Report from the Working Sessions

International Strategy Meeting on Economic, Social and Cultural Rights


Challenging Poverty and Inequality through Human Rights:

International Strategy Meeting on Economic, Social and Cultural Rights and

ESCR-Net General Assembly

Nairobi, Kenya
December 1 - 4, 2008


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This area of work met to collectively advance its efforts in three inter-related areas: building ongoing advocacy for international standards on business and human rights; continuing to strengthen the resource and knowledge base of the Network; and furthering the Working Group's commitment to bringing affected communities and individuals, as well as grassroots groups into leadership positions in international debates on corporate accountability. This happened through a variety of activities, including a 3-part workshop on accessing justice, strategy sessions and the development of an action plan for future work.


1.    Introduction, Tricia Feeney, Rights and Accountability in Development (RAID), United Kingdom (English-speaking Group)

Tricia welcomed the participants, and reviewed the objectives, strategies and activities of the Corporate Accountability Working Group (CAWG, or WG) since its inception in Thailand in 2003. She described the history of the WG's campaign for international human rights standards on business, as well as its efforts to exchange information and strategies, and bring the voices of those directly affected by business abuse into the international policy discussions.


In this context, Tricia then went on to describe the work, mandate and approach of Professor John Ruggie, the UN Special Representative on Business and Human Rights, and the WG's consistent advocacy, especially in pushing for meaningful consultations and to insist on binding international standards. She explained that although Ruggie has met with social movements in areas affected by company's violations, his mandate is a special and problematic one in the sense that he does not have the mandate to investigate abuses.


Prof. Ruggie is mandated to present an annual report, which ESCR-Net organizations and movements can continue to respond to with constructive critiques. In the June meeting of the Human Rights Council, ESCR-Net in collaboration with many other civil society groups brought a number of directly affected people to Geneva to testify and provide recommendations to the Council and Ruggie on how to better improve the protection system. The 2008 ESCR-Net Collective Report on Business and Human Rights was also presented there, another powerful collective documentation project. Within the Ruggie process, the HRC has planned a full scale consultation, now scheduled for October 2009.

2.    Challenges and Opportunities, Joji Carino, Tebtebba, Philippines (English-speaking Group)

Joji, another Steering Committee member of the WG, went on then to offer her impressions on past and future challenges and opportunities.  She addressed the fact that in addition to CAWG's work, there have strong attempts by indigenous people to put pressure through submissions within the Ruggie process and with expert law reviews regarding indigenous peoples. She was mindful however of the limitations of the UN processes, and so mentioned a range of other activities on business and human rights which the WG could consider, giving national and international examples. Standard-setting activities relating to business and human rights not only take place in the UN human rights machinery, put importantly also in other multilateral negotiations, e.g. climate change, "sustainable" mining fora, biodiversity, etc. The WG, she cautioned, should be aware and as active as possible in these discussions as well as the Ruggie process.

3.    Introduction, Niko Lusiani, ESCR-Net Secretariat (Spanish-speaking Group)

Simultaneously, Niko described the WG's activities within the Spanish-speaking group, highlighting 3 key areas: (1) Bringing the perspective of those affected by business-related abuses to the forefront of discussion at the international level and within broader civil society; (2) increasing the resource base and capacity of ESCR-Net members challenging human rights abuses involving companies, and (3) advocacy for international standards and accountability. He also spoke on current and upcoming projects of the WG, including the Business and Human Rights Documentation (B-HRD) Project, being jointly developed with the Center for Global Justice and Human Rights at NYU School of Law.

4.    Notable Comments Following Presentations

  • Dora Lucy Arías, Colectivo de Abogados José Alvear de Restrepo, Colombia-Dora Lucy focused first on the Ruggie process, expressing some concern about the creation of mechanisms which in effect institutionalize company impunity, rather than strengthen public accountability over them. She then spoke of the various social observatories on human rights that her organization has been organizing, the most recent Permanent People's Tribunals focusing on corporate actors. These processes have been useful in a number of ways. They have created depth and strength of research and investigative materials, which were later used in various proceedings, including Colombian courts. The tribunal, though not legally binding, has strong moral authority. Finally, the tribunal preparations and conduction is a social process, involving many actors over a long period of time, serving as a strong awareness-building function as well as an organizing and community-strengthening purpose, which in effect has helped to create social power and mobilization, key to any successful advocacy strategies, legal or otherwise. Dora Lucy also addressed the importance of preventive measures rather than merely reactive ones in the human rights field. Dora Lucy then spoke on other useful tactics outside of the UN which the WG could consider, including boycott and non-consumption campaigns, actions focusing on strengthening the access to information, and truly strategic litigation, which would convoke many actors from various countries, focusing on their own national levels, combining public pressure around the world.
  • Rafael Dias, Justiça Global, Brazil-Rafael then introduced his organization's work, mentioning their efforts to research and investigate the activities of Vale do Doce mining in Brazil, asserting the power and necessity of aligning with social movements.
  • Daniel Taillant, Center for Human Rights an Environment (CEDHA), Argentina-Daniel then went on to describe a number of key spaces for advocacy and leverage which WG members should consider as important entry points. These included: the Ruggie process, in particular Ruggie's third pillar on effective remedy; the International Finance Corporation (IFC) compliance office and process; multilateral and regional development banks, like the European Bank of Investment; private banks and the Equator Principles; OECD mechanisms; private equity firms; labor unions, especially ITUC; social observatories; the Global Reporting Initiative (GRI) and process; as well as social investment debates and funds.
  • Abu Brima, Network Movement for Justice and Development, Sierra Leone-Abu Brima brought up an African Union initiative in Africa for a mineral regime, developing at the sub-regional level under ECOWAS. We should be active informing these regimes, as Oxfam is, including through the advocacy for a model or existing regime on human rights and mining.
  • Golden Misabiko, ASADHO, Democratic Republic of Congo-The need for more capacity-building at the local level about human rights related to mining and other corporate activities as highlighted.
  • Legborsi Saro Pyagbara, MOSOP, Nigeria-Saro mentioned the need to develop more opportunities for informational material to influence investors and consumers, as well as to consider more action to make climate change mitigation strategies accountable to human rights.
  • Abu Brima-Only when people got together, in his experience, did governments pay attention. Before any government commissions of inquiry or high-level talks, impunity needed to be addressed, ultimately resting on the capacity of local people to demand change.
  • Joji-On this notion of sustainable mining, Joji cautioned for groups to be careful, as this process is also being used by industries themselves to help them ignore or evade their human rights standards. Additionally, supporting Saro's points, she highlighted the important negotiations on the legal framework for action on climate change, which is also lacking a human rights approach, and will affect the environment in which companies operate.

5.    Recap of Key Points from this Session

  • Need for practical support and tools for local struggles, capacity-building, exchange of best practices, and monitoring strategies
  • Focus more on regional bodies, e.g. ECOWAS, SADCC
  • Need for research on incompatibility between international and national law
  • Link up with calls for transparency and access to information
  • Use of internet technology is key, as access increases at the local level
  • Processes and negotiations outside of the traditional human rights regime are critical, and affect us directly, e.g. climate change, biodiversity, sustainable development, sustainable mining conferences
  • Be creative in using a number of judicial and non-judicial avenues to bring claims at all levels to increase effective case advocacy
  • Power of people's tribunals, not only in monitoring, investigation, awareness-building, and a moral judgement, but in the organizing process, which builds strong bonds and a social consciousness on the issue, which can later become a social force, also feeding into later litigation. Organizational processes are essential.
  • Need to focus at the local and national levels, as a pure emphasis on discussions at the UN can sometimes be a distraction
  • Importance of preventive measures rather than merely reactive ones once an abuse has ocurred
  • Need for truly strategic transnational litigation, which would involve actors in a various countries, exchanging concrete information, strategies, adjudication techniques and results

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1.    Introduction/Moderation, Alejandra Ancheita Pagaza, Proyecto Derechos Económicos, Sociales y Culturales (ProDESC), Mexico

Alejandra introduced the session, the first part of a workshop on accessing justice. This session, she explained will be a general training session on basic fact-finding of companies and its financing sources, necessary evidentiary elements to build the case and campaign, power-mapping the relevant actors, spaces, opportunities and targets, and community-led human rights impact assessments of business operations. It will conclude with an open, guided discussion on other participants' experiences monitoring company behavior, and the potential for collective research within the Working Group. Access to information is a key challenge throughout, she pointed out, but especially at initial stages of advocacy strategies.

2.    Strategic Corporate Research: Holding Transnationals Accountable for Human Rights Abuses, TJ Faircloth, Corporate Accountability International

TJ, whose organization has been running corporate campaigns for 30 years, conducting a general training session on basic fact-finding on business actors, necessary evidence to build a case or campaign and monitor company activity. He began by explaining CAI's corporate profiling strategy, which looks at various key aspects of the company under questions: type of operations, employees, media coverage, top executives, Board of Directors, competitors, institutional shareholders, etc. A number of important sources of information about company behavior (mostly in the US) were also pointed out to determine key information and relationships, including: creditors, customers and suppliers, social responsibility and philanthropic reports, Securities and Exchange Commission filings, state corporate filings and property records, consumer ratings, court proceedings, filings, state registration matters, product regulations, environmental compliance reports, campaign contributions, public relations campaigns, and government subsidies and investments, including possible World Bank relationships. Following this, TJ reviewed the important skill of power-mapping of relevant actors, spaces, opportunities, to most effectively influence decision makers.

3.    Community-led human rights impact assessments, Caroline Brodeur, Rights & Democracy, Canada and Joji Cariño, Tebtebba, Philippines

Caroline and Joji described the potentials and promise of developing community-led human rights impact assessments (HRIAs). Economic and social impact assessments are common, but what makes a human rights impact assessment (HRIA) different? First, a HRIA clarifies responsibilities of different actors. States must: respect and comply with human rights, protect the enjoyment of human rights, and fulfill human rights. Business for its part must respect human rights, not benefit from human rights violations, and not be complicit in human rights abuses of the state. HRIAs, as opposed to other impact assessments, emphasize standards established by international law and reflected in domestic legislation, thereby measuring the gap between the human rights in principle (as defined in human rights law) and the rights in practice (as experienced on the ground). This makes it possible to identify duty-bearers and rights-holders. A human rights approach, Caroline argued, also asserts that individuals/communities are rights-holders, though often the least influential.


