If no one is above the law, let’s talk about corporate accountability

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV.COM Ltd.

Protesters shout slogans against the Iranian Minister of Justice for his role in the 1988 Massacre of political prisoners in Iran during a protest against his speech at the 37th session of the Human Rights Council in front of the European headquarters of the United Nations in Geneva, Switzerland on 27 February 2018. [EPA-EFE/VALENTIN FLAURAUD]

Our governments can no longer turn a blind eye when irresponsible companies are involved in human rights violations abroad, write Lydia de Leeuw and Anne van Schaik.

Lydia de Leeuw is a researcher at SOMO and Anne van Schaik is a campaigner for Friends of the Earth. 

“No one should be above the law.” It’s a statement we make when we want to reiterate an obvious point. Except, in relation to corporations operating worldwide this point is far from obvious. Yes, we do have legislation and a degree of enforcement when businesses engage in acts of fraud or corruption.

However, when it comes to human rights violations, particularly those outside EU boundaries, many of our governments accept and reinforce a system where corporations are not held to account for their involvement. We can no longer accept this, and must now seize a unique opportunity to make corporate impunity history.

The issue of corporate accountability has never been more pressing than today. Corporations impact on every aspect of our lives: from working conditions to land rights, and from our environment to access to medicine. To make matters worse; those seeking accountability for business-related human rights abuses not only face practical and legal challenges but also risks for their own safety.

Every year hundreds of land and environmental defenders are murdered because they try to protect their communities and livelihoods from large-scale private investment projects. There is a need for urgent action to address the growing risks faced by these human rights defenders around the world to prevent further threats and killings.

And the time to act is now. In June 2014, the Human Rights Council voted for a resolution to develop a treaty on business and human rights. The resolution established a UN Working Group, tasked with the development of such a binding instrument.

Since 2014, three annual sessions have been convened by this Working Group, where states, civil society groups, and business actors, have been discussing the contours of the future treaty. At the next session, scheduled to take place later this year, actual negotiations over a draft treaty text will commence in Geneva.

A lot is at stake; this treaty would be the first internationally binding instrument to ensure that businesses across a wide range of different sectors respect human rights in their activities – wherever they operate.  

Many countries – although those the global south much more so than in the north – have seen their own instances of corporate impunity –  when private sector actors cause death and injuries, environmental destruction, and loss of land and livelihood but there is no redress.

Whether you think about the Trafigura’s toxic waste dumping in Côte d’Ivoire, the German car industry duping emissions tests, AngloGold Ashanti’s fuelling of conflict in the DRC, widespread tax evasion leading to public loss, or the palm oil industry in Indonesia or Colombia, these situations all have one thing in common: failing regulation of business or inadequate enforcement of the law by governments that are supposed to be putting the basic rights of their citizens first.

Governments find it difficult to act on their own when it comes to limiting the activities of multinational companies, in particular because they fear that global businesses will simply take their investment and jobs elsewhere.

European governments must, therefore, use this unique opportunity to work together, shaping an internationally binding treaty requiring companies to carry out human rights due diligence to prevent abuses from occurring, and which will ensure that communities can get access to justice if they are harmed by exploitative and dangerous corporate practices.

Sadly, some European states have been dragging their feet in the UN treaty process, citing several reasons for not actively engaging the development of a treaty. The European Union has, year after year, expressed its prioritization of the implementation of the – non-binding – UN Guiding Principles on Human Rights (UNGPs), and that we should not rush forward with a binding instrument to address business-related human rights issues.

This standpoint not only ignores that fact that there is no need to choose one over the other but also illustrates the EU’s incoherence in policy making around corporate activity. Europe has been bending over backwards to develop hard law trade and investment agreements, accommodating big business interests, while showing little interest in protecting the rights of citizens in international law from corporate wrongdoing.

Although the budget for the next (fourth) session of the UN Working Group has been secured within the UN, it is unclear what stance the EU Member States will take when it comes to the actual scheduling of that session.  

Now that the way forward of the UN treaty process will be discussed on March 8, at the Human Rights Council in Geneva, all eyes are on the EU: what approach will the EU representatives take? Will they try to obstruct the process? Or will they walk the talk, as a region which prides itself on being the champion in defending human rights?

Our governments can no longer turn a blind eye when irresponsible companies are involved in human rights violations abroad. We will not accept it anymore, and we’ll continue to push for an internationally binding instrument that makes corporate impunity history.

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