multinationals
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BUSINESS AND HUMAN RIGHTS: ‘This treaty should not be negotiated behind closed doors’
CIVICUS speaks about the process to develop an international treaty on business and human rights and the role of civil society with Ivette Gonzalez, Director of Strategic Liaison, Advocacy and Public Relations at Project on Organising, Development, Education and Research (PODER).PODER is a regional civil society organisation (CSO) based in Mexico, dedicated to promoting corporate transparency and accountability in Latin America from a human rights perspective, and to strengthening civil society affected by business practices to act as guarantors of long-term accountability.
Why is a treaty on business and human rights so important?
We live in a world virtually ruled by capital. Since this hegemonic capitalist and patriarchal economic model has taken hold, it has become clear that whoever has the capital calls the shots.
When companies directly influence the decisions of state powers, be it the executive, legislative or judicial branches of government, or others such as international organisations or banking institutions that should operate for the public benefit, and instead put them at the service of the private and exclusive benefit of a few people and prioritise the creation and accumulation of wealth over human rights, it results in a phenomenon we call ‘corporate capture’. Corporate capture is observed on all continents and results in the weakening of the state and its institutions. The strength of the state needs to be restored and the treaty on business and human rights could contribute to this.
A legally binding international instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises seeks to curb violations committed by companies of multiple human rights such as the rights to health, freedom, privacy and access to information and the impunity with which they operate, which allows them to destroy the environment, territories, families and entire communities.
All companies must operate with due diligence on human rights to identify, prevent, address and remedy abuses and violations, as a continuous cycle of management including project planning, investment, operations, mergers, value and supply chains, relationships with customers and suppliers, and any other activity that could cause negative impacts on rights and territories. The treaty serves as a means for states, as the primary duty bearers in charge of protecting human rights, to hold companies to their responsibilities and monitor compliance.
An international treaty would also be a unique development in that it would cover the extraterritorial activities of companies, such as the activities of companies that may be headquartered in a country in the global north but have operations in the global south. At the moment, in many instances and jurisdictions, companies are only self-regulating and are not accountable for their human rights abuses and violations, and the destruction they cause to life and the planet. Some states are making progress on regulations and policies, but there are still gaps at the international level. We want this treaty to address the huge gap in international law that allows corporate crimes to go unpunished.
What progress has been made in negotiating the treaty?
Interesting developments took place at the eighth session of the Open-ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights, held from 24 to 28 October 2022. While there is no strict timeline or deadline for producing the final version of the treaty, one of the experts convened by the Intergovernmental Working Group for the development of the instrument proposed 2025 for concluding the negotiations. This is the deadline that is expected to be met if states have the political will to build consensus. For the time being, some states that were reluctant to participate in the past are now showing a little more interest.
For now, the draft has 24 articles, the first 13 of which were discussed in the last session. Discussions included central issues such as the definition of victims’ rights and their protection and the definition of the purpose and scope of the treaty: whether it should include only transnational corporations or other companies as well. The state of Mexico, for example, argues that this instrument should cover all activities that have a transnational character. There have also been discussions on the prevention of damages and access to reparations, as well as about legal liability, the jurisdiction that will deal with complaints, statutes of limitation and international judicial cooperation, among other issues.
Some states have made contributions to improve the content under negotiation. In contrast, other states seek to minimise the scope of the treaty in certain regards, such as protections for Indigenous peoples and communities, environmental safeguards and women’s and children’s rights, among others.
Some states support the most recent proposals of the chair rapporteur, the Ecuadorian ambassador, but a large part of civil society considers that, for the most part, they detract from what was achieved during the seven years up to 2021, and weaken the treaty. They promote power asymmetry between northern and southern states, as well as between companies and rights-holding individuals and communities. The third revised draft is the one we recognise as legitimate and the basis on which we believe negotiations should continue.
How is civil society contributing to the treaty process?
Dozens of CSOs are pushing for an effective treaty, including PODER, along with the International Network for Economic, Social and Cultural Rights (ESCR-Net), which brings together more than 280 CSOs, social movements and activists from 75 countries, and several other alliances, movements and coalitions such as the Treaty Alliance, Feminists for a Binding Treaty and the Global Campaign to Reclaim Peoples Sovereignty, Dismantle Corporate Power and Stop Impunity.
Of course there is diversity of opinion within civil society on a number of issues, but we all agree on the need to regulate business activity with a human rights perspective. We have identified the elements this treaty should contain and the conditions required for its implementation. And we are trying to inject urgency into the process, which is going too slowly, while human rights violations and attacks against human rights defenders do not stop, but instead increase every year.
