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Business and Human Rights

Tricky Treaty: 5 things I learned from a week of UN negotiations

I’ve just attended a week of negotiations in Geneva as states gathered to try hammer out a new UN Treaty to create binding rules on corporations to stop trampling on people's rights and damaging the planet. These are my key take-aways from a messy but ultimately hopeful week.

Trócaire Policy and Advocacy Advisor Garry Walsh addressing the 8th session to advance a Treaty on Business and Human Rights in Geneva. Photo : Giuseppe Cioffo. Trócaire Policy and Advocacy Advisor Garry Walsh addressing the 8th session to advance a Treaty on Business and Human Rights in Geneva. Photo : Giuseppe Cioffo.

The abuse of human rights in the pursuit of profit by powerful corporations is a critical injustice of the 21st century. EU and Irish companies are involved in cases including environmental damage and human rights harms such as modern slavery, land grabs, oil spills, attacks on defenders, and violence against women. Yet, the vast majority of these human rights violations perpetrated by corporations go unpunished.

However, the exciting news is that a new Treaty is being negotiated on by UN member states. This Treaty is urgently needed so that human rights violations and environmental harms are addressed in a comprehensive and coordinated way worldwide.

So, as states from around the world gathered for the eighth year of discussions on this new ground-breaking Treaty, I travelled to Geneva to join with civil society and affected communities, to try and help advance a strong and effective Treaty that can provide promise and protection for the communities we work with experiencing exploitation, abuse and pollution.

Here’s what I learned:

1. While we still don’t have a Treaty, we’re inching closer

This year’s negotiations have now closed, after an intense week of detailed discussions on the draft Treaty. The short of it is that after 8 years, we’re still far from a final Treaty that will be agreed by a large majority of the world’s countries. However, this is not uncommon for a Treaty process. Negotiating a consensus can be tortuous and painfully slow.

This particular Treaty also gets to some of the core inequalities in our global economic system, as it is attempting to create new rules to reign in corporations active outside the territory of a state. As such, the core challenge is that the Treaty simply won’t work unless powerful industrialised states where transnational companies are based sign up to this Treaty.

The good news is that there was strong engagement from many states from all regions across the world, and more engagement than ever before from some of the wealthiest states. While we’ve still a long way to go, it’s increasingly looking like we may get states to agree on a Treaty in some form. The key challenge now is to see how strong or weak a final agreed Treaty will be. A watered-down Treaty that isn’t effective would be meaningless, but a ‘perfect’ Treaty that only a handful of low-income states sign on to also wouldn’t be effective.

It’s a tricky road ahead as we keep fighting for a strong Treaty.

2. When negotiations get messy, southern states can unite to keep things on track

There was lots of confusion in the room this year as the negotiations began. Ecuador is chair of the Treaty process, and leads on drafting new versions of the Treaty ahead of the annual negotiation sessions in an impartial manner, based on inputs from states. For the last three years, a new draft of the Treaty was developed each year.

However, a new draft wasn’t developed this year by Ecuador. Confusingly, Ecuador produced completely new proposals on some articles of the Treaty very late in the day, but these proposals weren’t based on previous negotiation sessions. It wasn’t clear where they were coming from, and worryingly the proposals seemed to be seriously watering down some of the key provisions of the Treaty that would enable affected communities to seek justice for corporate harms. So essentially these new proposals seemed to be designed to accommodate getting big players like the US and EU into the room – but these proposals weren’t developed in the usual consensus-based manner. Southern states were clearly unhappy.

At the beginning of the week, states were asked to negotiate on two documents – the last draft of the Treaty, but also Ecuador’s new proposals. Responding to this confusing and quite messy process, the majority of states from the global South stood strong and united, essentially rejecting the new proposals, and kept the negotiations based on the 3rd draft of the Treaty.

Civil society organisations in the room were also clear and united in their call for the negotiations to stay on the basis of the agreed process and the 3rd draft. While a handful of states chose to comment on the new proposals (largely the powerful industrialised countries) the strong unified call from civil society and southern states helped keep the negotiations largely focused on the 3rd draft. There’s power in numbers and in unity.

