Erika González, Juan Hernández, Pedro Ramir

Translation by Internationalist 360°

The voices of activists and communities affected by the impact of transnational corporations were re-expressed in October last year at the United Nations headquarters in Geneva. It was the third session of the intergovernmental working group mandated to create standards that oblige multinational companies to respect human rights.

Joércio Pires da Silva, inhabitant of a quilombola, ancestral territory of the afro-descendant communities of Brazil, was one of these voices. He affirmed that most of the communities that inhabit the quilombolas now suffer continuous violations of human rights by transnational corporations. Like him, numerous people from all continents noted, through their testimonies, the absence of effective mechanisms to curb the impacts of large corporations, and claimed the need and urgency to approve a legal instrument of this nature in the international arena.

Control over transnationals in the United Nations

The intergovernmental working group on control over the transnationals of the United Nations has its origin in a resolution passed by the UN Human Rights Council in 2014. Until then, the logic of voluntariness and corporate social responsibility had prevailed, although over the past forty years there have been proposals for this body to approve binding international standards for large corporations.

The first attempt was made in the 1970s, with the task of developing a mandatory code of conduct for these companies and the creation of bodies whose purpose was to monitor their activities. Twenty years later there was no code or instances. Everything was dismantled by the pressures and opposition of economic powers and business lobbies such as the International Chamber of Commerce and the International Organization of Employers. Instead, the UN created the Global Compact, based on voluntary codes of conduct.

At the beginning of the 21st century, in the Subcommission for the Promotion and Protection of Human Rights, a new attempt was made to overcome voluntariness, based on a draft of standards on multinationals and human rights. Its route was the same as in previous decades: the opposition of the big employers, the United States and the EU, resulted in this initiative being abandoned. At the same time, the Guiding Principles on Business and Human Rights were approved in 2012. No new legal obligation derives from them. But two years later, this same body approved the resolution that allowed moving towards a binding instrument.

How was it possible for the Council to change its orientation so quickly? One of the factors that influenced the decision was an alteration in the correlation of forces within this organ of the United Nations. As its composition is rotating, in 2014 there was a majority presence of countries that see it necessary to increase control over transnational corporations and human rights. Among them, two nations who headed the proposal: Ecuador and South Africa.

In addition, the Alliance for the Treaty, a broad articulation of more than 1,000 social and human rights organizations around the world, was developing intense advocacy activity in favor of the resolution. The representative from Ecuador acknowledged then that “none of this would have been possible without the support of civil society organizations”. [1]

After the resolution on the binding instrument was approved, the well-known positions of the central countries and the transnational companies were re-staged. The United States did not recognize the vote and said it would not acknowledge the outcome of the process.

For its part, the EU did decide to participate and has been in three work sessions carried out so far. Far from contributing to the objective of the mandate, the EU has blocked it through the imposition of questions that distort and entangle the debates. Although the objective of the resolution is to elaborate a binding instrument, this debate is continually discredited and attempts are being made to impose the Guiding Principles as the sole legitimate proposal of the UN. It is said that greater control over large corporations is discriminatory compared to other companies.

How does the intergovernmental working group continue?

The shadow of the final blockade accompanied the entire third session held from October 23 to 27, 2017. It reached its most far-reaching moment on the last day, when a report was to be adopted that included the conclusions of the debates and established guidelines. The EU did not stop their opposition to the group’s mandate until the last minute. In fact, when the chairman of the working group expressed approval by consensus of the report, the EU representative was raising his card to continue interposing obstacles. The chairman hesitated a few minutes and the interval was used by the president to close the session with his eyes on 2018.

“It is a victory for those of us who defend the process aimed at a treaty,” said the global Dismantle Corporate Power campaign [2]. They celebrated that a critical moment had been overcome and they saw the opportunity to focus on the most important , the content of the future treaty. However, we are afraid that the debate that arises now will revolve around the bureaucracy and the long procedures that have characterized this type of processes in the United Nations. You can not ignore what has happened on previous occasions when you have tried to control large corporations, or the current power relationship which favors the political-economic elites.

