Alliance Sud: Why does FIAN so actively support the negotiation of a binding treaty on business and human rights at the United Nations (UN)?
Ana María Suárez Franco: At the heart of FIAN's action is the fight for the right to food, which is increasingly violated in connection with the activities of multinationals, throughout the food system, starting with land grabbing, the privatization of traditional seeds, the financialization of land, the standardization of food regimes by the agri-food industry, in particular. States have not sufficiently regulated companies as required by their obligation to protect human rights. We now need binding rules at international level. This is what binds us to our substantive work. But FIAN also supports the fight of social movements, which have made their voices heard to end corporate impunity and ensure that companies are not only socially responsible (CSR) but that they can be held legally liable for damage and that they are forced to prevent any damage related to their activities.
What is the role played by the approximately 200 NGOs and social movements in and outside the negotiations?
It should be recalled that social movements and NGOs shared the fear that the 2011 UN Guidelines on Business and Human Rights ("Ruggie Principles") – voluntary principles – would stop any development of international law and prevent the development of binding rules. NGOs have different roles, the first being a political role of denouncing human rights violations by companies, which is an essential role, given that government representatives are (often) very far from the reality experienced by people in the South. But NGOs (from both North and South) also provide in-depth legal expertise that enriches the content of the negotiations, exerting pressure on governments to actively participate in the negotiations and, ultimately, to prevent companies from holding the negotiations hostage. As Geneva cannot reach marginalized populations in the South, NGOs invite representatives of these populations to come to Geneva, but also allow mobilizations in the South and to link local, regional and international struggles what FIAN calls "the loop of eight” in dynamic processes that also feed other regulatory processes. In view of the crisis of multilateralism and the emergence of many populist and authoritarian governments, there is an urgent need to link struggles at the local and international level and this process brings together the different struggles within the different movements, such as the Treaty alliance, Global Campaign for People sovereignty, the Feminists for the Binding Treaty, which all aim to end the impunity of multinationals, whether in the food sector, health, education, the fight against the arms trade, etc. The process is therefore important, not just the result!
FIAN supports in particular the Feminists for a Binding Treaty movement, which has expressed its concern about the lack of a gender perspective in the draft binding treaty. Why is a gender perspective so important?
There are two dimensions. The first is that women are specifically impacted by corporate activities and are victims of different types of violations, including by extractive companies, where women are victims of sexual violence by employees. Specific preventive measures are therefore needed, including in view of the particular barriers women face in their access to justice. The second reason is that this kind of negotiations are (generally) dominated by men while there are an increasing number of women experts on these issues (within NGOs and governments) and that a different (feminine) way of working on these issues must be ensured.
Can you clarify what specific obstacles women face in defending their rights before the courts (“access to justice”)?
First, given the patriarchal system, women are often afraid to face justice! In addition, they are afraid of reprisals from their own communities, specifically men in their communities. Second, given their role as care-givers in their communities, they do not have time to travel to the city where the courts are located, cannot leave children alone, etc. Third, judges are (still) often male and the judicial system is not sensitive to the particular situation of women.
FIAN calls for special attention to be paid to "most at risk groups" in the negotiations, including farmers and other rural communities. Why this particular request?
Three reasons for this: First, peasants and rural communities suffer the most systematic violations of their human rights through corporate activities, such as land grabbing and pesticide use. Secondly, other rural groups are protected, but not peasants. As a reminder, in September 2018, the "United Nations Declaration on the Rights of Peasants and Other Persons Working in Rural Areas" (UNDROP) was adopted, but it is not yet in force. In order for international law to be consistent, it is necessary to include these groups at the centre of the negotiations, as is the case, for example, for indigenous peoples. Thirdly, 80% of food production is provided by small food producers who, as recognized in the Declaration, are able to apply sustainable agricultural production practices that are beneficial to nature and climate protection and are able to produce more diverse diets for populations, including urban populations. Defending the rights of peasants also helps to strengthen the links between rural and urban populations, thus strengthening the social fabric, peace and security, both within and between countries.
Can you tell us what obstacles victims have to overcome to access justice in countries where human rights violations by companies take place?
In general, the main obstacles are the inaccessibility of courts for poor people - due to the costs of proceedings, sometimes even the physical impossibility of travelling to access courts of justice, the lack of mastery of legal terms and required knowledge; the specificity of the treaty under negotiation is the complexity of multinational enterprise structures and the opaque and abusive strategies used by some against which current international law has no effect. The key example is the case of environmental damage caused by Chevron in Ecuador, which had been established by the Supreme Court of Ecuador, but whose decision could not be enforced, because Chevron had left Ecuador and the oil company's assets in other countries could not be seized (Brazil, Argentina, USA, Canada, etc.) under the "forum non conveniens" principle, which amounts to a denial of justice. The new Treaty must remedy this situation.