Caroline then explained the robust process Rights and Democracy underwent to develop their HRIA approach, finally selecting and carrying out five case studies: Nortel in Tibet, Autonomous Region of China, Doe Run in Peru, Somika in the DRC, Aquas Argentina (Suez Vivendi) in Argentina, and TVI Pacific in Philippines. Throughout, R&D provided training and accompaniments, tested methodology and published lessons-learned. After undertaking these 5 case studies and publishing the lessons learned, R&D then revised the methodology based on these lessons learned. The tool presented in Kenya was this latest revised version.


Caroline then expressed her view on why to undertake HR impact assessments, explaining that there are different types of HRIA, e.g. ex-ante/ex-post, each with their own limitations and strengths. It is key to determine at the early stages what purpose the HRIA will have in order to orient the whole process. Caroline then described the steps in undertaking HR impact assessments. In order for the proper preparation of the assessment, it is important to go through a six part process, which follows:

1.    Preparation of the Study, which includes preliminary research at the foreign investment project, identifying the main people and groups who are or will be affected by this project, specific human rights that may be affected, thinking about your assessment team, on thinking about how you will conduct your investigation, on developing a budget and a work plan.


2.    Legal Framework, to dig deeper into details about the company or companies behind the investment project and the government's legal obligations to uphold human rights.


3.    Selecting the relevant human rights and adapting the guide to local conditions


4.    Investigation Process, closely examining the record of your government and of the company on human rights, and gathering more information from communities and other affected groups and individuals through interviews


5.    Data Analysis and Preparation of the Report


6.    Engagement, Monitoring and Follow-up

Joji then described her organization Tebtebba's experience developing a HRIA from the ground-up.  They first created a steering committee of the project, with strong grassroots and community involvement. Many different types of violations were documented, with important outcomes. Indigenous people became aware of their rights. The report was submitted to UN Human Rights Committee and the Committee on the Elimination of Racial Discrimination. The report provided information to a parliamentary committee, and in Canada it became a national report used for media campaigns. The company itself was under no pressure to respond, yet they did follow the research keenly, especially once it sparked media attention. The company then started to dispute findings after realizing there were many violations documented. Joji pointed out here that uses of different HRIAs has been very different. The findings from the HRIA which were gathered in Argentina, fed into important other processes, including an amicus curiae sent to the International Center for the Settlement of Investment Disputes (ICSID). In Peru, women used it for capacity-building. It is key then to shape the HRIA as you can get most benefit from it. Some important obstacles to keep in mind is that it is a resource-dependent, intensive methodology, and could be risky (like most human rights work) to some local groups due to possible retribution.

4.    Notable Comments from Discussions

  • Maria Elena Rodriguez, FASE-Another important player in terms of influence over a transnational company's behavior is their local representatives, which should be kept in mind in carrying out local campaigns.
  • Alejandra-In some countries it's hard to actually get to the courts. In Mexico, for example, the judiciary is corrupt, so corporate research may be the only option or methodology available.
  • Larson Bill, Western Shoshone Defense Project, USA-Larson also brought up his experience with attending shareholders meetings, which was effective in drawing attention and influencing the decision-making process. TJ responded that sometimes going to a shareholder meeting is effective, but not necessarily as it sometimes may turn into a "circus," where all real decision-making is just moved to another forum.
  • Tricia-Tricia emphasized here the need to be very clear about what your aim is before carrying out any research or impact assessments, as your objectives need to guide your collection of information and reporting.
  • Caroline-Caroline suggested that their HRIA model was based on two-way research and communication between an international NGO and local partners, with the understanding that the international organization is committed to defending HR defenders on the ground and to provide a support system. An impact assessment can be useful for a campaign and research, but should always keep in mind and avoid the unintended consequence of jeopardizing the safety of local people.
  • Joji-Joji pointed out an important characteristic of this HRIA process with Rights and Democracy-that it involves the community itself. The normal conduct in environmental impact assessments is to carry out expert analysis, which often lacks the perspective of the individual communities affected as experts themselves.
  • Wilder Sanchez, Confederación Campesina de Perú-Many of our struggles involve battles over knowledge, which companies often win, as they are better resourced. The Network's role, according to Wilder, should be to give priority to linking the complementary specializations at the national and international levels in the juridical and political arenas, matching researchers and resources with social movements and other people's fora.
  • Peter Otieno, RECONCILE, Kenya-Peter wondered how an assessment or investigative report like these can be proven legitimate over other competing accounts. Very often, he notes, a report will be produced from civil society on one side, then another contradicting it from a company-related body, making it hard to substantiate one over the other in the eyes of the community.
  • Joji-In response to this point, it is key to place emphasis on a truly participatory impact assessment, so the community is included, the research aims adapts to the community's needs and thus the documentation can be validated by the community.


1.    Introduction/Moderation-Using Accountability Mechanisms as Leverage, Danwood Chirwa, University of Cape Town

Danwood Chirwa first introduced this second part of the accessing justice workshop, explaining that the focus would now turn to the different mechanisms and avenues which have been used to bring cases against companies for alleged human rights abuses. Together, this workshop will provide a comparative analysis of different mechanisms available for interested participants to strengthen their advocacy and litigation efforts to hold companies accountable to human rights. The main question to be answered in these discussions was how can these mechanisms be used to bring companies to account? What are their strengths and weaknesses? Do we need new mechanisms?

2.    Avenues to Seek Redress with the UN and Inter-American Human Rights System, Julie Cavanaugh-Bill, Western Shoshone Defense Project (WSDP), USA

Julie began her presentation with some background on the Western Shoshone peoples' long struggle for their rights, and to uphold their worldview. She emphasized that international mechanisms have not been easy, primarily because issues of environmental and indigenous concern are seen from abroad as not actually taking place in USA. Even when successes are found in these fora, it is quite difficult to implement the decisions on the ground. She then explained in detail a number of pursued avenues for redress.


First, the Western Shoshone brought cases in domestic courts, which has been against incredible odds, given that the current state of federal Indian law in effect legalizes antiquated and racist legal doctrines. Julie illustrated how Western Shoshone grandmothers, Mary and Carrie Dann, then filed a case in 1992 at the Inter American Commission on Human Rights, with a decision in 2002. The successes of this litigation and on the ground action combined with corporate engagement so far has managed to force at least one of the mining companies to vacate the area, the case educated the public with the decision of commission about how if the land is privatised then it would not be able to pursue the matter; lastly exploration for gold around Mt. Tenabo, a spiritual site of the Western Shoshone was delayed 10 years. Yet the domestic courts barred a full review of the issue of land rights of the Western Shoshone.

The Western Shoshone brought their case to Inter-American Commission on Human Rights (IACHR), challenging the US to reform its underlying discriminatory legal doctrines, in violation of the right to property, dues process and equality, and right to effective remedy. The IACHR decision held strongly in favor of Western Shoshone petitioners, although the US responded by denying the jurisdiction of the IACHR, and proceeding with its rights violations.


Other Western Shoshone communities, with the assistance of the WSDP, also filed an urgent action request to the UN Committee on the Elimination of Racial Discrimination (CERD) in 1999 facing immediate privatization of their territory. The request centered on violations of the right to property, equality, judicial and administrative processes, cultural integrity and self-determination. The CERD brought these issues into its periodic review of the US the following year. The US was roundly criticized, stating that the current US law on indigenous peoples was fundamentally incompatible with the CERD. The US refused to respond until the Western Shoshone filed and were granted an urgent action by the CERD in 2006, calling on the US to respect and protect the human rights of the Western Shoshone. The US continues to this day its recalcitrance.


WSDP also took the case to a shareholders' meeting to protest the gold company Newmont's continued abuses of Western Shoshone rights in league with the US government, using the CERD decision implicating corporate operations in the ongoing human rights violations. This led to a shareholder letter addressing Western Shoshone concerns, and Newmont agreed to dialogue, which has since ceased.


Finally, the WSDP brought its case before the CERD when Canada was up for review in 2007, calling on Canada to honor its extraterritorial obligations in respecting indigenous rights in the US against the abuses of a Canadian company, Barrick. Mt. Tenabo, a Western Shoshone spiritual site, was explicitly mentioned in the decision, which was beneficial, and the Commission forced Canada to review the human rights impacts of its mining corporations outside Canada, and not only in developing countries but even in USA.  This set an important lesson on the obligations of states to protect against human rights violations their own companies are involved in abroad. It is a small but important first step in addressing an ongoing challenge to these litigation strategies, this being the issue of jurisdiction, with every if not all home states denying up their extraterritorial obligations to protect human rights.

3.    Corporate Liability Litigation to Hold Corporations Accountable in Europe, Véronique Van Der Plancke, FIDH, Belgium

Véronique began her presentation with the following scenario introducing the issue at stake. A multinational corporation who resides in the territory of a European Union (EU) member, who carries out all or part of its activities in a third state, violates as part of its operations the human rights of its workers or of a third party, such as an member of a surrounding community. The question here is then, under what conditions will "Western" jurisdictions hear the case? What is the applicable law? What are the chances of success?


Focusing primarily on the EU, Véronique went on to discuss the opportunities, limits and risks of such litigation, beginning with civil law, then moving to criminal law. On the civil law side, she began by going into some detail on the issue of identifying the competent court or jurisdiction in such cases, which includes the general conditions for application (residence of the corporation in an EU member-state, though the nationality or location of the victim need not be in the EU), as well as other bases for core and complementary competency. The doctrine of forum non conveniens was then discussed in relation to various cases brought against the British company Cape plc, operating in South Africa. Véronique then spoke on determining applicable law in a case such as this.


A number of procedural and practical obstacles and risks in using civil law to hold EU corporations to account in their home states was then presented. A main challenge throughout revolved around the difficulty of drawing out the accountability of a parent corporation for the acts of a subsidiary in its operations abroad, that is, penetrating the "corporate veil". Other obstacles included the absence of a discovery procedure, the impossibility of bringing an action on behalf of a group of people (class action), the lack of anonymity in the process to protect the identity of the claimant, and the inability to obtain reparative or punitive damages, nor injunctions of the Court requesting changes in company practices. Litigation also often is long and expensive, with the inequality between a plaintiff and a defendant quite striking, as a corporation has far superior financial and logistical means. Given these steep obstacles to bring a case in civil law, Véronique emphasized the necessity of making alliances with other NGOs.


