Revised binding treaty draft shamefully disappointing

Friends of the Earth International are encouraged by the continuity of the process for an International Legally Binding Treaty on Transnational Corporations and Human Rights within the framework of the United Nations (UN) Human Rights Council. The release of the Revised Draft on July 16 by the Chair of the Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights (IGWG), shows a willingness to move forward. However, after an initial reading of the new document, we wish to express our deep frustration.

The presented revised draft is very weak, not only in view of the crucial points emerging from the IGWG 2014-2018 debates, but even more so in view of the proposals drawn up by the Global Campaign to Reclaim People’s Sovereignty, Dismantle Corporate Power and Stop Impunity. The Global Campaign is the international mobilization of over 200 social movements, within which Friends of the Earth International plays an integral role.

One of the most concerning aspects is that the new text dilutes the scope of the Binding Treaty, to encompass all companies and take the focus off transnational corporations. However, as the draft was released three months before the next IGWG session in October, there is still time to build concrete proposals to rescue the spirit and mandate of the IGWG Resolution 26/9 of 2014 – that is, regulating transnational corporations with respect to human rights.

A first reading of the Revised Draft

Ecuador, as Chair of the IGWG, was responsible for presenting the Revised Draft on July 16. On the one hand, the “rights of victims” were well integrated. The text establishes the instrument’s scope to cover all human rights, recognizes the main international instruments – specifically mentioning the rights of women, indigenous peoples, workers and human rights defenders – and has a section dedicated to the individual and collective rights of those affected, as well as mechanisms and guarantees of access to justice. On the other hand, the new document only sets out the obligations of States to prevent or remedy violations perpetrated by corporations. It does not create obligations, mechanisms, or international jurisdiction for transnational corporations – which already evade national human rights mechanisms and forums due to their transnational character – to be regulated and prosecuted in cases of non-compliance with respect to human rights.

Pending a more thorough and detailed analysis of the document, we intend to issue soon a deeper reflection, with concrete proposals for reinforcing the level of ambition of the draft text. However, as the Global Campaign stated and we mentioned above, one of the most central elements of the process, if not the main key and pivotal of them, was lost in the presented document: the focus on transnational corporations. The draft expands the scope to all business activities; it does not identify transnational corporations as centers of power and control over other companies, be they subcontractors, suppliers, subsidiaries or others. The focus is lost when it does not seek to establish joint responsibility of parent companies with the companies located along their global production chain.

According to Manoela Roland, Director of the Human Rights and Business Centre (HOMA) at the University of Juiz de Fora, Brazil, and member of the Global Campaign:

“Attempts to establish the supremacy of human rights over corporate logic are not covered in the entire text of Draft 1. In addition, the scope of the future treaty has been broadened, now establishing the possibility to hold all businesses accountable, not just transnational corporations. This is the most serious technical threat to the whole process, because it violates the mandate of resolution 26/9 of the Council, which led to the treaty negotiations. This decision responds to the interests of the European Union and actors such as the International Organization of Employers. It is a very bad sign.”

In June, on the occasion of informal consultations at the headquarters of the UN Human Rights Council in Geneva, Friends of the Earth International submitted its written contribution and reiterated the proposals presented in the fourth round of negotiations in 2018 and its general analysis of the Zero Draft. Emphasis was placed on the gaps and points for improvement for the Revised Draft. Although the June consultations were convened late, there were contributions from the States that highlighted the need for the new draft to salvage crucial issues that had been present in the Elements Document of 2017, prior to the Zero Draft.

Friends of the Earth International regrets that the evolution of the documents presented in this negotiation process (the 2017 Elements Document, the 2018 Zero Draft and the 2019 Revised Draft) reveals setbacks in important aspects for the social movements and communities affected by transnational companies all around the world, to the benefit of corporate power and the global North.

Organized peoples do not rest: growing demands for a Binding Treaty

Friends of the Earth International groups in different continents are putting pressure on their governments to participate in the negotiation process in a transparent manner, acting to raise the level of ambition of the revised text and getting prepared, in consultation with social movements and organizations, for the fifth round of negotiations in October 2019.

“In Africa, one of the regions of the planet where the impunity of large corporations is felt most acutely and systematically, mobilization in favor of the Binding Treaty has visibly grown, both among civil society and at the State level. The African Group has expressed its consensual support for this international instrument in all the IGWG sessions, and a number of African States have shown themselves committed to strengthening the content of the Treaty – as in the case of South Africa, which has led this process alongside Ecuador. Several African countries have made important contributions to formal and informal discussions at the UN and have highlighted the importance of this instrument for the region. Among civil society, several groups from numerous countries have been trying to broaden the debate in this process and pressure our governments to ensure that the content of the Binding Treaty is built around the demands and experiences on the ground.”

