A Binding Treaty on Business and Human Rights

In this in-depth conversation, Brid Brennan and Gonzalo Berrón speak about the global architecture of the economy which has been designed to fit and facilitate the operations of transnational corporations (TNCs) for profit above the interests and protection of peoples’ rights or the environment, but also about the challenges of the United Nations Binding Treaty for Transnational Corporations. The two member of the TNI’s Corporate Power Team also talk about the proposal of an International Peoples Treaty made by the Global Campaign to Reclaim Peoples Sovereignty, Dismantle Corporate Power and Stop Impunity.

 

Let’s start from the Covid-19 pandemic. It has been said that for many corporations as well as states the pandemic has been turned into an opportunity to hide their ‘dirty laundry’ or actually step up their practices. Do you agree with that? A key demand is that, because of the current crisis environmental, fiscal, labour, and safety regulations either have to be delayed or weakened.

We don´t see how it could work as an opportunity to hide TNC’s ‘dirty laundry’. On the contrary we see that the pandemic has shown how the world has become so dependent on private corporations to deal with public challenges and how peoples´ health has been left behind by policies of privatisation and by profit makers. The pandemic placed in stark focus how a Public Health System is greatly needed. It also showed how crucial a state led approach is and how guidelines are needed in such a critical moment of crisis as the present one, and in that sense, how we need a state that maintains its capacity to provide policies with efficient public measures and resources and without constraints from corporations and ‘investors’ rights. A recent joint research, “Cashing in on the pandemic”, by the Transnational Institute and the Corporate Europe Observatory (CEO) shows this clearly – corporate lawyers are preparing big suits under investor and state clauses in cases around mobilisation of public resources in response to the Covid-19 pandemic.

It is significant to compare how privatisation hollowed out health systems bringing huge death tolls in the US, UK and other countries in the European Union (EU) and how a mainly community based health system such as the one in Thailand and Vietnam effectively protected their populations with few or even no loss of life.

At the same time, ‘trust’ is placed in the private sector with the development of vaccines and medicines, and this is mainly done with public funds – both by granting government procurements to Big Pharma industries, but also through public funding of private research centres, which in most instances retain ‘their rights’ over the medicines they develop with public money.

Simultaneously, we see that the first concerns of many governments is to bail out the big corporations and only then to take peoples’ needs on board. As this takes shape in the emergence from the crisis – there is no evidence that the rights of people to health and improved health services are advanced.

Under corporate economic pressure, governments have spent significant amounts of public money and have borrowed money. This is going straight to corporations and it is probable that the after the crisis we will see a world where we have a larger poorer population, and a smaller richer group of corporations and billionaires.

 

Related to the previous question, do you think that civil society has been weakened by this pandemic? If yes (or no) why? How difficult (or easy) would it be for organised people to continue/resume/start old and new struggles?

It is exactly when people decide to risk their lives that we see how much power we have to change things – this has become very clearly in the mass mobilisations around the murder of George Floyd by a white US police officer, repeating what seems to be a regular practice in the US. However, this is also the practice in other countries such as Brazil where thousands of black, mostly poor young people, die every year at the hands of the police, or victimised by social violence. The US mobilisations led by the Black Lives Matter movement were repeated in many cities across Europe. In this context it is also important to note the significant mobilisation and protest of migrants and refugees and related solidarity movements against their conditions of ‘modern slavery’ and demanding regularisation of their ‘undocumented’ status.

Society has also shown its power in southern countries with their noise barrages every night – beating their pans at 8:30pm in Sao Paolo, or 9pm in Buenos Aires. Social movements and civil society networks quickly organised with the available electronic tools. WhatsApp, Signal, zoom, Jitsi and many others as well as social media campaigns that have been effectively used to counter de-mobilisation. In fact, this virtual social dynamic resulted in a real explosion of social exchange of meetings, webinars, and dialogues that helped to collectively assess the emerging new conjuncture and provided a way of strategising on what to do. However, we add that the strategies are still embryonic in the face of a global crisis that is still unfolding – Covid-19 being the vortex in which we see the intensifying and deepening economic, political and environmental crises. But considering the visibility given to the impact of the corporate take over of our societies and lives and the clear need for public/state activism, we think that we have strong grounds for new developments and better prospects for change in the aftermath of the Covid-19 pandemic.