Civil society has advocated with decision-makers to open up spaces for discussion with civil society. PODER, along with ESCR-Net, has in particular insisted on the constructive and proactive participation of states from the global south in the process, and specifically from Latin America. We also work to integrate a gender and intersectional perspective into both the process and the text. One example for this has been the proposal to use Mexico’s feminist foreign policy.
Civil society’s point of departure is the conviction that it is not possible to develop a legitimate treaty without placing the participation of rights holders – affected rural people and communities, Indigenous peoples, independent trade unions, LGBTQI+ people and people in vulnerable situations, among others – at the centre of the whole process.
What are the chances that the final version of the treaty will meet civil society’s expectations and fulfil its purpose?
We hope the treaty will contribute to ending corporate impunity and states will assume their obligation to protect human rights in the face of corporate activity. It will prevent abuses and violations, redress grievances and ensure these situations do not recur.
Although there are established processes for the development of international treaties, this is an unusual treaty and should be treated as such, and changes should be made to both process and content as necessary for it to be truly effective.
For it to fully meet the expectations of civil society would require a paradigm shift based on the principle that business has a social function and that its operations should not exceed certain limits for a dignified life and a clean, healthy and sustainable environment. We know that our full aspirations will not materialise with a treaty, with National Action Plans and regulations and standards, even if they are properly implemented. But these are all important steps in trying to balance the scales by limiting the power that the global economic system has given to business corporations.
While the treaty is unlikely to meet all our expectations, CSOs that are demanding the highest standards for this treaty will continue to do so until the end. We will continue to bring proposals from experts and affected communities and groups fighting for justice and redress for the harms they experience first-hand, opening up spaces for their voices to be heard and remain at the heart of the negotiations at all times, and including human rights and environmental defenders in consultations on the text.
This treaty should not be negotiated behind closed doors or with the private sector alone, as this would allow for the repetition of the same cycle of opacity and privilege that has brought us this far, and would only contribute to maintaining an unsustainable status quo.
Get in touch with PODER through itswebsite orFacebook page, and follow@ProjectPODER on Twitter.
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UNITED NATIONS: ‘Outstanding issues on the binding treaty on business and human rights are mainly political’
CIVICUS speaks with Fernanda Hopenhaym, chair of the United Nations (UN) Working Group on Business and Human Rights, about the process to develop a binding international treaty on business and human rights.Why is a binding treaty on business and human rights so important?
The process to develop this treaty stems from the conviction that a legally binding instrument is needed to regulate the obligations of private companies and, above all, to facilitate access to justice for victims of their abuses. Its aim is to incorporate human rights protections in the context of business activity.
An international treaty would transcend the jurisdictional limitations of states. Transnational capital operates across borders. Huge numbers of companies in most sectors operate global supply chains. When abuses occur somewhere in these chains, it is very difficult for victims to access justice, as there are no justice mechanisms that transcend borders. Corporate operations are transnational but justice is not.
Of course, states must take measures at the domestic level, strengthen their regulations, improve their laws and develop public policy and action plans to ensure effective protection of human rights. And companies must also make commitments to improve their practices. The treaty under negotiation would be part of a package of measures that are complementary, not mutually exclusive.
The treaty process began in June 2014, when the UN Human Rights Council established an open-endedintergovernmental working group mandated to negotiate and agree on an international legally binding instrument to regulate the activities of transnational corporations and other business enterprises under international human rights law.
What role is the Working Group on Business and Human Rights playing?
TheWorking Group on Business and Human Rights is a UN special procedure, established by a 2011resolution of the Human Rights Council, with a mandate to promote, disseminate and implement theGuiding Principles on Business and Human Rights, exchange and promote good practices and lessons learned from the implementation of the Guiding Principles, and assess and make recommendations on these. Its mandate has been successively renewed in 2014, 2017 and 2020. It is composed of five independent experts, mostly academics, and has balanced geographical representation. I have been a member of the Working Group since 2021. The other four current members are from Australia, Nigeria, Poland and Thailand. Three of the five of us are women.
While it does not have any decision-making authority over the Treaty, the Working Group plays an important role. We participate in almost all negotiating sessions through roundtables and discussions and we provide technical opinions. We have commented on the draft articles and we encourage the proactive participation of states from different regions of the world.
One of the premises of the Guiding Principles is the development of measures that can be combined in order to address the problems that exist in relation to the protection of human rights in the context of business activity. A legally binding instrument is just one of those necessary measures.
