Tag Archives: Architecture of impunity

Oct 07 2023
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Rights for the people, rules for TNCs! – First impressions on the updated draft treaty on TNCs and human rights

Global Campaign to Reclaim Peoples Sovereignty, Dismantle Corporate Power and Stop Impunity

September 2023

The Global Campaign to Reclaim Peoples Sovereignty, Dismantle Corporate Power and Stop Impunity (Global Campaign) is a worldwide network of over 250 social movements, civil society organisations, trade unions and communities affected by the activities of transnational corporations (TNCs). Having actively participated in the negotiations for a legally binding instrument to regulate the activities of TNCs in international human rights law, as mandated by Resolution 26/9, the Global Campaign would like to express profound concerns regarding the Updated Draft Treaty as published in July 2023 by the Chair of the Open-Ended Intergovernmental Working Group (OEIGWG), the Ambassador of the Permanent mission of the Republic of Ecuador.

It is alarming that the process in the lead up to the updated draft has been marked with an unacceptable level of arbitrariness by the Chair. For instance, the weeks leading up to the 8th session of the OEIGWG were riddled with inconsistencies that give rise to important procedural and ethical concerns. First, the Chair released a series of unsolicited and untimely “Suggested Chair proposals for select articles of the Legally Bindign Instrument”, completely unrelated to the negotiation process, which he then imposed as a parallel negotiating document. Furthermore, despite the clear wording of Resolution 26/9, which states that the future Treaty will apply to TNCs and other business enterprises of a transnational character, the Chair seeks to extend the scope to all types of enterprises, including SMEs and public companies with no transnational activity. Instead of facilitating negotiations over this matter, the Chair, through his“Guidelines for Intersessional Work”, dictated his own incoherent interpretation both of the Chair’s mandate and the UN negotiating process, and illegally arrogated upon himself the powers of a judge.

While the Chair should facilitate the course of negotiations, maintaining impartiality and relying on a comprehensive understanding of delegations’ proposals and manifestations — as laid out by the UN stipulations on the “Substantive role of the Chair” — this new text reveals the Chair has significantly overreached his mandate. It is evident that the Chair’s approach leans more towards judgment than facilitation as he cherry-picks proposals instead of consolidating the textual inputs supported by most States that have been active in the process. With this latest draft, the Chair sets us back at least three years in the negotiations, benefiting TNCs and their allies, to the detriment of social movements, workers, peasants, and affected communities.

Indeed, while the updated draft now incorporates some demands and proposals that came from some States and civil society organizationsi, an initial examination of the text reveals that its content was significantly weakened, including in Articles 6 to 9; these articles will constitute, once their wording is corrected, key pillars of the future Treaty. The Global Campaign will conduct a deep technical and legal analysis of the updated draft, article by article, which will be released before the 9th session. However, we would like to highlight here some concerning and pressing issues related to the update draft:

1) Several important proposals from committed States were excluded or weakened, even when they had been widely supported by other States and civil societyii. At the same time, proposals made by only one or a few States were retained, despite the absence of significant support from other delegationsiii.

2) Key provisions were weakened or inexplicably disappeared, even though no delegation had explicitly requested that this be doneiv.

3) Key proposals for the elaboration of a strong and effective instrument coming from social movements and affected communities were deleted, while those of the representatives of TNCs were imposedv.

Considering the above, we call on the Chair to facilitate negotiations at the 9th session in accordance with the mandate of Resolution 26/9 of the United Nations Human Rights Council, and on the basis of the updated revised draft Treaty with the track changes (the only legitimate basis for negotiations), which includes all the proposals presented by the States in the last two sessions. We also urge the States committed to the process in favor of a Binding Treaty to be vigilant and to oppose any kind of diversion strategy.

Last but not least, we also call on the Chair to convene an inclusive international consultation with all State missions and ensuring the participation of civil society organizations prior to the 9th session, to discuss the program, agenda and methodology for the 9th session.