 

One of the first appointments should be from October 23 to 27 in Geneva where the 6^th Session of the Open Ended Intergovernmental Working Group (OEIGWG) with the mandate to develop a United Nations Binding Treaty for Transnational Corporations and other business enterprises with respect to Human Rights will be held. What to expect from that?

It is not clear today as we write if the session of the OEIGWG will take place as scheduled and what will be its modality. We as civil society entities do not agree on holding negotiations in a non in person mode. This has been a huge challenge for the whole UN system and it still remains so. In the meantime, on line informal consultations are being held and from our point of view this has been of extreme importance since it indicates the degree of continuing interest of both states and civil society around the Treaty. History shows that this Treaty process on TNCs and Human rights has been one of the UN Treaty negotiations that has mobilised the broadest peoples’ interest and commitments. Affected communities, social movements, trade unions, women, migrants, environmental and human right organisations and indigenous peoples organisations have since 2012 converged their resistance struggles on corporations in the framework of the Global Campaign making their struggles visible at national and international level. And since 2014, when the OEIGWG was mandated at the UNHRC, delegations of civil society have mobilised each year in a Week of Peoples Mobilisation – both outside and inside the UN Paleis des Nations pushing for a Treaty that finally tackles the loopholes of the international law in relation to violations of human right by TNCs. This high level of mobilisation has been matched by an unprecedented sustained participation of states – numbering 96 at the Session in 2019.

A Treaty negotiation is a slow process, it could take years, and this may well be the case in negotiations of the Treaty on TNCs and Human Rights. At the same time that we see the urgency to give answers to violations happening now and the peoples demands for access to justice, we keep our calm knowing that over the next 30 years, this Treaty will be the reference for the global framework of international law in relation to operations of TNCs and their violation of human rights. This presents a major challenge – that is on the one hand mobilising a convergence of states prepared to sustain negotiations for the treaty in a very difficult geo-political conjuncture while at the same time addressing the very complex task of articulating robust content in the Treaty.

 

One of the main arguments against the Binding Treaty was – before the pandemic – that it sought to replace the primary role of the state and national laws through the direct enforcement of human rights norms against corporations. After the pandemic do you think that the state and national laws actually emerge stronger than before? And so, as to the Treaty does it seek to replace the state in protecting the human rights of its citizens?

The globalisation of economy has changed the logic in which the TNCs operate. Indeed, we can say that the global economy has now the visible face of TNCs in all major areas as well as corporate designed rules privileging and sustaining the Global Value Chains (GVCs). The global architecture of the economy has been designed to fit and facilitate the operations of TNCs for profit above the interests and protection of peoples’ rights or the environment. The asymmetry of TNCs power vis-à-vis states, had enabled them to change existing laws and design new laws and policies particularly through the regime of investment and free trade agreements. This has resulted in significantly de-regulated and ‘open’ national economies. So, by confirming that state laws are not enough to protect people from TNCs operations – which in many cases imply violations of human rights – we claim for an international mechanism and binding legislation that could balance the field in terms of access to rights and application of law to end corporate impunity. This means cooperation between state legal institutions and in some cases the possibility of imposing obligations on TNCs outside the states where the crimes happen. This does not however undermine state sovereignty or diminish state’s own obligations, and it strengthens peoples’ rights and their access to justice. The Treaty must make it easier for affected people to access their rights and justice – and this means easier also in the context of captured states, or inefficient or biased national justice systems.

 

Can you compare how ‘human rights violations’ are defined by the United Nations Guiding Principles on Business and Human Rights (UNGPs) and the Binding Treaty and how this will impact the achievement of corporate accountability?

