GENEVA, Switzerland (2 June 2025) – The Asian Forum for Human Rights and Development (FORUM-ASIA) and International Service for Human Rights (ISHR) express deep concern over the weakening of critical human rights language in the updated draft of the Legally Binding Instrument (LBI) on transnational corporations and other business enterprises.
As a mandatory legal framework, the LBI will hold states and corporations accountable for business-related human rights violations and environmental harms. It represents a critical milestone for human rights protection across Asia and beyond.
At its current form, however, the LBI’s language around protection and responsibility is heavily diluted. As for its negotiation process, civil society highlighted the inaccessible nature of consultations.
We strongly advocate for the LBI to use language that recognizes how defenders and communities are increasingly exposed to reprisals and retaliation for their invaluable human rights work. Likewise, the LBI must explicitly state the obligations of states and businesses to protect and support those who are trying to peacefully preserve their fundamental rights and freedoms.
Without intervention, the LBI runs the risk of becoming yet another weak regulation which fails to effectively protect, respond to, and remedy human rights violations.
LBI’s negotiation and problems with the process
Amidst rapid economic development that often prioritizes corporate interests over people’s rights, the LBI offers a ray of hope.
Across Asia, many communities are enduring land grabbing, forced displacement, environmental degradation, and labor exploitation. The absence of binding corporate accountability mechanisms perpetuates a vicious cycle of abuse, particularly affecting women, Indigenous Peoples, defenders, and marginalized communities.
If the LBI’s language and text remain true to its purpose, it can help break the cycle of abuse.
In 2014, the United Nations Human Rights Council established the Open-Ended Intergovernmental Working Group (OEIGWG) to elaborate the LBI. After completing 10 rounds of negotiations, the process is set to continue at the 11th session on 20-24 October 2025 in Geneva.
Ahead of this session, four clustered intersessional thematic consultations—as mandated in the 10th session—are expected to be held in 2025. The first victim-focused thematic consultation—covering Articles 4, 5, and 7–of the updated draft treaty took place in Geneva on 15-17 April 2025. The updated draft, currently under negotiation, was first released in July 2023. It incorporated textual suggestions from states during the 9th and 10th sessions in 2023 and 2024.
The remaining two consultations will be held on 3-5 June, while the fourth one is tentatively scheduled for 26-27 August.
During intersessional consultations, legal experts—appointed by the Chair-Rapporteur after the ninth session—introduced a non-paper developed on the basis of concrete comments and proposals submitted by states and non-state stakeholders during the 10th session. While the document does not carry legal status, it is intended to inform and support the ongoing discussions.
The negotiation process’ lack of inclusivity has been deeply concerning. Affected communities, defenders, and civil society organizations continue to face barriers to meaningful participation..
Despite being initially envisioned as a hybrid meeting, the intersessional consultation’s in-person-only format significantly limited participation from rights holders and affected persons who have experienced harm firsthand.
Core provisions on victim rights, protections, and access to remedy
Articles 4, 5, and 7 constitute the cornerstone provisions of the LBI, establishing a comprehensive framework for rights, protections, and remedies for victims.
These articles not only articulate the fundamental rights and protections guaranteed to victims but also lay down how these rights can be effectively exercised. These provisions also identify the corresponding duties and obligations of both state and non-state actors, including businesses and financial institutions.
Article 4: Rights of Victims
Article 4 acknowledges victims’ rights to access justice, remedy, and reparation.
However, since the very definition of “victims” (under Article 1.1) has been watered down, it no longer explicitly recognizes the individual and collective nature of harm.
This narrower framing fails to acknowledge how business-related human rights violations often affect wider communities, both directly and indirectly. As a result of this dilution, the scope of the rights of victims under Article 4 risks excluding communities and individuals who bear the brunt of business-related abuse, including those who face harm while intervening to prevent or respond to abuses.
We emphasize the importance of retaining Article 4.1, which affirms the rights of victims to all internationally recognized human rights instruments, such as the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) along with other key instruments such as the UN Declaration on Human Rights Defenders, the Declaration on the Right to Development, and the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).
