by Raffaele Morgantini, CETIM’s permanent representative to the United Nations. Article published on the Rosa-Luxemburg-Stiftung website
A series of activities were organized by the UN Human Rights Council (HRC) to mark the 10th anniversary of the adoption of the UN Guiding Principles on Business and Human Rights (UNGPs).
The UNGPs are promoted around the world as the only authoritative normative framework for preventing the negative human rights impacts of the activities of transnational corporations (TNCs).
Yet, it has been clear for some time that the Principles are not effective. Indeed, they are unable to tackle the transnational economic and political arrangements that allow TNCs to ignore human rights while escaping legal accountability. The impunity that shields TNCs in their efforts to maintain their grip on the international economic structure is impervious to the Principles, whose application is purely voluntary. They impose no legal obligation and make no provision for any monitoring mechanism other than voluntary ones, or for sanctions in case of non-compliance.
TNCs and their representatives, not to mention their political, academic and NGO allies, support and promote the UNGPs and other voluntary standards adopted in various international forums – notably the OECD and the ILO. This is not surprising, for it is part of TNCs’ strategy of diverting attention away from the need for binding legislation that would provide real protection from impunity for violations, and also legal and political leverage for affected groups in their quest for justice. For some years now, this strategy has been fuelled by initiatives based on the concept of due diligence, referred to in the UNGPs.
In the face of this, social movements and other civil society organizations continue to fight against an architecture of impunity that is supported by the dominant powers – who, it should be recalled, bear most responsibility for the plundering of resources, the dispossession of the working classes and the degradation of the environment. To that end, they are stepping up their advocacy in favour of the elaboration of legally binding international standards, arguing in particular within the HRC for a binding treaty to regulate the activities of TNCs with regard to human rights.
The UNGPs and due diligence at the 47th session of the HRC
In 2014, the HRC created an Intergovernmental Working Group to develop a binding treaty, with the aim of filling the gaps in the UNGPs by means of an effective and efficient regulatory framework. The TNCs and their allies maintain that the development of binding standards is unnecessary, as their activities are already covered by national legislation and voluntary international frameworks, and that the problem is not so much the lack of a binding legal framework as States’ inability to enforce them.
The 47th session of the UN Human Rights Council (June-July 2021) offered critics of binding standards an opportunity to continue this line of argument, taking advantage of the anniversary of the UNGPs to pursue their defence of the purported authority of voluntary regulation.
In so doing, they only exposed the inconsistency of this discourse. On the one hand, the TNCs and their representatives and allies claim to want to comply with voluntary standards to ensure respect for human rights. On the other, they campaign furiously to undermine initiatives that would force them to make a genuine commitment to responsible behaviour that respects human rights.
On June 29, 2021, during its 47th session, the HRC organized a panel on the UNGPs at which several high-level speakers1 took the floor.
There were no dissenting voices on this panel, not even among the trade unions. Thus, ten years after their implementation, rather than recognizing that it is precisely the non-binding nature of the UNGPs that explains their poor results, the panel simply recited once again all their advantages. Moreover, no mention was made of the process to draw up binding rules and its benefits in terms of corporate accountability.
On the next day, the HRC plenary had a discussion with the Working Group on the issue of human rights and transnational corporations and other business enterprises (hereafter referred to as UNGPs’ Working Group). This Working Group, created in 2011 following the adoption of the UNGPs, has a mandate to “promote the effective and comprehensive dissemination and implementation of the Guiding Principles”.2 The UNGPs’ Working Group presented three reports3: one general report reviewing 10 years of the UNGPs and two thematic reports on the protection of human rights defenders and on access to justice in cases of human rights violations by companies.
Apart from the lack of self-criticism and the complete absence of any reference to or recognition of the initiatives to create binding standards, the most striking feature of these reports is their insistence on promoting the concept of due diligence. This is not insignificant.
What is due diligence?
Due diligence is a concept that requires companies to develop their own plans to identify and assess the risks of negative human rights impacts in their operations. This means that any prevention of and reparation for human rights violations in this context rests solely on the quality of these plans and the company’s good faith.
Due diligence is nowadays touted by the dominant political powers, and increasingly by the TNCs themselves4, as THE solution. Several initiatives in this regard are currently being rolled out at national, regional and international levels. The most enlightening example is the European Commission’s proposal to draft a European Union Directive on due diligence and corporate accountability.
This concept is a key component of the UNGPs and of the notion of TNC self-regulation. In other words, although it might be possible to move towards binding standards of due diligence (as with the draft European directive, which speaks of mandatory due diligence), such standards will always be limited insofar as it will be up to the TNCs to unilaterally draw up the plans that define what constitute human rights violations. Thus, even with the concept of mandatory due diligence, there could only be sanctions in cases where there is a proven link between the TNC’s plan and the violation, not for human rights violations arising from the TNC’s operations in general.
Responsibility along the TNC value chain, the incorporation of legal accountability mechanisms, as well as monitoring, enforcement and sanctions mechanisms, are all fundamental to the effectiveness of any rules aimed at regulating TNC activities. They could even be included in a law on due diligence, but would still be linked to the risk plans developed and evaluated by the TNCs themselves. This means that due diligence (even mandatory), as advocated by its supporters, is a restrictive concept. It is the reason why we need to go beyond it.
Social movements fight back
In the face of these ploys and manoeuvres, social movements and representatives of the communities affected by the activities of TNCs have mobilized, appropriating whatever space is available in the UN to create a front line of attack on the impunity of TNCs. It is worth noting that grass-roots movements have been demanding for more than 30 years that the UN put an end to impunity by creating binding rules to control these economic giants.
