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The United Nations Human Rights Council (UNHRC) has published the Zero Draft of a “binding instrument” to regulate transnational corporations in regards to international human rights law. However, an examination of the draft reveals it is a poor tool for corporate accountability.
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In June 2014, through resolution 26/9, UNHRC member states led by Ecuador and South Africa established an Intergovernmental Working Group (IWG) on Transnational Corporations and Other Business Enterprises for Human Rights.
The effort emerged from the recognition that transnational corporations have become one of the greatest perpetrators of human rights violations in their quest for profits. Around the world, social leaders who oppose megaprojects and extractive industries are found dead or are threatened by transnational actors, often with the complicity of state forces.
Two years ago, Friends of the Earth International, a grassroots environmental network that brings together 75 national groups and 5,000 local activists, explained why such a binding instrument was needed: “Many transnational corporations are richer and more powerful than the states trying to regulate them. Too often, big businesses capture political decision-making spaces.”
The Zero Draft establishes that state parties to the convention will be responsible for preventing victims from being “required to reimburse any legal expenses of the other party to the claim,” and ensuring that inability to cover administrative and other costs does not become a barrier to denounce violations, obliging states to “assist victims in overcoming such barriers, including through waiving costs where needed.”
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However, the long-awaited draft fails to innovate current state of affairs by placing the burden of implementation on states, which can be trapped in two situations: either they have less power than the corporation they seek to regulate or hold accountable (e.g., Ecuador and the struggle for justice against U.S.-based oil-giant Chevron/Texaco), or they are complicit in human rights violations perpetrated by these companies (e.g., the murder of Honduran activist Berta Caceres after getting the Chinese company Sinohydro to back out of a project to build a hydroelectric dam).
Instead of establishing the “international human rights court that affected people can turn to if their national courts fail to provide access to justice,” a demand by grassroots organizations, the draft proposes the creation of a 12-member committee made up of experts who have the power to make general comments, provide recommendations, support states in the implementation, and write annual reports.
Calls for a legal mechanism to prevent corporate human rights abuses have been echoed since former Chilean President Salvador Allende’s 1972 speech at the U.N. General Assembly, in which he warned against the confrontation between transnational corporations and states.
“Great transnational businesses do not threaten the genuine interests of developing countries, but its overwhelming and uncontrolled action also occurs in the industrialized countries where they are based,” Allende said a year before being murdered by a treasonous faction of the Chilean military.
Further discussion on the draft is expected for October. However, without any modifications to address the weakness and, in some cases, the complicity of the state in human rights violations, the convention will be nothing more than a symbolic gesture with no real consequence for the struggle for corporate responsibility.
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