The sixth negotiating session of the United Nations Intergovernmental Working Group to elaborate a legally binding instrument on transnational corporations (TNCs) and human rights was held in Geneva from 26 to 30 October 2020.
As every year, the CETIM and its partner organizations, united in the Global Campaign to Claim Peoples’ Sovereignty, Dismantle the Power of Transnational Corporations and End Impunity (Global Campaign), followed and participated in the negotiations in order to make the voice of the peoples and communities affected by the activities of these entities heard. It is clear that the Global Campaign, which has been present since the beginning of the process, is the main driving force behind it. In fact, the call to develop this international legal framework stems precisely from the need to protect and ensure access to justice for those affected by violations committed by TNCs.
This year, due to the restrictions imposed by the situation related to COVID-19 and the impossibility of travelling to Geneva, the negotiations were conducted in a “hybrid” manner: a limited physical presence at the UN, and the possibility of monitoring and participating virtually. CETIM and its partners had warned that, due to the current situation, the conditions necessary for an adequate, inclusive, and participatory negotiation session were not met. Hence the proposal to transform the formal negotiations into an informal consultation. Indeed, different time zones, internal political agendas saturated by the health emergency, as well as repeated technical problems in remote participation, not only prevented the holding of a meaningful negotiation, but also limited the place of social organizations and movements in the negotiations.
However, thanks to the collective work and dedication of its members, the Global Campaign, represented by the CETIM in the UN compound, managed to make the voice of the field heard throughout the week of negotiations.
An insufficient text
In terms of content, the Working Group considered a new draft treaty presented by the Presidency (assumed by Ecuador), the third since the beginning of the process in 2015. The organizations of the Global Campaign expressed their concern about the major structural problems that persist in the draft, while engaging in specific article-by-article negotiations, with alternative drafting proposals and concrete amendments. Our main concern is that the current text continues to fail to reflect the objective of the mandate as set out in Resolution 26/9, namely that of regulating, within the framework of international human rights law, the activities of transnational corporations and other business enterprises of a transnational character. This new version still contains problematic aspects that could hinder the achievement of this objective and consequently the addressing of violations committed by TNCs. Indeed, these violations remain mostly unaddressed due to the gaps in international law concerning these entities, on the one hand, and their immeasurable political and economic power, on the other.
It should be noted that a good number of state delegations were on the same wavelength as the Campaign and once again showed their commitment to the process, supporting an ambitious binding treaty focused on the regulation of TNCs and their value chains, and not just any company, as desired by the critics of the process. Delegations also called for the establishment of direct obligations for TNCs, not to be confused with those already established for States. This point is crucial: establishing direct obligations for TNCs is necessary to ensure strong legal provisions capable of holding these entities accountable for their actions, overcoming their ability to influence the political arena, and escape national jurisdictions.
On the other hand, we still find the same group of states that want nothing to do with this treaty, or who advocate a treaty emptied of its raison d’être and its capacity to constitute a bulwark against the power of the multinationals that these same states harbour. Among these countries are almost all the countries of the North, but also some countries of the South, under the tutelage of the powers of the North and/or subject to the influence of representatives of TNCs.
That said, at the end of the 6th session, it was agreed that the Presidency would prepare a new version of the draft Treaty, taking into account the position of the majority of States that demands respect for the mandate of the Intergovernmental Working Group, as specified in resolution 26/9. This new version will be presented to the 7th session of the said Working Group in October 2021.
Generally speaking, the challenges we face are multiple. Added to this is the current unfavourable international situation, marked by the willingness of the dominant elites to defend the status quo. Nevertheless, CETIM and the Global Campaign will continue the fight against the impunity of multinational corporations, also through their commitment to this historic process. We remain fully convinced that this process constitutes a space for a broad struggle against the predatory system known as neoliberal, dominated by TNCs, allowing the latter to dictate their wills/interests to governments. Our commitment within the UN to this process must be seen as complementary to other spaces of struggle, whether at the local, national, or regional level. The international political and economic context reminds us every day of the relevance and necessity of such a legal instrument in order to bring justice to peoples and communities whose rights are violated every day with impunity.