It is time for transparency, coherence, collaboration, and, above all, it is time for justice.

i The right to information, collective claims, participation in reparations, precautionary measures, applicable law, among others.

ii Most of the constructive and important inputs given by committed States of the Global South were not retained. For more information, see the Global Campaign’s written contribution of March 2023, where we highlight these important proposals: https://www.stopcorporateimpunity.org/written-contribution-in-the-framework-of-the-inter-sessional-period/

iii For example, the word “obligations” was replaced by “responsibility”, as requested by the US (followed by some other countries). This proposal ignores the fact that TNCs already have obligations in human rights law. Furthermore, the concept of “adverse human rights impact” has been integrated in Article 1 and all along the whole Treaty, despite this concept being legally inappropriate for this kind of instrument and its objectives.

iv Essential paragraphs were inexplicably removed and/or strongly weakened, including the prohibition on the use of forum non conveniens in Articles 7 and 9, the provision on penalties in case of violations (6.7) and on the undue influence of TNCs (6.8). In Article 7, other important provisions on the reversal of burden of proof (7.5) and the application of remedies (7.6) were also weakened by new language. As for Article 8, each provision is now “Subject to the legal principles of the State…”. It is important to state that these changes substantially reduce the capacity of the future instrument to tackle corporate impunity, to ensure effective legal liability mechanisms, thus obstructing access to justice.

v For instance, the updated draft fails to establish international obligations and effective legal liability mechanisms for TNCs, turning the future Treaty into a mere set of a guidelines for States to develop their own Due Diligence Legislation. Thereafter, powerful States close to TNCs would argue that there is no longer any need for a legally binding instrument since DDL would suffice to make TNCs liable. The updated draft fails to even incorporate elements of what could be the basis of a solid national legislation, one which surely cannot rely on due diligence mechanisms alone. To consult the main proposals of the social movements and affected communities, represented here by the Global Campaign, please see: https://www.stopcorporateimpunity.org/frontiers-of-an-effective-binding-treaty/ and https://www.stopcorporateimpunity.org/written-contribution-in-the-framework-of-the-inter-sessional-period/

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Nov 11 2021
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PRESS RELEASE:

Global South states and civil society keep up momentum to regulate transnational corporations under international human rights law

2 November 2021, Geneva

From 25 to 29 October United Nations member states continued the negotiations to elaborate an international Legally Binding Instrument (LBI) to regulate, in international human rights law, the activities of transnational corporations (TNCs) including all entities in their global production chains. This historic process celebrated its seventh session of the Open-Ended Intergovernmental Working Group (OEIGWG) hosted by the Human Rights Council in the Palais des Nations in Geneva.

The UN High Commissioner for Human Rights, Ms Michelle Bachelet, opened the session remarking that the world is witnessing a “growing consensus on the need of binding regulations on business and human rights.”

The UN Binding Treaty – as it is commonly known – negotiations have taken a qualitative leap forward with a new methodology adopted during this session, bringing transparency and encouraging States to take a position on concrete language of the draft treaty. A total of 69 States participated during the week. Most importantly, some major and indispensable content was reintroduced and defended by some States, in accordance with the mandate of Resolution 26/9, to close the gaps in international human rights law that enable the impunity of transnational corporations. Of note was the constructive participation of South Africa, Egypt, Palestine, Cameroon, Namibia, Panama and Cuba, among others.

Julia Garcia, from the Movement of People Affected by Dams (MAB) and coordinator of the Global Campaign said “We welcome the fact that many states are discussing direct and clear obligations for transnational corporations and other transnationally active entities, overcoming normative national limitations that contribute to impunity. We wish to highlight the importance of proposals that advocate the expressed inclusion of the primacy of human rights over corporate rights throughout the global production chain.”

