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Negotiations for a Legally Binding Treaty on Transnational Companies. What is at stake this month?

The 9th session of the UN Human Rights Council open-ended intergovernmental working group (OEIGWG) on transnational corporations (TNCs) and other business enterprises with respect to human rights will be held in the Palais des Nations Geneva from 23 to 27 October, 2023. This process started in 2014, when the UN Human Rights Council approved resolution 26/9 and established this OEIGWG to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.

This legally binding treaty could address the current gaps in international human rights law that allow TNCs to commit crimes with impunity.

These negotiations are already redefining what is possible under human rights law, and are a result of the unprecedented capacity of the affected communities and organised civil society to shape the global debate about the obligations TNCs have. Every year, more and more countries acknowledge this historical need.

The influence of this ongoing treaty process is vast and goes well beyond the HRC. The European Parliament proposal for a directive on Corporate Sustainability Due Diligence – even if largely insufficient to tackle all the existing gaps in international law, other national level due diligence laws approved in recent years (France and Germany), as well as innovative Human Rights legal liability laws under discussion in Brazil and Argentina, are direct or indirect consequences of the debates opened up by this process. It is not possible anymore to talk about TNCs without talking about their human rights and environmental impacts. This historic UN process, already 9 years old, has made that possible.

Why is a Binding Treaty important in the current political context?

The pandemic, wars, and climate catastrophes are pushing millions of people into hunger and extreme poverty. Yet a small group of billionaires, who run and own most of the transnational corporations (TNCs), keep accumulating unprecedented levels of wealth. An angle to understand this reality is that TNCs operate at the global level, however there are no mandatory obligations for TNCs at the global level. Only national and regional level law applies to them, which is often insufficient to hold them accountable for human rights violations. This creates regulatory gaps and loopholes that many TNCs use to avoid criminal prosecution for their involvement in human rights violations, environmental crimes, or tax evasion. This is even more daunting for countries in the Global South, with scarce capacity to regulate or enforce laws against TNCs with an economic size that dwarfs their GDPs.

This context leads to systematic violations of human, labour and environmental rights by TNCs. Despite some recent historical judicial cases like a Dutch court that ordered the TNC Shell to deepen carbon cuts, or the energy company Total facing criminal charges in French courts for its negligence during the Palma attack in Northern Mozambique, for the most part TNCs remain unpunished. In other words, there is a transnational architecture of corporate impunity at work.

Which people/blocs are for and against the treaty and who has influence over this year’s negotiations?

Ecuador has been the Chair of the OEIGWG since the process started. Ecuador was the co-author, together with South Africa, of the resolution 26/9 that initiated this process in 2014. In the last years the role of Ecuador as Chair of this process has received mounting criticism from civil society groups, social movements and a number of states because of the consolidated texts for negotiations are considered too biased towards the proposals made by the interest of the TNCs, which also have representatives at the HRC via the International Organisation of Employers and the International Chamber of Commerce.

Many countries from the Global South (from the African, South East Asia and Latin America and the Caribbean regions) have most consistently supported an ambitious international legally binding instrument, one that focuses on establishing legal liability mechanisms on TNCs and on ensuring access to justice and remedy to affected peoples. This is in line with the original resolution 26/9 that created this OIGWG.

The countries who have not engaged or directly reject and have tried to stop the process are the United States, Japan, Canada and Australia, as well as other highly industrialized countries with a high number of TNCs headquartered in their territories.

The European Union and its member states have shifted their stance across the years. From an initial position of non-engagement and rejection, to providing some inputs, such as in the case of France. However, the role of the EU as a whole has been also heavily criticized by European CSOs for its lack of engagement, and often its ambiguity about the need for obligations for TNCs. Sustained pressure from European civil society however has ensure that the EU does not fully departs from this process.

The continued presence year after year of dozens of representatives from affected communities, civil society organisations, trade unions and social movements is a unique characteristic of this OEIGWG, making it one of the most strongly supported in the story of United Nations working groups. The Global Inter-Parliamentary Network (GIN), a large coalition of over 250 national and regional parliamentarians and senators from all over the world in support of the UN Binding Treaty will send eight delegates this year to Geneva – the biggest number ever.

What is new this year?

  • For the first time, there has been national and regional consultations between the session in Geneva, in particular Africa and Latin America, reflecting the growing importance of this process.
  • We expect pre-pandemic levels of attendance and participation by states and civil society. Our coalition alone is coordinating a delegation of more than 50 people from all continents, including 10 members of national and regional parliaments from Europe, Africa and Latin America.
  • We can expect the strongest ever interventions in the process by African countries like Namibia, Egypt, South Africa and others. We might witness a coordinated participation by the African Union (representing all 54 African states). In 2022 the African union issued a joint statement during the first day of negations to reiterate the need to focus on TNCs and not all business.
  • We can expect also a strong role by the Palestinian delegation, as was the case in 2022. In June 2023 following resolution 31/6, the United Nations High Commissioner for Human Rights updated the database of of all business enterprises involved in activities in the Occupied Palestinian Territory, including East Jerusalem.

Important Resources

For media inquiries write to press@viacampesina.org or visit the campaign website

Note: This web-article has been derived from a Press Kit prepared by the Global Campaign to Reclaim Peoples Sovereignty, Dismantle Corporate Power and Stop Impunity (Global Campaign) – a global network of over 250 social movements, civil society organisations (CSOs), trade unions and communities affected by the activities of transnational corporations (TNCs). The Global Campaign is the voice of more than 250 million people around the world that resist land grabs, extractive mining, exploitative wages and environmental destruction perpetrated by TNCs globally and particularly in Africa, Asia, Europe and Latin America. The Global Campaign has been a central actor in these negotiations from the start of this process.

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