The open intergovernmental working group for transnational corporations and other companies with respect for human rights was formed in 2014 in response to the Human Rights Council resolution 9/26 with a mandate to draft an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.
  • Opinion by Simone Galimberti (Kathmandu, Nepal)
  • Interpress service

Such a legal tool would bind companies to maintain high standards and, most importantly, it would provide mandatory guarantees of accessible and inclusive remedies and therefore clear responsibilities for victims of alleged abuses committed by companies.

It all started in 2014 when two southern countries, Ecuador and South Africa successfully pushed for one resolution at the UN Human Rights Council on the establishment of a so-called “international legally binding instrument for transnational corporations and other business enterprises with respect to human rights”.

By reading the title of the resolution, you can immediately see that one of the conundrums under discussion is the overall scope of such a treaty, particularly with reference to the nature of the companies subject to it.

In practice, would only multinational or even national private companies fall under its jurisdiction?

Interestingly, at the Intergovernmental Working Group (IGWG) created to draft the text of the treaty, many developing countries, for example, such as Indonesia, strongly advocated for the inclusion of only multinational corporations.

This is a position of convenience which would exclude local large operators involved in plantation operations from coming under treaty scrutiny.

Other complex issues center on liability, particularly in the context of cases where a company is “only” directly linked to the injury rather than the cause.

As explained by Tara Van Ho, a lecturer at the University of Essex School of Law and Human Rights Centre, if “a company is only ‘directly connected’ to the harm, it does not need to provide redress but can instead use its ‘leverage’ to affect change in their business partners.”

The difference between causing or contributing to harm and instead merely being favored for it may be subtle and remain an exclusive debate among scholars, but its repercussions may or may not ensure justice for the millions of people who have been victims of corporate abuse.

Another issue of attraction is the complex question of the statute of limitations and the role of domestic jurisdiction over the future treaty.

With all these challenges, after 8 years of negotiations, the draft is moving in slow motion amidst a general lack of interest among the States Parties, which explained by Elodie Aba for the Business & Human Rights Resource Center

An issue that should capture global attention has instead become an area of ​​technical discussion among governments, academics and members of civil society without creating mass awareness of it.

The need for a treaty related to corporate abuses is almost self-evident, given the gigantic evidence that has emerged both in the North and the South.

Despite fine words and token initiatives, the private sector has more than often been keen to turn a blind eye to abuses that occur through its direct actions or throughout its supply chains.

Amid weak legislation, particularly in developing countries, the tough job of trying to hold companies accountable has, until now, depended on a set of non-binding, voluntary procedures formally known as Guiding principles for business and human rights.

The principles, elaborated by the late Harvard professor John G. Ruggie in his capacity as the UN Special Representative for Business and Human Rights, proved to be a useful but at the same time insufficient tool.

It has been useful because it was instrumental in raising the issue of human rights in the corporate sector, something that for too long and until recently was taboo.

To further mainstream it, for example one UN Working Group on Business and Human Rights has been established as a special procedure within UN human rights.

Over the years, this independent group, composed of pro bono academics, has done significant work to strengthen both understanding and adherence to the Principles.

There is no doubt that there have been attempts to go deeper, especially from a legal point of view, on the principles, especially on their articles related to the right to redress, the most difficult issue.

In this regard Responsibility and action projects has provided a whole set of insights through multiple consultations and discussions, a process that still ongoing with the overall aim of making a stronger case for “the right to reparation, a core of the international human rights system”.

But principles, The UN Global Compactare toothless tools and showed considerable limitations, starting with the most obvious element, the fact that they are not binding.

Meanwhile, in 2021, the UN Working Group on Business and Human Rights, on the occasion of their 10th anniversary of the principleslaunched road map for the next 10 years.

These measures, despite their inherent limitations due to the nature of the principles, should be supported but more financial resources are indispensable. Nevertheless, it is still a matter of finding the financial resources or better the political will to do so. A recommendation from the late prof. Ruggie to create one The Voluntary Fund for Business and Human Rights went nowhere.

“The fund would provide a mechanism to support projects developed at the local and national level that would increase the capacity of governments to fulfill their obligations in this area as well as strengthen the efforts of companies and associations, trade unions, non-governmental organizations and others striving to promote the implementation of the guiding principles’.

Even more worrying is the fact that a new Special Representative for Business and Human Rights has not yet been appointed.

Having an authoritative figure, especially a former head of state rather than an academic, could help make the ongoing “behind the curtain” discussions related to the need for a strong treaty more visible.

Such a political figure could not only bring greater attention to the issue, but also provide “cover” for the sensitive work of the UN Working Group on Business and Human Rights, which complements and strengthens its mandate.

Cooperation with the education sector, law and business schools, which is advocated by a Report published by Business and human rights in Asiaa UNDP program, can be important.

Together with stronger media coverage, students and academics can contribute to raising the issue of human rights and its connections to the private sector.

We could imagine competitions among students at national and international level on how the principles can be better implemented as a “bridging tool” towards a binding legal mechanism.

Students can also have an important influence over the opaque design of this treaty.

At the end of the day, there will be compromises and flaws, but with a greater bottom-up approach, a strong treaty can become a “global” Escazu’, the first ever binding environment agreement in Latin America and the Caribbean.

UNDP with its Business and human rights in Asia unit that recently organized in Kathmandu an excellent 4th United Nations Forum for South Asia on Business and Human Rights. But it could also be bolder.

The Forum did a good job of giving voice to indigenous peoples, one of the most important stakeholders in the global treaty negotiations.

Many discussions were rightly held about the impact of issues such as climate change and migration and their links to corporate attitudes and behaviors towards local populations.

Yet there was no talk either of the treaty or of the future development of the principles. It may certainly be a matter of a limited ‘mandate’ but the UNDP, together with the UN Human Rights Council, could be a neutral enabler for a global discussion on the treaty and on how the principles can be further developed while we await such a legal tool .

The principles should also be better linked to the UN Convention, creating more synergies and coordination between the two.

The fact that nations such as France, Germany and the Netherlands have stepped up with strong new business and human rights legislation is extremely positive.

Equally important is the EU’s commitment to come along Corporate Sustainability Due Diligence Directive (CSDDD) or the one The OECD will revise its guidelines for corporate responsibility but the nations behind these initiatives must commit to drafting the treaty.

Otherwise, we risk the discussions continuing without anyone caring about them. Such an unfortunate situation really needs to be “fixed” with the right smart mix, political will, starting from the Secretary General and a powerful alliance of progressive nations in both the South and the North driving the process and involving other peer nations.

Ultimately, civil society must also step beyond its technical and legal recommendations and truly engage the people.

Simone Galimberti is co-founder of ENGAGE and of Good Leadership, Good for You & Good for the Society.

Opinions expressed are personal.

IPS UN agency

© Inter Press Service (2023) — All rights reservedOriginal source: Inter Press Service