The will of the people drives UN Treaty on transnational corporations and human rights to next level

A week of negotiations in Geneva which saw over 200 civil society organizations from 80 countries, a record presence of 101 member states, an EU attempt to derail the process and vital input on the treaty content, ended on 27 October with a victory for the people: 2018 must see the first draft of a binding treaty and further negotiations.

“Friends of the Earth International welcomes the Chair rapporteur’s recommendations and is committed to continue its active engagement towards the 4th session of the negotiations in 2018. The constructive leadership of the presidency made it possible to arrive at a positive outcome of the 3rd Session of the IGWG. We look forward to the Chair’s zero draft and next year’s negotiations.”

Karin Nansen, Friends of the Earth International Chair

The EU’s attempts to derail the process came in the form of objections over procedure and technicalities, as Anne van Schaik from Friends of the Earth Europe explains,

“The threat by the EU to block the process, hiding behind technical and procedural excuses, is totally unacceptable. The Commission has always been reluctant to engage in a process to establish a treaty that would enhance access to justice for affected peoples, while there are many European companies involved in violations of human and environmental rights outside the EU. This stands in stark opposition to its ambition in advancing the Multilateral Investment Court (MIC), where it estimates an annual contribution to operational costs of 5.4 million Euros. Why not invest this time, energy and money in the establishment of a UN binding treaty?”

Attempted sabotage aside, this session in Geneva was, once again led by the people towards a treaty for the people.  

“Throughout the week, the presence and voices of affected communities, social movements and indigenous peoples defending their bodies, dignity, territories, livelihoods and the commons, empowered us to challenge and dismantle the walls of impunity and colonialism.”

Lucia Ortiz, Friends of the Earth International’s Economic Justice International Program Coordinator.  

Indeed in light of escalating violence against those defending territories and life from the interests of transnational corporations, a binding treaty is not only crucial, it is an urgent historical responsibility, as many Friends of the Earth representatives gave testament to during the week.

Examples of human rights abuses abound in the Asia Pacific region. As Khalisah Khalid from  WALHI/Friends of the Earth Indonesia explained in the UN plenary:

“Transnational corporations’ human rights violations include extrajudicial killings, disappearances and harassment. They damage the environment and local communities. Women and children suffer most as result of human rights violations.”

Khalisah Khalid, WALHI/Friends of the Earth Indonesia

The violence experienced by women, as leaders of collective struggles and policy makers, is not the same as that experienced by men. The draft elements of the treaty addresses the vital need to integrate a gender perspective as follows,

“A gender perspective is not about treating women as a “vulnerable group”; it should not be a separate “tick the box” exercise. Integrating a gender approach into the treaty means analysing how businesses may have different, disproportionate, or unanticipated impacts on women or men, as a result of their different gender-based social, legal, cultural roles and rights. This approach is thus essential to the very purpose of the prospective treaty if it is to put the concerns of rights holders at the center and to effectively ensure the prevention, protection and remediation of business-related harms for all.”

Latin America experiences some of the worst human rights atrocities at the hands of transnational corporations. The courage and determination of human and environmental rights defenders in this region is second to none.

“In Honduras we are immersed in a climate of constant violations of the collective rights of peoples, besieged by transnational corporations that invest in the country without the consent of the people, endorsed by the state. The situation of forced displacement through paramilitarism and drug trafficking has facilitated the installation of these companies. In Honduras, the rate of impunity stands at 96%, reflecting a state that does not guarantee access to justice and less when it comes to disadvantaged people. A clear picture of this is how, more than a year and a half after the death of comrade Berta Cáceres, the intellectual authors of that murder remain in impunity.”

Aurelia Arzu, member of OFRANEH, an allied Honduran organization of Madre Tierra/Friends of the Earth Honduras

One of the most powerful things about the statements given to the UN working group and states by those on the frontline of human rights defence, was that their impassioned personal experiences addressed very specific practical and political solutions for the content of the treaty.

Danilo Urrea Regional coordinator of ATALC/Friends of the Earth Latin America and the Caribbean addressed the “measures needed to enable a binding treaty to safeguard the lives of the population at risk due to the actions of transnational companies, in a country like Colombia.”

“Starting from the situation in Colombia, with the attempts to put an end to the armed conflict, where the government imposes an idea of ​​peace that favors the interests of transnational corporations and the exploitation and devastation they bring to our common goods,  territories of to our peoples, we consider it imperative to adopt a legally binding instrument with which affected persons and communities have the right to information, justice, reparation and guarantee of non-repetition of violations of their human rights.”

Danilo reminded those present that it was only on 25 October 2017 that the UN special rapporteur on human rights defenders Mr Michel Forst said, “Human rights defenders who are pressing for companies to be held accountable should not be criminalised or threatened.”