As with every year, civil society played an essential role, defending the need for this process, driving its continuity and nurturing it with detailed analyses, strong arguments and concrete content proposals. The Global Campaign to Reclaim Peoples Sovereignty, Dismantle Corporate Power and Stop Impunity (Global Campaign), representing 260 million people globally affected by Transnational Corporations, participated directly in the negotiations, partially resuming the physical presence that last year was not possible due to the COVID-19 pandemic.

“Access to remedy and justice has become a generational struggle rife with obstacles,” stated Joseph Purugganan, from Focus on the Global South and the Asian Task Force on the Binding Treaty. He continued saying that “in the face of the asymmetries of power that pervade in most countries, the protection of affected individuals and communities through the establishment of strong mechanisms of access to justice and reparation must be a priority of this process”.

Hugo Barretto, Trade Unions Confederation of Americas (TUCA) advisor, reiterated that the Global Campaign is aiming for “an ambitious and effective Treaty with binding rules for transnational corporations and the entities along the global production chains, which play a major role in the climate and biodiversity crises, labour exploitation and historic levels of inequality. Their reprehensible behaviour puts the future of humanity and the planet at risk.”

Raffaele Morgantini, from CETIM and coordinator of the Global Campaign at the UN, explained how, “Some western states and business-representatives repeatedly defend the relevance of the existing voluntary frameworks and even made unsuccessful attempts to suggest alternatives to the Binding Treaty, as part of a strategy, led by the US, to water down the process and foster the adoption of new futile frameworks. Nevertheless, the need to take a significant step forward and find innovative ways to close the legal loopholes that still exist at the international level was overwhelmingly felt during the whole week. It is also worth underlining that several states acknowledged the importance of civil society participation and the value of our proposals.”

However, there are concerns about the risk of a loss of transparency in the process, as Erika Mendes, from Justiça Ambiental/Friends of the Earth Mozambique explains, particularly in relation to, “ the immediate future of the negotiations as it continues through the so-called “Group of Friends of the Chair” during the inter-sessional period. The new inter-state negotiation methodology must ensure social participation, so that the voice of affected communities is heard and considered. We urge the Chair and States to protect the process from undue influence from powerful corporate actors who, instead of upholding human rights, lobby for the protection of their own economic interests.”

Fernanda Melchionna, federal deputy of the Brazilian National Congress and part for the Global Interparliamentarian Network (GIN) in support of the Binding Treaty declared, “The struggle for a UN Binding Treaty to regulate the power of transnational corporations and place human and environmental rights above the corporate power of transnational corporations is a strategic and fundamental struggle for the world. The Global Campaign’s role in not allowing countries to remove the essence of the text demonstrates that civil society, affected populations and social movements have a fundamental role to play in the process.”

The Global Campaign continues its commitment to ensure that the UN Binding Treaty process retains the spirit and ambition of Resolution 26/9. To this end, the Global Campaign will continue to mobilise at the national level to ensure that our governments actively participate in these negotiations, representing the needs and aspirations of the social majorities and the peoples of each country.

NOTE TO EDITORS

For further information or to arrange interviews you can contact:

Sol Trumbo Vila, Email: soltrumbovila@tni.org

Julia García, +55 71 9246-2696 Email: facilitation@stopcorporateimpunity.org

Erika Mendes, Email: erikasmendes@gmail.com

The Global Campaign to Reclaim Peoples Sovereignty, Dismantle Corporate Power and Stop Impunity (Global Campaign) – a network of over 250 social movements, civil society organisations (CSOs), trade unions and communities affected by the activities of transnational corporations (TNCs), representing 260 million people globally. https://www.stopcorporateimpunity.org

This round of negotiations is revising the third draft of the binding treaty, published on August 17, 2021, which fits in the negotiation process started in 2014 with the adoption, by the Human Rights Council, of Resolution 26/9. UN information on the Mandate of the OEIGWG.

The global campaign published this statement in September 2021 in response to the release of the third revised draft.

The Global Interparliamentary network in support of the Binding Treaty is a global network of members of National Parliaments and the European Parliament supporting the UN Binding Treaty. https://bindingtreaty.org/

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