Advocacy Paper: Towards a legally binding instrument to stop corporate impunity

 Context: 

Several social movements and civil society organizations have invested and/or continue to invest time engaging in the UN Guiding Principles on Business and Human Rights (UNGPs) by participating in consultations and promotional platforms. Most recently, through ESCR-Net's submission on corporate capture to the UN Working Group on Business and Human Rights (UNWG on BHR). After several years of engagement with the UNWG on BHR and in the UNGPs implementation process with its voluntary national action plans (NAPs), many have come to the same conclusion that the NAPs are not enough as a standalone tool for corporate accountability - particularly due to their voluntary nature.

To complement the UNGPs process, it is evident that we urgently need to focus efforts and resources on the implementation of Human Rights Council resolution 26/9, which decided in 2014 "to establish an open-ended intergovernmental working group 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." 

The treaty process is currently at a critical juncture with transnational corporations and their home States in the Global North threatening to undermine its essence and push back on demands for legal liability and extraterritorial obligations. This would undercut corporate accountability efforts and related social justice struggles globally. While Ecuador continues officially holding the chairpersonship of the treaty process, other countries in the Global South must also consider themselves guardians of this process. This is especially true when a majority of human rights abuses and violations related to business activities occur in the Global South at the hands of transnational corporations headquartered in the Global North. 

Additionally, it is also of concern that there were no informal consultations this year with social movements and civil society organizations. Similarly, we are concerned that there were no clear criteria or approach adopted to ensure that key State allies of the treaty process are part of this group. 

In reality, the current situation suggests that Ecuador has sidelined CSOs and several key States that could help move this process forward in a way that centers peoples' demands over agendas of corporate power, profit, and greed. It is time for the Ecuadorian government to make room for others in the Global South that could carry the torch and champion this treaty process together with Ecuador. 

As a critical complement to the UNGP process, we see it key that States mobilize their resources and efforts to champion the process to elaborate a legally binding instrument and, as a concrete first step, meaningfully and effectively engage in the Geneva intergovernmental negotiations from 24 - 28 October 2022.

This year a delegation of members will be participating in Geneva's intergovernmental negotiations for a #BindingTreaty and will bring forward key demands the #BindingTreaty must address to #StopCorporateImpunity. Some of the key demands have been shaped by members' regional work, done in the lead up to the negotiations. 

Regional Work 

Latin America

• Colombia: Several ESCR-Net members and allies, including Comité Ambiental en Defensa de la Vida, Corporación Colectivo de Abogados José Alvear Restrepo (CCAJAR), Consejo de Pueblos Wuxhtaj, FIAN-Colombia and FIAN-International, Foro Ciudadano de Participación por la Justicia y los Derechos Humanos (FOCO), Indigenous Peoples Rights International (IPRI), and the Project on Organization, Development, Education and Research (PODER) gathered in Bogota in July 2022 on the margins of the UN regional forum on business and human rights to remind Latin American States that voluntary measures through NAPs are not enough to regulate corporate power. While we acknowledge  - with due thanks to our movements and human rights defenders - that mandatory measures are increasingly becoming part of government plans to tackle breaches of human rights caused by business activities, this is not sufficient. Our message in Colombia was clear, we need a strong legally binding instrument that sets standards and expectations for holding corporations accountable across the globe. Guarantees of legal liability and extraterritorial obligations remain key to ensuring an end to corporate impunity and the legally binding instrument is a key process to set such standards. 
• Chile: ESCR-Net members, including the Movimento dos Atingidos por Barragens (MAB) and the Project on Organization, Development, Education and Research (PODER), traveled to Santiago to meet with the Chilean government in July 2022 to request that Chile prioritize the treaty negotiations as part of their government agenda. Several key Chilean organizations have sent a letter to the Chilean government with this very request as a follow up to the mission. Our hope in Chile and its newly elected government is that it would stand against corporate capture of the treaty process and that it would lead in advancing the elaboration of this legally binding instrument with strong provisions that may hold corporations accountable. Though the Chilean government initially abstained on resolution 26/9 to elaborate a legally binding instrument that would regulate corporations, we believe that Chile - with its new government - is at an opportune moment to take leadership on ensuring the treaty process continues, centering the interest and demands of affected people and communities in Latin America and elsewhere in the world. We believe strongly that it also falls in line with the important commitments that this new government has made to its constituency.
• Mexico: ESCR-Net in collaboration with the Project on Organization, Development, Education and Research (PODER) along with other members and allies of the Network held an advocacy meeting with the Mexican government in October 2022 with several main objectives: 1) To push for active and effective participation of Mexico during the eighth session of the treaty session on TNCs and OBEs. 2) To provide arguments on why Mexico can be a leader in the Latin America and the Caribbean region working towards an effective LBI. 3) To motivate the Mexican State to join forces with Colombia and Chile in order to have stronger regional participation. 4) To demand civil society participation in developing the official position during the LBI negotiations this October. 5) To have more transparency in the process. 6) To encourage the Mexican State in keeping its strong position on the text articles that benefit communities affected or potentially affected by corporate activities, given its large international investment agreements and the negative impacts of transnational corporations on human rights without human rights and environmental due diligence processes. 7) To encourage applying Mexico's feminist foreign policy in the LBI process to protect women's rights and for the LBI to include gender and intersectional perspectives in a cross-cutting manner.

