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14 Aug 2018

Felogene Anumo and Inna Michaeli, AWID (member of Feminists for a Binding Treaty)

Justice not “special attention”: Feminist Visions for the Binding Treaty

This blog is part of the Reflections on the Zero Draft blog series on the proposed binding treaty on business and human rights. We present this series as part of our work to highlight key developments and opportunities for change, with the aim of empowering advocates in civil society, governments and businesses with the evidence and guidance to help define their position and engagement in the treaty process. We believe this initiative is complementary to the implementation of the UN Guiding Principles, and that an inclusive and open debate is crucial to ensure these initiatives deliver for everyone, and that the business & human rights movement continues its 'unity in diversity'.

We acknowledge the efforts of the Chair of the Intergovernmental Working Group (IGWG) for the sense of urgency and determination shown in advancing the process to elaborate the elements of a legally binding treaty to regulate Transnational corporations (TNCs) and other business enterprise (OBE) with regards to human rights. However, we are greatly concerned that without a transformative shift in the way that gender equality, women’s human rights and gender justice concerns are articulated, a truly transformative framework to end corporate abuse will not be achieved.

In August 2015, Luisa Lozano, a Kichwa woman from the Saraguro people joined an indigenous mobilisation to defend their right to land from corporation takeovers and demand increased protection of indigenous rights. It is during these protests, that military and police “beat a pregnant women with truncheons, dragging her about 30 meters and spraying her with pepper gas.” Soon thereafter, Luisa Lozano was arrested for defending the pregnant woman and was sentenced to 4 years in prison alongside other women.

Corporate abuse is a key area in the struggle to overcome systemic and structural barriers to gender, social and economic justice. However, the structural causes of women’s economic inequalities and human rights violations remain unaddressed. A feminist approach that challenges the current economic model, which promises growth and progress yet favors huge multinational corporations and concentrates wealth in the hands of a few global elites, is needed now more than ever to push for economic and gender justice. The Binding Treaty has the potential to address systematic corporate power and development that contributes to widening social inequalities, massive extraction and exploitation of natural resources through the regulation of transnational corporations (TNCs) and other business enterprises (OBEs), thus ending decades of corporate impunity and ensuring access to justice for affected communities.

In the recently released zero draft text, there are two instances where women are mentioned alongside other groups. In article 9 on Prevention which highlights the need to carry out meaningful consultations with affected groups giving “special attention to those facing heightened risks of violations of human rights within the context of business activities such as women (…)” and Article 15 on final provisions where States parties shall address specific impacts of business activities while giving “special attention to those facing heightened risks of violations of human rights within the context of business activities, such as women (…).” In Article 15, the text also includes a provision on business activities in conflict-affected areas, which mentions paying “special attention to both gender-based and sexual violence.”

 While this is a starting point, the proposed text positioning women as a vulnerable group falls short of feminist demands for gender justice because:

  •   It fails to acknowledge the complexities of corporate power and how they often act in collusion with the State, as seen by the roles of the military, police and judicial system in Luisa Lozano’s arrest and conviction.
  • The text calls for meaningful consultation yet some of the violations to free, prior and informed consent (FPIC) are due to TNCs and other businesses’ ability to influence processes that are often created to manufacture consent. Thus, there is a need to acknowledge power imbalances and substantive, procedural and practical barriers that women and girls in particular face as relates to FPIC and access to justice.

As the process advances, we envisage that the final text of the Treaty will not just pay “special attention” to women but will have language that addresses the power imbalances, challenges corporate power and advances gender justice. These should be informed by key suggestions from the Feminists For A Binding Treaty coalition who highlight for example the need to:

  1. Include strong and clear language to ensure non-discrimination based on gender. Thus, explicitly state that gender impact assessments shall be conducted by an independent entity chosen, or agreed upon, by the communities and the women from whom information will be gathered, in a process of free, prior and informed consent (FPIC).
  1. Take into account the impact of corporate operations on gender roles and gender-based discrimination, women’s health including prenatal and maternal health, gender-based and sexual violence, gendered division of labour on family and community levels, and access to and control of social and economic resources. Thus, explicitly elaborate on the specific measures that will be taken to address these gender-specific and identity-based risks and create an enabling environment for Human Rights Defenders and whistleblowers.

It is imperative that feminist governments and progressive States who are supporters of women’s rights not only support the Treaty discussions but also actively propose and endorse language that challenges corporate power and advances gender justice.

Finally, while we welcome the Binding Treaty process and the advances made to have a legally binding framework in the near future, we know it will take a lot more than political discussions to tackle corporate greed and impunity. The Binding Treaty is but one avenue on the road to gender justice and corporate accountability. Feminists and Women Human Rights Defenders have been on the frontlines of the struggles, and will continue to demand corporate accountability. Injustices inflicted by the current economic system, from exploitative working conditions to corporate land-grabbing, forced displacement and environmental pollution, often hit women and historically oppressed groups the hardest. But we are not only on the affected side - we are also at the forefront of pursuing justice as part of shaping our feminist realities[1] and the futures we want. We support the Binding Treaty as a necessary step towards realising these feminist realities. Aluta continua!

[1] Feminist realities - At AWID, we understand feminist realities both as current, existing practices that movements are already creating and living, that are critical both to sustain hope and push back against oppressive systems. (Co-creating Feminist Realities, AWID Strategic Plan 2018 -2020)


Reflections on the Zero Draft Treaty


New business and human rights treaty takes shape

Maysa Zorob, Business & Human Rights Resource Centre 11 Dec 2018


A Toothless Tool? First impressions on the Draft Optional Protocol to the Legally Binding Instrument on Business and Human Rights

Gabriela Kletzel & Andrés López Cabello, Centro de Estudios Legales y Sociales (CELS) & Daniel Cerqueira, Due Process of Law Foundation (DPLF) - members of ESCR-Net 13 Nov 2018


Observations on the Zero Draft - A Detailed Proposal for a System of Arbitration

Klentiana Mahmutaj, Barrister at Red Lion Chambers 29 Oct 2018

View Full Series