Economic growth and foreign investment can have a positive impact by bringing jobs, development, and improvements to social welfare. But when businesses are able to act with impunity, they undermine these benefits and can cause serious human rights and environmental violations. For this reason, countries are joining together to creating binding obligations for corporations abroad, to ensure that development and investment do not benefit business at the expense of local communities and the environment.
In my home country of Switzerland, respect for human rights is a core national value, enshrined in our Federal Constitution and implemented through the human rights strategy of our Federal Department of Foreign Affairs. But while Switzerland is home to many humanitarian organizations, it is also home to many multinational corporations that trample on those same human rights elsewhere in the world. For example, an investigation by Swiss NGO Public Eye last year revealed that Swiss traded companies export dirty fuels to Africa. These industry-dubbed “Africa-quality” fuels contain toxic chemical levels well above limits set in Europe and the United States, and these chemicals contribute to poor air quality and serious public health problems, particularly in West Africa.
This toxic discrimination is just one example of the dire consequences that result when businesses don’t respect human rights in their operations abroad. Some multinational companies even strategically base their business in countries where governance is weak to avoid the costs of complying with human rights standards. When the home country of the corporation is unwilling to uphold its duty to protect human rights outside its borders and when the host country is unable or unwilling to hold the transnational corporation accountable, the corporation can act with impunity. That gap in corporate accountability for human rights abuses must be closed.
A new treaty in the UN aims to do just that.
On June 26, 2014, the Human Rights Council of the United Nations voted to begin discussions to create binding human rights obligations for transnational corporations. CIEL participated in the first two sessions, which were dedicated to panels and discussions about the potential contents of a treaty. The third session of this working group will take place 23-27 October 2017 in Geneva, and marks the beginning of formal treaty negotiations.
The Chair of the working group, currently the Permanent Representative of the Republic of Ecuador, has published a draft of the elements of treaty, taking into consideration these discussions.
The published draft treaty elements include many laudable provisions. For example, it clearly asserts that human rights obligations take precedence over trade and investment agreements. Further, it emphasizes the importance of establishing liability for wrongs that are committed and ensuring access to remedy for affected individuals and communities. With respect to extraterritorial obligations, the draft reaffirms that countries’ obligations to protect human rights do not stop at their territorial borders.
However, other parts of the draft elements should be strengthened. Unfortunately the draft elements neglect to address gender holistically. Women are regarded as “victims” and viewed as needing special protection, rather than as an integral and equal component in the creation of human rights-based institutions, mechanisms, legislation, policies, and practices related to corporate activities.
Similarly, although the draft elements explicitly refer to human rights defenders in the context of access to justice, the draft does not address the need for regulation and policy measures to address the threats and attacks that HRDs working in the field of business and human rights face, nor the State obligation to create an enabling environment for their essential work.
Another area in need of improvement is how the draft addresses public access to information and participation. The elements make great strides in imposing due diligence obligations on corporations, but fail to provide an equally strong reference to the duty of states to ensure the right to freedom of information. Freedom of information includes the right of access to information held by public authorities and is an essential condition for equal participation in political and public affairs.
CIEL submitted a written contribution for the preparation for the third session of the working group. This week, we will present short oral interventions to the plenum to ensure that negotiators draft a treaty that transforms the way businesses and countries approach human rights and are held accountable for any violations.
By Carmen Steg, Geneva-based intern
Originally posted October 23, 2017