Written contribution to the Committee on the Rights of the Child / 2014 Day of General Discussion / Digital Media and Children’s Rights

Breastfeeding protection, an essential component of the child’s right to health

Breastfeeding is recognized as a crucial intervention to provide infants and young children a healthy start in life.[1] It is the single most effective intervention for saving lives:  if applied globally, optimal breastfeeding can annually prevent about 830.000 deaths of children under 5 years. Unfortunately, out of 135 million babies born every year, almost 83 million are not enabled to follow optimal breastfeeding practices.[2]

Enshrined in the article 24 of the Convention on the Rights of the Child on the right of the child to the enjoyment of the ‘highest attainable standard of health’, breastfeeding should be protected against marketing practices that could undermine it. Therefore, the Committee has integrated the 1981 International Code of Marketing of Breastmilk Substitutes (the Code), to date completed and extended by fifteen subsequent relevant WHA resolutions forming an integral part of it, in the CRC General Comment No. 15 (2013), which specifies that besides the States’ obligation to implement and enforce the Code (para 44), baby food companies have the direct obligation to comply with it in all contexts (para 81).

However, the misconduct of baby food companies continues to be a key cause for poor breastfeeding practices, as these companies reap profits from promotion of their products which directly compete with breastfeeding. Recently, the report Breaking the Rules 2014, published by IBFAN’s International Code Documentation Centre, presented more than 800 Code violations by 27 companies in some 81 countries.

Digital media: a new marketing avenue for baby food companies

Since democratization of new technologies and Internet access, a new avenue has opened up for companies to advertise their products on digital media, including social media such as Facebook and YouTube. Mobile and web-based technologies using ‘behavioural targeting’ offer them new opportunities to interact directly with mothers, despite the fact that the article 5 of the Code prohibits baby food companies to seek direct or indirect contact with pregnant women and mothers of infants and young children, regardless of the mean used for making that contact.

Popular bloggers, especially mothers, are roped in to endorse products and thus influence their huge following. Advancing their electronic marketing even further, companies are developing mobile software applications (known as ‘apps’) that millions can download onto their mobile phones, tablets, laptops and PCs. Companies use these apps as direct promotional tools. Several apps are designed to ‘help’ pregnant women and new mothers. Special offers, discounts, contests, product launches and campaign announcements are now available to tech-savvy young mothers and their families.

Creating a corporate culture among parents through websites, social media and apps

Websites facilitate baby food companies’ contact with mothers by offering them gifts (such as a trip to Singapore), free samples and discount prices (such as a ‘Ramadan special package’, offered by Hero[3] on its Egyptian online shop).

Encouraging mothers to spread the word about their products, companies’ websites also foster their participation through a wide range of social activities, such as, for example, photo contests for babies, invitations to baby fairs or mothers blogs.

Thousands of mothers[4] are linked to companies through their Facebook, Twitter or Pinterest pages, where offers of free gifts, promotions and ads violating the Code are regularly posted. Some of these pages even offer ‘live chats’ or ‘carelines’ through which mothers can talk directly to company personnel to get nutritional advice on infant and young child feeding.

Besides, many other companies have developed a phone app for monitoring the feeding routines of infants and for providing advice, such as the one developed by HiPP[5] in Norway. In Slovenia, Novalac[6] even offers parents a local language smart phone ‘baby app’ which allows the company to offer promotions and special deals to parents.

‘Mothers clubs’, or how companies disguise marketing under ‘parents advice’

A new trend for companies is to promote virtual platforms called ‘Nutriclub’, ‘Moms club’ or even ‘Baby club’, connecting with pregnant women and offering mothers one-on-one support, parenting advice, information about pregnancy and child development, together with information on their products. When joining a ‘club’, mothers are offered gifts, promotional offers and invitations to try products. For example, parents who sign up to Wattie’s[7] club are offered the chance to win about USD 520 of free gifts.

Video clips and viral marketing, advanced marketing tools for selling baby foods

Baby food companies are regularly publishing attractive video clips on their websites and social media, but also on TV and as ads on other websites. These video clips are systematically ‘shared’ on YouTube, allowing them to be spread over social media by users. For example, a cute cartoon video clip, recently published by Nestlé, has been viewed over a million times within a month.

