Since COVID-19 came into our lives almost a year ago, our societies have proven to be ill-equipped to respond to the pandemic. Failures in our economic, political and social systems to ensure environmental and human rights protection are at the core of both the emergence of the virus and our inefficiency to counter its impacts. More concretely, the concentration of power of corporations has brought us to a point of chronic crisis, where corporate crimes against both people and the planet remain in impunity. This is why, a legal framework laying out clear global obligations to ensure prevention, liability and remedy in cases of corporate harm, nationally or elsewhere, is the first step to tackle social and economic injustice and is the foundation for a viable future.
This week the Open-ended Intergovernmental Working Group (OEIGWG) will resume negotiations for a legally binding instrument on transnational corporations, other businesses enterprises and human rights. Discussions will revolve around a second revised draft, facilitated by the Permanent Mission of Ecuador, which has aimed to conciliate previous States’ positions. This draft, despite requiring some important changes, serves as an adequate basis for the negotiations towards improving binding international rules to prevent human rights abuses and environmental destruction by corporate activities within and beyond the borders of the home countries of parent and controlling companies.
This time the Human Rights Council of the United Nations will not see hundreds of activists, indigenous leaders and human rights practitioners that it is accustomed to host every year during negotiations, due to COVID-19 prevention measures, but that will not impede their advocacy and campaign efforts. The Treaty Alliance, an alliance of national and international networks and dedicated campaigns, including the Global Campaign to Reclaim Peoples Sovereignty, Dismantle Corporate Power and Stop Impunity and the Feminists for the Binding Treaty, will lead a series of activities and interventions to ensure major improvements towards the third draft.
FIAN International, member of all these networks, is convinced the binding instrument should contain the following points, up for negotiation this year:
- Prevention of corporate harm goes beyond due diligence. It is not enough that corporations are able to avoid liability simply by having a procedure to prevent harm. Where there is harm done, affected communities and individuals should be able to obtain remedy and companies should be sanctioned. Judges should focus their attention on the damage suffered by those affected and not solely on the compliance with a due diligence procedure. Furthermore, the Treaty shall also include clear state obligations needed to prevent harm by corporations.
- Access to information is key to ensure access to justice and remedy for affected communities. We need stronger provisions, which allow the affected communities to know which companies belong to the economic group or value chain causing harm, as well as get access, for instance, to concession or procurement contracts by those companies producing the damages. If people do not have access to that information, a rebuttable presumption of control should be put in place, to reverse the burden of proof and ensure that victims can access remedy when they do not have access to evidence.
- Consultations shall never be in the hands of companies, since this has divided communities and has led to these communities making decisions to their own detriment. They shall be in the hands of independent state institutions.
- Communities should have the right to say "no" to projects that will undermine or nullify the enjoyment of their human rights.
- Articles 8 and 9 of the second revised draft are key to ensure that affected communities can hold all companies along the value chain liable, including the parent and controlling companies. This is key for access to justice and remedy in a globalized economy.
You can follow negotiations live here.
Follow discussions via #BindingTreaty #EndCorporateImpunity and #Feminists4BindingTreaty