty. 

Stay updated during the negotiating session in October through our Daily Updates, highlighting decisive movements of the debate.  

New lawsuit profile

TotalEnergies lawsuit (re reparations of damages caused by activities in Uganda and Tanzania): In June 2023, members of communities affected by Total's projects in Uganda and Tanzania, as well as five French and Ugandan CSOs filed a lawsuit in France against TotalEnergies, based on the French Duty of Vigilance Law. The claimants seek reparations for harms such as violation of property rights concerning the land on which the pipeline will be built, food shortages, damage to houses from flooding caused by the construction of oil processing facilities. They argue that Total did not act in conformity with its obligation under the Duty of vigilance law to prevent these violations. Total states that its subsidiaries respect the rights of local communities and biodiversity and that the company looks forward to debating on the merits in court. The case is ongoing.  

Updates to existing lawsuit profiles

Cisco Systems lawsuit (re China): In 2011, 11 members of the Chinese Falun Gong movement filed a lawsuit in a US court against Cisco Systems regarding the company's activities in China. They alleged that Cisco helped the Chinese Government build computer systems used to track and prosecute political dissidents. They allege that this tracking led to many of the plaintiffs being arrested, arbitrarily detained, tortured, and killed. In 2014, the lawsuit was dismissed due to a lack of connection with the US. In April 2017, the plaintiffs appealed, asking the 9th Circuit Court of Appeals to revive the case.  In July 2023, the Court ruled that the case can move forward to trial. The Court rejected Cisco's argument that domestic corporations cannot be sued under the Alien Tort Statute. To bring similar cases in the future, plaintiffs must demonstrate that a domestic company engaged in substantial conduct in the US with the knowledge it was enabling human rights violations abroad. Cisco denies all accusations, and the lawsuit is ongoing. 

Lafarge lawsuit (re complicity in crimes against humanity in Syria): In 2016, a criminal complaint was filed before French courts against the cement company Lafarge due to its subsidiary’s alleged collaboration with jihadist groups to maintain its business activities amidst the Syrian Civil War. Lafarge is charged with complicity in war crimes, crimes against humanity, financing of a terrorist enterprise, and forced labour. However, in June 2023 French judges closed the investigation into Lafarge's activities relating to the financing of terrorism charge. Other allegations remain under investigation. The lawsuit is ongoing. 

Lundin Energy lawsuit (re complicity in war crimes, Sudan): On 11 November 2021, the Swedish public prosecutor, formally charged the former chief executive of Lundin Energy (formerly Lundin Petroleum, now Orrön Energy)  and the former chairman of the Board for aiding and abetting war crimes that occurred between 1999 and 2003 in Sudan, now South Sudan. In July 2023, the Stockholm District Court released a timetable for the trial. The trial started on 5 September 2023 and the concluding pleas will be delivered in February and March 2026. Both defendants deny the allegations, the lawsuit is ongoing. 

TotalEnergies lawsuit (re climate change, France): In January 2020, several French NGOs and local authorities filed a lawsuit against oil company Total in France based on the duty of vigilance law, aiming to force the company to reduce its greenhouse gas emissions. In July 2023, the court rejected the lawsuit on the grounds that Total had not been sufficiently notified before the lawsuit was filed. The plaintiffs argue that the court added strict requirements to the duty of vigilance law and said the ruling was concerning. TotalEnergies stated that it had noted the court decision and had an "ambitious strategy to reach carbon neutrality by 2050". 

France: 4 NGOs file "climaticide" lawsuit against TotalEnergies in connection with oil project in Uganda and Tanzania, RFI, 2 Oct 2023 

Canada: Civil society and indigenous groups file appeal challenging government approval of Equinor's Bay du Nord project, Ecojustice, 25 Sep 2023 

USA: California files climate liability lawsuit against ExxonMobil, Chevron, BP, Shell and ConocoPhillips, DeSmog, 25 Sep 2023 

Brazil: Supreme Court rejects time limit on Indigenous land claims and goes against agribusiness interests, Reuters, 22 Sept 2023 

Malaysia: Timber giant Samling withdraws lawsuit against SAVE Rivers, The Borneo Project, 18 Sep 2023 

