A process initiated in 2014 that promised to be historic is reaching its destiny in the midst of intense struggle and debate. This is what we witnessed at the United Nations Human Rights Council (UNHRC) in Geneva last October 14-18 – five years after the historic June 2014 UNHRC Resolution 29/6. This Resolution established an Open-Ended Intergovernmental Working Group (OEIGWG) “on transnational corporations and other business enterprises with respect to human rights; whose mandate shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises...”[1]

Fifth Session – Beginning of concentrated negotiation

Despite all the odds – geopolitical turmoil, uprising in Ecuador, threatened indecision on participation by the EU – the fifth Session of the OEIGWG, under the Chairmanship of Ecuador, was held with governmental negotiations on the Revised Draft (Draft 1) of the Treaty[2] entering into a stable mode. [3]  The Programme of work covered all 22 articles – in a constructive dynamic that heard many substantive contributions from states, parliamentarians, experts and civil society. 89 States participated in the Session, with more than 30 contributing actively on principles and concepts - making this the most impressive advance so far in putting a firm limit to corporate led neoliberal globalization. [4]

Of course, those following all the Sessions of this OEIGWG will remind us that there is nothing ‘stable’ about this particular OEIGWG. On the contrary, every step of the way has been contested. It is an arena that brings conflicting interests among the three major actors on the floor: the States; the Corporations (visible in the participation of the ICC and IOE)[5] and the affected communities, social movements and CSOs with documented testimony of ongoing actual experiences of corporate violations of human rights. This contestation however is inherent in the context of Resolution 29/6 which set in motion a process that touches on one of the nerve centers of current corporate led capitalism and is evidence of the historic and political importance of what is happening on the floor of Room XX at the UNHRC each October since 2015.

After five years of contested annual sessions, the Room XX of the UNHRC in Geneva reverberates with the language of negotiation for a binding treaty on human rights on transnational corporations and other business enterprises. Despite reservations, it seems that the promise of Resolution 26/9 is finally claiming its space.

A convergence of struggles – towards a new Horizon

A new phase of struggle for a Binding Treaty on TNCs began in May 2010 when affected communities from all over Latin America brought this demand to the Madrid Session of the Permanent Peoples Tribunal (PPT).[6] Although the United Nations Guiding Principles (UNGPs) being developed by Professor John Ruggie was at that time quite developed, and was adopted at the UN in 2011, communities in the frontline of dealing with the devastating operations of TNCs insisted that self-regulation was not enough. At the government level, the current initiative for a legally binding instrument on Transnational Corporations and Other Business Enterprises with respect to Human Rights, was initiated when Ecuador pushed for a UNHRC resolution in 2014 that challenged the “consensus” around the (UNGPs). Ecuador together with South Africa, and supported by a group of more that 80 countries “interrupted” the peace in 2013 around the non-binding UNGPs. In implicitly recognizing that TNCs have some responsibility in human rights violations, the UNGPs were claimed as the upper limit of human rights protection in relation to corporate operations in the 21^st century. However, affected communities saw this as a big defeat for victims’ demand for an end to corporate impunity and actual access to justice. [7]

Meanwhile, the Global Campaign to Reclaim Peoples Sovereignty, Dismantle Corporate Power and Stop Impunity (Global Campaign), established in 2012[9] to develop a Peoples’ Treaty on Transnational Corporations responded positively to the prospect of a Resolution at the June 2014 Session of the UNHRC. In March 2014, following an ESCR.net Conference in Bangkok, member organisations of the Global Campaign, and several human rights organisations came together in Geneva to set up a broad coalition to work for a Binding Treaty and launched the Treaty Alliance.[10]

After a vigorous campaign – gaining more than 600 signatures and a strong mobilization of civil society organisations, affected communities became front line actors that contributed to ensuring the vote on Resolution 26/9. The vote at the UNHRC, taken on June 26, 2014. was highly significant in addressing directly for the first time the agenda of reining in the power of TNCs. The vote itself was indeed a revealing first take on the geopolitical struggle that would mark every step of the way forward on the Binding Treaty process, with all EU member states together with other TNC home states – such as Japan, the Republic of South Korea and the United States voting against.[11]

Moving beyond “TINA” – Another Human Rights regime is possible

During the next three sessions of the OEIGWG (2015, 2016, 2017) a growing engagement and support of civil society organizations, scholars, human rights experts, parliamentarians and states broke the “TINA”[12] mantra with which promoters of the UNGPs sought to block the advance of this initiative for binding regulation on corporations. The process was continuously energized by resistance struggles on the ground – whether of oil and gas extraction and contamination; land and ocean grabs; mega dam collapses; water and land toxification; forest fires; or the fall-out from the textile and pharma industries – showing how urgently needed such an international instrument is for affected peoples and victims to have their rights fulfilled.  Every year saw new corporate violations of peoples rights, while justice remained denied in such cases as Bophal, Chevron, Rana Plaza, Lonmin and Vale.

The EU and its Member States represented at the UNHRC by the European External Action Service (EEAS), as well as other states from different regions, particularly from Latin America (Chile, Colombia, Guatemala) systematically put forward obstacles to block the process. Motions included contesting the approval of the Sessions’ programme of work; applying diversionary tactics to avoid content discussions; flagging the necessity of a new Resolution; compelling an EU bloc position and ignoring European Parliament Resolutions and finally threatening budget cuts at the Fifth Committee at the UN in NY.  From time to time, the US also entered the arena to support the EU blocking tactics, as it did in 2017 in a Side Meeting called by the EU.

