Voluntary measures will not curb corporate impunity, a legally binding instrument is essential

The three-pillar framework of the UN Guiding Principles Business and Human Rights (UNGPs) represent a significant marker in the contemporary evolution of norms on the responsibility and accountability of corporate actors for their social, environmental, and human rights impacts. Indeed, international and regional human rights standards have attempted to provide a natural framework for seeking redress for business-related infractions of human dignity, fundamental interests, well-being, and welfare. Yet legal as well as political obstacles obstructed the use of human rights treaties and courts to challenge corporate impunity. Voluntary measures are not enough, thus the need for a legally binding instrument to regulate in international human rights law the activities of transnational corporations and other business enterprises. Any country which has signed up to the UNGPs cannot object to the Binding Treaty – which has progressed too far to fail.

The Uganda Consortium on Corporate Accountability (UCCA) supports the development of the legally binding instrument (also referred to as a draft treaty) to help stop human rights and environmental abuses caused by businesses.

Countries from the Global South with limited capacity to regulate activities of corporate entities would greatly benefit from the boost an international human rights instrument which regulates activities of transnational corporations and other business enterprises in international human rights law would provide.

This international binding human rights instrument aims to develop access to justice for individuals and communities facing business-related abuses such as land grabbing, loss of livelihoods, destruction of natural resources, and slave-like working conditions. For example, communities in the Rwenzori region in western Uganda have lost their right to livelihood due to corporate impunity. Even with a court judgement against Seahorse International, a third party company providing Lafarge Holcim’s Ugandan subsidiary, Hima Cement, with pozzolana (the raw material used to manufacture cement), the land has never been reconstructed and the communities are unable to farm. Such instances of corporate impunity in supply chains of transnational business enterprises are what informs our advocacy for the legally binding treaty.

The treaty process has been ongoing for the past eight years. However, not enough States have dedicated proper resources to advance it. While several countries supported the establishment of the process, other countries – the majority of the Global North – voted against it. Several States in the Global North are prioritising corporate interests that would undermine the very purposes of the treaty process. Moreover, as hundreds of social movements and several organisations have repeatedly highlighted, the treaty process is threatened by corporate capture, often through the inclusion of corporate lobbyists and associations in the negotiations, who present faulty and biased arguments to weaken the text and the process.

While some areas of the third draft of the binding treaty require further tweaks, the existing process continues until the finalisation and adoption of the treaty. The need to start any new process as proposed by some States or the need to fundamentally alter the text is unwelcome. If a different course is taken, it would inevitably eliminate or weaken the progress made so far. The current draft should not be controversial to any State that agreed to the UNGPs – it simply builds upon them in two areas: firstly, in relation to prevention, as it renders human rights due diligence mandatory and, secondly, in relation to access to remedy, as it tries to remove legal obstacles victims face. The treaty would be part of the ‘smart mix’ of measures that the late John Ruggie recognised were necessary to ensure corporate accountability.

Indeed, the binding treaty can stop corporate impunity if states strongly intervene and put forward critical recommendations from communities who are their citizens. The legally binding instrument should establish the primacy of human rights over trade and investment agreements, and a strong standard of legal liability for acts or omissions carried out by transnational corporations and other large enterprises. For example, Ugandan CSOs faced jurisdiction challenges when they sued TotalEnergies under the French Duty of Vigilance law that highlight the present challenges encountered in accessing effective remedies. In January 2020, the Nanterre civil court ruled the dispute fell under the jurisdiction of the commercial court; this was upheld in December 2020 by the Court of Appeals. While the commercial courts draw their legitimacy from their knowledge of the business world, cases brought under the duty of vigilance law relate to the protection of human rights and the planet, and cannot, therefore, be reduced to a purely commercial dispute. A year later, the French Supreme Court, rejected the jurisdiction of the commercial courts in favour of the jurisdiction of the civil court.

Once in effect, the binding treaty will ensure that individuals and communities affected by business activities – including Indigenous peoples, human rights, and environmental defenders – have effective mechanisms to access justice and reparations where abuses occur.

By Joseph Byomuhangyi, Uganda Consortium on Corporate Accountability (UCCA) & Initiative for Social and Economic Rights (ISER).

This article was originally published in the Business & Human Rights Resource Centre