The fifth session of the open-ended Intergovernmental Working Group on transnational corporations and other business enterprises with respect to human rights (October 2019) established four months for the concerned states to submit suggestions on the revised draft legally binding instrument, to regulate in international human rights law, the activities of transnational companies and other business enterprises. The successive suggestions received in the last four months will serve to improve the so-called zero draft on which work has been done in the last year and which marks the starting point of the legal text for a future treaty.[1]
The Countries that are truly committed to advancing in the new binding human rights treaty have made contributions and improvements by pointing out the need for special protection of human rights defenders, indigenous peoples, gender and conflict-affected areas. Despite the effort of these proposals to be included in the legal text, civil society considers that greater precision is needed in the description of alleged human rights violations as well as concrete proposals to correct such abuses. However, it must be recognized that this treaty is not the only initiative that exists at national or international level to correct human rights abuses by transnational corporations.[2]
The new legally binding treaty should not be seen as the criminalization of companies but as the opportunity to identify companies as the driving force behind a fair economic investment; an investment that promotes the integral development of people and that helps both to respect and promote human rights.
Investment. Investments made with a commitment to human rights have a different starting point from those investors that make business in developing countries as an opportunity to make a profit. Binding legislation would encourage corporations to assess the desirability of an investment in a particular region, to measure the economic, social and environmental impact, and to evaluate the risk that certain business models pose to the population. Likewise, responsible investment leads to promoting the confidence of companies with their investors, offering them truthful, transparent and verifiable information. In addition, in the case of public-private investments it will allow governments to have a more thorough knowledge of the behavior of their companies when they operate abroad especially in developing countries. Respect for human rights is not only the responsibility of companies but must be promoted and guaranteed by all the nations.[3]
Until now, the government of each nation monitors the compliance and respect of human rights by their investors within their national borders. When European national governments receive reports of human rights abuses by their national investors operating in Africa, the European Union excuses its responsibility appealing to the voluntary nature of the United Nations Guiding Principles on Business and Human Rights. Thus, only a binding treaty would promote extraterritorial responsibility for public-private investments when these investments are carried out with the support of national governments. With a legally binding legislation each government would be responsible for the behavior of their national companies and for the pubic-private investments.
Development. The economy plays an important role in the integral development of peoples; and it is businesses that create jobs, generate wealth and transform natural resources into goods and services at the service of people. But this ultimate purpose of business is distorted when economic benefits are prioritized over the integral development of peoples. That is why the interest in binding legislation is to promote respect for human rights through economic development.[4]
Although draft zero lacks a specific reference to the Sustainable Development Goals, companies that carry out their activity respecting the possible social, economic and environmental impacts of their economic activity will generate an integral development of people associated to the business activity. An economy that is committed to people is an engine for development and can bring about an improvement in living conditions and a guarantee for the achievement of the Sustainable Development Goals.
Human Rights. Unfortunately, the European Union (EU) has shown no interest in supporting this binding legislation and considers its voluntary nature to be sufficient. The conditions set up by the EU to support the legally binding treaty promote proposals that detract from the effectiveness of the treaty, such as requiring a scope of application that includes all types of companies without taking into account the size of the company, turnover or type of business activity.[5] However, an extractive company engaged in mining that has an impact on the environment, on local populations affected by the extraction and on the working conditions of the miners is not the same as a company that distributes goods or provides communication services.
This lack of commitment on the part of the EU delays any kind of agreement, promotes despair of reaching an agreement and worst of all, will prolong the impunity of large corporations in developing countries, especially in Africa. An impunity that is always covered by the silence of the power and governments as well as the lack of interest of their political leaders who will be rewarded at the end of their mandates by the companies in the sector they have benefited is unethical.
AEFJN demands that those responsible in the European Commission and the European External Action Service commit themselves to the treaty negotiations, with constructive participation that truly defends the interests of the people and that commits itself to human rights as an essential part of economic activity and not as an added concern.
José Luis Gutiérrez Aranda
AEFJN Policy Officer
[1]United Nations Human Rights Council, https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/OEIGWG_RevisedDraft_LBI.pdf
[2] Among other legal Human rights instruments we point out human rights treaties, the OECD Guidelines for Multinational Enterprises and the Guiding Principles on Business and Human Rights
[3] Investment in Extractive Industries , http://ccsi.columbia.edu/our-focus/investments-in-extractive-industries/
[4] Integrating Human Rights in Development and in the Economic sphere, https://www.ohchr.org/EN/AboutUs/Pages/developmentintheeconomicsphere.aspx
[5] https://ap.ohchr.org/documents/E/HRC/other/A_HRC_43_55%20E.pdf
