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Commentary: The proposed Binding Treaty on business and human rights needs to focus on the obligations of TNCs

"The glass is still half full: the second revised draft of the negotiation text for the UN treaty on transnational corporations and human rights", 28 August 2020.

...Together with hundreds of social movements and non-governmental organisations worldwide, Global Justice Now has followed the developments in the treaty process and participated in four sessions of the negotiations from 2016 to 2019.

For us and fellow campaigners, especially in the global south, the LBI is a historic and important process, which did not come about easily. It was born out of hard-fought struggles of communities and workers groups who are in huge conflicts with TNCs whose operations have negatively affected them, their environment and territories...

Is the revised draft a step forward or a step back?

The current draft is meant to take into consideration the debates in the 2019 Fifth Session of the process, as well as the submissions of concerns and proposals from governments and NGOs after the session. There are some aspects of the text that improved on the UNGPs. The gender aspects are strengthened and some concerns from civil society were addressed.

However, the spirit of the treaty – its reason for being, which is to regulate TNCs – is weakened. The key aspects that would allow it to regulate the operations of TNCs and guarantee justice to those that they negatively affect and abuse are still missing...The treaty must...each farther than the already existing international instruments to regulate TNCs...With the broadened scope, which covers all kinds of businesses, including state-owned enterprises (SOEs) that do not have international operations, the draft further deviates from its original mandate. The organisations within the Global Campaign to Reclaim People's Sovereignty, Dismantle Corporate Power and Stop Impunity (Global Campaign), which GJN is a part of, share the view that the extension of the scope of the treaty is dangerous for the its effectiveness...

The Global Campaign’s statement notes the continuing weaknesses in the document. It highlighted the following:

  • The absence of recognition of human rights obligations for TNCs;
  • The omission of global value chains, which are the key character of the international corporate architecture;
  • The lack of effective international legal mechanisms to implement the Treaty and to sanction in case of non-compliance (such as the international court proposal advanced by the Global Campaign); and
  • The lack of unequivocal recognition of the primacy of international human rights law over any other legal instruments, in particular over trade and investment agreements...

The inclusion now of even SOEs without transnational activities could be problematic. According to Raffaele Morgantini of the Geneva-based Centre Europe Tiers Monde (CETIM), which has a long history of engagement with the UN, “TNCs and related organizations could use it to attack the activities of southern SOEs, which are against their interests”. For him, “the extension of scope to all businesses: big or small, local and transnational, deviates from the real problem, which is the architecture of impunity that TNCs managed to create over the years.” Other members of the Global Campaign agree with him...

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