I am borrowing the lyrics of this famous Beatles song to survey the process led by the United Nations towards a binding treaty on Business and Human Rights. Last October 27th, the third session of the Intergovernmental working group on transnational corporations and Human Rights finished in Geneva. This so-called ‘open-ended’ working group was established by the UN Human Rights Council in a resolution adopted in July 2014 . This path started in a tortuous way, with 20 votes in favour but 14 against and 13 abstentions. It is worth remembering that among the votes against there were 12 European and no African states, and that among the 20 votes in favour we could find 10 African and no European states. Amazing, isn’t it?
There have been sessions once a year since 2015 when the working group was established. The first two sessions were to agree on the content, scope, nature and form of the future international instrument. The third session has worked on the draft of the future instrument. The Chairman–Rapporteur is willing to gather comments and proposals on the draft from states and different stakeholders. Then, on the basis of these contributions, he will present a draft, legally-binding instrument. This draft is supposed to appear at least four months before the fourth session of the working group for substantive negotiations . We could say we are facing a crossroads at which we could either be stuck for a long time or, hopefully, drive straight ahead until the negotiations are successfully concluded. The international community has to be aware of the importance of this dilemma.
This is then the third time that this working group is holding a session, but the journey didn’t start in 2014 but long before. In fact, there was a Special Representative of the Secretary General for the issue from 2005 until 2011. This year marked the beginning of a new stretch of the road, now slightly reinforced by the approval of the Human Rights Council of the Guiding Principles on Business and Human Rights . A UN working group on Business and Human Rights was established in the same resolution and is not to be confused with the Intergovernmental working group. This group composed of five independent experts aims to promote the implementation of the Guiding Principles and to encourage good practices and capacity building based on these principles. It has been responsible for a yearly forum held in Geneva since 2011 that brings together states, business enterprises and associations, civil society organizations, trade unions, academics, the media, etc, numbering more than 2.000 participants. This year’s very recent forum has treated the need to ensure access to effective remedies for victims of business-related human rights abuses. Remedy is the third pillar of the guiding principles system, the others being the state’s duty to protect and the corporates’ responsibility to respect.
In the meantime, African people are not just waiting on the side of the road but keep on going, with their daily life often threatened by big company projects that have direct consequences on their land, livelihood, health, working conditions, etc. Transnational companies may desire to cast the population aside when they need to implement a new extractive, hydroelectric, manufacturing or plantation project, as has been broadly proved in the past. However, more and more they are facing objections and active resistance from the inhabitants of the chosen place. But it is precisely at this stage that other rights are endangered; the right to peaceful protests, proper information, access to justice, fair compensation and adequate environmental reparations, etc. Despite the guiding principles, the states often remain inhibited, ignoring their duty to protect human rights and thus facilitating the impunity of big companies with their environmental pollution and degradation, land grabbing, use of slave labour or indecently low labour standards.
This is why strong international action is needed to put these written principles into action and a binding treaty would be the proper way to do it. It would also be a great achievement for sustainable human development. As in the case of climate change, we are in a race against the clock. In fact, we are losing people on the run and we cannot afford to have the road to respect for human rights under construction for so long. Diplomacy takes its time to make progress. Big corporations tend to adapt to new requirements especially when they are obliged to. Both states and corporations must feel the pressure from affected local communities and civil society organizations if they are to move forward in the correct way.
We have a major opportunity to improve the system of human rights protection in international law. Human rights defenders and non-governmental organizations must keep on working together to widen the movement towards the achievement of this binding treaty. It is not easy to bring up the public debate at national level as it is not often felt to be an urgent issue. More effort could be made to raise awareness among ordinary people and to prevent this binding treaty from being considered as a technical issue only accessible to experts. European consumer organizations could again play an important role here. Promisingly, an inter-parliamentary initiative has been launched to form a network of parliamentarians around the world to show their support for the treaty.
The long, twisting road of big company projects are sometimes dark and lonely and therefore dangerous for vulnerable citizens to walk. But the long and winding road to a binding treaty is certainly not a lonely one. This road could lead nowhere or, hopefully to ensuring the primacy of human rights over trade and private profits. It should not seem strange to state and preserve this primacy as a common destiny at this time in human history. Meanwhile, victims of human rights violations at the hands of corporations could still join the chorus and ask us why we leave them standing there.
The wild and windy night
That the rain washed away
Has left a pool of tears
Crying for the day
Why leave me standing here
Let me know the way

Alfredo Marhuenda

AEFJN Policy Officer