Tag Archives: Stop Corporate Impunity

The new EU directive on due diligence – a relevant step towards ending corporate impunity?

This is a critical time at the European Union (EU) when it comes to human suffering and climate impacts caused by transnational corporations, with particular emphasis on fossil fuel corporations, who continue to take deliberate actions to burn the planet. An important new law has been put forward,’called the EU Corporate Sustainability Due Diligence Directive’, which is still being discussed.

However, this law leaves much to be desired, and in its current form, can provide companies, investor states and financial institutions with an easy tick-box exercise, and loopholes, that will enable them to continue creating devastation of the earth, climate and peoples with impunity. The case of the gas industry in Cabo Delgado, northern Mozambique, is a concrete example of how this can happen and is already happening.

Many organisations in Europe including Friends of the Earth Europe have been fighting the passing of this law in its current form and partnered with JA!’s activists at the EU Commission in Brussels in May, to speak to Ministers in the European Parliament (MEP).

To see the full report by Friends of the Earth Europe, ‘‘INSIDE JOB: How business lobbyists used the Commission’s scrutiny procedures to weaken human rights and environmental legislation’’, click here: https://friendsoftheearth.eu/wp-content/uploads/2022/06/INSIDE-JOB_-How-business-lobbyists-used-the-Commissions-scrutiny-procedures.pdf

The majority of players in the Cabo Delgado gas industry are international, and many are from countries within the EU, such as Total from France, Eni from Italy, Galp from Portugal and French, Portuguese, Dutch, Swedish and Danish banks, to name a few.

Many of these oil, coal and gas companies register subsidiaries in the country where they operate, such as Mozambique, and because the current draft EU law says that only ‘big’ companies can be held accountable, this will enable these subsidiaries to get away with their abuses and violations at a domestic level, especially in countries with weakened systems of justice.

Another major issue is that the topic of Free Prior and Informed Consent (FPIC) needs to be clear and strong. For one, it is only mentioned in an annex, and uses the term ‘consultation’ rather than consent, meaning that communities will only have to be informed of the project. It fails to ensure a clear right to say ‘no’, when local communities do not accept a specific project in their territories for fearing its foreseeable impacts. Secondly, it does not take into account the difficulties that come with actually obtaining this consent, the fact that even consent can be bought, coerced or threatened into. This related to what is meant by ‘a legitimate consultation’. For example, in Cabo Delgado, Total’s consultation process with affected communities has been a sham. When Total representatives visited and visit communities for these consultation meetings, they are accompanied by a military entourage. This, along with the presence of leaders who have a beneficial relationship with the company, means that community members are too afraid to speak out and dissent, even if they disagree, and ultimately many signed compensation agreements in public and in a language they did not understand. Yet Total was able to tick the boxes required for a legitimate process.

In general, there is not enough emphasis on preventing harm, and far more on remedy. It does not deal with what should be the foundation of the discussion, which is that there should be no harm or violations committed in the first place, and that appropriate punitive and coercive sanctions must be put in place when they are committed.

Burden of proof is too high.

In many laws, including in this draft EU law, the burden is on the claimant to prove the crime, which in this case means that corporations are innocent until proven guilty, and the assumption is that communities are not telling the truth. Communities are expected to show that their human rights were violated, amongst all difficulties linked to the asymmetry of power and complicity with national governments, while companies will only need to show that they followed the required processes needed for a project to be developed in that area. In order for community complaints to be considered ‘credible’, they are expected to provide information that is not easy for them to come by, such as written documentation and emails, video and photographic evidence, and named testimonies and witnesses, to show that the companies did not act in compliance with the law and international norms and standards. Amidst global overlapping crisis strongly linked to the power and impunity of these transnational corporations, the burden of proof should be on the companies to prove they are not responsible for the harm, or that they cannot control companies in their global value chains.

The legislation does not recognise that people cannot provide this information – they often do not have access to technology, knowledge of the language used, information in writing and in many cases their lives would be at risk for speaking out.

In the case of Cabo Delgado many mainstream media articles coming out toe the government line and there have been instances where journalists who tell the truth have been arrested and tortured, or even disappeared. Media, civil society and government officials who enter the gas area are accompanied by a military and government entourage, which makes it unlikely that communities will talk about their experiences honestly. These obstacles are not taken into account.

And on climate change

The draft EU law is not clear about companies’ compliance with the Paris Agreement and keeping below the 1.5 oC degree emissions target. Instead, it speaks of ‘compatibility’ which leaves much room for industry to claim that the agreement is ‘open to interpretation’ as they have done before several times.

As long as essential issues in the draft EU law are not addressed, including binding law on compliance with climate agreements, the reversal of the burden of proof and the establishment of clear provisions to deal with neocolonial power dynamics and systemically exploitative nature of big transnational companies , it will be yet another stamp with which the industry will show off its deceiving processes to ‘meet requirements’.