The debate around the term ‘violations’ has two dimensions, one is political and the other one is legal. Following the current established doctrine of Human Rights the only entities that could ‘violate’ human rights are states, since they operate under another status different from rules or positive laws. Following this established framework, corporations and individuals can commit crimes or abuses – but they could never violate human rights. Under this classic doctrine, in this sense, TNCs don’t have human rights obligations and never will. But this is constantly challenged by the impacts of economic globalization and the mobility – and impunity – it allows to TNCs. In this context, corporations cannot be held to account for human rights obligations – in a mirage of constructed contracts and agreements, they can and do ‘escape’ their obligations whether in ‘weakened’ or ‘powerful’ states.

That is why we think that it is necessary to call for ‘violations’ as a political way of both denouncing this loophole in the doctrine that exposes people on a grand scale to crimes – and violations – derived from the operations of TNCs, and to have a direct resonance with the realities of people on the ground that far from understanding the technical difference between an ‘abuse’ and a ‘violation’, clearly identify their situations as violations of their human rights by TNCs.

We want the system and the international human rights law to face this challenge and to find ways of overcoming this situation of legal dichotomy. The options are many (mostly through international cooperation, extraterritorial obligations, and other provisions in relation to direct obligations on TNCs), and we want the negotiations of this Treaty to address them and force the whole system of law to move towards the future.

In the face of open US and corporate opposition, the UN Commission and Center on TNCs was closed down in 1993 and the first steps to accommodate TNCs in a partnership with UN were taken with the development of the Global Compact throughout the 1990s. This established the framework of Corporate Social Responsibility (CSR) as the glass ceiling on corporate accountability. In the wake of the Global Compact, further steps on voluntary regulation were taken in the UN’s Guiding Principles on Business and Human Rights – a process led by Professor John Ruggie. as Special Representative of the UN Secretary General, Kofi Anan. This process over five years of work failed to establish a legally binding instrument which would oblige TNCs to accept responsibility for their violations of human rights. In fact, it seemed to set the upper limit of TNCs obligations specifically on a voluntary level – thus failing to recognise the decades of struggle and demands of affected communities for access to justice and an end to the violations of their rights by TNCs.

 

Which is the level of involvement in the negotiations for the Binding Treaty as to civil society and businesses, and other stakeholders.

We would say that the OEIGWG Sessions are a space where there is the interplay of three main actors – the governments, the civil society and the corporations – who are represented by the International Organisation of Employers (IOE) and the International Chamber of Commerce (ICC). The latter are the representatives of the TNCs – both of whom have Economic and Social Council (ECOSOC) status at the UNHRC. Of course the participation of the civil society organisations (CSOs) has been contested by some governments – mainly by Brazil in the recent sessions. But there are other governments that would prefer the OEIGWG Sessions to be a ‘state only’ affair. However, since 2011, and since the promotion of the UNGPs, big constituencies of affected communities, civil society and social movements have mobilised with their demand for participation in the process with an active contribution to both the process and the content of developing a legally binding international instrument on TNCs and human rights. Therefore, since 2014 civil society organisations, enabled via ECOSOC status, have been actively participating in the debates that have led to the first Draft Treaty text and have successfully protected the process from corporate capture. Indeed, the sustained participation of civil society – especially the affected communities – has made a crucial difference in bringing the process to this point where an actual text of a Treaty is being negotiated.

 

A Revised Draft of the Treaty was released by Ecuador in July 2019. What was your evaluation of that?

The publishing of the Draft text was indeed a milestone in signifying for the first time that negotiations of a Treaty were finally on the table and had reached a point of maturity with the active participation of a significant number of states (96 participated) in the debate during the 5^th Session in October 2019. The publication of successive drafts is proof of the willingness of states to continue promoting the development of this binding instrument, which is undeniably positive.

The current negotiation phase is characteried by greater technical and political complexity. Thus, it will require much skill and patience from the Presidency to ensure that the wishes and demands of those affected – which have been the raison d’être and the driving force behind this historic process – are included in the text of this instrument.

In this regard, concern was expressed by civil society organisations – on the drastic reduction in meetings with civil society and the reduction in the channels of dialogue traditionally available between the representatives of the affected communities and the leadership of the OEIGWG during this 5^th Session. This has detracted from the exchange and marginalises the voices that fight for justice and against impunity.