The Working Group has been very clear in sending out a message favourable to the treaty negotiation process.
What progress has been made in negotiating the treaty?
In the previousinterview we had in 2018, the process had been going on for four years. At that time the fourth session of negotiations, based on the ‘zero draft’, was about to start in Geneva. And I was not yet part of the Working Group. Four more years have passed, and at the eighth session held in October 2022, the third draft, which emerged in advance of the 2021 negotiations, was discussed.
The pandemic affected the negotiation processes, partly because face-to-face contact was not possible for a long time. Representatives and delegates in Geneva, for example, were unable to meet in person for more than a year, so the possibilities for exchanges were severely limited. In turn, the pandemic affected the participation of civil society and other stakeholders in the discussions. Processes slowed down and therefore were extended.
Currently, the third draft is still being discussed, and Ecuador, which chairs the Intergovernmental Working Group, has apparently said that it will not bring yet another new draft to the table, but that changes, modifications and additions will continue to be made to this third draft. Eventually, all these adjustments will lead to a final draft.
The current draft has come a long way on issues such as acknowledging vulnerable groups, women, children and Indigenous peoples. Its scope, which was a very tough issue to negotiate, has also been clarified. In general, civil society’s position is to prioritise transnational corporations, while the current draft proposes that all companies should be under the umbrella of the treaty. The current draft reflects the position shared by our Working Group. A number of issues have been untangled, although there are still many things to be resolved.
What are the unresolved issues?
There are many discussions that are more political than technical. Some states and the private sector have said that the text is too prescriptive and rigid. Civil society has expressed that it wants more clarification and specificity on some issues such as the definition of the courts where cases covered by the treaty would be adjudicated and the consideration of the victims’ perspective, as the burden of proof remains a contentious issue. On this point the Working Group has been very clear: states have an obligation to facilitate access to justice and to remove barriers and obstacles for victims to access justice.
While the European Union (EU) and the USA participate in this process, they lack conviction on the direction of the text. The EU is very active, but I see divergent positions among its member states. Many countries, such as France, support it, but the EU as a whole maintains reservations.
One of the great triumphs of the early process was that China did not block it, but rather abstained. The same was true of India. This was partly because the treaty was supposed to be about transnational corporations. China has not approved of the extension of the treaty’s scope to all companies and has lately taken a more negative position.
African states have participated very little in the last two rounds of negotiations. We believe that South Africa, which was co-leader with Ecuador when the resolution that initiated the process was negotiated, is also unhappy with the expanded focus beyond transnational corporations. Ecuador has recently called for the formation of a ‘friends of theChair‘ group and Africa is the only region without participating members.
Latin America in comparison is participating quite proactively, although the region has experienced many political changes, including in Ecuador itself, which are likely to influence negotiating positions.
In sum, there are ongoing technical discussions on the draft articles, but most of the outstanding issues are mainly political discussions. For this reason, I think the process will take several more years.
Do you think that the final version of the treaty will meet civil society expectations?
My hope is that we will not be left with a treaty that sets out good intentions without establishing clear rules. As is the case in all negotiations of this nature, some of the issues civil society is calling for will probably be left pending. There is a lot to accommodate: the perspectives of states, the expectations of business and the private sector in general, and the demands of civil society and all rights holders.
I would expect a pretty good text, which in some ways reflects the character of the process, which has included a very strong civil society and social movements. From my perspective, the process has been sustained not only by the commitment of states to negotiate, but also by the impetus of civil society and dialogue among all involved.
My expectations are intermediate. With some caution as to the scope of the articles, I think the treaty will contain some elements that satisfy civil society, and particularly victims.
What work will need to be done once the treaty is adopted?
To begin with, I think there is a long way to go before this treaty is adopted. It may still take several more years. There is a long way to go in the negotiations and regarding the content of the text.
Once the treaty is adopted, ratification will have to be pushed through. Let us remember that international treaties only enter into force when a certain number of states ratify them, and only those states that ratify them are bound by them. This is where I see a huge challenge ahead. Hopefully, once we get to produce a good, comprehensive text, the process of ratification will not be so slow and cumbersome.
For this to happen, we will need a strong civil society to push states to ratify the treaty so it enters into force and becomes binding on the signatory parties. Again, I would expect this process to be long and arduous, as the issue of human rights protection in the context of business is a thorny one, given that there are many interests at stake. What lies ahead will be a big challenge for all involved.
Follow@fernanda_ho and@WGBizHRs on Twitter.