— Erika Mendes, from JA!/Friends of the Earth Mozambique, and Regional Coordinator for the Economic Justice Resisting Neoliberalism program, Friends of the Earth Africa.

Participation in the process has grown exponentially, and reflects the complaints and demands of peoples affected by commercial operations in a range of sectors: from extractive industries to construction and infrastructure industries, from agribusiness to large supermarket chains, from digital commerce to military operations in occupied territories. More than 300 civil society organizations and 100 States participated in the last two rounds of the IGWG in 2017 and 2018. And so the hopes and expectations for this Treaty to be an effective step towards putting human rights over the interests of capital have also grown.

Transnational corporations, operating within a framework of complete corporate impunity, systematically violate the rights of peoples defending their territories and cultures. Cases of violations involving transnational companies pile up to the same extent that their political and economic power grows in the global governance arena, with many States often protecting the interests and privileges of large companies through free trade and investment agreements.

“This Binding Treaty is crucial for us. Corporations play a central role in making these crimes happen: Israel’s water company Mekorot exploits our water, Hewlett & Packard has provided digital technology for Israeli prisons and checkpoints, Veolia has built infrastructure for settlements, Volvo bulldozers are literally right now paving the way for the destruction of the Palestinian village Khan al Ahmar, Israel’s military and security companies test weapons during war crimes and then export them globally.”

– Abeer Al Butmeh, Coordinator of PENGON/Friends of the Earth Palestine

Key next steps in the path towards justice

In this context, solidarity among social movements and within the Friends of the Earth International federation has been one way to raise the voices of affected peoples and their demands against transnational corporations globally, as well as to put pressure on the States and the UN to address this problem effectively and responsibly. Among the most recent examples, the case of internationalist solidarity between Friends of the Earth groups from Brazil and Germany stands out. The rights of 2000 families from Vila Nazaré, in Brazilian city of Porto Alegre, were violated by German corporation Fraport, forcing them out of their homes to allow for expansion of the local airport. The case was denounced by the Brazilian authorities and the German press. Likewise, Friends of the Earth groups from France and Uganda are also uniting against French-based transnational company Total, in the first lawsuit under the recent French corporate duty of vigilance law. This legal action seeks to end the violations of the rights of communities in Uganda, who are being displaced to make way for an oil megaproject, and prevent irreversible environmental damage to a protected natural park.

The global trade and investment regime allows transnational corporations to use investor-State dispute settlement mechanisms (ISDS) to sue States for billions of dollars of compensation in arbitration courts, in cases where sovereign public policies supposedly harm their business. Corporate profits are often given priority over peoples’ rights, proving that justice has been captured by the powerful. Whilst there is no Binding Treaty to establish the effective supremacy of human rights over free trade and investment agreements – which empower transnational corporations with extraordinary privileges and rights – these companies will continue to act against the rights of peoples and their territories, benefiting from an architecture of impunity that frees them of responsibilities and obligations.

“First of all, we demand that the primacy of human rights and international human rights law is unequivocally established in the preamble and that it includes direct obligations both for States as well as for transnational corporations and other business enterprises.”

– Alberto Villareal, from REDES/Friends of the Earth Uruguay, and Regional Coordinator for the Economic Justice Resisting Neoliberalism program, Friends of the Earth Latin America and the Caribbean

The fifth session of the IGWG will take place in Geneva, Switzerland, from 14 to 18 October 2019. The Revised Draft must be much more ambitious so that it will be possible to advance as peoples in the regulation of the transnational corporations. Most importantly, the focus on transnational corporations and their obligations to respect human rights over profits must be brought back into the text. Therefore, together with the allied organizations of the Global Campaign, we will work hard in the run up to and during the Mobilization Week that runs parallel to the fifth session, to demonstrate the strength coming from around the world. With one unified voice, we say: it’s time to move forward with a Binding Treaty that truly brings justice to affected communities and an end corporate impunity.

Join us in the fight for rules for business and rights for people! Join us to show that life is worth more than profit!

“The struggle for a legally Binding Treaty is the struggle against the architecture of impunity that only benefits corporations and causes blood to be spilled. Friends of the Earth International, together with the Global Campaign, will remain committed to promoting the process for a Treaty from below together with peoples’ movements in the territories affected by transnational corporations, with the aim of ending corporate violations and guaranteeing peoples’ rights.”

– Letícia Paranhos M. de Oliveira, Coordinator of the Economic Justice Resisting Neoliberalism program, Friends of the Earth International

Listen to the full interview with Manoela Roland – “Hard blow for communities suffering human rights violations at global level” – on Real World Radio.