Law-Making, Civil Society and the Treaty on Business & Human Rights: Strategies for Effectiveness

Abstract

This thesis dissects the Zero Draft of the Treaty on Business & Human Rights, encompassing both its legal and political controversies. By assessing previous experiences of politically controverted negotiations that resulted on protective treaties (namely, the WHO Framework Convention on Tobacco Control and the Ottawa Treaty on Anti-Personnel Landmines), it argues that the engagement of Civil Society Organisations (CSOs) is essential for a progressive and broadly ratified treaty to be achieved. Building upon Putnam's Two-Level Games theory, it then argues that the political feasibility of the Treaty can be directly impacted through coordinated CSO strategies. A key challenge that CSOs must address is the corporate capture of the treaty-making process, especially through the International Chamber of Commerce (ICC) and the European Union. By employing the framing methodology, this work analyses the rhetorical strategies used by those actors to limit political engagement. It then compares this framing to corporate strategies employed in other treaty negotiations, and proposes a counter-framing (to be adopted by CSOs and engaged States) to combat corporate capture. This thesis ultimately sustains that there is both the need and realistic hope for the Treaty, especially if CSOs effectively reframe and push the narrative that (i) the Treaty and the UN Guiding Principles complement one another; (ii) EU countries are actively favouring corporate interest over human rights; and (iii) the Treaty must be more ambitious so as to include, among others, mandatory human rights due diligence and direct obligations upon parent companies.