Between December 16-20 in Geneva, countries will be debating a legally-binding treaty on transnational corporations and human rights. The law is intended to ensure that corporations, particularly transnational companies, uphold their human rights responsibilities. While the draft law emphasizes the prevention of human rights abuses, it also refers to access to justice and remedy for victims.
The law is to prevent human rights abuses by transnational corporations rather than current voluntary frameworks like the UN Guiding Principles on Business and Human Rights. It would require countries to overhaul weak legal systems that have prioritized corporate profit over human rights.
First proposed in the UN Human Rights Council by Ecuador in 2013, the treaty has been championed by developing countries across Africa, Latin America and the Caribbean, while seeing resistance from developed countries in North America and Europe, as well as Russia, China and Gulf States. But with the introduction of EU’s due diligence legislation, it is expected that the EU will show growing support for the treaty.
One of the key areas of the treaty draft, Article 6 explicitly calls for state regulation of all business enterprises including transnational corporations to prevent human rights abuses. The language is important: prevention would require a paradigm shift on how corporations are currently able to act, requiring more stringent human rights assessments before projects can even hit the ground.
Ben Vanpeperstraete, senior legal advisor at the European Centre for Constitutional and Human Rights (ECCHR), has been following the development of the treaty for eight years—first with the Clean Clothes Campaign and now with ECCHR. He was also involved in developing the EU’s corporate sustainability due diligence legislation.
Vanpeperstraete explained that Organisation for Economic Co-operation and Development (OECD) guidelines for mineral supply chains, such as gold, have been endorsed by Western countries and seen as a way to globally move away from hard law toward voluntary standards that are not enforceable.
“There’s lots of distress, especially from the economic south, on the concept of human rights due diligence” Vanpeperstraete told rabble, referring to the erosion of the UN’s legal norms that have increasingly resulted in voluntary guidelines. He also explained that there is a concern around the treaty not placing sufficient attention on access to justice. “There is indeed some fear that the treaty will become a due diligence treaty.”
Countries are also divided on whether the law is going to address only transnational corporations, or all companies.
The International Federation of Human Rights has observed that the draft law still lacks clarity on distinguishing between human rights causes directly linked to corporations’ activities and supply chains, and other human rights impacts to which a company contributes.
Civil society organizations have also been critical of the treaty process.
At last year’s negotiations, Global South countries and human rights organizations including Via Campesina—a French organization representing small-scale farmers and pastoralists around the world—denounced a “non-democratic and non-transparent methodology” that attempted to shift the focus of the law away from transnational corporations to all businesses. This broadening of scope has been supported by Global North countries and the business lobby, while being criticized by Global South countries and all African states.
Human rights groups also expressed concern about industry influence on the negotiations from powerful corporate lobbies like the International Chamber of Commerce, International Organisation of Employers, and the US Council for International Business. In vague language that has been echoed in Canada’s own rare statements on the treaty, the business lobby has called for a “collaborative” approach on developing a law that holds them accountable for causing mass displacement, depending on slavery, polluting rivers, and murdering activists.
This year, the treaty talks have already come under fire from Ecuadorian human rights organizations and international coalitions when Ecuador, the Chair, unilaterally moved the talks from October to December. Many Global South countries and civil society observers are left out of the room this year, as countries opposing the legally-binding nature of the treaty remain.
Given the wide applicability of a law preventing human rights abuses by transnational corporations, this treaty could well be one of the most important international laws in development today.
A rude arrival
You wouldn’t know this treaty was important based on Canada’s engagement thus far. Until 2021, Canada was absent from negotiations and, since arriving, has been criticized for undermining treaty progress and justice for victims of corporate abuse.
Leading up to this year’s negotiations, Beatrice Olivastri, CEO of Friends of the Earth Canada, stated that “Canada has been missing in action … relying instead on voluntary principles for Canadian business activities affecting human and environmental rights overseas.”
Shane Moffatt, Director of the Canadian Network on Corporate Accountability (CNCA), has denounced countries dragging their feet for a decade on the Binding Treaty in comparison to the relatively fast progress on the global plastics treaty.
Describing Canada’s engagement as “lukewarm” and “throwing cold water on talks to move toward a treaty”, Moffatt told rabble.ca that Canada’s lack of constructive engagement has not been reflective of responsibilities to countries in the Global South.
Seven years late to the negotiations, Canada stated that the treaty “has not yet attracted the level of engagement and support needed to progress toward real consensus,” and supported an alternative framework that could turn the international law into yet another voluntary guideline.
“Our concern is that Canada has been named as one of the countries opposing a Binding Treaty,” Brent Patterson, coordinator of Peace Brigades International-Canada (PBI), told rabble.ca PBI is following the treaty talks in Geneva this month.