3. Nothing stops a room like the voice of people affected by corporate harm

After four days of detailed negotiations on the technical intricacies of the articles and clauses of the Treaty, there came a moment which stopped all in their tracks.

Marina Oliveira took the floor to speak to all the assembled states from across the world, telling the experience of the awful disaster that befell her community in Brumadhino, Brazil, where 270 people were killed in 2019 due to the collapse of a dam. Four months prior to the dam collapse, it had been certified as safe by the local subsidiary of German company TÜV SÜD.

Her testimony was devastating, and reminded us why we were all in the room in the first place.

“We, communities affected by large multinational corporations are in a hurry because we are dying. We don’t want to die. We need the international community to hold accountable those who are contaminating our water, air and soils and taking the lives of our brothers and sisters, and ensure proper reparation.”

“Yet, I have sometimes the impression many States in this room are closer to the interests of businesses than those of the people in the Global South. We refuse to be the sacrificed population that allows rich countries to live in abundance. Mr Chair, we are still waiting for justice.  I am still waiting for justice.”

Marina Oliveira gave devastating testimony to assembled states about the corporate scandal in Brazil that resulted in 270 people dying when a dam collapsed in Brumadhino in 2019. Photo : Garry Walsh Marina Oliveira gave devastating testimony to assembled states about the corporate scandal in Brazil that resulted in 270 people dying when a dam collapsed in Brumadhino in 2019. Photo : Garry Walsh

4. The US and the EU are now in the room, but this doesn’t necessarily make things easier

In previous years of negotiations, many powerful states have simply not turned up, or have engaged very negatively in the process, often trying to undermine the very basis of this new Treaty. The US engaged in negotiations last year for the first time, but this year saw an increase in engagement and the US stayed negotiating in the room for the whole week. However, their positions are still highly sceptical and very far from that of the draft Treaty.

The EU has also traditionally not been supportive of the draft Treaty, and indeed, after 8 years of this process, the EU yet again failed to agree on a formal mandate to negotiate this year. This mean’s there’s no official EU position on the Treaty, and the EU can’t officially negotiate. However, the EU stepped up its unofficial engagement this year, contributing positions from its forthcoming new directive on corporate due diligence. It’s very welcome to see the EU increase its engagement, and we really hope this is the last year the EU turns up without an official position and a mandate to negotiate.

As powerful states like the US and EU step up their engagement, this increases the likelihood that we’re going to see a Treaty agreed in the coming years. However, the key danger is that they will seek to significantly weaken it and water it down.

Coordinator of the Irish Coalition for Business and Human Rights, Sorcha Tunney, attending the negotiations in Geneva. Photo : Garry Walsh Coordinator of the Irish Coalition for Business and Human Rights, Sorcha Tunney, attending the negotiations in Geneva. Photo : Garry Walsh

5. If the EU and Ireland are moving closer to having a position on the Treaty, it needs to be a strong one

Leaving the negotiations at the end of the week, it was challenging to see what progress had been made. A confusing and messy process. A clear division between low-income countries and industrialised countries. A chair under pressure from all directions. Growing engagement from states across the world yet we’re still nowhere near a consensus. However, we’re moving in the right direction, which is really positive, and there’s great energy from civil society, and there was strong unity from countries across the world to support a robust Treaty, along the lines of the 3rd draft.

Yet where is the EU and Ireland in all this? We simply can’t be in a situation this time next year with the EU still having no formal position. While Ireland was present in the room, we have yet to formally address the negotiations (despite many other EU states having done so). What is encouraging is that in the next 12 months we are likely to see a new EU due diligence directive agreed, which should lead to an EU position on the Treaty. This would be really welcome and long overdue, after almost a decade of negotiations.

Yet the key question isn’t whether the EU and Ireland will have a position, it’s what form that position will take. Will the EU stand alongside the US and try to weaken the Treaty of some of its most meaningful aspects, or will it stand in favour of a strong, robust and gender-transformative Treaty?

The call of the Irish Coalition for Business and Human Rights is clear, we’ve set out our principles for a strong Treaty in our new policy paper. We are urging Ireland to step up and show leadership on this. We are known as a champion of Human Rights and we need to stay true to our reputation.

It’s Time for a Treaty.

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