These video clips often claim that industrial baby foods have positive effects on babies’ health and contribute to their optimal cognitive development. For example, in a Dumex[8] video clip run on the company’s website and on TV, mothers share their opinion on the good effect of Dumex baby formula to assist the baby’s immune system. Similarly, in Hong Kong, Nestlé’s video clip for infant formula claims that the product promotes ‘gut health, digestion, absorption’. There is overt comparison with breastmilk via the DHA and ARA components which, contrary to systematic reviews of the evidence, are claimed to ‘help baby’s brain and visual development.’

Campaigning on the first 1000 days: the hijack of breastfeeding promotion by companies

The 1000 days between a woman’s pregnancy and her child’s 2^nd birthday is a critical period for long term development. UNICEF and WHO have launched a global campaign for health and development through adequate nutrition during this critical ‘1000 days window of opportunity’. Baby food companies sensed a marketing opportunity and launched their own ‘first 1000 days’, campaigns. Both Nestlé and Danone, baby food leading companies, have co-opted the slogan of the first 1000 days.

Nestlé launched its own first 1000 days advertising campaign called ‘Start Healthy, Stay Healthy’ in order to associate itself with the UN message. Under its campaign, the company reaches out to the public through its website and social media and calls on visitors to join the company in promoting the World Breastfeeding Week 2014 while claiming to support breastfeeding. Apart from targeting mothers, Nestlé sponsors courses organised by professional organisations and even organised ‘scientific conferences’ for doctors in India, despite the explicit prohibition of such events by the Indian Infant Milk Substitutes Act. In Malaysia, the company has pushed the boundaries even further and launched a ‘1500 days’ campaign.

For its part, Danone registered the domain name http://www.first1000days.ie/  under its Nutricia subsidiary. In China, Dumex’s 1000 Days programme, with emphasis on child’s immunity, offers a service tailored for mothers and aimed at providing advice from pregnancy through various stages of early childhood. A book on this 1,000 day programme is distributed free when mothers register on the Dumex website. In Ireland, Danone’s front company Cow & Gate followed the Dumex example by launching the First 1000 Days campaign, using a celebrity couple as ambassadors. Incentives like free recipe books are offered to tempt potential customers.

How to protect child’s right to health against corporate violations of the Code through the use of digital media

In order to protect breastfeeding and thus, the right of the child to the enjoyment of the highest attainable standard of health, States parties should be urged to:

1. Fully implement the International Code of Marketing of Breastmilk Substitutes and its relevant subsequent WHA resolutions, especially WHA63.23, into their national legislation

It is crucial for Member States to fully implement the Code as it regulates marketing practices of baby food companies to protect the right to health of infants and young children, including against malevolent marketing practices that take place online. More specifically, article 5 of the Code prohibits manufacturers and distributors from providing mothers with free samples of their products, whether directly or indirectly. The provision also forbids promotion tools to induce sales direcly to the consumer at the retail level, such as special displays, discount coupons, as we can find on companies websites, their online shops and social media. Finally, the Code states that the marketing personnel should not seek direct or indirect contact of any kind with mothers of infants or young children. 

Resolution WHA63.23 calls upon the development of legislative, regulatory and effective measures to control the marketing of breastmilk subtitutes in order to give effect to the Code.

2. Ensure effective monitoring of the Code and implement deterrent sanctions against violations

According to the Code, monitoring the application of the Code lies with governments acting individually and collectively through WHO (article 11). Resolution WHA61.20 urges States to scale up efforts to monitor and enforce national measures and to avoid conflicts of interest. 

To meet their obligations, States should therefore be urged to implement deterrent sanctions for Code violations into their legislation. 

3. Launch modern and attractive digital campaigns on breastfeeding promotion and support 

Governments should promote and support optimal breastfeeding practices through modern and attractive media campaigns. Using the same digital media devices than baby food companies, States parties would be able to counter the damages induced by the aggressive marketing practices of the private sector. By maintaining catchy and helpful websites, promoting social media pages and spreading innovative videos through the Web, governments will be able to disseminate the adequate information to a wider public and create a popular trend towards optimal breastfeeding practices. 