Asia

• Thailand: In collaboration with the Asia Task Force on the Legally Binding Instrument (ATF), ESCR-Net members, including ALTSEAN-Burma, Citizen News Service, Asia Indigenous Peoples Pact (AIPP), Indigenous Peoples Rights International (IPRI), and Manushya Foundation held an advocacy mission in Bangkok, Thailand this September on the margins of the Asia Pacific Responsible Business and Human Rights forum. The purpose of this mission was to promote the elaboration of a treaty to regulate the activities of transnational corporations and other business enterprises in line with UN Human Rights Council resolution 26/9. In this mission, members organized and held a workshop for CSOs raising awareness on the legally binding instrument - members also met with several key Asian States calling on them to participate effectively and meaningfully in the treaty process and in the negotiations of the current draft text of the treaty - in a way that corresponds with the demands of communities affected by corporate activities.

In 2014, six Asian States voted in support of Resolution 26/9 paving the way for the process towards stronger binding international regulations on TNCs and other business enterprises. For more than a decade, ATF and ESCR-Net members have been taking collective action to advance the development of a clear and comprehensive international human rights framework on corporate accountability, including an international binding treaty on human rights and business.

Africa

• Ghana:  In an effort to move the treaty process forward meaningfully, several organizations - members and allies of ESCR-Net in the African region, including AfreWatch - African Resources Watch, African Coalition on Corporate Accountability (ACCA), African Indigenous Foundation for Energy and Sustainable Development (AIFES), Centre for Applied Legal Studies (CALS), Center for Human Rights, University of Pretoria, Initiative for Social and Economic Rights - ISER, Movement for the Survival of the Ogoni People (MOSOP), Narasha Community Development Group (NCDG), Natural Resources Women Platform (NRWP), Southern & Eastern Africa Trade Information & Negotiations Institute (SEATINI), Uganda Consortium on Corporate Accountability-UCCA and the Zimbabwe Environmental Law Association (ZELA), held an online strategic session earlier this month to unify urgent action on the treaty. Part of this action included strategic thinking on how to build on the work of many African CSOs and ensure that governments in Africa are participating more effectively in the treaty process. The opportunity to organize around  this issue has emerged on the margins of the African Business and Human Rights Forum, where several key civil society organizations will be presenting in informal and formal sessions arguments as to why voluntary measures such as National Action Plans to implement the UNGPs have thus far failed to achieve corporate accountability and why we urgently need a treaty to regulate corporate power. 

In reality, several key social movements and civil society organizations in the African region have been actively advocating for the urgent need of the UN legally binding treaty for many years. In a regional African consultation held by civil society organizations on the draft legally binding treaty on business and human rights last year, key members of African civil society issued a collective statement strongly supporting the continuation of the existing process and refinement of the existing draft. In addition, CSOs rejected the need for starting any new process or the need to fundamentally change the text. The statement further articulated that the text of the binding treaty is: 

“...effectively taking forward the UNGPs, in both the areas of prevention and access to remedy. It involves rendering human rights due diligence mandatory and addressing obstacles to access to remedy. We thus reject any attempt to weaken these elements and ask State Parties to continue with this existing process and reach finalization of the text. In doing so, they will be doing the work of the UNGPs.”

Around the world, civil society, social movements, affected communities as well as human and environmental rights defenders are confronting widespread and systematic human rights abuses and violations related to business activities. This trend is intensified by corporate capture of government decision-making, barriers to effective regulation in both the home and host States of corporations - particularly transnational corporations, and a failure to ensure effective access to remedy and accountability. Countries in the Global South face particular challenges in securing remedy for harms to their communities and environment by large transnational corporations headquartered in the Global North. Global South governments are consequently stuck with the costs and other long term consequences of such damages. 

In 2014, 10 African States voted in support of Resolution 26/9 paving the way for the process towards stronger binding international regulations on TNCs and other business enterprises. This was the strongest support shown regionally for this process. This is quite significant given the weakening participation of African States over the years.

Key Demands: 

1. NEGOTIATE meaningfully and effectively for a legally binding instrument based on the 3rd revised draft considering textual suggestions presented by States last year and actively promoting demands  for stronger provisions to hold corporations accountable as articulated by people and communities affected by violations and abuses related to business activities. States must act urgently to advance and ultimately adopt the legally binding instrument in an effort to stop corporate capture, end corporate impunity and to create effective mechanisms to remedy and compensate communities and people particularly affected by transnational corporations in the extractive, financial, food, healthcare and tech industries- attentive to the different and disproportionate impacts experienced by women in all their diversity, gender non-binary persons, rural communities, Indigenous Peoples, and other historically marginalized groups, as well as communities in contexts of conflict and occupation.
2. PRIORITIZE the advancement and primacy of human rights and environmental rights in textual negotiations, including the specific rights of Indigenous Peoples, as vital for the future of our existence on earth. In particular, it is essential to call for the articulation of a provision on the right to self-determination in the text of the treaty. Additionally, key provisions on legal liability for violations and abuses related to business and extraterritorial obligations must remain at the heart of the treaty text. It is important to note that States carry their human rights obligations into intergovernmental organizations-including the UN, G20, IMF, etc.- and already have extraterritorial obligations to regulate their corporate and financial actors.
3. STOP corporate capture of this process! Corporations should not be influencing governments in decision-making processes where they have a clear conflict of interest. To this end, States must stop corporations from exerting direct or indirect influence on this and any other decision-making process that may affect our human rights and environmental rights. 
4. DISMANTLE multistakeholder initiatives in decision-making at the UN and other multilateral spaces as a long term strategy that will best safeguard our rights. UN and other multilateral spaces must center the rights of the peoples and especially those at-risk by eliminating any conflicts of interest in processes where corporate agendas may influence effort to stop corporate impunity. These spaces should only be a source of information for corporations and not a space for influencing policy-making and legislation.

Full Advocacy Paper: 

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