One of the most used methods to derail proposals in the UN is to perpetuate the processes [3] through bureaucracy, ambiguity in the texts, the questioning of the procedure used and the different ways of interpreting the resolutions. The economic powers and the corporations have only begun their blocking strategy. The same approved report has several interpretations.

According to Alejandro Teitelbaum, a jurist who has worked for several decades at the United Nations, there are reasons to be concerned [4] about the future of the process: in the conclusions of this report a fourth session is recommended. In turn, the document proposes informal consultations to interested parties on “the way forward for the elaboration of a legally binding instrument”. That reminds Teitelbaum how the draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, submitted in 1990, was diluted. Instead of approving the draft Protocol, what the Covenant Committee did was appoint a special rapporteur. After 19 years of debates, a very diluted and clearly insufficient protocol was approved.

This is what can happen in the next meetings of the Human Rights Council, which will take place in March and June of this year. The questioning of the working group may be more effective this time because there has been a change in the composition of that body. Now, most of the states that have come to occupy a permanent seat on the Council until 2020, including Spain, are hostile to the binding instrument. Thus, it seems likely that the countries aligned with the EU and the US will present resolutions to bring down this process of creating norms that oblige transnational corporations to comply with human rights.

What to do?

The social organizations that have been working for the approval of this binding international norm continue betting on it, even in a scenario that becomes increasingly adverse. But it seems a priority to reflect on the strategies to follow so as not to get lost in long bureaucratic processes, as well as not to generate false expectations and, at the same time, to be able to strengthen the capacity of denunciation and mobilization.

The first thing is to value the space that is given to the United Nations in campaigns against corporate power. It can not be central, but simply a tool for our work. The objective of this approach is to prevent the social and political action of the groups and movements in resistance from being conditioned to the times of the Human Rights Council.

The goal, then, can be aimed at continuing to promote counter-hegemonic logic at the local, regional, national and global levels. Some good examples in this sense are the alliances in the face of trade and investment agreements and treaties, of privatizations and the remunicipalisation of public services, support for the global strike of women and the fight against the World Trade Organization. All this, without renouncing the approval of mandatory international standards.

At the legal level, the proposal is based on three principles.

First, strengthen the idea of ​​an international law from below, an alternative use of the law built by organizations and social networks, communities affected by the transnational and critical sectors of the academy.

Second, put limits on the enrichment of economic elites through a new international agreement that leaves human, environmental and labor rights out of the accumulation of capital.

And, third, to invest the international legal pyramid, that is, to create a normative framework that clearly expresses that the International Law of Human Rights is hierarchically superior to the rules of trade and investment.

These strong ideas can be translated into campaigns and demands for the incorporation of socio-environmental clauses in public procurement of local and regional administrations, as the first selection criteria. Also in the work within the municipal plenary sessions and regional parliaments to carry out institutional declarations and motions in favor of these types of norms.

You can follow the path initiated by social organizations in Catalonia that managed to introduce the debate and take the first steps to create a public center with the aim of monitoring the international activity of companies based in its territory.

Such an instance, which also ensures social participation, is a good first step. The following may be the pressure for the complete transformation of the autonomous and state policies of internationalization of the company, with human rights being the framework for international economic action, the elimination of measures that go against it, the exclusion of companies that have violated human rights of the planned incentives and expand participation in this area to social and trade union organizations [5].

Strengthen the discourse and create laws

The context in the United Nations can favor the creation of national laws on the control of large corporations and compliance with the extraterritorial obligations of States. The debate on the need to move towards binding norms has ceased to be a matter exclusively for social and human rights organizations: now it has returned to the center of the international agenda and, therefore, the proposal to replicate this process at the state level may have an easier entry into national parliaments.

The example of France and its due diligence law of transnational corporations in its supply chain can serve as lesson. The process of drafting this law lasted several years until approved in 2017 and, after numerous negotiations to prevent its blockade, the resulting law is diluted in its demands and has no sanction mechanisms in the event of non-compliance.