Turning then to criminal law in the EU, Véronique began by highlighting the growing recognition in various examples of the principle of corporate criminal liability in national law. This has not yet occurred however in international courts, though this recognition may be growing, as Mr. L.M. Ocampo of the ICC has pointed out in relation to the financial aspects of crimes committed in the DRC. Véronique then discussed the various jurisdictional bases for criminal cases against companies in the EU, illustrating a few examples which used the active personality principle to argue for jurisdiction of EU courts. She then pointed out possible advantages and possible disadvantages of using criminal law in this context. The possible advantages included the power of investigation of the judge, and the fact that the penalties are more stigmatizing, and thus may be more of a deterrent. The disadvantages included the fact that many violations of economic, social and cultural rights do not constitute criminal offenses, and the fact that the standard of proof is much higher in criminal cases, giving the benefit of the doubt to the defendant.


Véronique concluded by pointing to a 1997 report by the UN Sub-Commission for the Promotion and Protection of Human Rights entitled, "Final report on the question of the impunity of perpetrators of human rights violations (economic, social and cultural rights)" which suggested that ESCR violations could be declared international crimes that are consequently subject to the principles of universal jurisdiction and imprescriptibility, so that they could be punished at any time and in any place. If states were to adopt such laws of universal competence on ESCR, Véronique argued, the possibility of prosecution of MCS would increase.

4.    Corporate Liability Litigation to Hold Corporations Accountable in the United States, Jacqui Zalcberg, EarthRights International, USA

This presentation highlighted avenues to bring a legal case against a company in national courts in the US for human rights abuses, focusing primarily on the Alien Torts Claims Act (ATCA) case EarthRights International has brought. The ATCA process is not easy, and can indeed be very slow, Jacqui pointed out, but where there are few other options, it can be one entry point.

5.    OECD National Contact Points, Tricia Feeney, RAID, UK

Tricia then gave a presentation on the National Contact Points set up by the OECD Guidelines on Multinational Enterprises as another potential if limited mechanism to bring complaints of business-related abuse to the home state of the company. Beginning with an historical background of the social pressure which forced the creation of the Guidelines by the world's richest governments, Tricia explained that the OECD Guidelines were developed in 1976, then reformed, with an environmental chapter added in 1991, and revised text and procedures developed in 2000. A new review of the Guidelines is planned for 2009.


A brief description of the Guidelines was given, explaining their in essence voluntary nature as standards for business conduct. Governments which do adopt them however are required to set up a national contact point (NCP) which are meant to serve an alternative dispute settlement purpose, and to promote and implement the Guidelines. Furthermore, NCPs are required to report to the OECD Investment Committee, which is responsible for clarification of Guidelines. Following are the pros and cons of this mechanism.


  • Wide range of issues
  • Firm government recommendations
  • Government scrutiny of complaints
  • Easy to file complaint
  • Extra-territorial
  • Final statements public


  • Not global, only OECD countries
  • Weak implementation
  • No penalties and no remedies
  • NCPs have no power to coerce or subpoena
  • No follow up
  • Proceedings confidential

Tricia then went on to describe the process for filing a complaint, a relatively easy process. Any interested party can file, and the complaint is filed either with the NCP of adhering country if that is where problem occurs, or if it occurs in non-adhering country, with the NCP in country where company HQ located. The NCP resides in the State Department in the US, and in Ministries of Finance in most of Europe, creating some obvious conflicts of interest. After a complaint is filed, an initial assessment takes place, followed by mediation, and a final determination. If no amicable solution found between the company and the claimants, the NCP can make a public statement, or recommendations about remedial action. However, most NCPs refuse to make a final determination, causing some difficulty for claimants.


Some important cases were then presented, with some positive outcomes. The first case was filed by 5 NGOs (UK and Aus.) against an Australian firm Global Solutions Ltd (filed 06/05, concluded 03/06). They claimed that GSL violated human rights by detaining children and asylum seekers indefinitely. The Australian NCP set timelines for itself and held to them, and proceeded with transparent, equal communication. Practical solutions based on NGO concerns were given-that all children removed from detention center. GSL also agreed to involve community and experts in the future. A second case involving Guantánamo Bay was also described. This case, brought by ForUM against the Norwegian firm Aker Kvaerner (AK) (filed 06/05, concluded 11/05) claimed that AK built a prison that violated human rights. The Norwegian NCP acted in timely manner, stating that AK's activities affected inmates and had no ethical guidelines. AK then quickly halted operations and withdrew from Guantánamo in 12/05. A third case, brought by Global Witness against the UK-based Afrimex (filed 02/07, concluded 08/08), claimed that Afrimex sourced minerals from area of eastern DRC occupied by rebel troops, and that rebels extracted money from suppliers. The UK NCP stated that Afrimex had breached a human rights provision, and must apply due diligence to supply chain. Given these important but limited positive outcomes, Tricia presented some key shortcomings of the OECD NCP process:

  • Unequal and unfair treatment of NGOs
  • NCPs' lack of investigative power and will
  • "Investment nexus" and supply chain issues
  • Parallel legal proceedings
  • Prolonged delays in handling of cases

The Guidelines, it was argued, can offer some breathing space to local and international campaigns, and if used strategically, can be an important engagement tool. However, there are no penalties or real remedies, and governments can only make recommendations. We should keep in mind that the OECD plans a review in 2009, with Prof. Ruggie calling for an overhaul, particularly for more explicit human rights provisions. This mechanism, if standing up to human rights norms, could possibly go some way to in implementing the extraterritorial obligations of home government to protect human rights.

6.    Avenues to Seek Redress within the UN and African Human Rights System, Legborsi Saro Pyagbara, Movement for the Survival of the Ogoni People (MOSOP), Nigeria

Saro began his presentation explaining that MOSOP has enjoyed some failures and other successes from accessing justice within these mechanisms, but the key is to have patience to deal with the UN system. He argued that the use of these mechanisms has three functions for MOSOP: (1) create awareness, (2) influence activities at the community level, and (3) effect remedies to redress wrongs committed. The Ken Saro Wiwa case, for example, has created awareness worldwide on the nefarious role of oil companies in the Niger Delta, thus also bringing environmental rights to the forefront.

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1.    Introduction/Moderation, Radhika Balakrishnan, Marymount Manhattan College

This final part of the Accessing Justice Workshop focused on corporate finance, and how targeting different global institutions that financially back business operations can provide more points of leverage for business and human rights campaigning. Radhika introduced the panelists, wondering how in particular the current financial crisis might give the working group obstacles, but possibly even more opportunities. What do human rights norms contribute to looking at the financial sector, especially violations of ESCR? In order to carry this out, Radhika emphasized the need to increase dialogue and coordination.

2.    Introduction on the Reigning Global Public and Private Financial Infrastructure, Aldo Caliari, Center of Concern, USA

Aldo introduced his session contextualizing the current moment. What we see unfolding currently, according to Aldo, is a financial crisis that, while starting in the US subprime mortgage sector, has reached global proportions. Despite of the belief that some countries might be able to "decouple" from the global financial trends in the North, It is clear now that people in all countries will be affected, including those that did nothing to cause the crisis. So, at the outset, Aldo explained, this financial crisis raises a fundamental issue of justice.


At the root of the financial crisis are general trends towards the liberalization and deregulation of capital flows over the last two and a half to three decades. These trends are crucial issues for our community concerned with economic and social rights, according to Aldo. He went on to explain four ways in which the degree of movement of capital should be a concern to human rights activists.


First, a significant amount of research, even by mainstream economists, shows that with greater mobility of capital, national financial systems become more prone to financial crises, which reap havoc upon the enjoyment of economic and social rights. Retrogression of standards of living, reduction in incomes, or, seen in a different way, increases of poverty, reduced access to services, higher unemployment, and other obstacles to the realization of ESCR are results.


Second, the liberalization of capital flows, especially once deemed irreversible by legal codification in trade, investment or finance agreements, Aldo argued, suppresses the possibility of states to use policy tools to implement expansionary monetary policies. That is, policies that could boost employment are compromised due to the state's loss of autonomy to regulate the exchange rate and the amount of money in circulation.


Third, the liberalization of capital flows, Aldo pointed out, often goes hand in hand with policies which privatize the banking sector. This allows for the penetration of foreign banks in the domestic credit market. Now, while orthodox economists would continue to hold that increased presence of foreign banks can only mean more access to credit, the empirical reality shows otherwise. In country after country, foreign banks have been reluctant to lend to those most in need of credit. In the process, foreign banks compete with local banks, usually resulting in the closure of these local banks. Those with the lowest incomes are even worse off, as the closure of local banks denies them access to even the minimal credit they were used to. Together with liberalization, privatization of the banking sector forces the government usually to forfeit, more or less explicitly, its capacity to utilize policy tools to regulate bank behavior to ensure access to credit for the poor.


Fourth, the liberalization of capital makes taxation of capital more difficult, explained Aldo. Yet, the state still needs to raise revenues somehow. Either the state loses revenue, which puts it in a more difficult situation to fulfill its economic and social rights obligations, or it shifts taxation from the capital-intensive sectors to labor-intensive sectors. In other words, the tax system becomes more regressive, more skewed against the poor, and more likely to redistribute income upwards.


Aldo then went on to focus on hedge funds, on which he wrote an article a year ago.[2] Hedge funds, Aldo explained, are pools of funds that a number of investors put together, which employ a lot of leverage. That is, they engage in bets that surpass, by several times, the actual capital they have on hand. They therefore specialize in pursuing highly-sophisticated, high-risk investment strategies with the purpose of achieving high returns.


Two alarming trends related to hedge funds affect our work directly. First, we see a relaxation of restrictions on who can invest in a hedge fund. Though originally restricted to large investors who could be presumed to be knowledgeable about the strategies the fund pursued, these hedge funds have increasingly been allowed to become replacements to pension systems for the average citizen, which originally had several regulatory restrictions to ensure a certain degree of protection for the average citizen who cannot be presumed to know a lot about financial strategies they might employ. Second, we see a decreasing availability of alternatives for citizens seeking to protect the value of their savings. In some cases, public pension systems have been privatized, so citizens have had no option but to resort to private pension funds. In other cases, public pension systems exist but are so unreliable that citizens are forced to seek a realistic alternative. In yet other cases, private pension or mutual funds themselves, or even the public pension funds, are faced with the inability to maintain the value of funds by pursuing "ordinary" strategies in an environment of high competition. In all, we have seen an increasing trend of making up for these difficulties by resorting to hedge funds.