4. Implement their Extraterritorial Obligations into legislation

According to the CRC General Comment No. 15 (2013), baby food companies have a direct obligation to comply with the Code in all contexts and thus, to respect to right of the child to the enjoyment of the highest attainable standard of health.

Pursuant to international human rights law, States have the duty to ensure that companies based in their territory do not infringe the human rights of people their countries, but also in other countries where the companies operate.[9] Therefore, the States should be urged to implement legislation aimed at holding home-based companies, including baby food companies, accountable for their human rights violations abroad.

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[1] UNICEF, Pneumonia and diarrhoea : How to tackle the deadliest diseases for world’s poorest children. June 2012. http://www.unicef.org/media/files/UNICEF_P_D_complete_0604.pdf.

[2] Bhutta et al., What works? Interventions for maternal and child undernutrition and survival, The Lancet, 2008, 371 (9610) : 417-440.  http://www.who.int/nutrition/topics/Lancetseries_Undernutrition3.pdf.

Save the Children, Superfood for babies: How overcoming barriers to breastfeeding will save children’s lives, 2013. http://www.savethechildren.org/atf/cf/%7B9def2ebe-10ae-432c-9bd0-df91d2eba74a%7D/SUPERFOOD%20FOR%20BABIES%20ASIA%20LOW%20RES%282%29.PDF.

[3] Hero is a Swiss company.

[4] For example, by May 2013, the Danone Facebook page had received some 53,000 ‘likes’, thus multiplying Danone’s Code violating record.

[5] HiPP is a German company.

[6] Novalac is a French company.

[7] Wattie’s is a brand owned by Heinz, a US company.

[8] Dumex is the Asian subsidiary of Danone, a French company.

[9] Principle 25  (c) (d) (e), Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights. Available at: http://www.fian.org/fileadmin/media/publications/2012.02.29_-_Maastricht_Principles_on_Extraterritorial_Obligations.pdf

Press release: UN Global Compact Office says it has no role to play in protecting integrity of initiative as Nestle continues to violate its principles – Baby Milk Action, 2 July 2014

• Link to the press release on Baby Milk Action's website

Baby Milk Action has today sent an open letter to the Executive Director of the UN Global Compact, George Kell, over the failure of the Global Compact Office to hold Nestlé to account for breaking its stated commitment to abide by the Global Compact Principles.

Nestlé is a sponsor of Global Compact events, which Baby Milk Action describes as a self-evidence conflict of interest.

The Global Compact was introduced by then UN Secretary General Kofi Annan to encourage corporations to align ‘their operations and strategies with ten universally accepted principles in the areas of human rights, labour, environment and anti-corruption.’

Last week, the US and EU opposed moves for legally-binding measures to hold corporations to account at a meeting of the UN Human Rights Council, citing the Global Compact as an alternative approach. For the past five years, Baby Milk Action has been pursuing complaints against Nestlé for violating the Global Compact Principles in the way it markets its baby foods. However, the Global Compact Office refuses to take action specified in so-called Integrity Measures, or to explain its refusal.

Left, Nestlé promotes its infant formula as the ‘natural start’ (and that it is the ‘gentle start’ and ‘protects’ babies) – practices executives at the highest level of the company defend. Babies fed on formula are more likely to become sick than breastfed babies (the true ‘natural start’) and, in conditions of poverty, more likely to die. These and other Nestlé practices violate UN World Health Assembly marketing requirements and the Convention on the Rights of Child (particularly, Article 24 (2) (e)), and so the Global Compact Principles.

Baby Milk Action welcomes the fact the UN Human Rights Council voted to set up a working group to draft a Treaty to hold corporations accountable for human rights abuses as it states its experience has shown the Global Compact to be ‘worse than useless’.

Mike Brady, Campaigns Coordinator at Baby Milk Action, said:

‘Nestlé has indicated it will continue the violations of the Global Compact Principles we have reported and the Global Compact Office says it has no role to play in stopping it and will close the case. The Treaty proposed by the UN Human Rights Council is essential as the Global Compact has proven to be worse than useless at stopping these human rights abuses.’