Added to this is a fundamental concern of the Global Campaign in terms of the content of the future Treaty. The Revised Draft did not include multiple observations and proposals that were raised extensively in previous sessions not only by states but especially by social movements and affected communities that, like the Global Campaign, made considerable efforts to participate in the negotiations.

In terms of its contents, the Global Campaign considers that the revised first Draft of the Treaty departs from the spirit and provisions of Resolution 26/9 in the following ways:

• First, by limiting itself to the obligations of states, the text fails to hold TNCs accountable at the international level and so to ensure their effective regulation. Granting responsibilities to respect human rights only to states is to maintain the current status quo, which has been incapable of preventing the impunity of TNCs. Moreover, this adds to the fact that the implementation mechanisms foreseen in the draft are very weak, which will make it very difficult to prevent violations and facilitate access to justice.
• Secondly, we are concerned about the extension of the scope of the Treaty to all companies because it has thereby lost its focus on the real need for such a treaty; that is, transnational corporations and their ability to circumvent national jurisdictions and preserve their impunity. As all of us in this process know, this change responds to the demands of actors and states that have actively challenged the construction of this Treaty – such as the private sector, the EU delegation and some other states.
• The corporate agenda seems to have entered through different windows, undermining and de-normalising the fundamental nature of this intergovernmental negotiation which, as we recall, aims to defend and expand the protection and accountability for human rights.

The Global Campaign continues to act in the defence and improvement of key issues present in the Revised Draft: the rights of affected people, key issues of prevention and legal responsibility, and jurisdiction among others. A detailed commentary article by article has been officially submitted to the OEIGWG in January 2020.

 

Damage to Life: it appears that crimes against the physical integrity of social and community leaders, repression and criminalisation of social struggles and resistance have actually increased. A case in point in Colombia, but not the only one. How to counter that? Would the treaty be enough?

There are some specific tools in the international system to deal specifically with this kind of killings that in some cases are not necessarily linked to the operation of businesses. But for those that are associated to the TNCs and other business operations we considered that a treaty is a needed tool. It may not cover all cases and many crimes will still happen – there are no perfect laws! And certainly no perfect implementation of the law. But this Treaty will be an instrument both for states, and mostly for human rights defenders and direct victims to activate new ways of protecting their rights and achieve access to justice. On top of the specific legal procedures the treaty will offer, it will exert pressure on states, that will have to respect these new rules and if they fail will be exposed internationally to the shame of not been a safe place for human rights. It will also be a challenge and deterrent to corporations that will have to take care of their actions – but also to contractors and subcontractors working for them. In short, it is not a definitive comprehensive solution – it is a step towards it, and a much needed tool for those who experience violations of their human rights and for affected communities.

 

The Global Campaign to Reclaim Peoples Sovereignty, Dismantle Corporate Power and Stop Impunity has proposed an International Peoples Treaty. Can you tell us briefly what the aim of this Treaty is and how it will work, and at what stage of realisation it is?

We arrived to this Treaty negotiation after a long process of mobilisation in which we built a systematised body of proposals derived from peoples struggles, needs, ides and demands. All this was compiled in our Peoples Treaty – which became and remains a benchmark document and reference framework for the Global Campaign. It was developed in the 2012-2014 period before the historic vote of the UNHRC mandating the OEIGWG to develop a legally binding instrument on TNCs in relation to human rights. But a core demand of the Peoples Treaty was Binding legislation in relation to TNCs violations of human rights; a definitive place for civil society in the monitoring and implementation of the Treaty; and the establishment of a Tribunal to judge on the violations and an instrument of enforcement. The Peoples Treaty also includes a substantive section on alternatives built on democratic struggles on the ground of reclaiming peoples sovereignty.

A further articulation of the Peoples Treaty was made in the Draft Proposal for the Binding Treaty and presented in 2017 as a Proposal of a Treaty on Transnational Corporations and their Supply Chains with regard to Human Rights.

