Where the hopes of the South come together

The Human Rights Council meets in Room XX of the Geneva Palais des Nations. It was renovated in 2008 and the ceiling was designed by the Spanish artist Miquel Barceló.
Article as analysis
Swiss politics is struggling for a legal framework in the relationship between business and human rights. In Geneva, the states are working on a legally binding UN treaty. Here and there, civil society is not giving up.

Millions of people, especially in the countries of the South, follow and place high hopes in what is being negotiated in la Genève internationale, the European headquarters of the United Nations. Since 2014, a UN Human Rights Council working group has been elaborating a legally binding multilateral UN treaty to require enterprises to respect human rights, wherever they operate. This therefore also includes the countries of the global South, where millions still live in intolerable poverty and vulnerability. The fifth round of meetings was held in mid-October.

In social movements within civil society, courageous women and men risk life and limb to defend themselves against human rights violations and the destruction of the environment. Thanks also to worldwide digital networking, these groups are no longer isolated. They have the support of civil society in the South – trade unions, NGOs and churches – and their struggles are being taken from the local to the national, the supra-regional and ultimately to the international level. With the help of sister organizations in the North, small delegations of peasants, indigenous people and other affected persons are able to bring this protest all the way to the Palais des Nations in international Geneva, which is in a sense the centre of the world when it comes to the issue of business and human rights.

In Geneva, international NGOs constitute the link between the real problems on the ground and the negotiating table at the United Nations. They identify, analyse and give structure to the hopes, expectations and above all the needs of affected population groups, and they translate them into the specialized legal jargon of multilateral negotiations.

Alliance Sud has spoken with two of these NGO players, which have spent many years following and helping to shape these complex, often arduous but also encouraging negotiations in Geneva. To stay the course in such protracted multilateral negotiations, it takes foresight, modesty and tenacity in equal measure. While the goal is of course vital, the significance of the process should also not be underestimated. There is no doubting that the road is a long and winding one, but the strength and resolve of Ana María Suárez Franco and Carlos López seem boundless.

"The new paradigm must put the human above profit"

 

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.[1]

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

 

[1] 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.

Colombian Ana María Suárez Franco is Coordinator Accountability and Monitoring at the Geneva Office of FIAN International. FIAN International was founded in 1986 and was the first international human rights organization to campaign for the realization of the right to food. Composed of national sections and individual members in more than 50 countries, FIAN is a non-profit organization dedicated to action at the local level, without political or religious affiliation. FIAN has consultative status with the United Nations. Its work is based on the Universal Declaration of Human Rights and in particular on the International Covenant on Economic, Social and Cultural Rights.

“Rather than guarantee respect for human rights, States have used their power to promote market liberalization.”

 

Alliance Sud: Why, in the view of the International Commission of Jurists (ICJ), is a legally binding UN treaty required to ensure respect for human rights also in the course of the activities of multinational corporations?

Carlos López: Multinational corporations work with complex value chains, which include subsidiaries, subcontractors and other business connections. The complexity and opaqueness of these structures enable enterprises to circumvent national jurisdictions. The provisions of law in this field are insufficient in both the South and the North. States do in fact have the necessary legitimacy and power to regulate enterprises and ensure that they respect human rights, but have so far been unwilling to exercise them. At the same time they have used their power to promote extensive market liberalization in the WTO framework or through free trade agreements.

Opponents of the introduction of parent company liability for the activities of their subsidiaries, subcontractors or other business partners under their control contend that introducing such liability would lead to a "flood of lawsuits". What do you think of this argument?

So far no such flood of liability suits has materialized anywhere. Experiences so far with courts in countries where multinationals are headquartered, such as the United Kingdom, the Netherlands or Canada, have mainly brought out the expensive, complex and time-consuming nature of such cases. Among other things, they require interpreters, travel and expert opinions, which together generate substantial costs. In the United Kingdom, the costs of defending a case ranges from 100,000 to 1 million pound sterling. This explains the very small number of cases that have come before the courts so far. Yet another deterrent to potential plaintiffs is the risk of losing in court and being ordered to pay court costs and the defendant's lawyers’ fees. Moreover, the health of victims of human rights violations is often affected such that they are unable to participate in court proceedings many of which drag on for years. But the risk of a "flood of lawsuits" should not prevent us from delivering justice and amending laws when necessary. Already in 2005, British courts held that 'floodgates' was no cogent reason for allowing injustices to go unpunished, and that that argument was always brought up whenever a legal development was being considered.

Interview: Laurent Matile

The Peruvian Carlos López is an ICJ legal adviser in Geneva and leads its programme on Business and Human Rights. Founded in 1952, the NGO defends human rights and the rule of law. It comprises 60 judges and lawyers from around the world with outstanding expertise in the broadest range of legal systems.