But it was not possible to de-rail the process. A sharp and engaged command by different Ecuadorian Chairs and especially the sustained impressive engagement of civil society ensured that the process moved forward, and by the third Session (2017) the initial Elements of a Treaty began to be discussed. A Zero Draft led the talks of the fourth Session (2018) and a Revised Draft 1, was thoroughly discussed during this fifth Session (October 14-18, 2019). In the face of constant challenges, the process not only held its ground, but gained traction with 90-100 states participating in the 2018 and 2019 Sessions. And against all expectations, more than 30 states brought significant substantive proposals to the negotiations – including States as distant as Namibia, Mexico, China and Spain.

Many observers and states delegates used to say “once there is a text, the negotiation begins in earnest”.  In front of a proposed text, States and other actors have to position themselves, have to study and explain the basis of their proposals. This “negotiation mode” is exactly what the huge number of civil society organizations around the Global Campaign, the Treaty Alliance, and Feminists 4 Binding Treaty[13] have been pursuing since the first session of the OEIGWG.

Now the scenario is changed – bringing new technical and political challenges

The scenario is now one of constructing new elements in the international human rights framework – perhaps entering a process that may be protracted. The debate is no longer to guarantee the process, the negotiation mode or defence of this historic opportunity. Now we face content questions – defining obligations of States and TNCs; advocating effective mechanisms to enforce the treaty; definitions of TNCs and implications for “all other businesses”; what role for the state and what rights for victims and affected communities?

This is the new arena and this is where civil society organizations are now moving and implementing their strategies to fight for a Treaty that looks like the one they have dreamed of. The struggle will be for a treaty that is an international instrument useful to those who, in the territories and communities, have their human rights violated by TNCs or other business with a transnational character. Until now, they are denied access to justice due to structural gaps in the national jurisdiction or the easy mobility and flight of TNCs.

A big obstacle emerged around what was deemed a common sense and coherence issue – the need to ensure the scope of the treaty included “all business enterprises”. First introduced by the EU and the corporate associations as a way of resisting Resolution 26/9, many states and CSOs took it for granted that the provisions of this treaty should also be applied to small and medium enterprises. A two tier human rights standard was not on the agenda.

Even if this is required by coherence, it must be emphasized that an international treaty aims to address the big legal gap in international law that facilitates the impunity of TNCs, because of their mobility, mega economic power as well as their increasing political influence. From the beginning, it has been clear that this is a Treaty on TNCs, and that the strong asymmetry of power and structure in relation to other small and medium enterprises should be addressed perhaps with clauses of special and differential treatment or other safeguards. This concern, as seen during the most recent session, is raised by developing countries who do not have national flagship TNCs and whose economy is mainly led by small and medium businesses that are accountable to domestic laws. In addition, these cannot run away and lack the means to implement some of the requirements this treaty should impose on TNCs. The recent French Law on “due diligence” for instance, is applied only to large companies.

A second important challenge is the idea of “direct” obligations on TNCs – this is acknowledging that they have more responsibilities in relation to human rights than are currently recognized. This would mean that an affected community or individual could go to the international jurisdiction to claim for justice against violations derived from the operation of TNCs. In this scenario, which is supported by the Global Campaign, the International Court could for instance judge Chevron in the case of the Ecuadorian Indigenous People (UDAPT).

This proposal is still strongly contested and, even if many see it as a necessary evolution of Human Rights in a globalized world (also required to tackle the mega communications corporations or those leading the “platform economy”), others feel it is a threat to well established human rights doctrine. This latter puts the state in the center, and as the only entity with obligations vis a vis the international human rights framework – that is why many still claim that only states “violate” human rights. 

However, the reality is that this framework is insufficient in addressing the corporate impunity environment which globalization has “normalized” for TNCs. A veritable global Corporate Rule has been established through International Trade and Investment Agreements, which together with the International Financial Institutions (IFIs) generates an “architecture of impunity” which guarantees the ‘rights’ of TNCs, equips them with ISDS provisions enabling them to sue States for billions of euros[14] and legitimizes the violations of the human rights of people and communities.

The international system of Human Rights may not yet be ready for such a big leap as is demanded by a meaningful Binding Treaty on TNCs and may explore other alternatives – as for instance – stronger extra territorial obligations, or inter-jurisdictional cooperation. Although these are important measures that will move forward the status quo, they do not answer to the positions advanced by the affected communities. Their trajectory is to pursue these demands – that are seen as necessary for sustainable livelihoods and the well-being of our common planetary future.

This latest OEIGWG Session in Geneva, while it brings high alertness to challenges on content issues, also shows the world that this is a key historic process for the future and primacy of people’s human rights, the world economy, and the planet. It won’t be the end of neoliberal capitalism – but it will be a good shovel of sand in the wheels of corporate globalisation.

- Gonzalo Berron, Brid Brennan, Monica Vargas and Sol Trumbo Vila – members of the Corporate Power Team at the Transnational Institute – TNI.

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