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Opinião

15 Set 2023

Author:
Raffaele Morgantini, CETIM

A Binding Treaty to tackle corporate impunity or an empty instrument?

"We are facing a direct confrontation between major transnational corporations and states. Transnationals are interfering in the fundamental political, economic and military decisions of states. Transnationals are global organizations that do not depend on any state, and whose activities are not controlled by, or accountable to, any parliament or other institution representing the collective interest. In short, the entire global political structure is undermined. Dealers have no country. The only thing they care about is where they make their profits."
Salvador Allende, UN General Assembly, New York, 1972

Since the 1970s, social movements and communities affected by the activities of transnational corporations (TNCs) have been calling for the development of international legally binding norms capable of tackling the crimes and the impunity of TNCs that escape all legal and democratic control, thus guaranteeing access to justice and remedy for affected communities and people.

In 2014, at the initiative of Ecuador and South Africa, the UN Human Rights Council committed to opening a negotiating space to fill this historic legal gap, mandating an ad-hoc Intergovernmental Working Group (IGWG) to draft a binding UN Treaty to regulate the activities of TNCs in international human rights law.

The year 2023 thus marks nine years of constructive and active engagement in talks and negotiations by social movements and affected communities, grouped together in the Global Campaign; nine years of mobilisation at all levels; nine years of sacrifices and tough struggle for justice.

In the face of all this, the corporate lobbies and their political allies are relentless in their opposition to any project aimed at establishing rules for TNCs and thus curb the unbridled maximisation of their profits. It would be unacceptable if all our efforts were swept away in one fell swoop, favoring a Binding Treaty diluted of its content, of its raison d'être, in order to accommodate the interests of TNCs.

Yet this is precisely what is happening. The new updated draft Treaty, published in July 2023 by the Chair of the IGWG, the Ambassador of the Permanent Mission of the Republic of Ecuador - in line with previous years - demonstrates the obstinacy of fundamentally putting an end to the project of drawing up an international Treaty to hold TNCs that violate human rights accountable. This objective has clearly been replaced by the intent to advance towards a text devoid of coercive legal and political scope. Moreover, in its current version, the Treaty would be applicable indistinguishably to all types of companies and not necessarily to TNCs (in flagrant violation of the mandate of the IGWG, established by Resolution 26/9).

In this reductive perspective, most references and proposals aimed at establishing effective legal liability mechanisms and provisions for TNCs have simply been erased and discarded, and replaced by new language contradictory to the objectives of the process. For example, in its recent revision, Article 8 on the legal liability (a key article in the development of a Treaty capable of establishing obligations and accountability mechanisms for TNCs) is rendered meaningless. Indeed, the new updated draft Treaty stipulates that legal liability of TNCs must be based mainly on due diligence plans, a restrictive mechanism based on corporate self-regulation. Moreover, according to this article, accountability must remain an internal affair for States - whatever their capacity - and thus depends on the political will of the authorities and the internal balance of power in each country. International law therefore loses its natural essence and raison d’être.

It is clear such a Treaty would exclude the possibility of creating effective international enforcement mechanisms to which victims of violations could directly turn. On this point, CETIM and the Global Campaign have for many years been proposing the creation of an international enforcement mechanism for the future Treaty, in the form of an International Tribunal on TNCs and Human Rights. This Tribunal would be the guarantor of the effective implementation of the Treaty, it would have jurisdiction to cover the activities of the TNCs concerned by the Treaty, it would be able to monitor compliance with the obligations set out in the Treaty and, if necessary, it would sanction TNCs for non-compliance with these obligations. This proposal was well received by the IGWG in 2016, which included it in the first document presented on the negotiating table. However, over the following years, the Chair of the IGWG distanced himself from this proposal, excluding it from successive drafts. The time has come to reconsider this exclusion, which is detrimental to a Treaty worthy of the name.

On the 50th anniversary of the fascist coup d'état in Chile - an event fomented by US imperialism in order to open up the Chilean market to TNCs - Allende's clear-sighted speech is without appeal, and must continue to serve as a compass.

See also the recently published first impressions on the updated draft treaty by the Global Campaign.

Raffaele Morgantini, Representative of CETIM at the UN.