Aldo argued that the state in effect jeopardizes its social security obligations when it invests in hedge funds and fails to properly regulate them. If citizens have to rely on private pension systems, and the state is unwilling to regulate either the investments made by these agents in hedge funds, or the behavior of the hedge funds which receive these pension savings, then the state is relinquishing its obligations to regulate in the interest of the social security of its citizens.


There are other ways in which hedge funds may impair the achievement of economic and social rights. Aldo offered a few. One revolves around the highly speculative strategies they employ. The market bets which hedge funds make, with little real funds of their own, can trigger enormous consequences in real economies related to the target instruments they are betting with. Some analysts have traced down the important role played by hedge fund speculation in the East Asian crisis. A second avenue by which the activity of hedge funds may have detrimental effects on economic and social rights is through strategies used to achieve ultra high returns. One such strategy is to take controlling positions in companies just in order to force changes in their management and structure. These changes usually involve firing workers, selling off infrastructure and capital for extraordinarily short-term gains. This occurs even at the cost of the long-term health of the company, and the damage to employment and working conditions of workers.

3.    WIKIJustice: Leveraging Human Rights Advocacy in International Development Finance, Daniel Taillant, Center for Human Rights and Environment (CEDHA), Argentina

Daniel reviewed with reference to CEDHA's hands-on experience, a panorama of options, strategies and specific mechanisms available to pursue to ensure that financial institutions and their client businesses are consistent with human rights and other standards. Daniel began his presentation by giving a background on the Botnia and ENCE pulp mill case, which involved the construction of two pulp mills in Uruguay, along the river border with Argentina, with potentially devastating contamination and economic effects.  


Daniel emphasized the key of mapping out the various dimensions, actors and relationships when developing a strategic advocacy plan, and determining their distinct interests. The actors could include the company itself, providers, the suppliers, the subcontractors, the financiers, who all play a part in this investment. He pointed out IFC, MIGA, private banks, and Uruguayan government each as supporters of the project. We normally identify the company, the IFI, and the private banks, but then as you begin to look at all of these actors, you begin to see a lot of different types of relationships. If you start looking at some of the financial actors, for example at some of the financial actors, like the export credit agencies, they have a very weak or no relationship with the community, but a strong relationship with the government. This set of relationships will have a very important impact on how your engagement proceeds. It is important to orient your advocacy on the stronger relationships between actors, where engagement has more chance of success. But in our experience in this case, the extent that we were able to address the weak relationships as well, our advocacy became more successful, more complete and complementary. It's important to think about how to strengthen those weak linkages.


The next key question then was to consider what are different frameworks and norms govern each particular actor. What he found is that what governs a public bank or what governs a private bank are very different sets of norms. As strategic advocates in investment issues, Daniel argued, we often think that we must advocate on firmly-established human rights principles, but in fact, justice in the case may be governed by other issues, not necessarily founded in norms or laws. There is a long list of other issues which might govern this relationship in your advocacy concerning perceived rights which while not necessarily written into law can serve a very powerful instrument in this advocacy, and can be very successfully with social movements in communication strategies.


Daniel then described what he called the "accountability drivers" of Botnia, the Finnish pulp company involved, highlighting the importance of understanding well what the Botnia representatives sensed they were accountable to, for example: their Board, the Export Credit Agency, the IFC, the Finnish Government, related private banks, Finnish media, labor issues and shareholders concerns, and then even less concern with their own CSR commitments, the OECD guidelines complaint, and EU presidency of Finland. These were the spaces the company took interest in, and obviously the company was largely divorced from interest or contact with the community.


Daniel then spoke on the use of the Equator Principles, a set of voluntary social performance guidelines governing project finance of one of the private banks involved, IMG. The problem here, according to Daniel, was that there is no enforcement mechanism legally, no forum, no email address even for issues of concern of non-compliance with the Principles. CEDHA made the complaint anyway, with an assessment of all the interest groups around the bank, the board of directors, email addresses, relationship of bank to institutions. A complaint was sent to all these people, and strong outreach with the media followed. Two months later, IMG withdrew $ 480 million investment. If we had stuck to the codified human rights norms here, we never would have succeeded in this way. Sometimes, Daniel offered, we need to step out of the confines of legal or other comfortable advocacy to get results. He then described some "common errors" in designing human rights advocacy:

  • Overreliance on binding systems
  • Assumption that rules and laws alone drive decisions
  • Assumption that reason and logic prevails
  • Assumption that a court ruling will change things, or that judges influence corporation
  • Underestimate political and economic drivers
  • Presumption that a local conflict is visible outside, e.g. that the decision-makers in World Bank or other places know about local advocacy actions

Lesson learned:

  • Mapping actors, power relations, interest drivers (step beyond the actors we ordinarily interact with)
  • Actors are often far more interrelated than they seem
  • Identify governing regulatory frameworks (may not be legal strictly)/Legal obligations not always the most influential
  • Don't focus on one dimension of rights claims (with a pure focus on the environment, you miss out on e.g. access to info.)
  • State has a schizophrenic role (in both host and home governments) in these processes as both investment promoters and also human rights protectors. Often times a mistake is made thinking that state is thinking on human rights. In our case, the same office which was hearing our complaint, was promoting the investment-an inherent conflict.
  • Accountability is not always a formal or linear process
  • Use peer pressure and identify career paths of actors (our best influence is not always a good court ruling).
  • "CC the boss", competitors and colleagues when you personalize the conflict, copy their competition, need to target at times the personal networks of decision-makers.
  • Don't be led by lawyers confined to systems
  • Be bold in your assertions
  • Reject dominant definitional paradigms of legal interpretation (e.g. that states are the only subject of international law)
  • Policy reform results vs. community objectives
  • Don't fear unchartered territories (outside of what we know), e.g. define for yourself who is responsible, don't accept just what strict legal analysis implies

4.    Export Credit Agencies: Opportunities they Afford for Accessing Justice for Human Rights Abuses, Karyn Keenan, Halifax Initiative, Canada

Karyn began with some background on ECAs, explaining that they are public entities, which give government-backed loans to support domestic exports and foreign investment, and guarantee insurance to their country companies. They are important because they are sources of significant public funding to the private sector. In 2005, for example, ECAs gave about $125 billion in loans, just within the OECD countries alone, to the private sector. China's ECA soon will become the world's largest public financial institution in 2010, with a $40 billion budget. ECAs have increased their business by 30% in last 12 months to respond to liquidity crisis, with a special call for increased co-financing to address crisis. They are also important because they cause significant human rights impacts, including support for investment in arms, in dams, mines, gas and petroleum with serious HR impacts.


These agencies are largely unknown and secretive, but there are a few potential, though quite limited advocacy avenues for redress, which Karyn described. Some ECAs contain non-binding review mechanisms (internal complaint mechanisms within ECAs which assess compliance with ECA's policies), though they are not very many. Generally these mechanisms can receive complaints from project-affected people, and in the Canadian ECA, it can receive also complaints from Canadian citizens, which can supposedly promote dispute resolution.


Karyn then went on to explain how these ECA non-binding review mechanisms operate, and their use. On the EDC, Canada's ECA, some problems include: it is lodged inside their own office and not independent; it is not being utilized and so has little experience with actual cases, the compliance officer can make recommendations in cases of non-compliance, but ECA has no obligation to follow up, and the process is slow, and non-transparent. On the Japanese ECA'S mechanism, the examiners are external, so there is more independence here, but the requirement that must first attempt to dialogue with company. Communities affected so far have not wanted to do this, and so there has never been a case presented. On OPIC, the US ECA, its mechanism is also housed within OPIC, reports to President, but no obligation for OPIC back any recommendations made, it also has just a few cases, there is a lack of resources, etc. These mechanisms in the end may be useful (if not for its results) to bring complaints for its use as material coming out of the process which can then be used for campaigning in other spaces. The key here, according to Karyn, is to keep expectations low here, and take advantage of whatever might result for other areas of advocacy.


Karyn then spoke on some interesting legal mechanisms for redress. One example was pointed to was judicial review, which is a process in which an ECA as part of state apparatus, can be sued if it fails to apply with domestic law, or its own policies-an administrative law procedures different in every country. This avenue is largely untested, except in the US and UK. In UK, civil society has decided that it wants to invest in bringing law suits in the mid and long term to seek clarifications of the law and change the law so that their ECA will be more accountable. They have been very strategic, focusing on strong cases with a very compelling fact scenario. Most cases have resulted in out of court settlements, so while they don't result in precedence, there are other valuable results, like the shame factor, embarrassing the UK gov't, accessed very valuable documentation for use in other things, legal victories have paved the way for other legal cases because they've set precedence on process-related issues, like who has standing to bring a case, etc. and these suits have brought policy reform. A number of related cases in the UK and US were then described in detail.


Another legal avenue could be civil litigation. Karyn explained that this would be very difficult, as ECAs can't sue them in their own country due to sovereign immunity, and there is a defense immunity usually on policy decisions. Beyond these avenues, regional courts, UN committees, other human rights bodies could be, but have not yet been tested.


There is also more concrete advocacy work to be done on ECAs, Karyn suggested. SRSG on Business and Human Rights John Ruggie has a renewed interest on some sort of international common standards on ECAs. Domestic policy reform with statute reform, and civil society review could potentially input here nicely. Also in the US, a re-authorization process of OPIC is ongoing, an amazing opportunity in which projects has to reapply every 3 years thus gives civil society opportunities to intervene relatively often. Issue and sector reviews also possible, in the extractive sector for example. Finally, ECAs themselves might be advocated in, at times.