Mr Brady has written on holding corporations accountable as a member of a UN Task Force on International Dimensions of the Right to Food under the UN System Standing Committee on Nutrition. Proposals from the Task Force on protecting the right to food are presented in the book Global Obligations for the Right to Food (published in 2008), and include possible approaches for legally-binding measures to hold corporations accountable (chapter 4, Mike Brady).

Baby Milk Action’s letter to George Kell

2 July 2014

Dear Mr Kell,

UN Global Compact Office failing to apply Global Compact Integrity Measures

We are contacting you to raise the failure of the UN Global Compact Office (GCO) to respect the Global Compact Integrity Measures and to confirm whether you are aware of these failings.

We have been reporting egregious violations of the Global Compact Principles by Nestlé to the GCO over the past five years in accordance with the Integrity Measures, but have found it to be a futile exercise. In its latest message to us of 11 June 2014, the GCO is again stating it will take no action. Are you, as Executive Director, aware that the GCO’s refuses to take the action specified in the Integrity Measures and do you endorse this position?

In the past, we have requested clarification as to why it will not take the action it could or should take under the Integrity Measures, quoting the actual text in our letter dated 29 August 2011. The GCO’s response on 10 November 2011 merely stated: ‘Regarding the letter addressed to the UN Global Compact, we do not plan to provide a point by point response’.

We have tried writing to the Global Compact Board and Advisory Council via the GCO. The GCO told us (21 December 2011): ‘The Global Compact Board is kept up to date of all matters raised under the integrity measures. We do not forward them individual letters.’ We have received no response from the Board or Council. Accordingly, we are making this letter public and will gladly report your response to it.

The Global Compact website claims the initiative is ‘voluntary yet accountable’.

This claim on the Global Compact website is not borne out by our experience. There is no accountability given that:

• the Global Compact posts misleading Communications on Progress from corporations to its website with no form of checking.
• the GCO has received our evidence of violations of the Global Compact Principles and Nestlé’s refusal to end them, but does not take the action it could or should take under the Integrity Measure.

Under the Integrity Measures the GCO could provide advice and guidance to Nestlé on ‘actions to remedy the situation that is the subject matter of the allegation in order to align the actions of the company with its commitments to the Global Compact principles’. However, the GCO repeatedly tells us (for example, 30 July 2012), ‘The Global Compact Office is a voluntary initiative and does not have the mandate nor the resources to investigate or manage disputes.’

We are in on-going communication with Nestlé and have demonstrated to the GCO that executives refuse to end practices that violate the Global Compact Principles. The GCO should surely proceed to ‘review of the nature of the matter submitted and the responses by the participating company’ and then ‘remove that company from the list of participants and to so indicate on the Global Compact website’ as set out in the Integrity Measures.

One can only conclude that GCO is unwilling to apply the Integrity Measures due to the self-evident conflict of interest of Nestle being a sponsor of Global Compact events [example from 2013 and, above, from 2010], making the GCO financially indebted to the company.

The Global Compact Office closes cases without investigation

To keep the GCO updated on Nestlé’s on-going violations of the Principles we wrote to the GCO on 14 March 2014, attaching our latest correspondence with Nestlé (dated 3 March). We provided evidence of misleading statements included in the Communications on Progressposted to the UN Global Compact website (which bring the initiative into disrepute) and practices that violate human rights (which break the Global Compact principles).

The Global Compact Office replied to us on 29 April 2014, as follows:

With regard to the attached letter addressed to you from Nestle’s in response to your letter dated 3rd March 2014, we would kindly request that you please inform us whether you are satisfied with the content of the communication or if there are any other issues that should be addressed by the company. If not, please note that the matter will be considered closed by the Global Compact Office.

We responded on 9 May 2014:

If you read Nestlé’s letter you will realise that it is unsatisfactory as Nestlé is refusing to take action to stop the violations of the Global Compact Principles we have reported to it.

Rather than closing the case, it would be welcome if the UN Global Compact can provide the ‘guidance and assistance’ to Nestlé referred to in the Integrity Measures, encouraging it to take ‘actions to remedy the situation that is the subject matter of the allegation in order to align the actions of the company with its commitments to the Global Compact principles’. Please refer back to our letter of 3 March for the details.

