Defending rights from corporate power

By Richard Girard

On April 24, 2013, an eight-storey building known as Rana Plaza collapsed in Dhaka, Bangladesh, killing more than 1,100 garment workers and injuring thousands of others. The victims, mostly women, worked in factories owned by a number of companies (New Wave Bottoms, Phantom, Ether Tex) that make clothing for high-profile retailers, including Walmart, Loblaw, Benetton, Bonmarché, the Children's Place, El Corte Inglés, Mango, Matalan and Primark. In response to the collapse, survivors and outraged Bangladeshis, and global civil society and labour groups, among many others, demanded justice for the killed garment workers.

As a result of this pressure, the Rana Plaza building owners are facing murder charges, and some of the implicated apparel companies have agreed to join a Bangladeshi Safety Accord. While this is a good first step to making garment factories in Bangladesh safer places to work, there is still no recourse, in the accord or elsewhere, for victims of the industrial disaster to seek damages from any of the transnational corporations (TNCs) that profited from the sale of clothing produced in the unsafe, low-wage factory complex.

Sadly, the crime of Rana Plaza is not an isolated example of a TNC involved in serious human rights violations. For years, corporate crimes have been reported, discussed and symbolically denounced in forums such as the 2010 Permanent Peoples’ Tribunal on European Transnational Corporations in Latin America, and the current chapter of the Permanent Peoples’ Tribunal for Mexico. While these tribunals, and other similar efforts, publicize otherwise undocumented abuses committed by TNCs, they cannot take the next legal step of trying, convicting and sanctioning corporations for their crimes. This is normally the domain of national governments. But a combination of weak laws, poor oversight and constant collusion between elected officials and TNCs creates a situation where corporations are able to avoid punishment. International institutions would seem to be the natural place to confront and dismantle this embedded impunity enjoyed by TNCs. Unfortunately, even the United Nations (UN) has chosen a strategy of collaboration and partnership with corporations instead of seeking to constrain and sanction their abuses.

The collapsed Rana Plaza in Savar, a district of the Greater Dhaka Area of Bangladesh, in April 2013. (Source: Wikipedia)The collapsed Rana Plaza in Savar, a district of the Greater Dhaka Area of Bangladesh, in April 2013. (Source: Wikipedia)

This was not always the case. During the 1970s and into the early ‘80s, the UN was actually mandated to regulate and monitor the activities of transnational corporations. At the time, TNCs were seen to be unduly pressuring states in the Global South, and bearing responsibility for certain aspects of underdevelopment. With the subsequent neoliberal turn in economic policy in the United States and Europe, the international conversation shifted from regulating the impacts of TNCs to facilitating developing countries’ access to foreign direct investment, leading the UN away from its role as corporate watchdog. The increasing intimacy with TNCs was consolidated in the 1990s when the UN accepted a US$1-billion donation from media mogul and philanthropist Ted Turner. The gift began a shift toward private sector financing of UN projects and business partnerships that continues today.

The Global Compact

This model of partnering with corporations instead of regulating them was deepened again in late 1998 with the founding of the Global Compact—a non-binding corporate social responsibility initiative at the UN in which TNCs pledge to follow a number of codes of conduct within their operations and supply chains. The compact is voluntary and ultimately unenforceable; monitoring is based on a company’s own reports of how it is being implemented, and there is no third party verification or oversight. If a member company breaks the code of conduct or fails to report on progress, the most serious ramification is potential delisting from the compact.

Such voluntary, self-policing efforts have become the norm and are based on the Corporate Social Responsibility (CSR) model that absolves TNCs from any legally binding obligation to protect human and environmental rights. Even the business and human rights unit of the United Nations Human Rights Council promotes this weak approach. The result is a system of so-called soft law that fails to regulate the behaviour of TNCs on the global level, while corporations are left to exploit weak national oversight, ignore the negative impacts of their operations, and reap maximum profit.

This extreme version of laissez-faire economics is not just tolerated—it is protected. Free trade agreements and bilateral investment treaties, among other international rules, create a strong legal framework for defending the interests of investors while undermining the strength and implementation of all juridical norms designed to protect human rights. The “Architecture of Impunity” for TNCs, as some have called it, is built up by several binding and enforceable agreements or venues through which corporations can enforce their ample rights. These include the World Trade Organization’s (WTO) Dispute Settlement Body, the World Bank’s International Centre for Settlement of Investment Disputes (ICSID), and investor-state dispute settlement processes in more than 3,000 bilateral investment treaties, such as Chapter 11 of the North American Free Trade Agreement (NAFTA).

