Reclaiming People’s Sovereignty in an era of Corporate Power
Despite the track record of systemic and systematic violations of the range of human rights, the efforts to establish legally binding obligations and an instrument of enforcement within the UN system have been defeated by determined corporate opposition. The current Guiding Principles developed by the former Special Representative of the UN Secretary General, John Ruggie, do not create "any new international legal obligations" and are therefore non-binding.
This article appeared in the Right to Food Journal Vol.9 N.1. 2014.
A Week of Mobilization activities organized in Geneva during the last week of the United Nations Human Rights Council (UNHRC) Session from June 23–27, 2014 was convened by a broad range of social movements, campaign networks and civil society organizations (CSOs) from around the world. 1
A symbolic concluding event of the week, namely the Impunity Tour, started from the Broken Chair in front of the United Nations (UN), wound its way through streets which are home to the headquarters of Global Corporations and ended in front of the World Trade Organization (WTO). The narrative of this Impunity Tour was the projection of growing global resistance to the corporate power regime.
In a sense we can say three key protagonists were very present in Geneva during the Week of Mobilization:
- Social movements and their struggles to Reclaim People's Sovereignty in the areas of binding regulations on Transnational Corporations (TNC) and the demand for a human rights-based system for food;
- the member States of the UNHRC;
- and, the corporate sector in its shadow presence inside the UN or in its imposing headquarters in Geneva.
Both outside the UN (in the Hearing of the Permanent Peoples Tribunal and in the Food, Nutrition and Extraterritorial Obligations (ETO) Conference) and inside the UN (in oral statements, side meetings and engagements with Permanent Missions), an urgent need for Binding Obligations on the operations of TNCs was agreed.
But this focus was not only concentrated in Geneva. In the months ahead of the UNHRC Session, civil society organizations and human rights networks engaged with their governments in national capitals. This combined effort resulted in 610 organizations and 400 individuals from 95 countries signing the Treaty Alliance’s "Call on the UNHRC to start developing a Treaty to tackle corporate human rights violations" 2
Then on June 26 the UNHRC passed the historic resolution 3 mandating an open ended Inter-Governmental Working Group (IGWG) to develop a Binding Treaty on TNCs and other businesses within a two- year timeframe.
CORPORATE POWER ENTRENCHED - AN ARCHITECTURE OF IMPUNITY
These events in Geneva, however, are unfolding in a broader context and conjuncture. Over the past forty years an elaborate 'architecture of impunity' and system of legal protections have been put in place for the operations of TNCs. This asymmetric normative framework grants TNCs “super rights” through Lex Mercatoria (the legal instruments privileging the interests of investors) such as Free Trade Agreements, Bilateral and Plurilateral Investment Treaties, the majority of which include an ISDS mechanism (investor-to-state dispute settlement mechanism that allows corporations to sue governments). The global International Financial Institutions (IFIs), the International Monetary Fund and the World Bank and their policy prescriptions, as well as those of the WTO, also have their role in this architecture of impunity.
Despite the corporate track record of systemic and systematic violations of the range of human rights and people's rights (such as those cases presented in Geneva)4, the efforts to establish legally binding obligations and an instrument of enforcement within the UN system have been defeated by determined corporate opposition and complicity of governments. The current Guiding Principles developed by the former Special Representative of the UN Secretary General, John Ruggie, do not create "any new international legal obligations" and are therefore non-binding.
By contrast, these Lex Mercatoria juridical instruments are binding and have enforcement mechanisms – such as the WTO’s Dispute Settlement Mechanism (where governments check and sue each other on compliance with trade liberalization put in place by corporate lobbies and demands) or the World Bank’s International Centre for Settlement of Investment Disputes (ICSID), where corporations sue governments and are frequently rewarded with megacompensation.
In 2013, the ICSID fined the Ecuadorian government US$2.3 billion for ending the contract of a foreign company, even though the latter had first breached its contract with the government of Ecuador. The amount leveled against Ecuador represents 59% of the country’s 2012 annual budget for education and 135% of the country’s annual healthcare budget.5
The international Human Rights system, on the other hand, does not have a binding Treaty on TNC operations and, even less, an enforcement mechanism to address corporate crimes or offer remedy and justice to affected communities. Instead, the UN Guiding Principles on Business and Human Rights promote voluntary guidelines through a Corporate Social Responsibility (CSR) framework as imprecise responses to human rights violations and corporate crime.
CORPORATE POWER EXPANDED – THE GLOBAL REDESIGN INITIATIVE
Corporate capture does not end with Trade and Investment Agreements privileging TNCs over the responsibilities of states to their citizens. Corporate capture operates at the core of our democratic system. This is elaborated in the Global Redesign Initiative (GRI), a Report commissioned by the World Economic Forum (WEF) published in 2010 – Everybody’s Business: Strengthening International Cooperation in a more Interdependent World. The GRI is a determined corporate attack on the democratic functioning of the state for the public interest.
In the GRI, the global leading economic class represented in the WEF leaves no doubt they know best how to govern the global economy as well as our daily lives: “governing today is no longer a matter for government alone... governments’ basic ‘public functions’ have been redefined... hence the challenge is how to re-invent government as a tool for the joint creation of public value”.
The WEF sees the solution in a “multi-stakeholder” form of governance consisting of corporations, government and selected civil society, but mainly of corporations.6 This radical threat to democracy is also underlined by Susan George in her State of Corporations article 7: ”It’s not just their size, their enormous wealth and assets that make the TNCs dangerous to democracy. It’s also their concentration, their capacity to influence, and often infiltrate, governments and their ability to act as a genuine international social class in order to defend their commercial interests against the common good”.
