The rise of corporate power
Globalisation is reshaping traditional notions of territoriality and sovereignty, which are associated with States in the realm of international law. At the same time, economic actors such as transnational corporations (which structures and activities are transnational in nature) have become increasingly powerful actors on the global scene, using their economic weight to influence States and to shape regulations.
Transnational corporations (TNCs) through their business activities also directly affect the enjoyment of human rights by individuals, including women. This transnational character results in a situation in which the operations of a TNC existing under the laws of one State may impact the lives of communities located in other states hosting the operations of the TNC.
The challenges to accountability
This “power shift” and the transnational character of business activities have made it increasingly difficult for States, in particular for poorer States, to regulate and control the acts of non-state actors such as corporations. As a result, TNCs responsible of human rights violations often escape liability for abuses that occur within their global corporate structures and supply chains. This is particularly a challenge for countries of the Global South that may be unable to effectively regulate acts of transnational corporations, due to the strong economic bargaining power of TNCs, to unbalanced trade agreements they have entered into or to the weak rule of law and governance in the country.
The limits of international human rights law
Under international human rights law, States have an obligation to respect, protect and fulfill human rights both within their territories and extraterritorially. However, most States continue to think of human rights with a national mindset, thus overlooking their obligation to avoid causing harm and to protect human rights of people outside of their borders. As a result, the current international human rights regime suffers from major gaps and most importantly, many victims of human rights violations remain deprived of their right to justice and reparations.
In addition, while the international trade regime and investor protection have been strengthened over the last decades with the advent of economic globalisation, human rights have increasingly been excluded from consideration to the benefit of corporate interests. For instance, investor-state dispute settlement (ISDS) provisions in trade agreements enable foreign investors to sue States when governments seek to regulate for public interest reasons and where such measures have a negative impact on the value of the investment. The Trans-Pacific Partnership (TPP) agreement and the Transatlantic Trade and Investment Partnership (TTIP), which have recently stirred major outcry in the public opinion due to their opacity and lack of democratic oversight, are just the latest examples of trade agreements overlooking any human rights impacts.
A number of human rights experts, civil society organisations worldwide, as well as an increasing number of United Nations Treaty bodies have been calling for and shaping the recognition of extraterritorial obligations of States to respect human rights. Extraterritorial obligations aim at ensuring that States, when making policy and deciding on new laws, also consider their impact on the enjoyment of human rights of people outside their own country. WILPF considers that the recognition of extraterritorial obligations would acknowledge that the negative impacts of globalisation cannot be regulated by one State alone and would contribute to realising international solidarity and human rights for all. Such recognition would also strengthen in international law the due diligence obligation of States to respect and protect human rights, both within their territories and extraterritorially.
What is WILPF doing on this topic?
WILPF’s Human Rights Programme has been active in its reporting to UN Human Rights bodies (and in particular to the Committee on the Elimination of Discrimination Against Women, CEDAW) in order to stress the extra-territorial responsibility of States regarding their impact on women’s rights due to arms sales and to the activities of transnational corporations. Our latest report on this topic is published today, on the occasion of the review of Sweden by the CEDAW Committee, which will take place on 18 February 2016.
This report aims at drawing the Committee’s attention to Sweden’s state of compliance with its extraterritorial obligations under the CEDAW Convention in particular with regards to the consequences of Sweden’s arms exports on women, Sweden’s human rights due diligence obligation with regards to the activities of Swedish multinational companies operating outside Sweden and Sweden’s implementation of the Women, Peace and Security Agenda.