Forty years after the Bhopal disaster of 1984, the victims and the adversely affected ecosystems await relief and remediation. Lessons from such industrial disasters create a compelling logic for an internationally binding treaty for transnational corporations (TNCs) and human rights.
Given the fact that corporations, banks and other business enterprises are admittedly not meant to be “democratic public interest institutions”, the decisive negotiations on an enforceable treaty on transnational corporations and human rights which are currently underway has great significance. A UN resolution of 2014 had created the UN Open-ended intergovernmental working group and tasked it to prepare the text of a binding treaty. States are due to meet in Geneva, for the 10th session of the UN's Open Ended Inter-Governmental Working Group (OEIGWG) to negotiate the updated draft of the future Binding Treaty during 16-20 December 2024. The first and second sessions of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights were dedicated to conducting constructive deliberations on the content, scope, nature and form of a future international instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.
During the third session, the Working Group discussed elements for a draft legally binding instrument prepared by the Chairperson-Rapporteur of the OEIGWG taking into consideration the discussions held during the first two sessions. At he fourth session, the Working Group's discussions focused on a zero draft legally binding instrument, as well as a zero draft optional protocol to be annexed to the zero draft legally binding instrument. During the fifth session, a revised draft of the legally binding instrument served as the basis for negotiations. At the sixth session, a second revised draft of the legally binding instrument served as the basis for negotiations. During the seventh session, a third revised draft of the legally binding instrument served as the basis for negotiations. At the eighth session, the third revised draft of the legally binding instrument with the textual proposals submitted by States during the seventh session served as the basis for negotiations. Additionally, to help advance discussions during the eighth session, States and non-State stakeholders could also comment on informal contributions presented by the Chair-Rapporteur on select articles of the instrument. During the ninth session, an updated draft legally binding instrument served as the basis for negotiations.
At its 56th session, on 11 July 2024, the Human Rights Council adopted decision 56/116 to enhance the support capabilities of the OEIGWG in line with the mandate established by the Council in its resolution 26/9, and to enhance the support capabilities in the area of business and human rights within the Office of the United Nations High Commissioner for Human Rights, for the work on the legally binding instrument.
In its essence, the proposed draft treaty is an outcome of over 50 years of effort, which underlines that self-regulation by corporations is not enough at all. As a consequence of such realization as early as July 1972, at the initiative of Government of Chile, United Nations Economic and Social Council (UNESC) had requested UN Secretary General to appoint a Group of Eminent Persons to study the role of transnational corporations in relation to developing countries and international relations. This UN Group was headed by L K Jha, former Governor, Reserve Bank of India. Developing countries Chile, India, Ecuador have been grappling with the ungovernable might of corporations like International Telephone and Telegraph Company, Union Carbide Corporation and Chevron.
The persistent efforts to enact a binding treaty for corporations expose the emptiness of voluntary UN Global Compact and UN Guiding Principles on Business and Human Rights.
Prior to the current efforts initiated by Ecuador and supported by India, China, South Africa, Russian Federation, Philippines, Viet Nam, Indonesia, Venezuela, Cuba, Algeria, Benin, Burkina Faso, Congo, Côte d’Ivoire, Ethiopia, Kazakhstan, Kenya, Morocco, Namibia and Pakistan to provide the legal remedy to wrongs committed by business enterprises, the UN Sub-Commission on the Promotion and Protection of Human Rights had approved the 'UN norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights'. These norms had emerged as a step towards ensuring corporate accountability in August 2003.
But the report of the Prof. John Ruggie, a Special Representative of the UN Secretary-General on business and human rights undermined these proposed mandatory UN Norms under the influence of International Chamber of Commerce and the International Organization of Employers. It chose to promote Guiding Principles on Business and Human Rights in July 2011 as part of advocacy for the status quo of voluntary regulation by the companies while admitting that "While corporations may be considered organs of society, they are specialised economic organs, not democratic public interest institutions.”
The efforts of the UN working group vindicate the UN Norms which were drafted by Prof. David Weissbrodt and other co-authors for mandatory regulation of TNCs. Prof. Weissbrodt had underlined how only 1,000 of about 75, 000 TNCs had joined the voluntary UN Global Compact. Even the ones who joined are at a liberty to withdraw at their sweet will.
In order to inspire confidence the new efforts for the proposed legally enforceable mandatory treaty must ensure that business enterprises are subservient to both peoples’ will and legislative will. It should ensure that natural persons have the principle of primacy of their human rights and public interest over private economic interests. It should reaffirm the hierarchical superiority of human rights norms over trade and investment treaties and develop specific state obligations in this regard.
After the third session of the UN inter governmental working group concluded, on October 27, 2017 a representative for the USA asserted gleefully that this “binding treaty will not be binding for those who voted against it”. The US reaction to the efforts for binding treaty gives a sense of déjà vu. After the initial adoption of the mandatory UN norms, the corporations reacted sharply saying: these norms are “duplicate and unnecessary”. Prof. Weissbrodt had responded saying, the mandatory norms are indeed “duplicate” in the sense that they are based on existing laws and principles, therefore, they are necessary.