Technical points were raised by Friends of the Earth representatives from Latin America during the week. Such as the fundamental need for affected peoples’ participation, as put forward by Alberto Villarreal, ATALC/Friends of the Earth Latin America and the Caribbean,

“States parties should abide to the results of popular consultations organized by potentially affected communities, social movements and other civil society organizations when deciding whether to approve so called “development” projects in the territories.”

Along with others during the week, Alberto stressed that, “The binding treaty must echo people’s demands and the supremacy of human rights over trade and investment agreements.”

Sadly the list goes on and similar struggles are happening in Africa and the rest of the global south. This is one of the reasons the presence and voices of of affected communities and indigenous peoples in geneva was so vital. As Apollin Koagne, senior lawyer at the Center for the Environment and Development/Friends of the Earth Cameroon explains,

“When you read the human rights declaration the first principle is that all humans are equals. If this is true we all need equal protection. If for example I live in Switzerland I am more protected than someone living in Africa or Latin America.”

In his daily work defending communities in Cameroon, Apollin has met with the inefficacy of voluntary principles to protect human rights. To address this issue, Apollin explained to those present in Geneva, “It is important to regulate violations perpetrated by transnational corporations and to recognize their “extraterritorial obligations”: these companies should respond to their crimes not only in their countries of origin, but also in the other countries where they operate. And if you don’t have an effective judicial institution for the protection of human rights, human rights don’t mean anything. At the moment we have no such institution to protect human rights from TNCs. This is why we are asking for an international tribunal. This is the only way to be sure that  all humans, be they head of state, CEO of a TNC would respect, fulfil and implement human rights.”

Important points of reference also came from France, where earlier this year a corporate duty of care law was adopted. As Juliette Renaud from Amis de la Terre/Friends of the Earth France explained,

“The French law on due diligence brings  several lessons to the UN treaty discussions. The fact that France passed a binding law can inspire all states to do the same.” We need both laws at the national level and the treaty at the International level. They are complimentary.

One sticking point is the scope of the Treaty, but as Juliette explains, it needn’t be.

“In the French law responsibility sits with parent and subcontracting companies (what we usually call transnational corporations), where the main power lies. But it includes the activities of all the company’s entities (subsidiaries and controlled companies) and their value chain (subcontractors and suppliers) throughout the entire world. In this way the treaty would cover almost all enterprises, although focusing on TNCs responsibility.”

Paul de Clerck, Friends of the Earth Europe spoke on the vital issue of corporate capture,

“Industry has excessive and privileged access to decision making over a long period, resulting in policies being mainly in the interest of business and often at the expense of the public interest. We believe that transnational corporations should be excluded from negotiations for a treaty that aims to end corporate abuse.”

Another necessity within the content of the treaty is the liability of International Financial Institutions, which are currently immune from legal action related to projects they finance. As Hemantha Withanage, Centre for Environmental Justice/Friends of the Earth Sri Lanka explains,

“International Financial Institutions own Accountability Mechanisms do not work. The binding treaty should enable aggrieved parties to hold International Financial Institutions to account.”

As negotiations progressed and the week drew to a close, the power and will of the people became crucial once again. In the closing hours of the Friday session when it looked like the EU might succeed in derailing the process, the peoples took to the floor in defiance, holding aloft copies of the People’s Treaty text proposal as put forward by the Global Campaign to Dismantle Corporate Power and Stop Impunity.

The people on the ground in Geneva gave voice to and truly represented, “The many victims, present and future, who demand the right to see their humanity restored and preserved, the right to believe in justice,” as so eloquently expressed by Apollin Koagne Zouapet, Friends of the Earth Africa.

It is the will of the people that is driving this treaty process forward. And Friends of the Earth will be with the people every step of the way, as Lucia Ortiz, Friends of the Earth International’s Economic Justice International Program Coordinator explains,

“We are ready to curb transnational corporations’ impunity by driving the Treaty to the next level, after states adopt the chair’s recommendations and conclusions towards the 2018, in order to start draft treaty negotiations. Any attempt by states to block or derail this process denying the right of affected people to justice will go down in history. The time in now to dismantle the walls of TNCs impunity and colonialism”

The struggles we and the people face in the fight to end corporate human rights abuses are not unique to the UN treaty process. As Karin Nansen, Friends of the Earth International Chair explains,

“Our struggle against impunity is not limited to our actions within the UN arena. In the next months we will increase our mobilization together with other social movements all over the world to expose transnational corporations’ abuses and stand in solidarity with the victims. FoEI will also continue its fight against the systems of oppression that lead to human rights violations, such as corporate power, patriarchy, colonialism and  racism.”

The struggle continues!

Image: Victor Barro