5.    Notable comments following presentations

  • Kenya participant for Aldo: The financial crisis calls us to rethink role of the state, the market plays a game with the state, the market using the state for its purposes, to discipline the market, creating a conflict between economic law and human rights law. There is an opportunity here possibly. Don't you think human rights advocates should support the idea of a developmental state/ "human rights state" to deal with market fundamentalism?
    • Response from Aldo, CoC-It is a double-edged sword with regard to state and market interventions, especially considering the dual (and sometimes conflicting) role of state as the negative and positive duty-holder. The developmental state model is something I like, but at the same time in reality, and especially amongst groups who are more human rights oriented, it's important to point out that when calling for a strong state, we don't cede authority over as a blank check. A lot of people in this room might be in favor of using the IFIs to sometimes impose "positive conditionalities," which is a debate that has gone on for years. A new discourse has emerged now on mutual obligations. In the context of aid effectiveness, for example, donors say human rights policies necessary for aid granted, reviewing practices accordingly. Should these donor states have the power to impose conditions on human rights, which can have sometimes a role of legitimizing them in more nefarious areas these states might play, especially economic? We want the state to be freer to take a more re-distributive approach. This is not an easy dilemma.
  • Miloon Kothari, HRLN for Daniel-In your presentation, you expressed strong skepticism that it is the state who is ultimately responsible for human rights obligations, and that we shouldn't worry much about that. From one case can you make a generalization like this? The one handle we have as HR advocates is that the state is ultimately responsible, whether for controlling companies to general HR implementation. What was the reasoning?
  • Dora Lucy Arias, CAJAR, Colombia-With respect to state obligations, what options would exist in the International Criminal Court to hold state and company executives to account for human rights violations?
    • Daniel, CEDHA-In our case, the community managed accessing a lot of channels which had been untested in terms of advocacy. These spaces tend to respond more to the formalities of process and complaints in their terms, which forced us to strategically enter into their world to disturb their world. Human rights advocacy in our case empowered the community to speak about rights, bringing in the social license to operate language. On responsibility of the state, my point is not to ignore holding the state accountable, but let's not use the interpretation of the state's duty to protect human rights as a reason for not pursuing other actors. On the ICC, my understanding looking at specific HR violations, like crimes against humanity, etc., in this case not a proper forum. But, the case is now at the International Court of Justice, which is being used to resolve a bilateral dispute, takes 5 years or so, is very conservative in its readings, and will unlikely favor the community in its result.


1.    World Bank Inspection Panel and Other International Human Rights Mechanisms, Bret Thiele, COHRE, USA

If creatively utilized, the World Bank Inspection Panel can be used to remedy human rights violations, and to integrate human rights norms into World Bank policies. The project COHRE is working on in Accra, Ghana, began in early 1990s when UNDP drew up a plan for a landfill.  It identified residential areas and said the landfill had to be far away from it.  Nothing happened, and in the meantime residential areas were built up around the site. When the project was finally financed, it resulted in forced evictions of a community of 2000 families.  We appealed to the Panel and at admissibility stage, the Panel said the Bank couldn't proceed without a proper resettlement plan.  We ended up with an injunction on forced evictions.  They also said resettlement plan had to be drawn up with the full and meaningful participation of community itself, which wasn't happening.  


The other case to discuss is the Chixoy Dam in Guatemala, which was constructed in 1980s.  The Rio Negro community, of 800 persons, was displaced to make way for the dam. The government entered into negotiations with the community and offered inadequate land for relocation [urban slum], which the community didn't accept.  The government went in and killed many through a series of evictions to forcibly relocated the community.  The dam was an Inter-American Bank (IAB) and World Bank initiative.  World Bank and IAB provided funds before and after massacres.  One massacres occurred with security guards using uniforms and construction truck from site.


When COHRE brought the case to the WB Inspection Panel to hold the Bank directly accountable for the violations, they really wanted to push the jurisprudence so that regional bodies could hold IGOs accountable for human rights violations.  Also, the case was so egregious, and it dealt with negative obligations, making it a good test case.  So we made an argument that states cannot get together in an IGO and use that organization as an agent to carry out human rights violations.  Fortunately, the International Law Commission at the same time came up with provisional Guidelines for State Obligations Regarding IGOs.  Essentially, when states act collectively they maintain the same obligations as when they are acting singly.  An alternative argument was that at least with respect to the Bank, as an Agency of the UN, the Bank must abide by the UN Charter and purposes of Charter as found in Art. 55 and Art. 33.

Lessons learned from using the Panel

  • We filed our case and it moved quickly (four months for admissibility decision) - it is quicker than regional and international treaty bodies.
  • Engagement with the Inspection Panel should be used with a very good strategy where the advocates point at complicity of government in violations caused by the Bank, so the government can't use the bad reputation of the Bank against the community itself.
  • Shortfalls of using the Panel include: a weak remedy and potential of backlash.
  • Benefits to using the Panel are:
    • Remedies can be implemented; you can use the Bank's clout against the government, for example, when the Bank says no forced evictions, the Government has to comply because of power relations vis-a-vis the Bank.
    • It is a very fast mechanism and good when time is of the essence.
    • Possible to expand the jurisprudence. Even though the Panel is only mandated to adhere only to its own policies/procedures, people are making human rights arguments to educate the Panel about the State's human rights obligations that must be taken into consideration in any analysis.

2.    Civil Society Intervention before ICSID:  The Case of Suez v Argentina, Carolina Fairstein, CELS, Argentina

In 2001, Argentina experienced a social and economic crisis, which among other things, led to the government devaluation of the currency, then pegged to the US dollar, in which the value dropped by 4 times what it was from one day to the next. This came in the context of decades of the neoliberal economic model, which effect was to privatize almost all state enterprises. In this context of an increase in poverty that had never before been seen, where real wages had devalued by an average of 4 times, 5 million individuals dropped below the poverty line. The private companies were upset because they were not permitted to raise the prices of public services, as one of the first measures taken by the government was to freeze the rates. Many companies complained and brought the Argentine state to the ICSID Tribunal because Argentina, along with a majority of countries, had signed bilateral investment treaties, which have investment protection clauses that protect against expropriation and discrimination against foreign corporations. 


Human rights advocates were almost obliged to oppose the increase in rates for public services, especially on water and sanitation as an essential service. These companies were pressuring the state in this international tribunal and were able to do so because the mechanism is not transparent.  There had already been a lot of literature written on how these tribunals were being used by foreign companies to pressure the state to reform, thus obtaining certain favorable conditions.  At the same time, the government, as a result of this crisis, entered into a number of contract renegotiations with companies at the local level. These renegotiations analyzed the structure of the contracts, and sought to eventually resolve the conflict mutually. This renegotiation process included a consultation and participation mechanism with the users. However, as the companies renegotiated at the local level, they also pressured the state through the international tribunal proceedings, which no one was able to monitor or participate in. Human rights advocates worried that if the Argentine government lost this case in ICSID, future regulation of the public services sector would be impacted, as there are now many private firms investing in this sector.


CELS decide to intervene in the ICSID process, which until then was almost completely closed and secretive. There had been one previous similar case regarding Bolivia in the arbitral process, and ICSID held that they could not accept a third party. Yet, they felt that Argentine civil society needed to be part of this process. In this context, they decided to present an amicus curiae, which other tribunals had accepted. They faced some strong reactions to this from Argentine public, who had been radicalized and argued that actions like this would legitimize the process, that CELS were friends of the Tribunal, etc.


Carolina argued that CELS went into the process with strong reasoning and argumentation about the fact and that this was not an ordinary trade or commercial case, but the public's interest and human rights were intimately at stake, and they had a lot to offer to the Tribunal and should be heard. She also noted that CELS had the need to position themselves differently than the state in the case. They criticized the structure and workings of ICSID, and also that it is part of the World Bank, and in their case another agency of the WB was one of the principal investors in the company, which brought the case to ICSID.


In May 2002, ICSID accepted that there was nothing in their bylaws which would prohibit them for accepting presentations by third parties as amicus curiae. This was an important precedent in this forum. ICSID also accepted CELS arguments that: the case could impact future regulatory efforts; that it was different because the public interest was concerned; and that the judgment could affect how the water and sanitation distribution system works, thus affecting people directly.  CELS made a second presentation, explaining the need to integrate the interpretation of human rights law within the interpretation of secondary contract law afforded by the BITs.  The case is still under consideration by the Tribunal.

3.    Joining State and Civil Society Efforts Before the WTO - The Tires Case, Marcela Vieira, Conectas Direitos Humanos, Brazil

In 2007, the WTO took measures to restrict import of waste tires, on theory that accumulation of waste tires poses a public health risk and environmental health problem. Although generally retreading tires to extend their useful life is one way of addressing the waste tire problem, retreading tires leads to a problem for countries importing them because the waste tires have a shorter life and cannot be retreaded again. Despite all the environmental and health problems related to waste tires, in January 2006, the EU challenged Brazil's policy regarding the restrictions on retreaded tires. The EU had previously passed legislation prohibiting storage and disposal of used tires in landfills after July 2006. Because of this legislation, over 80,000 tires previously placed in Euro landfills each year would have to be put elsewhere. By exporting treaded tires to developing countries, it became clear the EU considered exportation a viable alternative to retreading tires within its own borders, and that EU intended to burden others with the harmful effects of its waste. 


Brazil's response was a good example of how states and civil society can join to defend a state's interests.  Since the case was related to human rights, the government reached out to human rights NGOs to get their support. The Brazilian government made all written submissions in the dispute publicly available in Portuguese and English (which is unusual with regard to WTO papers). In general, WTO dispute papers are secret and not transparent, especially in developing countries. Also, for the first time the government held meetings with civil society organizations (CSOs).  By contrast, the EU which usually makes submissions public did not publish its submissions. Conectas and six other organizations submitted amicus to the WTO Inspection Panel regarding public health issues.  This was the first time Brazilian organizations filed amicus in front of the WTO. The NGOs participation helped spur media coverage of case from environmental and public health perspectives in support of the government's position. 


The WTO Panel and Appellate Body made a number of findings in support of the Brazilian government's rights to limit the importation of the tires. Specifically, the WTO found that the ban on retreaded tires would pass WTO examination, if implemented on a non-discriminatory basis. Panel also recognized that Brazil had the right to take into account other obligations and considerations in its trade negotiations. Therefore, government collaboration with CSOs represented a change in practice for what is traditionally considered one of the most closed of Brazilian government ministries. This decision helped open up Brazilian trade policy and as a result NGOs have greater access to government policy making.

4.    Challenging EPAs in the National Courts, Louiza Karibu, Kenya Human Rights Commission, Kenya

Economic Partnership Agreements (EPA) are a new or envisioned trade agreement between African, Caribbean and Pacific states and the EU. Kenya is currently negotiating an EPA under the auspices of the East Africa Community. The thrust of the EPA is to liberalize all sectors of economy, in line with WTO rules on reciprocity and non-discrimination.  The main aims are to promote sustainable development and to reduce poverty by sustained economic growth. CSOs in Kenya and Africa at large are working to stop these agreements. 

Concerns with EPA's are:

  • People mandated to negotiate the treaty on Kenya's behalf are paid by EU;
  • Agreement will violate the right to work. What has been noted by a report commissioned by Ministry of Trade is that Kenyan organizations are vulnerable to unfair trade competition by the EU;
  • EPA also will violate right to food. Local products will experience decreased production. Example: maize product price is increasing; it will become worse if we implement the agreement, with the current EU agricultural subsidies (for example, EU spends 16 billion Euros on dairy subsidies alone);
  • Increased dependence on food imports;
  • We will also experience dumping on our markets of cheap imports;
  • Revenue losses from decreased tariff revenues. We will use our traditional markets in COMESA region - 16.1 billion of Kenyan exports will be under threat;
  • Loss of livelihood, especially in the agriculture and dairy sectors.