Notably, USA did not participated in the three-year process after the adoption of the UN resolution on 26 June, 2014 at the 37th meeting of UN Human Rights Council (UNHRC). Instead, USA along with UK, France, Germany, Italy, Japan and Republic of Korea besides countries are like Austria, Czech Republic, Estonia, Ireland, Montenegro and Romania have voted against the resolution for a binding treaty. Under external influence countries like Saudi Arabia, Sierra Leone, United Arab Emirates, Gabon, Kuwait, Maldives, Mexico, Peru, Argentina, Brazil, Chile, Costa Rica and Botswana abstained.
The Draft Report of Guillaume Long, the Chair-Rapporteur of the UN working group paving the way for the treaty has been approved by consensus. It will now be submitted for final approval to the UNHRC in March 2018. The Elements paper towards a Treaty proposed by Ecuador remained open for comments until the end of February 2018. It formed the basis for developing the zero draft treaty for the fourth session of the UN working group in 2018.
The Report on the ninth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, presented at the Fifty-fifth session of Human Rights Council during 26 February–5 April 2024 revealed that list of participants in the exercise included members of the UN like Albania, Algeria, Angola, Argentina, Australia, Austria, Azerbaijan, Belgium, Bolivia, Brazil, Cameroon, Chile, China, Colombia, Côte d’Ivoire, Cuba, Czechia, Democratic Republic of the Congo, Denmark, Djibouti, Dominican Republic, Ecuador, Egypt, Ethiopia, Finland, France, Gambia, Germany, Ghana, Honduras, India, Indonesia, Iran, Iraq, Ireland, Israel, Jamaica, Japan, Kenya, Luxembourg, Madagascar, Malawi, Malaysia, Mexico, Mongolia, Mozambique, Namibia, Nepal, Netherlands, Nigeria, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Portugal, Qatar, Republic of Korea, Romania, Russian Federation, Saudi Arabia, Senegal, Sierra Leone, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Tunisia, Türkiye, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Venezuela, Viet Nam. State of Palestine, a non-member was represented by an observer.
Instead of re-inventing the wheel, the UN working group ought to have adopted the proceedings of previous UN efforts and the Draft Code of Conduct on Transnational Corporations which emerged out of the report of the UN’s Eminent Persons besides the UN Norms. This Code was submitted at the special session of the UN Commission on Transnational Corporations to the UN Economic and Social Council on May 31, 1990.
So far consistent with the legacy of Non Aligned Movement (NAM), India supported these UN efforts especially after May 26, 2014 when Sushma Swaraj took charge of foreign ministry from Salman Khurshid. Indian Government’s position on the binding treaty amid maneuvers from the European Union, USA and commercial czars merits attention.
The tremendous influence of US-based Union Carbide Corporation (UCC) became visible when the author posed a question to the chief minister of Madhya Pradesh in October 2017 on a NDTV program co-hosted by Amitabh Bachchan, a former legislator and a veteran actor. When asked about the disposal of the 336 tonnes of hazardous waste lying in the UCC factory, its liability and the disclosure of the report of the judicial inquiry commission on the 1984 Bhopal disaster. The then Chief Minister and the current Union Agriculture Minister chose to maintain a studied silence about all these questions. Significantly, although the Justice S.L. Kochar led commission submitted its report to the state government in February 2015; it has not been made public as yet. In the name of trade secret, UCC has not disclosed the composition of the gas which was leaked on the night December 2, 1984.
Meanwhile, in March 2024, the 22nd Law Commission of India published a report titled “Trade Secrets and Economic Espionage” along with a draft bill based on its consultation with likes of Associated Chambers of Commerce & Industry of India (ASSOCHAM), Federation of Indian Chambers of Commerce and Industry (FICCI), Confederation of Indian Industry (CII) and US Patent and Trademark Office.
In order to inspire confidence, the new efforts for enforceable UN treaty and Indian trade secrets and economic espionage legislation must ensure that business enterprises are subservient to both peoples’ will and legislative will. These laws should ensure the primacy of human rights and public interest over private economic interests. They should reaffirm the hierarchical superiority of human rights norms over trade and investment treaties and develop specific state obligations in this regard.
Dr. Gopal Krishna
The author’s doctoral thesis is on corporate crimes and the accountability of public institutions. He is a lawyer and a researcher of philosophy and law. His current work is focused on philosophy of digital totalitarianism and monetisation of nature. He has appeared before Supreme Court’s Committees, Parliamentary Committees of Europe, Germany and India and UN agencies on the subject of national and international legislation. He is an ex-Fellow, Berlin based International Research Group on Authoritarianism and Counter Strategies (IRGAC). He is also the editor of www.toxicswatch.org.
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