The GCO said it had not received our original letter of 14 March 2014 (which enclosed a copy of our 3 March letter to Nestlé) so we sent it again. (We asked the GCO to investigate why correspondence sent to the address indicated on the Global Compact website had not been received as there may be other complaints that are being lost by the GCO, but have heard nothing from the GCO on this point.)

After we re-sent the information, the GCO contacted us on 11 June 2014, stating:

We have examined the matter and, as of now, we do not see any further role for the Global Compact in this process. Unless you have any additional issues that you would like to raise with the company for their response, please note that we will consider this matter closed under our Integrity Measures. 

Do you agree that the GCO has no role to play in encouraging participating corporations to stop violations of the Global Compact Principles when executives have indicated they will continue with these practices? Do you agree that corporations should continue to be listed under these circumstances?

No action taken against any corporation for violating the Global Compact Principles

We understand from our communication with the GCO that no company has ever been excluded for violating the Global Compact Principles following a complaint. Companies have been excluded for failing to provide Communications on Progress, but as these reports are posted to the Global Compact site even when they are misleading (as in the case of Nestlé), they are of little value in any case.

We look forward to your response to the questions raised in this letter and the clarifications requested in our letter to the GCO of 29 August 2011.

We will be publishing this as an open letter and will add your response, if and when we receive it.

Yours sincerely,

Mike Brady

Campaigns Coordinator

Baby Milk Action

CC: The Honourable Ban Ki-Moon, UN Secretary General.

Elena Bombis, Advisor, Legal & Policy, Supply Chain Sustainability, UN Global Compact.

Press release: Human Rights Council: Historic resolution adopted for a legally binding instrument on TNCs - Third World Network, 30 June 2014

Geneva, 30 June (Kinda Mohamadieh*) – The United Nations Human Rights Council (HRC) adopted, through a vote, a historic and significant resolution to start a process for an international legally instrument on transnational corporations.

Officially entitled “Elaboration of an international legally binding instrument on Transnational Corporations and other Business Enterprises with respect to Human Rights” (A/HRC/26/L.22) the resolution was adopted on 26 June at the 26th session of the HRC.

The resolution was co-sponsored by Ecuador and South Africa, and also supported by Bolivia, Cuba and Nevezuela. In the vote on the resolution, 20 Members of the HRC supported the resolution, while 13 Members abstained, and 14 Members voted against it.

Countries that supported the resolution include: Algeria, Benin, Burkina Faso, China, Congo, Cote D’Ivoire, Cuba, Ethiopia, India, Indonesia, Kazakhstan, Kenya, Morocco, Namibia, Pakistan, Philippines, Russian Federation, South Africa, Venezuela, Vietnam. Countries that abstained include: Argentina, Botswana, Brazil, Chile, Costa Rica, Gabon, Kuwait, Maldives, Mexico, Peru, Saudi Arabia, Sierra Leone, and United Arab Emirates. Countries that voted against the resolution include: Austria, Czech Republic, Estonia, France, Germany, Ireland, Italy, Japan, Montenegro, Republic of Korea, Romania, the former Yugoslav Republic of Macedonia, United Kingdom, and United States of America.

The resolution provides for the establishment of an open-ended intergovernmental working group (IWG) that is mandated with elaborating an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.

The resolution provides that the IWG shall hold its first session for five working days in 2015, before the 30th session of the HRC. The resolution also provides that the first two sessions of the working group shall be dedicated to conducting constructive deliberations on the content, scope, nature and form of the future international instrument.

The resolution mandates the Chairperson-Rapporteur of the IWG to prepare elements for the draft legally binding instrument for substantive negotiations at the commencement of the third session of the working group, taking into consideration the discussions held at its first two sessions.

It recommends that the first meeting of the IWG serve to collect inputs, including written inputs, from States and relevant stakeholders on possible principles and elements of such an international legally binding instrument.

The resolution requests the IWG to submit a report on progress made to the HRC for consideration at its thirty-first session.

The resolution explains in a footnote that the reference to ‘other business enterprises’ denotes all business enterprises that have a transnational character in their operational activities, while it does not apply to local businesses registered in terms of relevant domestic law.

