Geneva, September 2023 – First impressions on the updated draft treaty on TNCs and human rights
Having actively participated in the negotiations for a legally binding instrument to regulate the activities of TNCs in international human rights law, as mandated by Resolution 26/9, the Global Campaign would like to express profound concerns regarding the Updated Draft Treaty as published in July 2023 by the Chair of the Open-Ended Intergovernmental Working Group (OEIGWG), the Ambassador of the Permanent mission of the Republic of Ecuador.
It is alarming that the process in the lead up to the updated draft has been marked with an unacceptable level of arbitrariness by the Chair. For instance, the weeks leading up to the 8th session of the OEIGWG were riddled with inconsistencies that give rise to important procedural and ethical concerns. First, the Chair released a series of unsolicited and untimely “Suggested Chair proposals for select articles of the Legally Bindign Instrument”, completely unrelated to the negotiation process, which he then imposed as a parallel negotiating document. Furthermore, despite the clear wording of Resolution 26/9, which states that the future Treaty will apply to TNCs and other business enterprises of a transnational character, the Chair seeks to extend the scope to all types of enterprises, including SMEs and public companies with no transnational activity. Instead of facilitating negotiations over this matter, the Chair, through his “Guidelines for Intersessional Work”, dictated his own incoherent interpretation both of the Chair’s mandate and the UN negotiating process, and illegally arrogated upon himself the powers of a judge.
While the Chair should facilitate the course of negotiations, maintaining impartiality and relying on a comprehensive understanding of delegations’ proposals and manifestations — as laid out by the UN stipulations on the “Substantive role of the Chair” — this new text reveals the Chair has significantly overreached his mandate. It is evident that the Chair’s approach leans more towards judgment than facilitation as he cherry-picks proposals instead of consolidating the textual inputs supported by most States that have been active in the process. With this latest draft, the Chair sets us back at least three years in the negotiations, benefiting TNCs and their allies, to the detriment of social movements, workers, peasants, and affected communities.
Indeed, while the updated draft now incorporates some demands and proposals that came from some States and civil society organizations, an initial examination of the text reveals that its content was significantly weakened, including in Articles 6 to 9, which constitute key pillars of the future Treaty. The Global Campaign will conduct a deep technical and legal analysis of the updated draft, article by article, which will be released before the 9th session. However, we would like to highlight here some concerning and pressing issues related to the update draft:
1) Several important proposals from committed States were excluded or weakened, even when they had been widely supported by other States and civil society. At the same time, proposals made by only one or a few States were retained, despite the absence of significant support from other delegations.
2) Key provisions were weakened or inexplicably disappeared, even though no delegation had explicitly requested that this be done.
3) Key proposals for the elaboration of a strong and effective instrument coming from social movements and affected communities were deleted, while those of the representatives of TNCs were imposed.
Considering the above, we call on the Chair to facilitate negotiations at the 9th session in accordance with the mandate of Resolution 26/9 of the United Nations Human Rights Council, and on the basis of the updated revised draft Treaty with the track changes (the only legitimate basis for negotiations), which includes all the proposals presented by the States in the last two sessions. We also urge the States committed to the process in favor of a Binding Treaty to be vigilant and to oppose any kind of diversion strategy.
Last but not least, we also call on the Chair to convene an inclusive international consultation with all State missions and ensuring the participation of civil society organizations prior to the 9th session, to discuss the program, agenda and methodology for the 9th session.
It is time for transparency, coherence, collaboration, and, above all, it is time for justice.
The Global Campaign to Reclaim Peoples Sovereignty, Dismantle Corporate Power and Stop Impunity is a worldwide network of over 250 social movements, civil society organisations, trade unions and communities affected by the activities of transnational corporations (TNCs).
Contact for CETIM: Raffaele Morgantini, +41 79 660 65 14, firstname.lastname@example.org
Read Raffaele Morgantini’s interview by Multiwatch