Why is it so important to participate in the international networks mentioned above, such as the Treaty Alliance; the Global Campaign for People Sovereignty, to Dismantle Corporate Power and End Impunity; the Feminists for a Binding Treaty and the ESCR-Net?
It is important to understand the different realities and learn from the cases, analyses of the different networks. In addition, these exchanges make it possible to create an international dialogue, to better understand our respective positions and to define common positions and requests for the current and future negotiations. As the new UN Director in Geneva mentioned, we are facing a change in the social and economic paradigm. No one can predict what the new paradigm will be! The possibility of networking so many organisations and people allows for a broader reflection, which goes beyond a particular treaty to work on defining the new social paradigm we want, not only for the treaty under negotiation, but more broadly for the type of international law we want to develop that should be applied to multinational companies, in order to promote a better life for all putting people over profit!
How would you rate the progress of the negotiations, after five sessions of the Working Group meetings?
It is a difficult process. We want to establish a legal standard applicable to all countries and the countries in which multinational companies have their headquarters have not demonstrated their willingness to engage in real reflection. But the fact that the process has survived five years of discussions, that we now have a revised draft treaty on the table and that an increasing number of countries are submitting text proposals for the treaty is progress! I also think that even if the new draft needs to be improved on several points, we can continue the negotiations on the basis of the text on the table. The world is currently waking up; this is reflected in the demonstrations in the various regions, the people who are questioning the system in place; these demonstrations are capable of bringing about a new political dynamic that could lead to better negotiations at the next session and make it possible to make progress towards our objectives. This treaty will not solve all the problems we face with the dominant economic system in place, but it will bring an important stone to the building! The fact that we have an open concept of jurisdiction in the treaty, that is, the possibility of seeking prevention and compensation not only in the country in which the victims reside, but also in the headquarters countries of multinationals - where the money is located! - is important; in addition, the proposal for a Committee to oversee the implementation of the treaty and a Conference of States Parties that could further develop the content of the treaty and international law relating thereto would be of great assistance. It should be pointed out that some social movements regret that elements of the project are no longer included in it and that the broad definition of companies does not take sufficient account of the specific characteristics of transnational corporations. Negotiations on these points will have to be continued.
While the EU has remained very defensive in the negotiations to date, some Member States have contributed much more proactively, notably France, Belgium and Spain. How do you rate these new developments?
The proactive engagement of some Member States is to be welcomed, given the difficult situation facing the EU. The EU wishes to show unity (despite Brexit) with some Member States that have been economically dominant and others victims of austerity policies and measures. Speaking with one voice is therefore a major challenge. The fact that the EU has waited five years to define a negotiating mandate is too long and it is understandable that some Member States have decided to move forward alone, especially those countries in which people put pressure on governments, but also because some Member States have adopted national legislation and wish to reduce any competitive disadvantages that may result from these advances. These developments are encouraging, including the fact that governments are asking their academic representatives to conduct legal analyses. It is therefore to be hoped that a larger number of industrialised countries will actively contribute to the negotiations next year, with more content and a desire to be among the "champions" of human rights and not only of their companies.
Last but not least, we are in Geneva, Switzerland, a country which is the headquarters of some 10,000 multinational companies operating also in poor and fragile countries. Should Switzerland not be among the "champions" of human rights protection?
Of course! As you know, we have asked the Swiss government to support these negotiations, but sometimes decision-making processes need more time. As mentioned, Switzerland is home to a large number of multinational companies operating worldwide and if Switzerland takes the defence of human rights seriously, it also means regulating the activities of companies in order to guarantee better prevention and access to Swiss justice for victims in cases where they cannot have access to compensation in their country. In addition, it should be noted that the legal work and analyses carried out in connection with the Responsible Business Initiative have been very useful in Geneva. Finally, Switzerland is in a position to build bridges between the State parties (bridging role), as it did for the UN Declaration on the Rights of Peasants mentioned above. At first, almost all EU Member States opposed it, while the countries of the South supported it; Switzerland then set a very good example by demonstrating the importance of the protection of human rights, including in industrialised countries and not only for colonial purposes, by recognising that human rights are essential to guarantee human dignity in both the North and the South. It should be noted that there are also victims of corporate activities in the North and that a treaty may also be in the interest of these populations. Finally, it is worth noting the very critical comments made by China and Russia against the final report, which seem to indicate that these countries wish to limit themselves to applying their national law. A UN treaty could therefore even be useful in protecting the citizens of the North from the investments and activities of companies from these countries.
Interview: Laurent Matile
 See a detailed analysis in: Ana María Suárez-Franco. Challenges in Accessing Justice When Claiming the Right to Adequate Food, in The Right to Food and Nutrition Watch. Claiming Human Rights: The Accountability Challenge. p. 39 ff. Bread for the World, FIAN, ICCO 2011.