The 66th session of the Commission on the Status of Women (CSW) will take place from 14 to 25 March 2022 with a focus on “Achieving gender equality and the empowerment of all women and girls in the context of climate change, environmental and disaster risk reduction policies and programmes”. The UN Secretary General’s report to the CSW, which will be presented during the session, provides yet another bleak picture of the current state of climate change, with accelerating biodiversity loss, land degradation, and pollution, all which have disproportionate detrimental impacts on women’s and girls’ human rights.
While the report inadequately acknowledges that “these trends are driven by historic patterns of unsustainable production, consumption and land use, exploitation of resources, wealth accumulation and the destructive dependency on fossil fuels”1, it fails to tackle the root cause of the climate emergency – the capitalist economic system and the interconnected role of private businesses, particularly in relation to the fossil fuel industry. Capitalism and corporate capture of policymaking sustain the growth imperative and the idea that natural resources are infinite, which in turn fuels conflict over resources and too often leads to the creation of laws and public policies that prioritise private profit rather than the protection of the environment and human rights.
For decades, human rights, environmental, feminist, Indigenous activists, and many others have been at the forefront of advocating for an international legal regime that could tackle the obligations of States and businesses with regard to human rights and, in doing so, reign in the harmful effects of capitalism on people and the environment. In 2014, these efforts led to the UN Human Rights Council’s creation of an Intergovernmental Working Group (IGWG) on transnational corporations and other business enterprises with respect to human rights, with the mandate to negotiate a new internationally legally binding instrument on business and human rights.
In October 2021 in Geneva, the IGWG held its 7th session. While the session was underway, in El Estor, Guatemala, we witnessed a striking example of why the negotiations and the regulation of corporations are not only essential, but urgent.
In El Estor, the Q’eqchi’ People have been in an ongoing struggle to oppose the illegal mining operations of the Fénix nickel mine owned by the Swiss-based Solway Mining Company. Although the constitutional court ordered the suspension of the illegal mining operations for not having complied with the right to Free, Prior and Informed Consent (FPIC) until a formal consultation process was carried out, the company’s operations continued.
During the negotiations in Geneva in October 2021, the community’s peaceful protest was violently repressed and a state of siege was imposed by the authorities. Afterwards, the Guatemalan authorities carried out consultations in November and December 2021 and reinstated the company’s mining permit. However, local CSOs have denounced several irregularities during the consultation process, demonstrating why it is imperative to put an end to corporate impunity.
With the exception of voluntary guidelines, there is currently no binding global legal framework that regulates the human rights impacts of companies, including transnational businesses – many of which are responsible for or complicit in violence, loss of livelihoods, and numerous other human rights abuses. An international legal instrument can regulate corporate power by setting in place specific and binding standards to ensure the protection of human rights by companies. Such a treaty would create obligations on governments to take measures to hold corporations and other business enterprises accountable for their impacts on individuals and communities in marginalised situations and on the environment.
The Feminists for a Binding Treaty (F4BT) Coalition, together with many other civil society coalitions, movements, and activists from around the globe, has mobilised every year since 2015 to push States to come to the negotiating table and to take meaningful and immediate steps towards agreeing on a text. In October 2021, close to 70 State delegations and around 300 Civil Society Organisations (CSOs) participated in person and online in the IGWG’s 7th session. Representatives from different member organisations of the F4BT delivered statements on specific articles of the draft treaty text on behalf of the Coalition, calling for a gender-responsive and ambitious treaty.
As research continues to demonstrate, for women and girls, the impact of human rights abuses by corporate entities is more far-reaching and devastating due to pre-existing discrimination against them. It is women, girls, and communities in marginalised situations that consistently face the greatest risk of violence, deprivation, and abuse. This makes ending corporate impunity not just a feminist issue, but a priority. The F4BT Coalition, alongside other activists, continues to emphasise the need for a treaty text that includes gender-responsive and effective protections for individuals and communities in different vulnerable contexts.
This process must continue
During the 7th IGWG session, a number of States spoke out in defense of important provisions on human rights defenders, a gender-responsive approach, and the protection of individuals and groups at particular risk. It is critical that these elements be safeguarded in the next draft of the treaty.
Some States raised concerns that legal issues addressed in the draft treaty are complex and may conflict with national law. However, it should be the aim of an international human rights instrument on business and human rights to raise national standards, bringing them in line with international human rights law, and to address the systemic gaps in accountability that victims face when seeking access to justice for corporate abuse.
In 2021, we once again witnessed arguments against the process of drafting the legally binding instrument. Others questioned the need for such an instrument. However, the evidence of increasing occurrence of corporate abuse and violence against communities and human rights defenders, and the persistent lack of accountability, continue to make a compelling case for robust regulation of business activities with regard to human rights. Urgent action through an international treaty is essential to ensure coherence in State action and to tackle the challenges posed by cross-border business activities. Such an endeavour must include, prioritise, and integrate the concerns and needs of communities negatively impacted by businesses.
As States engaged in discussions of specific articles and presented their statements, it was evident that the third draft text of the treaty presented to the IGWG session in October 2021 provided an important basis for negotiations. It goes in the right direction in filling some of the major gaps in ensuring prevention of business human rights abuses, access to justice, and reparation for victims. However, much remains to be done.
Much work to be done
While CSOs were allocated time during the IGWG session to provide comments and recommendations on the various draft articles, as well as on proposals by States, there is progress yet to be made in ensuring the voices of all communities are truly heard – including throughout the year between the annual sessions of the IGWG and through dialogues at the national and regional level.
Further, the participation of social movements and affected communities from the Global South in the IGWG sessions continues to be severely limited due to COVID-19 vaccine injustice. In addition to the unequal access to vaccines and COVID-19 regulations, limited access to the internet and communication technologies as well as increased travel costs due to the pandemic posed additional barriers to participation.
With regard to the subject matter of the treaty, in order to ensure it is most effective for women and affected communities, the text must be further strengthened to define protections, gender-responsive access to remedies, and provisions that apply to business activities in situations of conflict. In this regard, the F4BT Coalition has developed detailed proposals on the text of the draft treaty.
A crucial aspect which is still missing from the draft text relates to the obligations of the State in cases where governments engage in contracts or commercial activities with companies (e.g. public-private partnerships, public procurement, privatisation of services, or investment through a sovereign wealth fund), and with other States (as a member of multilateral institutions like the World Bank that deal with business-related issues, as well as when entering into trade and investment agreements).
In addition, given the increased influence of business lobby groups representing economic and business interests in governance, there is a need for safeguards in this regard. Under the treaty, for example, there could be provisions that effectively safeguard States’ ability and duty to act in the public interest to ensure protection from corporate capture (i.e. the undue influence of economic and business interests on public policy and law-making).
What happens now?
With the negotiations being an annual exercise, the inter-sessional period is key in developing consensus and building on important provisions of the text. At a time when we see growing violence against affected communities, continued rights violations, and very limited access to justice and remedy, governments need to make decisions that attend to the needs of people, protect the most vulnerable, and advance policies that reduce increasing inequalities and promote social justice.
A pandemic is not a time to enable businesses and corporate elites to become more powerful. That should not be an option.
Join the Feminists for a Binding Treaty Coalition and other civil society movements as we advocate for better human rights protection, access to effective remedies, and an end to corporate impunity.