Japan: Fishermen file lawsuit against TEPCO and government over Fukushima water discharge, Jurist, 18 Sep 2023 

Indonesia: Jakarta Administrative Court upholds decree protecting indigenous land rights, thwarting challenge brought by palm oil companies, Greenpeace Indonesia, 11 Sep 2023 

Mexico: International Commission of Jurists and Due Process of Law Foundation submit opinion on corporate responsibility and private firearm ownership to Inter-American Court of Human Rights, Due Process of Law Foundation, 6 Sep 2023 

Thailand: Poultry processing co. loses defamation suit following charges against individuals commenting on migrant worker abuse case, BBC, 29 Aug 2023 

Argentina: NGO asks court to pause offshore drilling projects due to allegedly insufficient environmental impact assessments and potential environmental damage, Mongabay, 28 Aug 2023 

Italy: ENI sues NGOs after they file first ever climate lawsuit in the country, Greenpeace International, 28 Aug 2023 

USA: Judge dismisses Johnson & Johnson subsidiary's second petition to resolve talc powder lawsuits via bankruptcy, Levin Papantonio Rafferty, 31 Jul 2023 

Indonesia: Dairi Prima Mineral’s environmental permit revoked by court due to "catastrophic" tailings dam risks, MiningMagazine, 28 Jul 2023 

UK: ClientEarth's case against Shell over allegedly misleading climate strategy refused by court for second time, Reuters,24 Jul 2023 

France: After recent judgements, doubts about the effectiveness of the duty of vigilance law increase, Human Rights Insights, 20 Jul 2023  

From Business and Human Rights Resource Centre

Guardians at risk: Confronting corporate abuse in Latin America and the Caribbean, 27 Sep 2023 

Indigenous Rights and Shared Propsperity knowledge hub, 20 Sep 2023 

Recordings of 3-part webinar series: Bridging the gap: A stronger Binding Treaty for all, Jul-Sep 2023 

• Complementarity of the treaty, NAPs and mHREDD legislation 

• Regional perspectives on the treaty: What would a treaty mean around the world and what still needs to be resolved in the draft? 

• A treaty and access to justice for affected communities: Addressing the human rights commitment gap 

Building momentum: Critical considerations in the Binding Treaty 2023 negotiations Blog series,  18 Sept 2023 

• Experts from various backgrounds and regions share their insights on the 2023 updated draft and the process to date of agreeing a proposed binding treaty 

• Includes contributions by Al-Haq, BIICL, CETIM, Homa, SIEMBRA, Prof. Sugawara and ZELA 

Enabling a just energy transition: The crucial role of corporate accountability in the EU Critical Raw Materials Act, Business & Human Rights Resource Centre and SOMO, 12 Sep 2023 

A Fast and Fair Energy Transition: How Community Legal Action and New Legislation are Shaping the Global Shift to Renewable Energy, 17 Jul 2023 

Unpacking clean energy: Human rights impacts of Chinese overseas investment in transition minerals, 6 Jul 2023 

How import bans can help tackle forced labour in global supply chains, 30 Jun 2023 

From other organisations

The Counter: SOMO's new global research helpdesk providing corporate research to activists open for requests, SOMO, 6 Sept 2023 

Business and Human Rights in Challenging Contexts: Considerations for Remaining and Exiting, OHCHR, 22 Aug 2023 

Regulatory frameworks to support governments in the fight against greenwashing, Béatrice Parance, Elise Groulx & Laetitia Montero, One Planet Network, 17 Aug 2023 

A new report published by the United Nations Environment Programme highlights the importance of climate litigation, United Nations Environment Programme, 27 Jul 2023 

State of play on the EU’s Corporate Sustainability Due Diligence Directive: five key takeaways, The Danish Institute for Human Rights, 14 Jul 2023 

Updated IBA Guidance Note on Business and Human Rights: The role of lawyers in the changing landscape, International Bar Association, 9 July 2023 

Grantham Research Institute publishes annual report on global trends in climate change litigation, Grantham Research Institute on Climate Change and the Environment, 29 Jun 2023 

Africa: New publication explores proposed business and human rights treaty from feminist perspective, Centre for Applied Legal Studies (CALS), 28 Jun 2023