The 8th session of the United Nations Intergovernmental Working Group on Transnational Corporations (TNCs) and Human Rights (Working Group), responsible for the drafting of a legally binding instrument to regulate the activities of TNCs under international law, was held under a very tense and confusing atmosphere in Geneva last October. A delegation from the Global Campaign to Reclaim Peoples’ Sovereignty, Dismantle Corporate Power, and Stop Impunity (Global Campaign) attended the session, actively participating in the defence of the interests of peoples and the rights of affected individuals and communities.
Since 2021, the Global Campaign has been raising concerns regarding the manoeuvres of certain states that wish to divert the process from its due course[1]. These developments have not only continued but have intensified during this session of the Working Group. In violation of its mandate and in total contradiction to the work done so far, the Chair of the Working Group (the Ambassador of Ecuador in Geneva) unilaterally presented new text proposals to the negotiating table, under the pretence of “facilitating negotiations”. In fact, this arbitrary move was carried out to radically modify, weaken, and further water down a draft. It was, thus, a clear attempt of imposing completely new language and dispositions as an alternative basis for negotiations. Since these proposals were made public, the Global Campaign has denounced and rejected this manoeuvre.
This move not only made negotiations very confusing but it also favoured the detractors of the process, who took advantage of this diversionary twist to question the elaboration of a treaty in line with the Working Group’s mandate. This seems to have been the Chair’s plan all along: the Western bloc, in particular, systematically made comments to these proposals in order to delegitimize the negotiated draft. Despite its shortcomings, such as the lack of important elements to ensure its effectiveness, the third revised draft remains the only and legitimate document for future negotiations.
It is important to note that this draft also contains many important provisions, thanks to the work of some countries that took up the demands of social movements, and to the arduous advocacy work of the Global Campaign throughout the years. For the United States and their close allies (e.g., the European Union, the United Kingdom, Japan, Australia, Switzerland, and Norway), these dispositions are unacceptable. According to these states, the future treaty should not be “prescriptive”, thus not elaborating on provisions or spelling out human rights obligations for TNCs. To the contrary, the future treaty should be “in line” with voluntary codes of conduct, in particular with the UN Guiding Principles and the standards established by the Organisation for Economic Co-operation and Development (OECD). Furthermore, the treaty should not speak of TNCs, but of “business enterprises”, and thus should apply to all types of companies.
In other words, for these countries, which define themselves as “liberal democracies” and “defenders of human rights”, no effective measures should be put in place to regulate the activities of TNCs if they can somehow hinder the pursue of maximum profit. Indeed, according to many of these Western states, TNCs cannot, by definition, violate human rights. They might “abuse” them by “omission”, at most causing an “adverse impact on human rights”[2]. Some Latin American states (e.g., Brazil and Mexico) have also adopted this position, although with some nuance.
These indecent moves from the Presidency and its allies did not go unchallenged. At the very first day of the 8th session, the African Group, representing the 54 African countries, denounced these diversionary manoeuvres and defended the mandate of the Working Group. Among the African States, South Africa, Namibia, and Egypt played a leading role in the support of a strong and effective binding instrument. Important Asian (e.g., India, Indonesia, Iran, Pakistan, Palestine, and The Philippines) and Latin American states (e.g., Bolivia, Colombia, Cuba, and Venezuela) also highlighted the problems related to the methodology of the session and/or the non-respect of the agreements underpinning the process.
The Global Campaign, together with other civil society groups and networks such as the Treaty Alliance, the Feminists for a Binding Treaty, the Young Friends of the Treaty, and the ESCR-Net, did not stay on the side-lines. Throughout the week, they have emphatically denounced the attempts of the Chair and of some states to water down the content of the future treaty and to divert the Working Group from its mandate. Meanwhile, they have also proposed juridical amendments to improve the content of the third revised draft. The Global Campaign alone made at least 28 interventions covering, among others: i) joint and several liability of TNCs’ parent companies with their global value chains in civil, criminal, and administrative matters; ii) access to justice for affected communities and individuals; iii) the issue of jurisdiction (host state); (iv) the need to establish direct obligations for TNCs independent and separate from those of States; and (v) an effective and efficient international enforcement mechanism.
The Global Campaign has also raised important concerns regarding the negotiation methodology. The method adopted by the Working Group in the 7th session proposes the inclusion of states’ amendments in brackets directly on the draft treaty. Although this seems to be a very democratic and transparent methodology, there are in the text now totally contradictory and irreconcilable amendments proposed by both states committed to the building of a binging instrument following the mandate of the Working Group and those proposed by states committed to derail the process. It is imperative, therefore, that amendments that go against the mandate of Resolution 26/9 be excluded.