It is such corporate decision and policy making power that has until now ensured the defeat of the efforts in the previous decades of the 70s and 90s to place binding regulations on TNCs.
EMERGING NEW CONTEXT AND CONJUNCTURE
However, while corporate power has grown exponentially and has been able to entrench its privileges in seemingly copper- fastened legal frameworks, a significant if tentative new conjuncture has emerged. This new conjuncture includes a broad spectrum of social movements, strong campaigns of affected communities, as well as some governments of the South (those fundamentally reviewing Investment Treaties, withdrawing from ICSID and voting for a Binding Treaty). This is contributing to build a new momentum towards confronting corporate power and working to construct a Binding Treaty with an enforcement instrument on TNCs.
As the convening of the IGWG begins to take shape in Geneva, the movements, networks and organizations who shared the victory of the historic UN Resolution in June in Geneva and around the world are also gearing up their strategies of engagement.
The Global Campaign to Dismantle Corporate Power and Stop Impunity 8 has launched an International People’s Treaty as a process to facilitate broad popular mobilization and participation. This process sees people’s movements as key protagonists in the re-making of law from below and in building the economic, political and cultural alternatives which will make a difference in people's daily lives.
Going forward also within the framework of the Treaty Alliance, a priority will be engagement with the IGWG trajectory over 2015 and 2016 in the challenge of delivering a robust and meaningful Treaty of Binding Obligations on TNCs and other businesses with an enforcement mechanism that can deliver long delayed justice to affected communities and ensure an end to corporate impunity.
Everyone knows the stakes are high and the opposition and contestations will be many in this historic confrontation with corporate power. Moreover this is a challenge which demands a new convergence of movements and networks strengthened in the determination to re-claim People's Sovereignty over corporate power and combining joint strategies both in Geneva and in Member States.
On November 2004, the FAO Council adopted the Voluntary Guidelines to support the progressive realization of the right to adequate food in the context of national food security 9. The ten-year anniversary in 2014 has been seized by the Global Network for the Right to Food and Nutrition 10 and other civil society organizations and social movements as an opportunity for stocktaking and, more importantly, to call for renewed commitment by governments, United Nations agencies, civil society and other stakeholders, for the full realization of the Right to Adequate Food and Nutrition.
Here are some of the resources on the occasion of the 10-year anniversary of the Right to Food Guidelines:
Find all these resources at www.fian.org/10-years-rtf-guideline
1. Co-convenors: Treaty Alliance, Campaign Dismantle Corporate Power and Stop Impunity, ESCR-net, Friends of the Earth International (FOEI), World March of Women, FIAN International, Transnational Institute, Franciscans International, Working Group on Investment in the Americas, Plataforma Interamericana de Derechos Humanos Democracia y Desarrollo (PIDHDD), Oidhaco (Oficina Internacional de Derechos Humanos Acción Colombia), Social Movements for an Alternative Asia (SMAA), Comité pour l'Annulation du Tiers Monde (CADTM), ODG (Observatorio de la Deuda en la Globalización) Catalunya, OMAL (Observatorio de Multinacionales en América Latina), Ecologistas en Acción, Polaris Institute Canada, Institute for Policy Studies (IPS), Global Economy Project, Alternative Information & Development Center (AIDC) South Africa, Col.lectiu RETS Catalunya, WoMin (Women in Mining) South Africa, Centre for Trade and Policy Development in Zambia, Tax Justice Network - Africa in Kenya, Jubilee South-Asia Pacific Movement on Debt and Development, Alyansa Tigil Mina (ATM) Philippines, SENTRO Trade Union Center Philippines, ATTAC Japan, Migrant Forum Asia, Transnational Migrant Platform, Platform of Filipino Migrants in Europe, Focus on the Global South, EU-ASEAN FTA Campaign network, Corporate Europe Observatory (CEO), War War on Want, Stop the Wall Campaign and Palestinian National Boycott, Divestment and Sanctions Committee (BNC), International Network of Human Rights.Comité du Forum Social Lémanique, ATTAC Switzerland, SolidaritéS, Coordination Climat Justice Sociale, CETIM, L'Autre Syndicat, UNITERR.
2. See www.stopcorporateimpunity.org/?p=5463
3. The UNCHR Resolution “elaboration of an international legally binding instrument on trans - national corporations and other business enterprises with respect to human rights”, UN Doc. A/HRC/26/L.22/Rev.1, 25 June 2014 available at: http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/26/L.22/Rev.1
4.Cases included Chevron in Ecuadorean Amazon, Shell in Nigeria, Glencore in several countries (the Philippines, Zambia, Democratic Republic of Congo, Peru and Colombia), Pacific Rim in El Salvador, Lonmin in South Africa, Coca-Cola in Colombia, Mekorot in Palestine and Hidralia in Guatemala.See www.stopcorporatepower.org
6. Read further about this in: www.tni.org/sites/www.tni.org/files/download/state_of_davos_chapter.pdf
7. See: www.tni.org/sites/www.tni.org/files/download/state_of_corporation_chapter.pdf
8. The Campaign was launched in June 2012 with its call to International Action for the Economic, Political, Cultural and Environmental Sovereignty of our Peoples. See www.stopcorporateimpunity.org
9. See www.fao.org/docrep/009/y7937e/y7937e00.htm
10. For more information, see www.fian.org/en/what-we-do/issues/monitoringaccountability/ global-network-for-the-right-to-food-and-nutrition