This blog piece is part of our ongoing “Rethinking Legal Research in and with Africa” symposium. To access the introduction explaining the framework, click here (ALS / LDC), to access the overview of the symposium click here (ALS / LDC).
The workshop Rethinking Legal Research in and with Africa brought together scholars and participants to reflect on legal methods, critical perspectives, decolonial approaches, and the relationship between research in human rights and sustainable development. For us, as doctoral researchers working on business and human rights from within the legal discipline, one central question kept returning across the sessions: Who benefits and who should benefit?
In this contribution, we use that question to examine the negotiations over the definition of “victim” in the draft legally binding instrument (LBI) on business and human rights and showcase how international negotiations can reveal broader struggles over legitimacy, participation, and whose interests’ international legal norms are ultimately designed to serve.
The workshop made clear that rethinking legal research in and with Africa also requires rethinking the foundations of research itself: its assumptions, methods and responsibilities. This insight challenged us to move beyond treating legitimacy as a purely formal question of legal validity. Instead, legitimacy requires asking whether people can recognize themselves and their struggles in legal norms. Does the norm centre their agency, or is that agency diluted through international negotiations shaped by more powerful actors? Whose interests are embedded in the norm and who pays the cost?
“create change where it matters most – in the daily lives of people”[1]
These questions also led us back to the foundational promise of John Ruggie for the business and human rights field, which emerged as both a movement and a field of study in response to destructive business practices, especially in developing countries.[2] From the 1960s, the growth of foreign direct investment intensified concerns about the increasing power of multinational corporations and their influence over national sources, particularly in the Global South.
In the 1990s, several developments changed the direction of the debate. The execution of Ogoni Nine in Nigeria highlighted the deadly consequences of corporate activity intertwined with state repression. Litigation under the Alien Tort Statute in the United States, opened new pathways for holding corporations accountable for alleged human rights abuses. At the same time, civil society reports on corporate human rights abuses in global supply chains drew sustained attention to the human rights costs of globalization. An attempt to establish direct human rights obligations for businesses through the UN Draft Norms met strong opposition from business actors and many Global North states.
The UN Guiding Principles on Business and Human Rights (UNGPs), endorsed in 2011, continued these efforts within the UN system. After the UN Draft Norms were abandoned in 2004, John Ruggie was appointed as the Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises. During his mandate from 2005 to 2011, he held consultations, meetings, country visits, and produced reports that led first to the “Protect, Respect and Remedy” Framework in 2008 and then to the UNGPs implementing the Framework.
Ruggie described his approach as “principled pragmatism” – a combination of the principle of promoting and protecting human rights with practical action capable to “create change where it matters most – in the daily lives of people”.[3] Yet, as many scholars have argued, this pragmatism came with compromises, including compromises over language, participation, and the scope of legal responsibility.[4] Ruggie did not call for a formal vote on the UNGPs in 2011 because he sought a consensus adoption by the UN Human Rights Council (HRC) to ensure the principles would have legitimacy and global acceptance, rather than a divided vote.[5] The UNGPs were therefore unanimously endorsed. However, that consensus also reflected unresolved tensions. Ecuador and South Africa, which would later become central actors in the LBI process, were among the states dissatisfied with the limits of the UNGPs.
Who sets the agenda?
This question therefore remained open. In 2013, Ecuador began openly advocating for a treaty. The following year, the HRC adopted Resolution 26/9, establishing an open-ended intergovernmental working group on transnational corporations and other business enterprises (OEIGWG) with a mandate to elaborate aLBI to regulate the activities of businesses. Sponsored by Ecuador and South Africa, the resolution passed by a recorded vote of 20 in favour, 14 against, and 13 abstentions. With 17 of the 20 votes in favour coming from states from the Global South (the other three being China, India, and the Russian Federation), and all 14 votes against coming from states from the Global North, the voting pattern reflected not only a divide between the developing and developed countries, but also tensions between the established and emerging powers.[6]
The first two sessions of the OEIGWG were dedicated to deliberations on the content, scope, nature, and form of the future LBI. They also revealed uneven participation. Global North states were largely absent or cautious, while Ecuador, South Africa and other supporting states pushed the process forward. The EU and its member states played a particularly important role in resisting the process at an early stage, and only after the fifth session in 2019 did they soften their strong opposition. The United States was absent from the early sessions.