“We are also mindful that Canada has not prioritized and advocated for the inclusion and protection of environmental defenders in international spaces, perhaps because of the repression of the Wet’suwet’en land and water protectors,” Patterson added.
Patterson was hopeful that language around human rights defenders will be strengthened in the draft law and that environmental rights defenders will also be included.
But heading into negotiations this month, the Canadian government has not made any public statements on the importance of this global treaty.
The position of Canada’s Ambassador and Permanent Representative to the UN Office in Geneva was assumed by Peter MacDougall in August this year, but he has not published any statement on the international treaty.
Neither Global Affairs Canada nor the office in Geneva responded to rabble’s questions by the time of publication.
Canada’s regime of impunity
Canada’s apathy toward transnational corporate crime is reflected in domestic law.
Canada was supposed to introduce a law by the end of this year to eliminate slavery from Canadian supply chains and to strengthen the ban on the importation of goods produced by forced labour. This law has not been passed.
The Standing Committee on International Trade (CIIT) requested a response from Trudeau’s government, but as of October, members have not received a response. The CIIT stated that it “finds the government’s inaction deplorable.”
CIIT members did not respond to rabble.ca by the time of publication.
Efforts to introduce broader corporate due diligence law and mandate the prevention of human rights abuses have been made by Canadian mining and corporate accountability watchdogs. A proposal by MiningWatch under the Harper government in 2009 was ignored and never moved forward. A more recent model law by the CNCA was supported by over 50,000 Canadians, adopted in full and tabled in Bill C-262—but it has still not passed.
In the lead-up to the treaty talks in Geneva, the CNCA has called on Trade Minister Mary Ng to commit to introducing corporate due diligence law, and strengthen the powers of a key leadership position meant to keep Canadian corporations in check.
Launched in 2019, the Canadian Ombudsperson for Responsible Enterprise (CORE), has a mandate to “look into complaints about possible human rights abuses from people, organizations, and communities.” The position is currently held by Masud Husain.
But the scope of CORE is limited to Canadian multinationals in mining and garment manufacturing, leaving out many other destructive sectors where Canadian companies are contributing to social and environmental harms—like timber and forestry, agriculture, and tech manufacturing.
CORE’s most recent report cites 22 active complaints currently under review, with the majority of new cases related to mining. The exploitation of Uighur labour in Canadian clothing manufacturing and mining supply chains makes up the majority of cases currently being reviewed by the CORE.
Human rights and labour rights activists have criticized the Ombudsperson’s role as ineffective because it lacks investigatory powers. In a 2021 report, the Parliamentary Subcommittee on International Human Rights recorded that both the Ombudsperson (at the time Sherri Meyerhoffer) and corporate representatives argued that there is no need to expand CORE’s powers because increasing investigative powers into human rights abuses would create a “combative process.”
In Parliamentary sessions last year, Meyerhoffer stated that “it would be helpful for Canada to put in place human rights due diligence legislation” without any comment on the international Binding Treaty.
Five years since its inception, CORE is currently under federal review.
CORE chose not to respond to rabble’s questions, while Global Affairs did not provide information on the CORE review or the status of the Canadian human rights due diligence law by the time of publication.
With the negotiations in Geneva approaching, Canadian Trade Minister Mary Ng was in the Philippines negotiating a free trade agreement as Canada strengthens economic and military alliances against China in the Pacific.
Minister Ng has not responded to CNCA’s letters and statements on the Binding Treaty, and did not respond to rabble.ca by the time of publication.
In the absence of a legal framework committed to prioritizing human rights, life and dignity over profit, Canada’s diplomatic inaction and corporate clientelism has contributed to the death of activists like Mexican environmental defender Mariano Abarca and the unresolved murders of mining workers protesting the strongman tactics of Torex Gold in Guerrero, Mexico. In Colombia, the Canadian International Development Agency (CIDA) helped shape the country’s Mining Code to benefit Canadian gold mining companies as they fuelled a war economy by collaborating with brutal right-wing paramilitary groups. Across the Atlantic, Barrick Gold has been fighting against efforts to hold the Canadian company accountable for murders in Tanzania based on jurisdiction.
The dense language and bureaucracy of UN processes don’t exactly make for sensational headlines. But the impacts of decisions made in treaty talks in Geneva will be widely felt on the ground where migrant workers are contracted by multinational mining companies to pull cobalt and gold from the earth, where fishermen refuse the pollution and militarized patrol of rivers in traditional homelands, and where the memories of murdered and martyred activists like Berta Cáceres continue to fuel resistance against colonial imperialism—where human rights abuses are ordinary tragedies and honouring human dignity has been optional.
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