In summary, our concrete proposals for the Treaty are the following:

• Scope of the Treaty: The target of this process is the power and impunity of TNCs and cover all Human Rights
• Primacy of human rights: The legally binding international instrument must reaffirm the hierarchical superiority of human rights norms over trade and investment treaties and develop specific state obligations in this regard (i.e rejection of ISDS clauses)
• Direct obligations for transnational corporations: The Treaty needs to establish direct legal obligations for TNCs.
• Responsible solidarity: In order to cover all transnational activities, the Treaty must address all those activities along the supply chain of the TNC.
• To be binding, the Treaty needs to include an International Court/Tribunal and other compliance institutions
• Rights of affected persons and communities: The Treaty shall recognise the moral and legitimate authority of the persons and peoples affected by TNCs activities. Human Rights, Environmental Rights defenders and whistle blowers shall be protected.
• Protection from corporate capture: The Treaty shall include concrete measures against the influence of TNCs during the whole process of preparing, negotiating and implementing the future binding international instrument.

In our work of building the proposals for the Treaty, we struggle for a practical text (not a theoretical text) that gives concrete answers to people, contributes to prevent more violations and is enabled to bring to justice those who violate human rights.

 

Can you outline the activity and projects of the Global Campaign to Reclaim Peoples Sovereignty, Dismantle Corporate Power and Stop Impunity for 2021?

The greatest challenge at this still unclear moment of ‘exit’ from Covid-19 is related to the conditions of negotiations – whether virtual or in – person during the scheduled OEIGWG Session in October 2020. It is not yet clear if the 6^th Session which is meant to be an in-person debate on the Second Draft text of the Treaty will be conducted as a ‘normal’ on the floor in-person debate. The Global Campaign is opposed to online negotiations as it is quite limiting of civil society participation and can also lead to lack of transparency in the dynamic among governments and manoeuvres among the governments most opposed to the Treaty – as well as being possibly more threatened by corporate pressure.

Key elements of the Global Campaign strategy for the June 2020-October 2021 period will be the aim to ensure that the Covid-19 moment is turned into a strategic opportunity to strengthen the public support for the Treaty and to mobilise a critical mass of governments committed to a robust Treaty. Planned activities include: intensified (even if on line) Consultations, Webinars and public Forums addressing the second Draft of the Treaty (July 2020) at national and international level – mobilising representatives from governments, parliaments, with affected communities, social movements, civil society, and experts.

The key strategies in this period include the following action:

• Prepare a detailed article-by-article comment and provide textual alternatives for the Second Draft of the Treaty text – facilitating substantive input from affected communities
• Sustain active solidarity to the ongoing intense struggles of resistance on the ground and respond to the criminalisation of leaders and activists;
• Undertake a dynamic advocacy with key governments in each global region – to be organised by the Global Campaign participants with the objective of mobilising their active participation both in the process and in the proposals of content for the Treaty;
• Engage a group of governments for collective leadership of the process within the OEIGWG – ensuring more convergence on a robust content of the Treaty;
• Work with the Global Inter-Parliamentary network in the process and expand the current network of 350 parliamentarians in support of the Treaty – leading to debate in National and Regional Parliaments as well as in Geneva;
• Initiate the development of a network of local governments and cities in support of the Binding Treaty – these local authorities are expected to be under renewed corporate pressure (including ISDS suits)in relation to government procurement and measure to defend public services and the public interest;
• Sustain vigilance on the threat of corporate capture both on content and process;
• Further strengthen the Global Campaign’s communications strategy and develop some champions of the Treaty among academics, opinion makers and journalists. 

Depending on the content of the second Draft Treaty and on the determination of the October 2020 OEIGWG Session – appropriate adjustments will be made in the strategy.

Finally, we place the strategy for the Binding Treaty in the context of the broader work being undertaken by the Global Campaign in its confrontation with corporate power. The protagonism of the affected communities is central to the overall strategy of three main pillars of work – the construction of the Treaty being the most visible one up to the present time. The other pillars are – solidarity on the ground with affected communities in their sustained struggles and actions to tackling the privatisation of democracy and the corporate capture of democratic institutions.

In relation to the Binding Treaty, our goal is to reach a successful conclusion of the negotiations – this means that we have a Treaty with substantive provisions that respond to the main demands with regard to direct obligations on TNCs and an end of their impunity and effective mechanisms of enforcement on access to justice for affected communities. In order to achieve this, we maintain broad multi-sectoral mobilization around the Treaty both in terms of the connection between concrete violations and crimes on the ground and ‘translating’ these into language and concrete text proposals for the negotiation.

