Indigenous peoples and the treaty on transnational enterprises and human rights
07/02/2015
- Opinión
There is an unavoidable debate on the question of the negative impacts of the activities of enterprises and human rights. Indigenous peoples are one of the sectors most affected by business activities that take place in their territories. There are clear failures on the part of States in their obligation to protect indigenous peoples against violations of their rights. In this context, the Human Rights Council of the United Nations has decided to take up the debate to regulate the impacts of transnational corporations on human rights. An Intergovernmental Working Group will be in charge of elaborating a treaty on transnational corporations and human rights. The scenario of the negotiations is laden with expectations and challenges for States and interested sectors. Indigenous peoples share the aspiration of concluding an agreement on these questions and hope that its elaboration will take into account the rights recognized in the Declaration of the United Nations on the Rights of Indigenous Peoples as well as the International Labour Organization Convention l69 on Indigenous Peoples.
A treaty on transnational corporations and human rights
Efforts have been under way for some time to establish obligations for transnational corporations in the face of the negative consequences of their activities on human rights. In the United Nations two previous efforts failed. In 1972 a first process in the United Nations Commission on Transnational Corporations to produce a “code of conduct for transnational corporations” was launched. After two decades of negotiations they were unable to reach a consensus among parties involved for the adoption of the code. A second process was opened in 1998 in the Working Group charged with examining the methods of work and activities of transnational corporations. After several years of work, the Group tabled a project of “Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights”. The project of “norms” was disallowed because it had not been mandated by the then Human Rights Commission and the Economic and Social Council (ECOSOC). Both initiatives had hoped to provide a binding instrument and establish obligations for States and transnational corporations with respect to human rights.
A new initiative was begun in 2005, with the naming of a Special Representative of the Secretary-General on human rights and transnational corporations and other business enterprises, and concluded — in 2011 – when the Human Rights Council approved the “Guiding Principles on Businesses and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework” (A/HRC/17/31). The Guiding Principles are based on three fundamental principles. The first is the obligation of States to defend their peoples in the face of abuses of human rights committed by companies; the second is the responsibility of companies to respect human rights; and the third is the obligation to provide access to effective means of reparation for the victims. These apply to all States and companies, without establishing new obligations, nor restricting or reducing the obligations of States with respect to human rights. The Council also established a Working Group to promote its application and an annual Forum to debate its tendencies. The Working Group has a mandate to support States in drawing up laws and national policies, related to the application of the Guiding Principles. One of the instruments to promote its application is the elaboration of National Action Plans (NAPs). To date the governments of the United Kingdom, the Netherlands, Italy, Denmark and Spain have elaborated their NAP, while Switzerland and Finland are in a process of elaboration and 16 other States have expressed their commitment to elaborate a plan (1). In spite of these advances, some States believe it necessary to move towards the elaboration of a “binding juridical instrument” to regulate the activities of enterprises with respect to human rights. In a declaration – led by Ecuador – presented to the 24th period of sessions of the Human Rights Council, it is recognized that the Guiding Principles constitute a “first step” and that the instrument could provide a framework to improve the capacities of States in the protection of rights and the prevention of violations (2).
The theme of human rights and transnational companies was raised during the 26th period of sessions, resulting in the Council approving two resolutions. In the first resolution (A/HRC/RES/26/9) it was decided to “establish an open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights; whose mandate shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”. In spite of the fact that this resolution was not approved by all the member States of the Human Rights Council (3), the debate was referred back to the United Nations with respect to the need for a binding instrument. The resolution was considered historical by the social movements that had supported the initiative, as a “first step” towards putting an end to voluntary codes in transnational enterprises (4). Certain business sectors considered that the resolution was “a setback” in the application of the Guiding Principles and a return to approaches that had failed in the past (5).
The second resolution (A/HCR/RES/26/22) is centred on the application of the Guiding Principles and the tasks of the Working Group. It urges States to take measures to apply the Guiding Principles, including measures such as the elaboration of National Action Plans, and that annual reports be made to the Working Group concerning their application. Another point is the access to reparation on the part of the victims of violations of human rights related to the activities of enterprises. In this respect, there was a recommendation to the Working Group that the theme be discussed in the Annual Forum and the High Commission was asked to facilitate the study of all the legal obligations and practical measures to improve access to reparation. With respect to the Working Group it was decided to prolong its mandate for a period of three years and the General Secretary and the High Commission were requested to provide all resources and assistance necessary for the fulfilment of this mandate.
In the future there will be parallel processes. On the one hand the Working Group on the question of Human Rights and Transnational Corporations will strengthen the application of the Guiding Principles at a national level, and on the other, the Intergovernmental Group will take on the drafting of a treaty on transnational enterprises and human rights. The Guiding Principles, three years after their approval, have been moving towards application by a small group of European States and are challenging other countries – principally those of the South – to move on this in coming years. Meanwhile, the duration of negotiations for the future treaty is uncertain and their promoters hope to involve Northern countries in the process. Indigenous peoples hope that both processes include their rights and priorities, particularly with respect to access to reparation.
(English translation for ALAI by Jordan Bishop)
* The complete article in Spanish can be read here http://alainet.org/active/80526
Notas:
[1] See: State national action plans. http://www.ohchr.org/EN/Issues/Business/Pages/NationalActionPlans.aspx
[3] The resolution obtained 20 votes in favour, 14 against and 13 abstentions. The member States of the European Union and the United States voted against and these are in great part the countries of origin of the companies. The resolution was supported principally by countries from Latin America and Africa.
[4] Global Movement for a Binding Treaty,
- Luis Vittor is a Peruvian economist.
https://www.alainet.org/es/node/167393
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