The resolution also makes reference as well to the important role of civil society actors in promoting corporate social responsibility and in preventing, mitigating, and seeking remedy for adverse human rights impacts of transnational corporations (TNCs) and other business enterprises.

In presenting the resolution to the HRC, Ambassador Luis Gallegos Chiriboga of Ecuador stressed that the Council owes its existence to those who tirelessly fight to protect human rights and the victims of human rights violation, including those that are most needful for protection and support. He called upon the Council to correct injustices, including the lack of protection for victims of violations of human rights abuses carried out by TNCs. He noted that these corporations benefit from binding international protections. However, victims of harmful corporate activities lack access to legal protection, while only having available voluntary norms.

Ambassador Chiriboga focused on the importance of protecting victims, noting that victims of disasters, such as that by Union Carbide in Bhopal (India), Shell in the Niger Delta (Nigeria), and Chevron in Ecuador, among others, are still waiting for remedy and fair compensation. He underlined the support of more than 500 civil society organizations from around the world, European Parliamentarians, and the Vatican to the initiative towards elaborating a legally binding instrument on TNCs and other business enterprises with respect to human rights.

Ambassador Chiriboga also stressed Ecuador’s support for implementation of the United Nations Guiding Principles on Business and Human Rights.

[On 16 June 2011, the UN HRC endorsed by consensus the "Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework" proposed by UN Special Representative John Ruggie (Resolution 17/4). More information available at: 
http://www.business-humanrights.org/SpecialRepPortal/Home/Protect-Respect-Remedy-Framework/GuidingPrinciples

At its 17th session, in resolution A/HRC/17/4, the HRC decided to establish a Working Group on the issue of human rights and TNCs and other business enterprises, consisting of five independent experts, with the mandate to promote the dissemination and implementation of the Guiding Principles. More information available at:
http://www.ohchr.org/EN/Issues/Business/Pages/WGHRandtransnationalcorporationsandotherbusiness.aspx

In a statement at the 17th session of the HRC in June 2011, the delegation of Ecuador noted its conviction that the United Nations should continue to work on the issue of establishing binding international standards on the activities of TNCs. Ecuador’s statement underlined that the Guiding Principles are “not binding standards”, “are just a guide”, and thus “are not mandatory”. At the September 2013 session of the HRC, the delegation of Ecuador delivered a statement on behalf of more than 85 countries stressing the need for a legally binding framework to regulate the work of TNCs. More on this statement is provided below.]

Speaking on behalf of South Africa, Ambassador Abdul Samad Minty noted that the government of South Africa accords special priority in regard to issues of TNCs, business, and human rights. He highlighted that the South African government holds a strong view that these entities, which are the primary drivers of globalization, cannot operate in a void. He added that TNCs and other business enterprises often operate in an environment where appropriate national legislation to effectively regulate their operations, or mitigate the propensity for their violation of human rights, is either absent or very weak.

Experience shows that in countries of the North, where there are strong binding laws and regulations promulgated by national parliaments, the violations of human rights by corporations are significantly minimized, according to Ambassador Minty.

He stressed that a universal regulatory framework in the form of a binding instrument to provide legal protections, effective remedies, as well as a range of other measures in quest for protections of victims, is desirable and imperative. He also recalled that global mass mobilizations by over 500 civil society organizations calling for such an instrument.

Countries take the floor to explain their vote

China expressed its support for joined efforts by the international community to promote better protection and respect of human rights. It added that it is in favor of pursuing dialogue and cooperation to implement the United Nations Guiding Principles on Business and Human Rights and to ensure their actual effects. China noted that the formulation of an international legal instrument is a complex issue, highlighting the disparities among countries in terms of economic development, judicial systems, systems of enterprise, as well as historical and cultural backgrounds. China underlined the importance of being gradual towards gathering consensus.

India noted that the issues of TNCs and other business enterprises is an area where the international community must work together, not only to encourage businesses to respect human rights, but also to hold them accountable for violations arising out of their business operations. India added that the work of the existing expert working group on the issue of human rights and TNCs and other business enterprises during the last three years provided guidance to States and businesses and shed light on glaring gaps in available protections. However, India underlined, the Guiding Principles on Business and Human Rights have their own limitations and carry little impact in the case of victims whose human rights have been violated by operations of TNCs.