The Kenya Human Rights Commission in connection with Kenyan Small Scale Farmers Forum filed case in High Court under section 84(1) of the Constitution.  We intend to attack the EPA on two fronts: 1) that EPA violates sections of constitution 70(a) - 71, 73, 75 (covering the right to life, slavery, dignity, property), and 2) that there was no effective civil society participation. With these cases, we want to compel the government to conduct a human rights impact assessment, or to acknowledge that the EPA will violate fundamental rights.  We are also urging government to give CSOs an opportunity to effectively participate in negotiations.  We are also seeking an order from the Kenyan Human Rights Commission (governmental body) to make available to the participants information about the agreement.  Finally, in order for Kenyans to be able to effectively participate, we are asking that the government give Parliament a role to participate in negotiations. 

5.    Challenging TRIPS in the National Courts, Colin Gonsalves, Human Rights Law  Network, India

The cases Colin highlighted were all based on Art. 21 (right to life) and Art. 14 (equality clause) of the Indian Constitution.  He noted there is nothing special about these clauses - they are present in all constitutions across Africa and Asia, but that it is through this legal constitutional structure that judges put meat on bones.  It could be a good strategy to use with activist judges willing to go out on the line. He then summarized some successful cases using this approach, two of which are highlighted below.


(1) Right to food case:  One of largest class actions in world impacting 350 million people, and forcing government of India to spend millions of dollars, and sending government into economic turmoil.  You can see the right to food orders on  One of the victims of the order was GAIN (conglomeration of EU and US micro-nutrient companies).  HLRN was covert in getting an order against them without making them a party by getting an order against them from the Supreme Court requiring locally hot cooked meals in schools.  The GAIN consortium didn't notice the order, then they noticed that you couldn't have a micro-nutrient enriched biscuit or lollypop hot cooked.  Then there was a series of seven applications to set aside the order, but the court declined. 


(2) Drug Case (drug prices).  In 2006, government proposed to deregulate the pricing of drugs and mysteriously, an order of government came out to deregulate the prices of drugs, even those on the list of essential medicines. We did a bottom up approach - a HR grassroots approach - to hedge against the inevitable arguments that the policy violates WTO.  We calculated how much medicine costs (what percent of income) compared with how much people earn, and demonstrated the impossibility of citizens to pay for drugs without price controls.  The opposing argument was made that market forces will correct to reduce prices (WTOs argument).  The CSOs came up with a study to show that with pharmaceutical companies, the market correction argument is a myth, because the highest selling drug is the highest priced. The case is pending, but they have an interim order for the moment (status quo maintained, i.e. no deregulation from 2006 to the present). The government had to explain how poor people could afford the drugs. Case was a sort of a success.


6.    Graniti v. South Africa: A Multi-Pronged Strategy, Steve Kahanovitz, Legal Resources Center, South Africa


European-based investors in the South African mining industry have mounted international arbitration against the government alleging that the "black economic empowerment" (BEE) policy of the ANC government has violated mining contracts, leading to investors suffering damages and being denied equitable treatment. Shareholders of company are diverse (Italy) and other European States.  The investors claim that they first invested in 1993, and now because of the change in regime after apartheid, are subject to new laws.  They claim a change in regime constitutes a species of expropriation and violates just and the equal treatment provision.  This was because there was a provision in the mining charter that 15% of holdings must be sold to historically disadvantaged South Africans within five years of charter, and 26% in 10 years. 


South African civil society response has been muted, in part because so few people know details.  If the corporation wins, it means that corporations can circumvent laws with trade agreements, cost the government millions and set precedent.   South African lawyers are currently discussing possibilities and here is a list options that may be available. International organizations would also be welcome to submit amicus briefs.


(1) Amicus type application to go before arbitration panel. One problem of taking advantage of intervention is that NGOs have no access to documents. Looking at other arbitration decisions (which are not binding) is helpful on question of access to information. In one Tanzanian case, the arbitral tribunal allowed an NGO intervener to put in a 50 page written submission, with right of reply of both parties.  Then parties could consult together, in absence of intervening party, and agree whether or not to engage in the amicus. Here, they responded they would engage with the amicus petition at end of oral submissions in absence of intervener.  In the same matter, on the issue of documents, the amicus was not granted access on the following reasoning: (a) the dispute involved information in the public domain; (b) the arbitral tribunal read the rules to mean that if there was objection by one party, then no access would be allowed.


(2) Application made in domestic courts.  This would be unusual because it would involve intervening in an international treaty dispute in national court.  There is argument for standing that is wide enough to lodge dispute in court, depending on nature of action.  It has been suggested that there are grounds to challenge the arbitral regime in South Africa.  Specifically, in entering BIAs, government has done things in treaty that government is not entitled to do under international law. 

Non-Legal Options that Might be Available:

  • Civil society education process;
  • Second intervention is political mobilization (trade unions);
  • International solidarity (two other governments involved, including the Italian and Belgian/Luxembourg parties to BITs).
  • There is question about extent to which there can be cooperation between CSOs and government, like example from Brazil.

7.    Notable Comments Following Presentations

  • Legborsi Saro Pyagbara, MOSOP, Nigeria, asked Bret Thiele to clarify the World Bank Inspection Panel guidelines of procedure. Also with regard to the World Bank operational policy on indigenous peoples, can this be used as a tool in the Inspection Panel?
    • Bret's Response: The International Law Commission is drafting and provisionally adopting articles now on the responsibility of International Governmental Organizations (IGO). One of these define that states have international responsibilities for an internationally wrongful act of an IGO. Article 3 also defines an internationally wrongful act as an act which occurs when consisting of an action or omission is either attributable to the IGO under international law, or constitutes a breach of an international obligation. These essentially support our argument that states obligations remain within IGOs. In our case, we didn't rely on the indigenous operational policy, as we weren't dealing with an indigenous community, but we did rely on operational directive 4.30 on involuntary resettlement (and a bit on environmental issues), which includes consultation and compensation. The Inspection Panel has visited the community 3 times now to understand the issues. A good lesson on documentation is that this community has preserved every document and letter for the Bank's use, providing evidence of the threats of forced resettlement.
  • Unidentified Speaker with a question for Louiza Kabiru: Regarding negotiations of the community and the government, who makes the decision on relocation? Also, what is the Kenya Human Rights Commission doing to bring awareness on these important issues, so that they can learn and then support them in court?
    • Louiza's response: What can international organizations do? A coalition exists of Trocaire, Oxfam, Acord and others, which has been lobbying national and EU MPs to build awareness about this campaign. Local organizations are creating awareness through the Kenya trade network, and have been working closely with the Kenya Small Farmers Forum. ActionAid also works with small scale farmers. Beacon with religious leaders, this way we have been able to divide our work, each groups targeting and mobilizing different constituencies. But honestly, trade is a boring issue. When you invite people to a public forum on trade, very few people come, even at the height of the food crisis. It's been hard to sell the importance of the EPA case. We have been using media strategy, using advertisements in the newspaper, using images and programs on TV and radio.
  • Darci Frigo, Terra de Direitos, Brazil: It seems that common strategies of TNCs exist, as seen at least in Kenya, S. Africa and Brazil. Seeing these commonalities, how can ESCR-Net articulate itself and act to counteract them in the global arena, not only in particular national cases, but more broadly. Monsanto for example is in 80 countries, and affects food sovereignty and security in each of these places. If each of the countries continues just complaining, there will be no change. I don't want to disparage these legal mechanisms at all, they are very important, but how can we relate them to social movements, and an ESCR-Net campaign, for example. The problem of food sovereignty, climate change, TNC's activities all stand out as a frame within which we can think of local actions in relationship to, articulated in, a more amplified action. What do you all think of this in our actions as a Network?
    • Steve: On relocations, there have been striking legal developments. The S. African government has shifted drastically in the last 5 years for example. These shifts can be used much more creatively. Also, on Monsanto, we should be reminded of the importance of rigor in our work. In an amicus in S. Africa about Monsanto, which undoubtedly added value to the case, this led to a cost order on the filing party, which is very threatening. Also, more linkages with social movements and trade unions is also very important, for practical and other reasons.
    • Carin Smaller, IATP, Geneva: How to build larger strategies with movements behind the litigation is probably one of the key challenges we face in our future strategies. IATP's work in this context is primarily preventative, to stop agreements from being signed in the first place, whether Bilateral Investment Treaties (BITs), or multilateral/regional trade agreements. We need to figure out how to link the two struggles (preventative pre-treaty and restorative post-treaty). Trying to get governments to resist these agreements, we could really benefit from learning about your cases and strengthen the resistance arguments. With better linkages, we could better mobilize the movements and unions to support the litigation efforts. What Louiza is doing with the KHRC is probably the closest thing to that mix, linked to a massive stop EPA campaign, which has other Euro and African CSOs involved to resist these agreements, and then at the same time trying to bring cases to the court. We should really think in the next sessions how to make these linkages. I would love to see more work between the Adjudication, Trade and Corporate Accountability Working Groups.
    • Colin Gonsalves, HRLN, India: There is a view which equates internationalism with the UN system, and international legal strategies with the UN system and human rights regime, etc., While not undermining the importance of these institutions, I would say that in the developing world, there is a second and third strategy possible, which is equally, if not more important. The first thing is to look at and document the best practices of African courts and legal systems. From these, plan and strategize legal actions globally, but act in the local courts. I would say this is the most important contribution we could make as a Network, to actually work locally, strengthen capacities, enrich lawyers with similar experiences from all over the place. If we do another Monsanto case, we should coordinate and discuss well what the defense of Monsanto is to strengthen our arguments. Enriching capacities and strengths in local courts in my view eclipses by far in importance work in the UN. We want to use here an insurgent use of the law, using it in a very crafty way to get what we want for the working people. I think you can work out a legal strategy that is truly international. The other thing, there is a real possibility of prosecuting European companies in Europe. This strategy is not easily or well understood but there seems to be an enormous hope in this.
  • Daniel Taillant, CEDHA, Argentina: On the ICSID case, the arbitration panel will not consider international law and human rights obligations (unless the parties agree to do so), but rather look to the particular contract law of the company and the state. One interesting thing being debated now (and an interesting space to pressure) is that the UN, through its Special Representative John Ruggie, is considering the possibility of inserting social clauses into BITs, and this would give grounds upon which countries could defend themselves. On the World Bank Inspection Panel, in our case filed at the International Finance Corporation's Ombudsman (CAO), a sister compliance panel at the World Bank, one interesting thing we were able to do was in a parallel complaint to the Inter-American Commission on Human Rights (IACHR), we were able to get the CAO ombudsman to sit with the Commission Secretary at a Starbucks to have coffee together. This resulted in a formal submission of the audit which was against the investment, to the IACHR. This link of a non-binding, weak remedy panel with an obligations-based and binding forum with strong remedies is an interesting way to explore the future of accountability. Since that happened, we know that the IACHR has already made contact with the Inter-American Development Bank to gather information about cases which have engendered complaints within the Commission process. We should explore how to use this linkage between these types of bodies.
  • César Rodriguez, DeJusticia, Colombia had a question for Carolina Fairstein: We are fighting in Peru for social clauses in investment treaties, and we have mentioned the CELS case in Argentina and the threats to national protection of ICSID, should social clauses not be added. How influenced is the ICSID process by human rights arguments?
    • Carolina's response: This tribunal is not influenced so much by human rights arguments, though individual members of the tribunal may have been. We were more influential, however, in pointing out the strong conflict of interest within the World Bank because of the consequences of their policy of privatization and as stockholders in the company which was making the claim.


