Over 280 ESCR-Net Members Call for Stronger Treaty to Regulate Corporate Activities
08 October 2019
Over the last two months, ESCR-Net members have come together across different regions to collectively analyze and discuss the content of a revised Draft Treaty, published on 16 July 2019 as part of an ongoing intergovernmental process to fulfil UN resolution 26/9 to create a legally binding instrument that would regulate, in international human rights law, the activities of transnational corporations and other business enterprises.
ESCR-Net members noted some improvements in the revised Draft Treaty echoing points from our collective position papers issued last year in reaction to the zero Draft. These include improved language on conflict-affected areas, the protection of indigenous peoples, and on protection of human rights defenders.
At the same time, ESCR-Net members identified several gaps in the revised Draft that must be addressed to ensure the full protection of human rights, including in the areas mentioned above. Some of these gaps form red lines, identified by ESCR-Net members, on 11 key issues that if crossed, could undermine the purpose and goals of the Treaty. To that effect, ESCR-Net put together a position outlining alternative language to strengthen the respect, protection, fulfilment and promotion of human rights via this Treaty.
Scope of the Treaty. While the broadened scope is a note-worthy development, it is vital that a strong focus remain on transnational corporations (TNCs) operating through global value chains in order to ensure that the revised Treaty is able to hold those corporations accountable for human rights violations or abuses.
Human rights defenders: The Treaty must ensure consistency with the UN Declaration on the Rights of Human Rights Defenders to avoid gaps and foster harmonization with the spirit of the Declaration and to ensure the utmost protection of defenders.
Access to Information: The Treaty must have guarantees of access to information for victims and affected individuals or communities to prevent corporate abuses and violations prior to the commencement of, and during the business activity as well as in the remedy process.
Indigenous Peoples Rights: The Treaty must guarantee the right to free, prior and informed consent” of indigencous peoples (FPIC). Consent and not mere consultation should be maintained in the Draft as a key principle as it offers a broader protective measure for marginalized communities beyond mere consultation. It advances within the broader FPIC principle protection of community values and consensus building. Consent must be continuous - with information provided at every stage of the project for subsequent consent.
Gender and the Treaty: A non-binary gender, youth and children lens should be adopted and streamlined throughout the text. Most significantly, the text must enable the appointment of gender experts in the Committee that oversees the implementation of the Treaty.
Corporate Capture: The Treaty must adopt stronger safeguards against corporate capture (undue corporate influence). It is fundamental to protect the integrity of the policymaking space, its participants, and outcomes from the interests of these corporations—including any potential, perceived, or actual conflicts of interest. It is imperative to develop good governance measures that safeguard against corporate political interference at the national, international, and intergovernmental levels, in the current discussions that pertain to the Treaty’s content, negotiations, implementation and monitoring.
Conflict-affected areas: To ensure prevention of human rights abuses and violations by corporate activities and States in conflict-affected areas, fragile and post conflict States, mandatory enhanced due diligence is necessary and must include a requirement not to pursue or start operations in certain situations in which no due diligence can guarantee that there will not be complicity or contribution to violations that in some cases may amount to international crimes. It is important also to introduce more urgent and immediate preventive measures, divestment and disengagement policies, to avoid corporate involvement in and/or contribution to human rights violations in their activities and relationships.
Business relationship vs. contractual relationship: The Treaty must ensure the responsibility of the parent company for the actions of companies in its value and supply chain that are companies with whom it has a business relationship that can be different from a mere contractual relationship with the parent company.
Primacy of human rights: The Treaty must reflect the primacy of human rights obligations over those under bilateral or multilateral trade, investment or other agreements. Reference to economic and trade agreements is weaker in the revised Draft and can be further strengthened to ensure human rights obligations always take precedence over trade agreements.
State-owned companies: States must take additional steps and exercise a higher standard of care to prevent and protect from abuses and violations related to State-owned enterprises or in areas where the State is an economic actor.
Extraterritorial Obligations: The Treaty can benefit from clearer language articulating the responsibilities of home and host States in regulating business activity and holding accountable business entities for activity that violates or abuses human rights. For example, it is important to note that the concept of forum non conveniens should be explicitly marked as not applicable for the purposes of this Treaty.