IBFAN Oral Statement on Panel IV - Scope: Human rights to be covered under the binding instrument

1st session of IGWG on TNCs and human rights, July 7, 2015, 3-6PM

Thank you Chairperson. I am speaking on behalf of the International Baby Food Action Network and the Pesticide Action Network Asia, both members of the Treaty Alliance. 

As highlighted by human rights experts as well as by our networks engaged with communities on the ground, corporate abuses affect the whole range of human rights defined in the core human rights instruments, from civil and political to economic, social and cultural rights. 

Our organizations have documented a great number of cases in which people’s health has been negatively affected, children’s development has been jeopardized, food and water have been contaminated and natural resources depleted by activities of business enterprises. Their activities, which include the production and use of highly hazardous chemicals and pesticides, do not only cause direct harm to populations and damage the environment. They also lead to long-term negative impacts on health that are sometimes irreversible and intergenerational. 

Misleading marketing causes long-term effects on people’s health and development. For example, when baby food companies promote their breastmilk substitutes in violation with the WHO Code, they undermine breastfeeding optimal practices, therefore exposing infants and young children to a greater risk of mortality and compromising their future health, growth and wellbeing. 

We would like to reiterate that all human rights are universal and inalienable as well as interdependent and indivisible. A treaty that would cover only a narrow scope of human rights would be meaningless to the affected people. Therefore, the future treaty should incorporate all human rights contained in the core human rights conventions as well as the relevant ILO conventions, in particular those related to labour rights, maternity protection, rights of indigenous people, and agricultural and migrant workers. Thank you.

SOMO Oral Statement on Panel III - Scope/coverage of the instrument (TNCs vs all enterprises)

1st session of IGWG on TNCs and human rights, July 7, 2015, 10AM-1PM

Thank you Madam Chair. 

I am speaking on behalf of SOMO, CIDSE, Brot für die Welt, IBFAN, IBFAN-GIFA and Global Policy Forum, who together with Friends of the Earth Europe made a joint submission to this intergovernmental working group. Our organizations are also members of the Treaty Alliance, and are among the nearly 400 organizations from around the world who have signed the Treaty Alliance joint statement. 

With regard to the scope of the businesses the treaty would cover – the footnote discussion – we have identified a hybrid option that we would like to share with you. Before explaining this hybrid option, I would like to thank Dr. Surya Deva for advising us and developing this idea. In short, the hybrid option entails that, conceptually, the treaty would NOT exclude any specific type of business, but, in its substance, it would focus on developing provisions for transnational operations, thereby addressing the current challenges to hold transnational corporations to account. 

Let me briefly explain this idea. First of all, it is important to stress that the very reason to start negotiating the treaty is to address governance gaps related to transnational business operations and problematic home-host state dynamics that come with it, and that the bulk of the human rights impacts we seek to address occur in relation to such transnational operations. 

Nevertheless, the footnote poses a number of challenges. First of all, it lacks conceptual clarity, for all companies – even TNCs – are registered under domestic law of some country. A second and more problematic aspect is that any attempt to define TNCs is likely to prove futile, because an entity could be considered “transnational” in view of multiple alternative variables, such as shareholding, operations, business relations, location of offices, nationality of shareholders and directors. 

Our organisations fear that any attempt to limit the treaty’s scope by providing a definition of targeted corporations - thereby excluding a subset of companies - will inevitably result in lawyers advising enterprises how to bypass the given definitional contours, and would thus provide loopholes in the protection against business related human rights abuse. Therefore, the proposed international instrument in our view should not exclude any business category. 

That having said, the treaty’s main objective and focus needs to be on provisions for transnational operations of business, such as the obligation of states to regulate the extraterritorial activities of business, and to provide mutual assistance between states in investigating violations and in enforcing judgements. It is these types of provisions we are looking for in the treaty, which clearly go beyond the domestic level. 

To conclude: in our view this hybrid option could effectively avoid double standards and loopholes to escape the foreseen treaty regulation, while at the same time it would but put the energy where most of the pain is: at the level of transnational operations and TNCs. We hope this idea will constructively contribute to the debate. Thank you Madam Chair.

Treaty Alliance Press Release - June 27, 2014

Yesterday, a resolution was adopted in the UN Human Rights Council that will begin the process of elaborating an international legally binding instrument on business and human rights. Despite strong opposition from the EU and US, the resolution received affirmative votes from 20 member States on the Human Rights Council, while 13 States abstained.

This victory in the promotion of human rights is welcomed by the Treaty Alliance, a group of networks and campaign organizations collectively working to organize advocacy in support of developing binding international regulation to address corporate human rights abuses. A statement calling for an international legally binding instrument has been signed by 610 civil society organizations and social movements and 400 individuals from 95 countries. Additionally, the Subcommittee on Human Rights of the European Parliament and the Vatican have made statements supporting the creation of such an instrument.

This adoption will result in the establishment of an open-ended intergovernmental working group that will have the mandate of elaborating a binding instrument to regulate the activities of Transnational Corporations (TNCs) and Other Business Enterprises. Some States opposing the resolution made attempts to come to a
compromise, but were not willing to provide a concrete path towards the drafting of a binding instrument to prevent human rights abuses by TNCs and other business enterprises and allow for the provision of remedy to victims.

While companies have a responsibility to respect all human rights, as reaffirmed in the UN Guiding Principles on Business and Human Rights, they are currently not held legally accountable. Thus, the implementation of the Guiding Principles at the national level has been slow and the Guiding Principles remain insufficient to prevent human rights violations. In the meantime, many victims around the world continue to suffer without access to justice.

Members of the Treaty Alliance emphasize that the establishment of a binding instrument is complementary to the implementation of the Guiding Principles and necessary to ensure glaring gaps in protection are addressed. Notably, an intergovernmental process will also contribute to addressing current imbalances under international law, particularly in light of protections companies can obtain under Bilateral Investment Treaties and Free Trade Agreements, which have allowed corporations to sue States.

While the US and EU have repeatedly stated that they will not participate in the intergovernmental open-ended working group established by the resolution, the Treaty Alliance hopes for their involvement in this process that will be critical to ensuring effective protection of human rights in the context of business activities.