Global "binding treaty" for TNCs to answer for rights abuses on the table in UN

Posted on 28 October 2017

Images courtesy of International League of Peoples' Struggle, World Travel & Tourism Council, with CC BY-SA 3.0 license .

October 28 (GMT+8) — A legally binding treaty that aims to make transnational corporations (TNCs) accountable for human rights violations is under negotiation in a United Nations Working Group.

The third session of the Open-ended Inter-governmental Working  Group (OEIGWG) on Transnational  Corporations and Other Business Enterprises (TNCs and OBEs) with Respect to Human Rights [i] was held from October 23 to 27. This session was supposed to be for discussions on the elements of the binding treaty, with a draft prepared by the Working Group Chairperson last September. [ii] A fourth session has been reportedly set for 2018.

As described in a concept note for the first UN OEIGWG session, there is an “asymmetry” between the TNC “rights” and obligations, as there are no international instruments that obligate TNCs to respect human rights. Instead, they are only granted extensive leeway to operate under free trade agreements, bilateral investment treaties, and have the option to even file cases against states (under investor-state dispute settlement). [iii] The 2011 UN Guiding Principles on Business and Human Rights set out guidelines for states and business, but did not create “new international law obligations” and was faced with weak implementation. [iv]

"It cannot be doubted that various transnational corporations (TNCs) have violated peoples' rights for decades, especially in developing countries," according to Antonio Tujan Jr., IBON International Director. "TNCs have committed landgrabs, development aggression against indigenous peoples, and created precarious work conditions and arrangements that disproportionately affect women.”

TNCs as rights violators

Eighty-five percent of those who produce garments in sweatshops are women. [v]  In 2013, the Rana Plaza in Bangladesh collapsed and led to the deaths of women garment workers, during production inside a weakened factory building. Firms in Rana Plaza produced for Western retailers such as Walmart. Critics pointed to responsibility of big Western TNCs in driving developing country suppliers to a “race to the bottom,” leading to low wages and workplace risks such as that in Rana Plaza. [vi]

 “Worse,” according to Tujan, “in many cases this happens with the support of state actors in rich industrialised states, and with complicity of state actors in developing countries -- under all kinds of free trade agreements, in Public-Private Partnerships (PPPs) especially in developing country service and infrastructure."

Such PPPs include those in Latin America and are associated with Brazilian TNC Odebrecht, one of which recently met a corruption scandal. A PPP to recover the Magdalena River in Colombia for navigation, by a largely Odebrecht-owned firm, failed to provide sufficient impact assessment and even left local communities unconsulted. [vii]

The would-be binding treaty aims to be an “international legally binding instrument to regulate [TNC and OBEs’ activities], in international human rights law.” [viii] The elements for the draft treaty, prepared by the Chairperson of the UN Working Group, aims to put into the center the states’ responsibility and obligations of TNCs.Being a prospective legally binding treaty, the draft proposes ratification, accession and provisions on entry-into-force as

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