In the Asian context, where repressive laws and authoritarian governments increasingly restrict civic space, such a recognition remains vital.
Testimonies from across the region confirm the systematic targeting of Indigenous Peoples, LGBTQIA+ individuals, defenders–including women human rights defenders, and environmental human rights defenders–and vulnerable groups that must be explicitly protected under the LBI framework.
With regards to Article 4.2(a), we further call for recognition of the need for a differentiated approach to victims in more vulnerable situations, recognizing the intensified harm to defenders in conflict-affected areas.
Businesses have a duty to ensure that they are not complicit in international crimes, as outlined in the Rome Statute.
Similarly, we endorse Article 4.2(c), which includes provisions for environmental remediation and ecological restoration as part of access to justice. This is crucial in light of the triple planetary crisis—climate change, biodiversity loss, and pollution—that disproportionately impacts women, Indigenous Peoples, and other vulnerable populations as highlighted under the UN Resolution on human right to a clean, healthy and sustainable environment.
In Article 4.2(e), we call for the explicit inclusion of protection of victim’s representatives, families, and witnesses from intimidation, reprisals, and interference against their privacy.
The newly included Article 4.4—which enables victims to request precautionary measures—is a welcome addition. Such measures can prevent further harm before legal processes conclude and reflect the intersection of preventive and remedial justice.
We strongly oppose the proposal on merging the provisions of Articles 4 and 5. Both articles have different scopes of application, with Article 4 affirming the rights of victims and Article 5 establishing corresponding State obligations to protect them.
Article 5: Protection of Victims
The protection of defenders is critical in ensuring an enabling environment for fundamental freedoms. However, by replacing references to “obligations” with “responsibilities” in the preamble and Article 2 of the updated draft, it dilutes the legal enforceability of corporate accountability mechanisms and the protection of defenders.
Defenders—including environmental human rights defenders, women human rights defenders, land rights defenders, and community-based defenders—are at heightened risks of criminalization, judicial harassment, and attacks, especially when confronting powerful business interests.
A recent report by the Business and Human Rights Resource Centre highlights the scale of threats faced by defenders, documenting over 6,400 attacks worldwide against those challenging corporate abuse between January 2015 and December 2024.
From 2010 to 2024, a study recorded 157 targeted attacks against human rights defenders and environmental human rights defenders who raised concerns about the extraction of minerals that are critical to the energy transition. This included 25 instances of strategic lawsuits against public participation (SLAPPs), a legal tactic commonly used to intimidate and silence defenders through burdensome litigation.
These patterns are also evident across various country contexts. In Mongolia, community leaders and defenders face reprisals for speaking up against harmful mining operations, thereby complicating the already difficult path to accessing remedy.
In Vietnam, environmental human rights defender Dang Dinh Bach was arbitrarily detained and faced trumped-up charges of tax evasion after advocating for communities impacted by global warming and mining activities. His case is a stark example of the corporate capture of state institutions.
Similarly in Thailand, communities and defenders opposing potash mining face judicial harassment through SLAPPs. The LBI should explicitly recognize this trend as well as the obligation of states to investigate and prevent such targeting of defenders. The LBI should explicitly discuss ways to address how judicial harassment and SLAPPs impact defenders and communities.
The updated draft’s recognition of defenders in Article 5.2 is a positive step. We strongly support retaining this article, including the explicit mention of protection of human rights defenders and environmental human rights defenders against reprisals and harassment. However, since the definition of human rights defenders remains ambiguous in the LBI, its text must clearly include trade unionists, workers, lawyers, journalists, artists, and academics, among other types of defenders who face reprisals for their human rights work.
We also support including a clear definition of human rights defender in alignment with the Declaration on Human Rights Defenders and Declaration +25, which defines human rights defenders as “any person who, individually or in association with others, or any group or organ of society that, acts or seeks to act to promote, protect or strive for the protection and realization of human rights and fundamental freedoms, at the local, national, regional, and international levels.”
This inclusion is essential in recognizing the role of defenders in preventing and addressing business-related human rights abuses.
HRDs deserve stronger protections and an enabling environment which allows them to continue their invaluable work without any threats or risks of reprisals and harassment.