When governments are questioned on their unwillingness to sanction companies and financiers, they often claim that ‘holding dialogue’ with these companies is more effective in the long run. They have said, in several instances, that sanctioning companies should be the last resort, and will lead to them having no input into companies’ actions whatsoever. This system of continued dialogue is clearly not working -companies are continuing to act with impunity – and instead, institutions like the EU need to take ‘take responsibility for the harms of its companies, with great impacts in the global South, and take a step further to actually sanctioning them.

The insufficiency and limitations of a regional legislation

At a broader level, and even though EU corporate regulation laws are undoubtedly needed, this Due Diligence directive will not solve the global problem of corporate impunity. A regional directive – especially one linked with such a weak concept as ‘due diligence’ – must complement the process towards a UN legally binding instrument to regulate transnational companies in international human rights law (the ‘UN binding treaty on TNCs’), ongoing since 2014. Surprisingly enough, the reluctance of the EU and most of its member States to adequately engage in the UN binding treaty negotiations has been reaffirmed session after session and, unsurprisingly, heavily criticized by civil society from across the world.

Without a global level playing field, companies will continue choosing the best places to violate human rights and cause economic, social, environmental and climate impacts. Or choosing the best jurisdiction to register their parent companies. Both the EU and UN laws must include direct legal obligations to companies, affirm the primacy of human rights over trade and investment agreements, and establish judicial enforcement mechanisms. The negotiations of these or any laws aimed at regulating corporate activities should logically be protected from corporate capture and influence. The EU must include several key elements in its new directive in order for it to be meaningful – and this effort must be accompanied by the EU finally taking up its responsibility to start engaging actively and constructively in the negotiations for an ambitious and effective UN binding treaty.

Ending corporate impunity must necessarily mean that we close the legal loopholes and gaps which allow transnational corporations to evade responsibility – at national, regional and international levels.

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Ten years since the Marikana massacre and still no one has been punished

This week marks the 10th anniversary of the Marikana massacre, the day that striking South African mineworkers were violently attacked by the police, who killed 37 unarmed people. The police, government, company and even current President Cyril Ramaphosa, who were all directly involved, have not been held accountable for their crimes, and have gotten away, literally, with murder.

On the 16 August 2012, rockdrillers at Lonmin platinum mine were on strike, after a week of protests, demanding a basic, decent, liveable salary of R12 500 (MT 43 600 at the time) a month, on which the company refused to negotiate. The men were gathered on a hill, when the police opened live fire, unprovoked, and many men met horrific deaths – some of them were shot at close range, and some were even crushed by police vehicles.

Today, a full decade later, rockdrillers at the company are only earning R13 000 (MT 49 600). Lonmin never issued a formal apology for this massacre, not even to the families of those slain or the injured and has not provided all families with income compensation. In 2018, the company was bought by Sibanye-Stillwater. Lonmin has been a snake, slithering out of the country to avoid culpability.

No members of the police force. nor the government have been pinished or even legally charged for these blatant murders. President Ramphosa was a non-executive director of Lonmin at the time, and put pressure on the police to treat the strike as a criminal matter. Yet he has been exonerated of any responsibility for this massacre.

The families of the murdered mineworkers are continuing to go to court to obtain justice for their loved ones, for those guilty of these crimes to face some kind of punishment, and they will continue fight.

South Africans still live in an economic apartheid. The poor, including workers in the extractive and fossil fuel industries – the bodies on whom companies make as much as hundreds of billions every year – are still treated as less than human, as mere transactional tools to keep the capitalist system working for the wealthy, for local and international political and economic elite to benefit from their mere existence. This goes beyond South Africa – these exact same words can be used when talking about the extractive industries in Mozambique, Tanzania, Namibia, Lesotho, DRC, Sierra Leone, Central African Republic, Morocco, Colombia, Brazil, Argentina, Native American lands, to name very, very few.

Russian anarchist Pyotr Kropotkin once said: Everywhere you will find that the wealth of the wealthy stems from the poverty of the poor. We at JA! Stand in solidarity with the families of the murdered Lonmin mineworkers and those injured, with those fighting for basic humanity around the world, with those fighting for their lands, livelihoods, and the earth.

We urgently need the United Nations (UN) to implement a Binding Treaty on Business and Human Rights, an accountability tool that actually has teeth and that communities devastated by corporations and civil society have been demanding for years.

Guiding principles are not enough – corporations have shown that they have no interest in human rights, the climate and the environment, except when they need to tick a box- and guidelines are certainly not going to force them to act with humanity.

It is time for institutions of power – states, especially those in the North, the UN and European Union- to create, and enforce laws that will make companies like Lonmin pay for their crimes, and protect lives, like those of the Marikana miners, struggling for their basic right to be treated as human beings. We must continue to fight to ensure that this capitalist, imperialist and neo-colonialist system of exploitation ends right now!

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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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