We consider that it is better to have a coherent Treaty than a fast and watered down one and this shapes the pacing of work – we are ready to balance urgency with effective outcomes, knowing that this is a historic process and cannot end in the frustration of peoples’ demands – as the precedent Ruggie UNGP negotiations did.

At the same time, we organise a Peoples’ Center to monitor situations that put the fulfilment of human rights at ground level at risk and denounce ongoing violations, offering participants in the Global Campaign and other affected peoples, a platform so that their voices directly reach international human rights bodies as well as the public in the home states and headquarters of the TNCs to exert pressure towards stopping the violations and to promote reparation. The Peoples’ Center, with its systematisation of cases also generates a unique authoritative body of documentation both on the violations of the TNCs across so many fields of our daily lives and the range of strategies in resistance and the development of alternatives to a corporate driven economic model.

Having considered the Treaty and the work of the People’s Center in systematising the multiple cases of Corporate violations of human rights as essential in putting in place a binding regulation on the operations and power of TNCs, we also consider the urgency of addressing the political reach of TNCs – the third pillar of the Global Campaign – in what we call the ‘privatisation of democracy’. Over the past decades of neoliberal globalisation, the corporate economic powers (TNCs and the economic elites) have developed practices underpinned with legislation that the economic powers use to undermine peoples’ sovereignty in contemporary democratic systems. This generates ‘democratic’ states that favour private and for- profit interests instead of the public interest. We oppose this ‘normalisation and naturalisation’ of corporate behaviour at all levels. Local and national grassroots communities are developing the People’s Sovereignty Lab as a platform to share experiences and strategies across sectors and transnationally and linking their efforts in the People’s Sovereignty network.

At the international level, we are focusing on denouncing the so called multi-stakeholderism and the configuration of an increasing ‘private multilateralism’. Corporations increasingly acting on their private interests, participate in crucial policy decisions – offering corporate solutions for the planetary devastation and crises (generated by corporate operations in the first place) – climate, health, food, education, land, finance etc – pushing decisions that favour corporate interests. A major focus in this work is a push-back to how corporations and their proxies and foundations – the World Economic Forum (WEF) among them –, are taking control over the United Nations and democratic mechanisms of global governance.

It is increasingly clear, especially in the perspective of Covid-19 that corporations and their economic and political power is a major threat to the well-being of peoples’ lives and the planet. We view the work of the Global Campaign in the context not only of defending the planet’s resources and the institutions of democracy but see the current work as integral to the urgent challenges and struggles shared across movements and communities for a just transition and transformation that dismantles corporate power and strengthens peoples sovereignty.

 

(interview by Orsola Casagrande)

 

References list

Corporate Europe Observatory and the Transnational Institute (2020), Cashing in on the pandemic, https://longreads.tni.org/cashing-in-on-the-pandemic, 19 May.

Global Campaign (2017), Treaty on Transnational Corporations and Their Supply Chains with Regard to Human Rights, https://www.stopcorporateimpunity.org/wp-content/uploads/2017/10/Treaty_draft-EN1.pdf, October.

Global Campaign (2020), Comments and Ammendments to the Un Binding Treaty Revised first Draft, https://www.stopcorporateimpunity.org/global-campaign-comments-and-amendments-to-the-un-binding-treaty-revised-draft-draft-1, January.

UNHCR – United Nations Human Rights Council (2014), Resolution adopted by the Human Rights Council, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/082/52/PDF/G1408252.pdf?OpenElement, 14 July.

 

Web sites

Global Campaign website: https://www.stopcorporateimpunity.org

People’s Sovereignty Lab: https://peoples-sovereignty-lab.org

TNI Website: https://www.tni.org/en/corporate-power

State of Power 2020: https://www.tni.org/en/topic/state-of-power

 

* Corporate Power Team of the Transnational Institute (TNI)

This statement was published in the Global Rights Report – State of the World’s Impunity 2020

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