The Global Campaign to Reclaim Peoples’ Sovereignty, Dismantle Corporate Power and Stop Impunity5, a network of more than 250 social movements, civil society organizations, peasant organizations and trade unions, is fighting for the elaboration of binding rules to control the activities of TNCs, and is developing advocacy strategies within the HRC. It is an active participant in the work of the UN Intergovernmental Working Group which is negotiating a binding treaty on TNCs.
On June 30, 2021, seven member organizations of the Global Campaign6 made a joint statement at the HRC plenary in response to the above-mentioned UNGPs’ Working Group’s presentation. In their statement, these organizations expressed their deep concern at the general tendency, not least within the said Working Group, to narrow the legal responsibility of TNCs down to mere due diligence. Referring to Human Rights Council resolution 26/9, which launched the process to develop a binding treaty on TNCs, they called on the UNGPs Working Group to interpret its mandate more broadly and move away from this reductionist approach, and to accept that the legal responsibility of TNCs should cover a range of crucial elements, including considerations of prevention, over and above due diligence. The statement also called on UN member States to engage constructively in the binding treaty process as the only way to move towards the effective control of TNCs.
Other actions in the UN by the member organizations of the Global Campaign included the convening of two side-events on different aspects of advocacy for the Binding Treaty.
The first of these meetings, held on June 23, 2021 and entitled “The Right to the City and the UN Binding Treaty on TNCs and Human Rights”7, was attended by representatives of local authorities and organizations, who highlighted the impact of TNCs at the local level and the opportunities offered by the adoption of a UN binding treaty from the standpoint of the right to the city.8 Social movements and local authorities increasingly come up against the power of these corporations: whether in the financialization of the housing market, monopolies on food supply chains, the pollution of the urban environment or the denial of the right to water, health, etc. The issue of TNC impunity, therefore, is not, as is commonly thought, only a problem of peripheral areas, of the countries of the South, of the countryside or of the populations of areas where natural resources are extracted, but indisputably also an urban problem. Hence, there is a need for urban communities, too, to advocate for new legal norms. Those will make it possible to discuss specific and viable proposals to democratize our societies and expand local democratic forums through the implementation of alternative models to the economic and urban development promoted by TNCs. In 2020, a “Call to local authorities to support the United Nations binding treaty”9 was published, demonstrating that urban areas have an interest in an ambitious treaty on the subject that could enable progress towards a new paradigm of the right to the city.
The second meeting organized by the Global Campaign during the 47th session of the HRC took place on June 29, 2021. Entitled “Big pharma vs. the people in times of COVID: Ways of guaranteeing the right to health”10, this event was an opportunity to speak out against the harmful actions of TNCs in the context of the COVID-19 pandemic, and to emphasize the urgent need to support the drafting and adoption of a binding treaty to regulate TNCs – in particular pharmaceutical companies that hinder access to medicines and health for all. At this debate, the panellists discussed different strategies to tackle the impunity and discrimination so prevalent in the health field. They also discussed the need to suspend intellectual property rights on vaccines and drugs related to COVID-19, which allow TNCs to maintain control over public health and the marketing of those products. Finally, speakers discussed how the adoption of a treaty worthy of the name could help regulate the activities of Big Pharma and consequently strengthen local and national capacities to deal with health shocks such as COVID-19.
The UNGPs and the entire range of voluntary standards are tools in the hands of the dominant elites and fail to address the needs of affected peoples and communities. This is why they have aroused, and continue to arouse, controversy in UN debates. The Human Rights Council, and the UN in general, are thus important forums in the fight for social justice and a more equitable world – provided that people avail themselves of them.
At the same time, the UN is also an area that can be exploited by the major political and economic powers to protect their privileges. This is why the voice of TNCs is so loud and ubiquitous in UN bodies and forums. This is why gaining control of these forums is essential if we are to counter attempts at manipulation, while advancing towards the adoption of progressive norms that meet the needs and demands of the people, such as a binding treaty to regulate the activities of TNCs.
1 Ms. Michelle Bachelet, High Commissioner for Human Rights, Mr. John Ruggie, architect of the UNGPs; Ms. Sharan Burrow, General Secretary of the International Trade Union Confederation; Ms. María Fernanda Garza, Deputy Director of the International Chamber of Commerce, one of the largest organizations representing the interests of the TNCs in international institutions; as well as several Ministers from various countries
3 See the reports here: https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session47/Pages/ListReports.aspx
4 See “List of Large Businesses, Associations & Investors with Public Statements & Endorsements in Support of Mandatory Due Diligence Regulation”: https://www.business-humanrights.org/en/latest-news/list-of-large-businesses-associations-investors-with-public-statements-endorsements-in-support-of-mandatory-due-diligence-regulation/
6 CETIM, Corporate Accountability International, FIAN International, Transnational Institute, Friends of the Earth International, American Association of Jurists, the International Association of Democratic Lawyers
8 The right to the city is a concept first proposed in 1968 by Henri Lefebvre in his book “Le Droit à la Ville”. This idea has been taken up recently by social movements, thinkers and some progressive local authorities as a call to action to reclaim the city as a common space, protected from the destructive consequences of capitalism and the commodification of the economy. It is important to understand the right to the city as a collective rather than an individual right, because any transformative process of this kind inevitably depends on the exercise of collective power to reshape urbanization processes.
10 Watch the side-event in this link: https://www.youtube.com/watch?v=0W9dAMGMy1c&t=5237s