India added that the resolution seeks to open an opportunity for States to discuss, in a focused manner, the issues of TNCs, and provides an acceptable road map to move forward in this direction. As States promote the integration of the world economy and capital flows across borders, it is important to plug possible protection gaps that may arise due to business operations, it added. When States are unable to enforce national law with respect to gross violations committed by businesses, or to hold them accountable due to the sheer size and clout of TNCs, the international community must come together to seek justice for the victims of violations committed by TNCs, India stressed.

The United States, the European Union, Japan, the United Kingdom and Irelandspoke against the resolution.

The United States focused in their remarks on the United Nations Guiding Principles on Business and Human Rights, noting that they consider them a success, despite the limited three years since they have been endorsed.  While agreeing that more needs to be done to improve access to remedy for victims of business-related human rights abuses, the United States raised concern that the resolution on a legally binding instrument is not complementary to the work on promoting the implementation of the United Nations Guiding Principles.

The United States added that they perceive that the proposed intergovernmental group would create a competing initiative that would undermine efforts to implement the Guiding Principles. It expected that focus would turn to the new instrument, while companies, States, and other actors would unlikely invest significant time and money in implementing the Guiding Principles. The United States cautioned that a one-size-fit-all instrument would be unlikely able to address concerns related to the complex issues of regulating business, noting that such an instrument would be binding only on States that become party to it. It also raised few practical questions concerning the application of the proposed international instrument to corporations, which are not subject to international law. The United States expressed its unwillingness to participate in the proposed intergovernmental working group.

Italy, speaking on behalf of the European Union (EU) Member States, focused on the efforts undertaken since 2011 to disseminate and implement the United Nations Guiding Principles on Business and Human Rights. Italy referred to national action plans elaborated by several EU Member States to reflect the Guiding Principles. It added that the Guiding Principles do not exclude further legal developments, while reaffirming their understanding that what has been done so far is not enough to prevent abuses and enable access to remedy when abuses occur. The EU stressed that no international mechanism could replace robust domestic legislation and processes involving all stakeholders, calling for additional focus on implementation of the Guiding Principles on Business and Human Rights. The EU also noted that the resolution focuses on TNCs, while many abuses are committed by enterprises at the domestic level.

The United Kingdom (UK) was of the opinion that issues of business and human rights should be addressed through national rule of law at individual state level, and through the application of fair, just, and independent legal systems that can protect victims and ensure that business activity can thrive. The UK added that focusing on the United Nations Guiding Principles on Business and Human Rights would be the best way forward in dealing with these important issues.

Japan underlined their commitment to the Guiding Principles on Business and Human Rights, noting that the resolution could undermine efforts undertaken in regard to their implementation. The Guiding Principles provide guidance on how States could fulfill their obligations in the area of human rights, while respecting business-related international legal obligations, according to Japan. The international community could deepen its understanding in regard to an international legally binding instrument through examining best practices in this regard in the course of implementing the Guiding Principles, Japan added.

Ireland aligned itself with the views expressed by the EU, underlining its commitment to the Guiding Principles on Business and Human Rights, while noting that the resolution could undermine the process of their implementation. While noting the importance of addressing barriers to access to judicial and non-judicial remedies, Ireland was of the opinion that an intergovernmental working group would not be the appropriate fora for such a discussion.

The 26th session of the HRC also adopted, by consensus, another resolution entitled “Human rights and transnational corporations and other business enterprises” (A/HRC/26/L.1) co-sponsored by Norway, Russia, and Argentina. The resolution extends for a period of three years the mandate of the existing expert Working Group on the issue of human rights and TNCs and other business enterprises, as set out in HRC resolution 17/4.

Background on the process towards resolution A/HRC/26/L.22/Rev.1

In September 2013, the delegation of Ecuador, speaking on behalf of more than 85 countries, including the African Group, the Arab Group, Pakistan, Sri Lanka, Kyrgyzstan, Cuba, Nicaragua, Bolivia, Venezuela, Peru, and, Ecuador, underlined the need for a legally binding instrument in a statement delivered at the 24th session of the HRC.