The international human rights system has nothing approaching the strength of these binding treaties with which it might impose sanctions on TNCs for their violations. To challenge the lack of instruments to regulate TNCs, a global movement from below has emerged to confront and dismantle the “Architecture of Impunity,” and to design and implement new, binding codes for TNCs through a Peoples’ Treaty.

The Peoples’ Treaty

The construction of a Peoples’ Treaty is one of the primary strategies of a new global campaign to Dismantle Corporate Power and Stop Impunity that is uniting grassroots struggles, movements and organizations to combat the myriad of ways TNCs are appropriating our destinies, rights and natural heritage on a planet-wide scale. Built around the concept of solidarity and mobilization, the treaty is based on the understanding that the “Architecture of Impunity” should be countered with a radical juridical alternative from below—one that originates from “the people” (El Pueblo), especially those most affected by corporate crimes.

A treaty is normally signed by nation-states to govern their relations. The idea behind a Peoples’ Treaty, as put forward by the broader campaign to stop corporate impunity, is much different from this definition and its dominant legal norms. Our shared goal is to first propose the need for and then create the legal instruments necessary to defend and protect human and ecological rights against the abuses of TNCs. A working group within the campaign has written a first draft of the treaty in consultation with social movements and legal experts, covering the appropriate content and potential legal grounding of the document. It is clear that an international Peoples’ Treaty will have a powerful symbolic effect on those struggling against TNCs. But the struggle to gain legal standing for such a document will require organized and concerted efforts over the long term.

One of the main protagonists, or driving forces, in the construction, implementation and execution of the treaty are the people affected by the actions of TNCs. Through a series of consultations and assemblies, they will express demands for binding codes of conduct for TNCs, along with a new legal and economic system that will stand in sharp contrast to the dominant corporate-driven capitalist regime. Because the construction of the treaty will be participatory, the document itself will become a political tool in the growing movement toward challenging and ultimately punishing corporations for their crimes.

Another important benefit of a Peoples’ Treaty will be its use for popular education in communities impacted by corporate abuses. The global campaign to stop impunity has heard strong indications from its members that such a document will be useful as juridical tool and a meaningful instrument to build global solidarity between geographically separated communities. Wherever grassroots movements emerge to challenge TNCs, the treaty can be used to show that the community is not alone in its struggle.

Unprecedented and difficult

To be sure, this is an unprecedented and ambitious campaign that will face many challenges as it progresses. But ongoing abuses by TNCs, exposed in events like the Rana Plaza disaster, the 2012 police massacre of striking miners in Marikana, South Africa, the BP Deepwater Horizon oil spill in the Gulf of Mexico in 2010, and countless others, prove that radical action has never been more urgent.

Since launching the Peoples’ Treaty campaign at the 2012 Peoples’ Summit in Rio de Janeiro, members of the global campaign to Dismantle Corporate Power and Stop Impunity from Africa, Asia, Europe, Latin America, Canada and the United States have been steadily spreading the word. We have organized workshops at numerous summits and forums around the world, including the 2012 World Social Forum on Migration in Manila, Philippines, the Asia-Europe Peoples’ Forum in Laos in 2012, the 2013 EU-Latin American Peoples’ Summit in Santiago, Chile, the World Social Forum later that year in Tunis, and the ENDWTO Bali Week of Action last fall. The work continues in June this year with events outside a session of the United Nations Human Rights Council in Geneva. And in August, the campaign will introduce the Peoples’ Treaty to North America at the Peoples’ Social Forum in Ottawa.

Some governments are paying attention. In August 2013, Ecuador launched an initiative at the UN requesting that the Human Rights Council consider adopting a resolution to build a legally binding framework to regulate the work of TNCs. Eighty-five governments have signed onto the initiative, though Ecuador’s leading role is a concern given its persecution of human rights defenders at home. With these contradictions in mind, the campaign is cautiously following how the Ecuadorean initiative will unfold during upcoming UN sessions. That binding corporate codes are being discussed at this level presents an important opportunity for the campaign and the Peoples’ Treaty to gain visibility within a UN system that has been systematically captured by transnational capital. The next step of the campaign this year is to organize a broadly participatory, global consultation on the first draft of the Peoples’ Treaty.

After decades of neoliberal domination, and a system of weak, voluntary and non-binding codes of conduct for TNCs, social movements are finally uniting to build an alternative. Through the Peoples’ Treaty process, we are bringing the testimonies of the victims of corporate abuses to the forefront in an effort to create an opening for real social and environmental justice.

- Richard Girard is the executive director of the Polaris Institute, an Ottawa-based research and advocacy organization. The Polaris Institute is a signatory to the Global Campaign to Dismantle Corporate Power and Stop Impunity.

(Originally posted in English on July 1st 2014 in CCPA's "The Monitor" and in French in the May-June 2014 issue of "Relations")


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