The fifth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights[1] (OEIGWG) met in Geneva from 14 to 18 October to work on the revised Zero draft of the UN binding treaty on business and human rights.[2] The OEIGWG improved on the document and focused on a text on which countries, involved in the drafting of the treaty can negotiate in the future. The revised draft assumes the guiding principles of business and human rights of the United Nations (UNGP).[3] Among the novelties of the new text is the scope of the treaty that wants to include all companies and financial institutions that carry out international transactions and not only transnational companies.
The main purpose of this treaty is to ensure the defense and protection of human rights against any kind of economic interest of large companies. Human rights violations and abuses of power by transnational companies occur in all countries. However, the protection of human rights is more effective in countries with stronger democratic institutions. Developing countries suffer the greatest number of human rights violations and in most cases these violations remain unresolved and without consequences for the perpetrators.
The work of the intergovernmental commission (OEIGWG) has focused on the legal responsibility of companies that violate human rights, the implementation of the treaty and its articulation with other international treaties (especially Trade treaties like the Economic Partnership agreements between the de European Union and African countries). The reality is that the more the text of the international treaty advances, the greater the difficulties that arise in making it a binding and universal treaty. The difficulties like the settlement of disputes, access to justice for affected persons and communities, the protection of complainants and the restitution for the damage caused by companies regardless of where they operate are used by the EU to excuse its commitment to the treaty and the effective respect of human rights. For this reason, it is essential to have a binding international treaty that sets out minimum commitments to human rights, that is accepted by all States and that repairs as much as possible the damage done to people, communities and the environment.
First, we note the pre-eminence of human rights over corporate interests. No action on the part of companies can be protected by any kind of impunity.[4] At present, there are countless cases of companies acting with impunity against indigenous populations under the protection of economic rights or government concessions that ignore the fate of the people. This is the case of mining operations and agribusiness investments covered by administrative concessions that force local populations to move without economic compensation, that start their activities without impact studies on the population and the environment, without respecting the international environmental agreements and with a lack of transparency in their activities.
Secondly, the UN treaty on Business and Human Rights must strength its binding nature as a complementary mechanism with other international treaties. The treaty cannot operate in isolation from other international agreements and must be articulated with other international treaties especially trade treaties such as Economic Partnership Agreements. The reference to human rights in international trade treaties cannot be reduced to a mention in the preamble of the treaties. International treaties have to include references to human rights within the articles and have to be of mandatory, including stating explicitly the duty of transnational corporations to respect social, economic and environmental rights in all their activities in the world.[5]
Third, a binding UN treaty on Business and Human Rights should include the extraterritorial liability of companies irrespective of where they operate. In fact, there is a paradox between the UN treaty that should protect the human rights and the Investment State Dispute Settlement (ISDS). On one hand foreign companies can sue states through international arbitration tribunals in the event that states change laws that provokes less profits for the companies. On the other hand, there are no mechanisms by which neither states nor individuals can prosecute transnational companies that violate human rights if they operate abroad. AEFJN call for an end of this paradox asking for an end of the ISDS in international treaties and the inclusion in the treaties about the possibility to sue human rights violations wherever they happen.[6]
Fourth, the treaty must guarantee the legal security of persons affected by human rights violations by ensuring access to justice for affected persons and communities, protecting complainants of human rights violations, guarantying restitution for damage to victims, and demanding restoration of the environment where environmental damage exists.
Conclusions
Large corporations often deploy every means at their disposal to evade their responsibilities and go unpunished for the abuses they perpetrate. In some cases, they limit their responsibilities through corporate groups with parent and subsidiary companies that have their headquarters in different countries and make it difficult to sue civil and criminal liabilities. Another common practice among large companies is to change their names and erase all legal links with situations of injustice that have occurred in the past and that have been denounced. Companies must assume their responsibility throughout the production chain for the goods and services they offer, and their responsibility cannot be limited to geographical space.
AEFJN advocates for binding legal mechanisms that obliges the European Union to monitor the behaviours of companies from member states to respect human rights and international agreements that protect the environment. The UN treaty is a necessary opportunity to establish justice, but above all the treaty is a responsibility for the future.
The European Union and its member states must change their attitude towards the UN treaty and work together to make the treaty an effective reality. During the October meeting the demands made by the EU have been included (with no other purpose than to slow down and hinder a more effective agreement). We hope that the inclusion of their demands in the new document will be sufficient for the EU to become an active member of the OEIGW and not act as a mere observer or trouble maker of the treaty.[7]
José Luis Gutiérrez Aranda
AEFJN Policy Officer
[1] The draft report of the fifth session https://www.ohchr.org/en/hrbodies/hrc/wgtranscorp/pages/igwgontnc.aspx
[2] Revised Draft of the Binding Treaty on Business and Human Rights https://www.ohchr.org/Documents/HRBodies/HRCouncil/WGTransCorp/OEIGWG_RevisedDraft_LBI.pdf
[3] https://www.ohchr.org/documents/publications/GuidingprinciplesBusinesshr_eN.pdf
[4] The EU and the Corporate Impunity Nexus https://www.tni.org/files/publication-downloads/the_eu_and_corporate_impunity_nexus.pdf
[5] A Practical Guide to Effective State Engagement with International Human Rights Mechanisms https://www.ohchr.org/Documents/Publications/HR_PUB_16_1_NMRF_PracticalGuide.pdf
[6] Through the ISDS African states have been hit by a total of 109 arbitration claims registered under investment treaties between 2013 and 2019. This represents 11% of all known conflicts between investors and governments in the world. https://unctad.org/en/PublicationsLibrary/wir2018_en.pdf
[7] The meeting finished in October 18th. The new proposals should be possible to be included by February 2020 and the new draft should be presented by June 2020. https://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Session5/Pages/Session5.aspx