1.    Open Discussion, moderated by Tricia Feeney, RAID, UK

  • Tricia-There seems to be agreement on the priority to support local level campaigns.
  • Peter, RECONCILE-It is important to amplify the voices of those working on the ground in local campaigns.
  • Alejandra-Our organization gives support and advice to local indigenous and farmer communities facing extractive industry abuses, media advocacy, strategic litigation, etc. But sometimes we are in a very dedicated, urgent point in the case (e.g. if someone's life is at threat or security of the community is in danger, we need international support. For example, a simple letter from the group saying they're concerned about the case, and the community's security. This display of solidarity is important for her country, even if only symbolic.
  • Daniel-We've been working with letters for a long time, but we can do a lot more than letters. In Thailand, we talked about fomenting local human rights advocacy, possibly by creating observatories. At that time, an observatory was created in Argentina. Five years later, this observatory is FOCO, who has come to this meeting, and been incorporated into ESCR-Net. CEDHA has since then gained a lot of experience to filing cases in the OECD system, so recently, CEDHA helped FOCO file a case in OCED. We did this. However, we have wanted to litigate our own cases in other countries, but we have not found support. It was very difficult to find, for example, a lawyer in Finland to help us ring a case there for operations of a Finnish bank in Argentina. Today we are a discussing with our friend from the Netherlands about the possibility of litigating a case against Shell there. This way, we are linking a local organization, filing local complaints, with a legal team in the Netherlands. This is the logic, and the nexus of communication that we need to build. Keeping each group within their sphere of influence and respecting who they are and where they work, but finding the leverage points and the capacity of each group to support a case. If we have a lawyer in the Netherlands with the capacity and interest to file a case, and a local group wanting to take their case extraterritorially, but we're not collaborating, then we are failing.
  • Alejandra-I haven't been in the Network for very long, but for ProDESC and for our work, and for the communities, a little solidarity and support is very important. We can't build a Network which only provides support for the high-level claims at the OECD and other international mechanisms. This is very important, but it also must provide support on the ground.
  • Caroline Brodeur-We have developed this HRIA tool, and we are hoping we can be of some help. Groups are welcome to use the tool, if you have any questions, comments, or concerns, feel free to write us. There is an address in the booklet itself.
  • Tricia-It would be important to bring together the already-existing tools, so that community groups would know where to find them.
  • TJ Faircloth-There's talk of international mechanisms, but in in our mind they are fairly weak and slow. It seems that there is a lot of opportunity to coordinate and run a campaign. It's clear as well that we could develop all kinds of tools, especially with the great expertise in the room, and beyond just research, but more looking at action kits that could be applied to any situation in any part of the world.
  • Sam,WITNESS-WITNESS does less active in corporate campaigning, but we do a lot of video advocacy training. One of our focuses in the next year or two years is around business enterprises, where we want to develop best case studies or scenarios and teaching materials, and providing opportunities for activists to come together to learn about using videos in their campaigns. Next year, we will be running a 2 week intensive program around corporate accountability in Latin America, and this will probably spin off a number of training tools which will be highly relevant to other regions.
  • Joji Carino-Training was a key issue brought into discussions amongst the social movements here, especially in video advocacy. Although it's good that we have this working group, we also need to find a way to communicate with members on how they can link up and collaborate with us. Network members are doing a lot, but don't really know how other network members can link in to support each other. So, there is another layer needed of mapping the resources of our Network, so that we can really call on each other to collaborate.
  • Tricia-So, possibly we suggest that we create a thematic list of skills and advice available amongst network members, that wouldn't be too difficult to compile.
  • Michael, ECCHR-Consider collaborating with us if you are dealing with a multinational in Europe. We'll be able to assist on which strategy to take given EU law and custom. Anything is possible, we won't be taking the case away from you. Call FIDH as well.
  • Abu Brima-A plan of work of this group must be demand-driven. Unless national or local groups really do want assistance, we can't work. If we can agree on strategy to agree to support, this is one step forward. The next step is for people to come forward and request assistance within each WG. We could exchange information about companies as a next step, then work together in small steps.

2.    New Areas or Challenges Untackled So Far

  • Peter, RECONCILE-We could can agree on mapping out of our strengths and weaknesses as institutions, then we could create national (or regional) focal points, who can feed into the efforts on the ground. Most important is to identify which are the strong points of each institution, then we can decide on what we expect to see.
  • Daniel-One of the key areas is technology. The velocity of communication presents opportunities which the WG is not even thinking about. Great to incorporate the video proposal, and there are a lot more we could use.
  • Charlene, Poverty Initiative-I'm struck by how few US social organisations are here, yet there are many there who could help in solidarity, particularly now with the financial meltdown. How can we link up with US groups to put pressure on companies in the US in solidarity? How do we target those organisations for outreach, maye after doing an inventory of some of the work that's already going on?
  • Julie Cavanaugh-Bill-Accountability of home countries is important. An inventory of the organizations which work in corporate accountability in those countries where these companies are based would be helpful, then identify how much pressure they could place to target the home countries, and pressure them to create regulatory regimes which include HR violations extraterritorially.
  • Charlene-Importance to build alliances. Church or religious bodies can be also very supportive, and can work in solidarity with us, if we are creative.


1.    Introduction on Progress of Current Projects, Niko Lusiani, ESCR-Net Secretariat

Niko began this strategy sessions by explaining that working groups come as result of agenda-setting of members, thus their development depends on the member's efforts like these today.Three main areas of work have been brought up so far (with examples given for each): (1) Bringing the perspective of those directly affected into international-level debates, (2) Increasing the knowledge and resource base of members, seeing that capacity-building and mutual-learning is key. This area also includes documentation and the creation of new tools to exchange strategies, including the Business and Human Rights Documentation Project ( currently being developed with the Center for Human Rights and Global Justice at New York University School of Law, itself a good model of collaborative and sustainable action (3) the campaign on advocacy for international BHR standards and the UN/Ruggie process was also discussed.

2.    Building a Strategy for Implementation, discussion moderated by Tricia Feeney, Joji Carino and Niko Lusiani

Participants during this session began to list out priority activities for the future 3-year period.