States subscribing to the statement stressed that “the increasing cases of human rights violations and abuses by some TNCs reminds us of the necessity of moving forward towards a legally binding framework to regulate the work of transnational corporations and to provide appropriate protection, justice and remedy to the victims of human rights abuses directly resulting from or related to the activities of some transnational corporations and other businesses enterprises”.  The statement noted that an “international legally binding instrument, concluded within the UN system, would clarify the obligations of transnational corporations in the field of human rights, as well as of corporations in relation to States, and provide for the establishment of effective remedies for victims in cases where domestic jurisdiction is clearly unable to prosecute effectively those companies”.

In pursuit of the discussion on TNCs, human rights, and a legally binding instrument in this area, the Permanent Missions of Ecuador and South Africa to the United Nations in Geneva co-organized a workshop during the week of the 25th ordinary session of the HRC to explore this issue.

The workshop aimed at contributing to clarifying the ways in which a legally binding instrument on business and human rights would provide a framework for enhanced State action to protect rights and prevent the occurrence of human rights abuses. It also aimed at discussing the difficulties faced by developing countries when trying to hold transnational corporations accountable, as well as the gaps under the current soft law framework.

In this regard, the discussion tackled the extraterritorial duties of States, obstacles that victims of human rights violations face when trying to access justice and adequate remedies, including national, regional and international courts and non-judicial mechanisms.

According to the report resulting from the meeting, some of the main elements highlighted during the discussion focused on the importance of recognizing that there are gaps in the international legal framework related to the duty to protect human rights in respect to business activities, and the concentration of related instruments in soft law. The report noted as well the recognition of the asymmetry between rights and obligations of TNCs; while TNCs are offered rights through hard law instruments, such as bilateral investment treaties and investment rules in free trade agreements, and have access to a system of investor-state dispute settlement, there are no hard law instruments that address the obligations of corporations to respect human rights.

Furthermore, the report noted that the obligation of States to regulate business activities within their territorial jurisdiction is clear, but on the other hand their obligation regarding corporate conduct acting abroad is not clear. The report noted as well the importance that participants accorded to building on lessons learned from the history of addressing the issues of business and human rights, including the experience of discussing the “Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights".

Mobilization by civil society groups

The months before the 26th session of the HRC witnessed mobilization by international networks, organizations, and social movements from various regions, organized under the umbrella of an alliance calling for binding international regulation to address corporate human rights abuse. A statement calling for an international legally binding instrument has been signed by 610 civil society organizations and social movements as well as 400 individuals from 95 countries.

The signatories call upon States to elaborate an international treaty that “affirms the applicability of human rights obligations to the operations of transnational corporations and other business enterprises”. They add that the treaty should “require States Parties to monitor and regulate the operations of business enterprises under their jurisdiction, including when acting outside their national territory, with a view to prevent the occurrence of abuses of human rights in the course of those operations”. 

They underline that the treaty should “require States Parties to provide for legal liability for business enterprises for acts or omissions that infringe human rights and to provide for access to an effective remedy by any State concerned, including access to justice for foreign victims that suffered harm from acts or omissions of a business enterprise in situations where there are bases for the States involved to exercise their territorial or extraterritorial protect-obligations”. The statement stresses as well the importance of providing for “an international monitoring and accountability mechanism” and for “protection of victims, whistle-blowers and human rights defenders that seek to prevent, expose or ensure accountability in cases of corporate abuse and guarantees their right to access to information relevant in this context” (The call is available at the following website: http://treatymovement.com).

In a press release commenting on the adoption of the resolution initiating a process to develop a legally binding instrument on TNCs, other business enterprises, and human rights, the Treaty Alliance emphasized 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”. The Alliance explained in the press release that, “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”.

The Alliance added that, “while companies must respect all human rights, as reaffirmed in the UN Guiding Principles on Business and Human Rights, they currently are not held accountable under international human rights law. 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”.

The Alliance further noted that “an intergovernmental process will 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”.

(Kinda Mohamadieh is with the Arab NGO Network for Development).