States should protect the safety of defenders. At the same time, they should ensure that defenders are able to freely exercise their fundamental freedoms, including the right to access information and actively participate in decision-making processes related to human rights and environmental matters.
We also call for retaining the procedural obligation under Article 5.4 on states to adopt precautionary measures in urgent situations presenting serious risks or ongoing human rights abuses, which correspond to victims’ substantive rights under Article 4.4.
Article 6: Prevention
Article 6 is one of the LBI’s most fundamental articles. It not only covers the positive state obligations to prevent human rights abuses and violations, but also the mandatory human rights, environmental due diligence, and the duty to protect.
There is increasing evidence to suggest that business and human rights-related abuses often result from a lack of safe and meaningful consultation with affected communities, Indigenous Peoples, women, and defenders.
In cases where consultations take place, this is often not conducted in accordance with international human rights standards or it is conducted only after the planning, exploration, licensing. In other cases, consultation takes place after the actual operations have already started.
For Indigenous Peoples, we have seen how megaprojects and business activities have been imposed without their Free, Prior, and Informed Consent (FPIC) and without considering their own Indigenous processes by which FPIC is achieved. This further violates the Indigenous Peoples’ rights to self-determination and the “right to say no.” In this context, we emphasize that consultation is not the same as consent, and this should be clearly differentiated in the LBI.
Defenders play legitimate and pivotal roles in ensuring that human rights abuses and violations by businesses are prevented. Therefore, they should be consulted in every stage of the business operations. This has been confirmed by the 2021 “Guidance on ensuring respect for human rights defenders” issued by the UN Working Group on Business and Human Rights. The Guidance states that mandatory human rights due diligence requires business enterprises to include and consult defenders. For this reason, we support including an explicit reference to “human rights defenders” in Article 6.2(d).
We reject the attempts to delete Article 6.4. This significant article aims to clarify the content of the mandatory due diligence obligation.
Moreover, the WGBHR Guidance on Human Rights Defenders establishes that business enterprises are required to “continually assess, address, and mitigate risks to human rights defenders in their supply chains, including by making accessible, safe and respectful consultation with human rights defenders mandatory at all stages of due diligence processes.”
Article 6.4 not only helps to clarify the scope of mandatory due diligence but also recognizes the positive obligation to ensure the safety of defenders, Indigenous Peoples, journalists, and other relevant actors. In fact, Article 6.4(e) should also make reference, in addition to retaliation, to the criminalization and judicial harassment that defenders face as a consequence of exercising their right to defend human rights.
Finally, we call on retaining and including references to the “environment.” Considering the nature of LBI as a treaty, the centrality of the right to a clean, healthy, and sustainable environment in the context of corporate conduct remains crucial.
In particular, Article 6 should incorporate an “environmental” aspect to its mandatory and ongoing “human rights due diligence.” Therefore, we suggest to amend the text to “human rights and environmental due diligence.” Similarly, this article should incorporate “environment” when referring to impact assessments, revising the language to reflect “human rights and environmental impact assessments.”
Article 7: Access to Remedy
The right to implement remedies is just as important as the right to access such remedies. Such a provision, however, was unfortunately removed in the updated draft.
The third revised draft from 2021 included Article 7.6, which advocated for effective mechanisms for the enforcement of remedies through the “prompt execution of national or foreign judgments or awards.” We call for the reintroduction of this article in order to ensure that the judgments and awards received by victims are also effectively enforced and implemented.
Call to action
Ahead of the upcoming intersessional consultations in June and August 2025, and the 11th session of the OEIGWG in October, FORUM-ASIA and ISHR emphasize the importance of making sure that such consultations remain inclusive, transparent, and participatory.
We reiterate the need to meaningfully include the voices of defenders and civil society in all upcoming consultations in order to strengthen essential provisions and to advance a treaty that truly prioritizes and centers on people’s welfare rather than corporate interests.
Affected peoples—particularly women, Indigenous Peoples, informal workers, and all types of human rights defenders—must be central to all stages of the development of the LBI, including its negotiation, implementation, and monitoring.
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