Given the challenges and context outlined above, does it mean, then, that we should witness yet another failure of the UN to regulate the activities of TNCs? Although, for the moment, the correlation of forces might seem to be against the development of a strong and effective Treaty, giving it up is not at all in the horizon. This process targets the essential elements of the transnational architecture of impunity TNCs have enjoyed for decades. We need therefore to keep our commitment to the affected communities and our struggle to radically transform the status quo that favours corporate power: the primacy of private interests over human rights, the continued privatization of public goods and services, the unceasing large-scale destruction of the environment, and the reduction of millions of workers around the world to a near-slavery condition. It is necessary to continue this approach, while also strengthening advocacy work with African, Asian and Latin American states committed to a binding treaty on TNCs.
Civil society organizations, in particular social movements and affected communities, together with all citizens, must mobilize to demand that their governments and public authorities legally regulate, at the national and international levels, the activities of TNCs, which now keep escaping any democratic and legal control. The future UN Binding Treaty will contribute to the building of a popular sovereignty, one where people can decide their own future.
Throughout this Working Group process, the Global Campaign organizes a week of mobilizations during negotiations in October. These are the highlights of 2022:
i) The organization of three parallel conferences within the UN building (side events):
a) The UN Binding Treaty and national and regional legislations regulating TNCs
Co-organized with the Global Inter-Parliamentary Network (GIN), a network of Members of Parliament from around the world committed to the building of a strong and effective binding treaty. The GIN representatives present in Geneva—Lilian Galan (Uruguay), Sydney Mushanga (Zambia), Miguel Urbán (European Parliament), and Helmut Scholz (European Parliament)—have also questioned the conjuncture and methodology of the 8th session. They have joined the negotiations in the plenary and held several meetings with many state delegations.
Watch this event here
b) A treaty to end impunity: Direct obligations for TNCs and an international Tribunal
This side event argued for and explained these two fundamental demands from social movements and affected communities pushed forward by the Global Campaign. Through the presentation of several experts in the field – Joseph Purugganan from Focus on the Global South, Rasha Dayyeh from PENGON – Palestine, Ivan Gonzalez from the Trade Union Confederation of the Americas Andressa Soares from HOMA and Adoracion Guaman from the University of Valencia – it was made clear to the audience that without the provision of direct obligations and the establishment of an International Tribunal to judge TNCs crimes, it will be difficult to address the architecture of impunity that characterizes our global economic system.
Watch this event here
c) The right to say no and to stop the power of TNCs: perspectives from the Global South
This powerful event was able to count on the participation of important leaders of the struggles against corporate power from Africa (Matthews Hlabane, from Southern Africa Green Revolutionary Council and National Organizer for the Right to Say No Campaign, and Nonhle Forslund, from Amadiba Crisis Committee), Asia (Mai Taqueban, from Friends of the Earth International), and Latin America (Moisés Borgues, from the Movement of Peoples Affected by Dams). Through the narratives of their struggles, they showed the capacity of articulation of the movements comprising the Global Campaign, movements that build resistance on a daily basis in their territories while working at multilateral spaces as part of the strategies to build international law from below.
Watch this event here
ii) Extensive advocacy work before, during and after the negotiation week.
This work is characterized in particular by an advocacy strategy articulated at different levels, aimed at engaging with different state delegations, both at national/regional and UN level, committed to the elaboration of an ambitious binding Treaty that answers the demands and aspirations of affected communities.
iii) Publication of a proposal for the establishment of an International Tribunal on TNCs and Human Rights
The tribunal is as an enforcement mechanism of the future Treaty, to which victims of violations can file claims against TNCs. This document is the result of several years of discussions and collective work, built from the demands of social movements and affected communities, with the objective of presenting the Working Group with a proposal for the functioning of a Tribunal while outlining its competences and jurisdiction.
iv) Publication of an argumentative paper on the need for adequate and direct obligations for TNCs
This paper provides a technical assessment to address certain concerns and a relative reluctance of some states in imposing direct obligations to TNCs, different from those established for states, in the future treaty.
v) Publication of a document popularizing the juridical provisions supported by the Global Campaign
Building International Law from Below, the Global Campaign has several technical proposals to the text of the treaty. This brochure presents these provisions, legally substantiating the claims while presenting the TNCs human rights violations they came from.
vi) Publication of a commemorative brochure on the 10-year anniversary of the Global Campaign
This brochure presents the background giving birth to the Global Campaign back in 2012, as well as 10 years of challenges and achievements. Looking ahead, the text also calls for strengthened mobilization of peoples and countries to address the challenges of the next 10 years.
For more information, visit the Global Campaign website
* This piece is largely based on an article published in CETIM’s bulletin.
[1] The course of the process is based on Resolution 26/9 of the UN Human Rights Council, which establishes this same Working Group and defines its objectives: http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/HRC/RES/26/9&Lang=E
[2] See in this regard the Chair’s proposals on Art. 1 (definitions), among others.