Negotiations over a draft text began with the Zero Draft during the fourth session in 2018 and have continued since then. In its decision 56/116, the HRC decided that, starting in 2025, the 11th session of the OEIGWG would be accompanied, for a period of three years, by annual intersessional thematic consultations on clusters of articles of the draft LBI.
Victims in the draft legally binding instrument
This history matters because it shapes the politics of present. The trajectory from the UN Draft Norms to the UNGPs and then the LBI process helps explain why legitimacy questions remain so sharp in the LBI negotiations. It becomes especially clear in the debates over the definition of “victim” in the draft LBI, from the fourth session in 2018 to the tenth session in 2024. The debate over this definition is not merely technical. It is one of the central political struggles of the LBI process. States were never only debating words, but the boundaries of protection, remedy, accountability and access to justice.
The rights of victims, first addressed in Article 8 of the Zero Draft and later in Article 4 of subsequent Revised Drafts, became relatively stable over time. By contrast, the definition of who qualifies as a victim remained deeply contested throughout the negotiations. This suggests that many states were less willing to openly oppose victims’ rights once recognized, but sought instead to control who could enter the category of victim from the outset.
The most expansive approach, advanced by states such as Ecuador, Namibia, South Africa, Malawi, Panama, and Chile, understands victimhood as including direct and indirect victims, families, dependants, rescuers, interveners, communities, and those suffering collective or structural harm. This reflects the lived realities of business-related human rights abuses, where harm is often diffuse, transnational, collective, gendered, environmental, and difficult to reduce to an individual injury caused by a single corporate act.
By contrast, other states sought to narrow the definition through requirements of legal certainty, causation, and state-mediated recognition. The United States (who had not before commented on the articles in question) introduced a different kind of narrowing at the eighth session by proposing to replace “victim” with “rights holder.” Although this term may appear more neutral, it risks weakening the LBI’s remedial and justice-oriented character, as “victim” keeps attention on harm suffered, responsibility owed, and reparations required.
The struggle over the definition of “victim” from the fourth session until the tenth session reveals the deeper politics of the LBI. States are negotiating not only corporate accountability, but also the boundaries of who may claim harm, demand justice, and benefit from international protection. We argue that if the LBI ever comes into force, it must serve those for whom it is intended. Victimhood must remain broad enough to include the full range of people and communities affected by business-related human rights abuses. It remains to be seen who – if anyone – will win this tug of war.
Concluding remarks
In essence, international legal negotiations are not neutral and democratic spaces of consensus-building. They often reproduce Global South-North power asymmetries that shape whose interests are translated into norms. The LBI negotiations illustrate how these processes can become sites of a broader global tug of war – in which apparently technical debates, such as those over the definition of “victim”, are in fact political struggles over participation, protection, and access to remedy. This is not unique to business and human rights, but is characteristic of international law-making more broadly. These processes deserve closer scrutiny beyond this field.
For us, this was also one of the lasting insights of the workshop: legal research must pay close attention not only to the content of norms, but also to the processes through which they are negotiated and to the people whose lives those norms are meant to affect. We are grateful to the organizers and participants of the workshop by not offering one final answer. Instead, showing us why these debates matter, and why they must continue.
[1] John Ruggie, Just Business: Multinational Corporations and Human Rights (WW Norton 2013) xlii.
[2] David Bilchitz and Surya Deva, ‘The human rights obligations of business: a critical
framework for the future’ In David Bilchitz and Surya Deva (eds), The Human Rights Obligations of Business (2013) 4-10; Nadia Bernaz, Business and Human Rights: History, Law and Policy – Bridging the Accountability Gap (Routledge 2017) 163-176.
[3] Ruggie (n 1)
[4] Radu Mares, ‘Business and Human Rights After Ruggie: Foundations, the Art of Simplification and the Imperative of Cumulative Progress’ In Radu Mares (ed) The UN Guiding Principles on Business and Human Rights (2012) 5-9; Karin Buhmann ‘Navigating from ‘train wreck’ to being ‘welcomed’: negotiation strategies and argumentative patterns in the development of the UN Framework’ In David Bilchitz and Surya Deva (eds), The Human Rights Obligations of Business (2013) 29-57.
[5] Ruggie (n 1) 119-120.
[6] David Bilchitz, ‘The Necessity for a Business and Human Rights Treaty’(2016) 1(2) Business and Human Rights Journal 203, 204.
