Transnational Corporations (TNCs) have played a key role in the globalization process and the application of neoliberal measures throughout the world. The 200 largest TNCs accumulated 31% of the global GNP in 1995 and their sales totalled 6 billion dollars in 1999. ETNs accumulate wealth and power through “accumulation through depossession”. The majority of TNCs have established their operations in countries with little protection for working people and nature, appropriating for themselves the products of labour and common goods. Thus, a large part of their profits, if not all of them, come from wealth plundered from countries in the Global South. TNCs have been acting in violation of peoples’ rights, as they prevent people from organizing individually and collectively and from having a decent life and decent work. As the living expression of capitalism, TNCs only see human beings as a consumer, as a factor of production and disposable waste. As we will show, TNCs systematically violate the rights of millions of people throughout the world and are responsible for their impoverishment.
In what we refer to as Damage to Life, TNCs are responsible for crimes against the physical integrity of social and community leaders, repression and criminalization of social struggles and resistence. They also attack public health by blocking the access of people from Brazil, Peru, Colombia, Ecuador and many other countries to generic medicines, for example, or by using techniques that harm the health of their workers. TNCs are responsible for the pollution produced by their activities, namely in the extractive industries, and the impacts of mega-projects on local ecosystems and communities. TNCS violate the right to self-determination and consultation of indigenous people, when they operate in their territories and do not take into account the obligation to consult the affected people. They also operate in territory that one country has stolen from another, as is the case in Palestine, or in dictatorships, as in Equatorial Guinea. TNCs are responsible for the indecent economic, social and environmental conditions the majority of the world’s population lives in. In order to attract investments, governments from some countries modify existing labour and environmental laws, or create free trade zones that are exempt from taxation and legislation. The peoples’ demands for better labour conditions and even compliance with minimum stands are met with repression and threats from the companies. When TNCs abandon a country, the impacts they have generated remain and are no reparation or compensation is given.
HOW CAN THIS GO ON WITH TOTAL IMPUNITY? THE HISTORY OF A NORMATIVE ASYMMETRY AT THE SERVICE OF TRANSNATIONAL CORPORATIONS AND THE CONSTRUCTION OF THE ARCHITECTURE OF IMPUNITY
In the 1970s, a discussion was held on the signing of international norms to regulate the operations of transnational corporations. The UN Economic and Social Council (ECOSOC) created in 1974 a Commission on Transnational Corporations. The Commission’s priority was to be to investigate TNCs’s activities and elaborate a Code of Conduct for them, which never saw the light. ECOSOC also created in 1974 the Center on Transnational Corporations, as an autonomous organization within the UN Secretary, which functioned as the secretariat of the Commission on Transnational Corporations. In 1993-94, both organisations were practically dismantled. The establishment of the Global Compact, launched in 1999 by Kofi Annan at the Davos Forum with the goal of weaving a “creative alliance between the United Nations and the private sector” was the sign of definitive international support for the Corporate Social Responsibility (CSR) philosophy. While the rights of TNCs are protected by a global legal order based on trade and investment rules whose characteristics are imperative, coercive – sanctions, fines, diplomatic and military pressure tactics – and executive, their obligations are relegated to national regulations that have been subjected to neoliberalism, a International Human Rights law that has been weakened and CSR, which is voluntary, unilateral and cannot be legally enforced.
When the International Criminal Court was created, the pressure from major economic powers determined that violations of economic, social and cultural rights and ecological crimes would be excluded from the Treaty of Rome in 1998, which approved the Statutes for the establishment of this Court. It also excluded the possibility of hearing cases against legal persons (i.e. corporations) for crimes. After nearly a decade of witnessing the signing of multiple voluntary codes of conduct and agreement – that is, the implementation and development of the CSR paradigm – reality shows that there has been no end to the numerous human rights violations and socioenvironmental impacts, for which TNCs are directly or indirectly responsible.
HOW WAS LEX MERCATORIA BUILT? TOOLS FOR BUILDING THE ASSYMETRY
Transnational corporations hoard their economic power, using it as political power to build this assymetrical legal regime known as Lex Mercatoria. This regime has been built by using different tools or tactics such as Lobbying: multi-disciplinary teams of lawyers and experts work actively to mold state and international policies according to the interests of the TNCs they represent; Revolving doors: people alternating between high-level positions in the public and private sector, which generates serious conflicts of interest between the objectives that a public and democratic body should pursue and those pursued by a big corporation whose main objective is to maximize its profits; Corporate diplomacy: All actions that a government takes through its different political and diplomatic representatives to support TNCs in resolving conflicts with other States; and other tools like: Bribery and doing business with dictatorships, interfering in electoral process and helping to stage coups d’état, criminalization of protest and of human rights activists, manipulation of information through mass media and of knowledge through their influence in decisions universities make on what research will be conducted.
Communities, movements and organizations around the world have been developing strategies and tactics to expel transnationals from their territories and build popular power, some more successful than others, depending on the time and context. We highlight here some strategies (there are many more):
Permanent People’s Tribunal: The PPT was created to give visiblity and qualify as rights all those situations in which the massive violation of fundamental rights are not met with recognition or institutional responses, whether they be at the national and international level. In three bi-regional sessions, the PPT heard denunciations on the human rights violations and environmental devastation by European TNCs in Latin America and the Caribbean.
Counterhegemonic networks: the example of Enlazando Alternativas: The Bi-regional Europe-Latin America and Caribbean Enlazando Alternativas Network was created in 2004 out of the need to intensify civil society resistence in Latin America and Europe to the “Europe Project”, the Lisboa agenda, transnational corporations based in the European Union and international “free” trade and investment policies. Networks, social and trade union organizations and movements of the Bi-regional network coordinate around strategies to paralyse negotiations of FTAs between the EU and Latin America and the Caribbean, strengthen struggles against European TNCs and deepen the process of building alternative proposals for just, sustainable and complementary integration, based on solidarity and the interest of the peoples.
Legal strategies: Official law is part of the hegemonic structure of domination and can only become a contra-hegemonic vehicle when it is subordinated to political action. However, legal interventions generate space for disputes and confrontation which can lead to popular victories in the long struggle against dominant classes and the capitalist system. The victims of these abuses and social movements must be the true protagonists in these conflicts.
Boycotts: TNCs see boycotts as a threat that should be avoided at all cost. Companies react to boycotts in different ways, according to how they calculate the damage it could bring to their corporate image: with aggressive publicity campaigns, attempts to coopt those behind the campaign and even threats to sue. Boycotts are not always effective. It is important to take into consideration that there are sectors, like the textile industry, in which boycotts have resulted in a given brand name laying off its workers, which is counter-productive to them, as instead of improving their working conditions, they make them worse. We need to seek alternatives that avoid producing this kind of negative consequences.