Therefore, the study of this process can help to identify and define strategies before the political and legal barriers that are going to interpose in the creation of a more demanding state regulation. It is necessary to contemplate, in function of how the procedure of a law of this type evolves, that it is better not to approve a bad norm in order to have one that could reduce the future possibilities of achieving a more ambitious result.

In the international arena, it is essential to counteract the business and institutional discourse that limits corporate responsibility to the voluntariness of the Guiding Principles. For example, noting the absence of mechanisms and instances of control in the national plans on business and human rights that are being approved in the EU and in various Latin American countries.

These plans, based on the Guiding Principles, have incentives and awareness as central measures for the business sector. This is the case with the National Action Plan for Business and Human Rights approved by the Spanish government in 2017. As stated at the beginning of the document, the Plan “contributes to strengthening the competitive advantage of Spanish companies in the global market”. Its approval, moreover, has been characterized by secrecy and its content consolidates the logic of self-regulation [6].

How to continue in the United Nations?

The global campaign Dismantling Corporate Power has been accompanying the intergovernmental working group of the United Nations, putting on the table different proposals to move towards a binding treaty. They developed six fundamental principles that should be a guide for this treaty. Among them are the obligations of corporations, States and International Economic Financial Institutions, as well as the instances and mechanisms necessary to enforce their responsibility.

Based on these premises, they elaborate this proposal for a Treaty on transnational corporations and human rights, which includes the participation of numerous movements, groups and specialists. It is a reflection of rights created from below, from the struggles and resistances of communities. There remains the task of disseminating the text in a pedagogical way close to the bases of social movements and communities.

Until the negotiation of a treaty for use in the United Nations, the global campaign can be moved forward with documents and alternative proposals with strong, clear, precise texts and very clear ideas for enforcement outside the current voluntary logic. The more detailed and legally complex the text they propose, the more they are exposed to criticism, opaque procedures and very formal and restrictive interpretations, and also linked to the corporate power of International Law.

The beginning of the negotiation marks the moment in which the collaboration of jurists specialized in different branches of Law can be key for the translation to the legal language of their proposals. Such translation may consist of the adaptation of the same to existing international law, in the search for cracks in order to force favorable interpretations or to focus on normative changes of a counter-hegemonic nature.

In this type of negotiation “realism” must be questioned. It is especially oriented to social organizations in their claims to be pragmatic if they want to reach an agreement. The problem is that the ​​realism of movements and communities is not the same as the governments of countries and transnational corporations [7]. The realism they talk about is based on an asymmetric negotiation that usually ends in empty and inaccurate results. A treaty with substance is needed, not a treaty at any price.

Notes

[1] González, E .; Kucharz, T .; Marco, I .; Palacios, AM; Martí, J .; and Vargas, M. (2014): “A small step against the impunity of the transnationals”, Diagonal , nº 226.

[2] Press release of November 2, 2017 of the Global Campaign to Claim the Sovereignty of Peoples, Dismantle Corporate Power and End Impunity: “The treaty on transnational corporations and human rights enters into negotiation mode” .

[3] Hernández Zubizarreta, J .; and Ramiro, Pedro (2017): “United Nations and the consensus of the powerful”, La Marea .

[4] Teitelbaum, Alejandro (2017): “Triumphalist activism vs. reality of the facts “, Rebelion.org.

[5] Martija, G .; Fernández, G .; Plaza, B .; and Hernández, J. (2017): Analysis of the business internationalization policy of the Basque Government , Coordinator of NGDO of Euskadi.

[6] Hernández Zubizarreta, J .; and Ramiro, Pedro (2017): “Human rights as a competitive advantage”, La Marea .

[7] See note 3.

Erika González , Juan Hernández ( @JuanHZubiza ) and Pedro Ramiro ( @pramiro_ ) are researchers from the Observatorio de Multinacionales en América Latina (OMAL) – Paz con Dignidad.

Article published in nº 76 of Peoples – Magazine of Information and Debate , first cuatrimestre of 2018, monographic “Commercial treaties, offensive against our lives”.

CETIM STATEMENTS AT THE UN