  • Niko Lusiani-Solidarity actions are a key function of support of the Network and by the network as a whole, and this function can be particularly used by members of the CAWG.
    Charlene-Charlene was very supportive of more cross-sectoral initiatives between the adjudication, trade and corporate accountability groups.
  • Joji Carino-Joji then made a few points on our challenges. Aldo pinpointed a core challenge, which was of course we have the international human rights framework, but many parallel agreements that don't take into account human rights. These include negotiations on trade, or the WIPO on intellectual property rules. Another is the debates over the Convention on Biological Diversity and genetic resources and traditional knowledge, with important consequences on pharmaceutical products, and medical corporations. The other forum to highlight is the climate negations ongoing to replace the Kyoto protocol. Until the end of next years, the UN IPCC will negotiate climate decisions which will clearly impact human rights, for example bio-fuels, large damns, continuing to use of extractives, renewables. Another discussion is going forward on sustainable development every 2 years which develops policy and national action. In next 2 years, they will be looking at the mining sector for sustainability, as this is the preferred location for the mining sector to develop its policy worldwide. The UN HR regime is key, but the actual implementation of ESCR will be happening in these arenas. Each of these negotiations are now resolving into national policies, so this will also really take us to engage our governments at the national level. We need to urgently bring human rights to these arena, as business is very central pushing the agenda already. A map of international agreements happening within a short span of time (next 2 years) which will affect to business and human rights would be quite helpful.
  • Tricia-We could also helpfully produce a guide on the BHR debate, its progress (or not), what the positions of the Network is and has been, 4 or 5 pages disseminated, as a helpful tool in different negotiations as we each cannot be everywhere.
  • Julie-It would also be helpful in this to identify allies in different areas, to get them this material to incorporate into their reports.
  • Leandro-Challenging CSR mechanisms, which are being argued by business as the replacement to obligatory standards, should be a priority of the CAWG. In addition, the protection of human rights defenders also needs to be a priority, without which no meaningful work can be carried out on the ground. Lastly, a concrete possibility in Brazil is to demand that the costs for ESCR violations be incorporated in the operations of the businesses.
  • Charlene-Private banks and the financial and economic collapse is both challenge and opportunity. Especially in the US context, there will be hundreds of billions of dollars of infusion, but what are the human rights obligations involved?
  • Tricia-On key challenged and opportunities, we need a group linking up with the trade group, urgently. Also, Leandro's point on ESCR defenders is essential and appreciated.
  • Princewell-Transparency and freedom of information are both key concerns, a right to information education and advocacy is needed.
  • Murielle-First, we should recognize the importance of the role of state, not only companies. One of our strategies in Angola is to work with these local governments to protect the local people. Second, right to information and participation is also key. Lastly, the role of national companies is also important, large impact and more difficult to engage or pressure. Helpful to exchange information, strategies and experiences on state companies.
  • Tricia-We also haven't talked about southern TNCs as well, we have to be quite nuanced, and capture this intelligently in our messaging.
  • Wilder-3 challenges to point out here. We saw the need to deepen research on the corporate world, so we should have an inventory of multinationals, their history, where they are, and how they operate. This would help us to develop have policies and create action policies. Second, it is important to establish and develop relationships with environmentalists. ESCR-Net can contribute in the juridical component here. Lastly, in many countries, the national constitution encouraging and tolerating these industries. A local government may want to support local people but the legal framework doesn't support it. The conflict between national investment laws and local governments' will and obligation to protect HR and legal discrepancies. How to assist local authorities in confronting national policy?
  • Tricia-Links here with Murielle's point earlier, also related to Princewill's point on investment treaties. There will be spaces for input into Ruggie's work on this, and also cross-cutting with trade and finance group. Inventory on companies would be hugely challenging, but maybe with research skills of TJ, through the Sec, we could get information back on individual companies, tying into the B-HRD project somehow.
  • Julie-There are a few points of entry we should push into. WSDP made a recommendation for example at the 2008 Permanent Forum on Indigenous Issues for the SRSG to work with the SR on indigenous peoples to create a joint report/investigative review on patterns of human rights. The CAWG could support this recommendation. Also, the UPR of the US is coming up in 2010, which could be a key place to push for extraterritorioal obligations and control of TNCs. We should contribute a written submission to this on the impact of US TNCs at home and abroad.
  • Tricia-We should definitely look at the synergies here with other groups, including adjudication and Geneva-based groups who are monitoring closely the UPR process (and we can feed into their ongoing processes in Geneva), as well as involve the extraterritorial obligations group.
  • Jacqui, ERI-I notice here that there are many complimentary groups working on similar issues, but we don't know each other until now. There are huge benefits of collaborating more.
  • Murielle-We also need to look at preventative work more before abuses occur. We should look more at how to mainstream HR standards into investment contracts before the operations.
  • Peter Otieno-Strategic resource mobilization is key and will be challenging, as pro bono work alone will not be so effective.
  • Maria Elena, FASE-We need an institutional inventory of what each member of the CAWG does. Also, it is important that we have a common identity as a group, built around a number of common activities which unify us. So that when we are speaking then, we are speaking of something in common. Perhaps a campaign could accomplish this goal.
  • Leandro, MAB: Two more points. 1-Where there is absence of international standards, local standards prevail. Today, we lack an inventory of local laws and standards of different countries. With this, we could use comparative law in our advocacy in arguing for companies to respect HR standards, this way comparing legal frameworks of both. 2-Insist on the issue of corporate social responsibility and international standards. Companies are proposing voluntary initiatives as their answer to human rights obligations, and we need to push our common proposal, which is binding standards on BHR. As long as we don't manage to have these standards, we will have to focus on the "proposal of the enemy."
  • Elin, FIDH-Then briefed people on some of the latest in the Ruggie process, pointing out in particular that it is not clear whether he'll push on extra-territoriality, but we should. Outside of the UN, Elin suggested also that we could consider encouraging proceedings against company executives in the International Criminal Court when relevant. She also discussed the upcoming event is the OHCHR-organized consultation with all stakeholders in Oct. 2009. We will need to prepare well before hand to develop a common message. We should also come together with trade unions to have a common position vis-à-vis Ruggie. Part of the reason we failed with the UN Norms was that the unions didn't side with us.
  • Tricia-Tricia expressed some concern about the development of Ruggie's process on access to effective remedies, where the proposals were mainly biased towards the Ruggie team, and centered on solving things at a local level, developing company-based resolution schemes, then the next level is to resolve the problem nationally, host states (Ombudsmans) then home states (OECD seen by Ruggie key here), the internationally, we would need a resource center of lessons learned (no international accountability mechanism).
  • Murielle-We need urgently a small summary and analysis of the Ruggie process and outcomes for use at the local level, and in consultations. This is true also for many negotiating processes.
  • Caroline Brodeur-In Canada, we have an existing compendium of voluntary mechanisms which exist, their strengths and weaknesses, etc. We can distribute this.
  • Abu Brima-What is the effect of Ruggie's work on other international platforms? I am thinking particularly on the Kimberley process certification scheme. All big states and companies are involved. Is there any link there? We have not been able to mainstream HRs into the Kimberly process yet, so this could be interesting if we could use Ruggie for this, as well as the EITI.
  • Tricia-Over these years, Ruggie has continued to fail to look into the HR-realizing performance of these initiatives. I don't think Ruggie wants to push the HR frame into these processes, rather the contrary. Ruggie is saying that it would obstruct a solution. We need to continue to insist, but my reading is that the intention is not there in Ruggie's team.
  • Jacqui, ERI-How can we use our collective knowledge to inform the next 2 years of Ruggie's mandate? We need to tie into this quite fast. On the duty to protect, we should push on ETOs, but also we should work with local groups around the world, who can help to suggest ways to set up local legal frameworks to protect HRs. On corporate duty to respect, short reports of individual stories shared to educate the international level decision-makers, showing that you can't just resolve every problem.
  • Maria Elena: Two interrelated strategies possibly: (1) Institutional, related to advocacy and negotiations in the Ruggie process, voluntary guidelines, etc. though we may know before hand what the result will be, with limits. (2) A braod-based movement or campaign which goes much beyond just the Ruggie, or UN process, and which identifies us, and what we stand for, and gives us strength. Otherwise, if we just keep negotiating and negotiating, we won't get to what we want without a global movement behind us.
  • Joji-Joji supports Maria Elena also on the need for a broad-based movement. There have been good examples of national tribunals of the WB, for example. Many of the social movements in ESCR-Net are in the CAWG, so we could develop national trials/tribunals in our countries, which bring out clearly the violations locally of companies, then make very concrete proposals for national policy, as well as for international policy and standards. If the problem we have with Ruggie is visibility, we need to increase our voice, not just in the way he wants to hear it, but also showing the strength and expertise of SMs. This would create not just case studies for review, but visibility before Ruggie, our national governments, and thus the multilateral bodies. With this, we can really bring the strength of our Network to bear on these issues. Here is our campaign, in my view.
  • Murielle-On local campaigns, we want to relate more to worker's groups and trade unions. There are some inherent conflicts here between then and human rights orgs, as workers are part of the company and part of the community. Whatever we do then, we should try not to exclude workers' group from our movement and actions.
  • Tricia-What we are hearing today is the various components of a possible and exciting new campaign, or broad-based movement larger than we what have had before, which will bring in the force of the entire Network, both at the national and international levels is exciting. In the short-term, we need to start working on preparing for this consultation now. Another issue completely lacking in Ruggie's work is gender, which we can feed into.
  • Elin-A big problem with Ruggie process it's all done in English. We need to try to reach out to other language groups in this process. This is key for coming to common positions for the OHCHR consultation.
  • On Capacity-Building
  • Cornelieke, Equalinrights-We would like to contribute by possibly developing materials or a toolkit, to make materials really accessible to all.
  • Tricia-On one level, to be successful in out actions, we need to be clear in our messages, and this depends often on information-sharing, company profiling, alliance building, identification of now to influence the company, what strategy is important, then proper HR analysis (these tools are available out here amongst us). We need to match people to the right skills really well, in a smarter, sharper, more effective way, so that fewer gaps are missing. We need to have reliable lawyers and association to give advice on suitable legal strategies' possible successes. Can we do more about listing organizations' strengths in particular areas on the website or other places, so with a click you'd get to the right information. Similarly, corporate profiling, we would need to link into researchers orgs like CAI, to keep web tight. This should be accessible to all.
  • Murielle-On company profiling, important to give several cases of how an individual company acts and worked in different countries, as they don't behave the same way in each country. We can also do well in analyzing the differences between the policies in the HQ, and the way these are spelled out in different places.
  • Joji-And to not re-invent the wheel, mine and communities has an excellent website where they profile companies and operations in various countries. On corporate profiling, is it possible to profile and advocate at the sector-wide level, or in the different professional associations? The mining association is getting ready for a huge PR campaign to convince gov'ts that their mining is sustainable, and their engagement is to exactly undermine international standards on human rights.
  • Alejandra-Another information source are unions, who have a lot of information about mining companies (AFL/CIO and steelworkers). We really need to develop links with the unions. If you work together with them on reporting first, then its easier to develop links with them for other sorts of work. With unions, we can better pressure companies, which can provide political strength. We are now starting a campaign on Walmart in Mexico.
  • Leandro-In the MAB website also we have a lot of good info on mining, as teachers in universities have a lot of good information. Mining companies are largely to blame for huge increase in demand of energy in Brazil. We were able then to make the transversal links between mining policy, energy policy, and the development model.
  • TJ Faircloth-Generating capacity on company profiling, including other orgs skilled in it. Doing research is very taxing, but the union movement in the US is really the leader in developing the skills on researching. I haven't heard anyone mention the need to build this Network by bringing in some of these other players in the labor movement, beyond CAI. Maybe we can consult with the skilled community organizations in the room, who are well versed in building local networks of support.
  • Cornelieke-Equalinrights could facilitate the process here, really linking people with skills and movements. We have a wiki page which is helpful in allowing people to constantly update it, which could be helpful in facilitating a platform for this group.
  • Elin-We had meeting in Berlin with lawyers wishing to take cases on Corp Acct. One strong idea which came up then was to target one, two or three companies in the world a year, so if we could do a survey on which companies we want to focus on in the coming years, then work on them in different national contexts, this way building relationships, and showing our strength.
  • Niko-We are charting the action plan now, which is great, but before we leave, we'd really like to strengthen the SC. Who is interested in possibly being a part of this? Also, we will need to breakdown the work, so we have point persons in each of the areas, each being on the SC. Some areas we talked about, I might be missing some:
    • Access to information, company investigation and research
    • Legal, strategic litigation nationally and internationally
    • International processes and negotiations
    • Education and awareness-building
    • Media and Communications
    • Others?
  • Charlene-Let's not lose this thought on an international campaign. This is one activity which would actually pull together all the pieces Niko just spoke about.
  • Tricia-National trials and tribunals experiences could be shared, with the idea of bringing these experiences up, and running through it would be a targeted, united campaign on 3 companies, with variety, including a state-owned company, a traditional MNC, a southern TNC, and from there to see how cross-sectoral we can be, hit them in so many different ways, in the pension funds, investment banks, this is exciting. Video workshops could also tie into this well.

[1] Note: The group broke into 2 groups which met simultaneously by language for the first half of this session.