The Actions of the States. What do they stand up for?

By Janyne Gomes, Translation: Davi Marcenes Cunha

In the previous posts, we talked a little about the process of creation of the Treaty on Human Rights and Business, as well as the power of transnational corporations and their influence over the Guiding Principles and Norms. Today, the Week’s series will talk a little more about the actions of the States in the negotiation of the Treaty – what are the actions of the countries in the meetings that discuss its implementation.

As we have seen before, transnational corporations, mainly from the globalization process, have started to become stronger entities than states, gradually occupying their space in negotiations related to international law and allowing a degree of control and influence over countries, relativizing state sovereignty. In this sense, Ruggie’s Guiding Principles, with voluntaristic characteristics that give non-binding obligations to large companies, made little progress in the international protection of Human Rights

In order to understand the actions of states, we must first understand the role they play in the negotiation: although the large companies are becoming more and more influential on the negotiations, the countries are still the ones that lead the process by International Law, nothing is done without the approval of the States.

The State that had the most prominence at the beginning of the discussions on the Treaty was Ecuador. The country was the articulator, with other countries of the Global South, of the discussion on the insufficiency of the Guiding Principles and the need for an international legally binding instrument on human rights at the Human Rights Council of Ecuador in 2013, which culminated in “Call for an international legally binding instrument on human rights, transnational corporations and other business enterprises”. From this call, Ecuador became responsible for creating and modifying the drafts that have been being discussed in the sessions on the Treaty.

The countries that have more opinions contrary to the Treaty tend to be those that are the headquarters of big transnational corporations. The United States, Russia and the United Kingdom, for example, could not be “seduced” by the idea of a treaty since their large corporations would be subject to its binding rules. The United States does not participate in the discussion of the treaty anymore, making it clear that it will not ratify it. However, even without the approval of these states, the creation of the Treaty can still be significant in developing countries, where most of these transnational corporations operate through subsidiaries. In other words, with the creation of binding rules, large corporations would be obliged to comply with the rules in the countries that signed the Treaty.

Another determining factor to understand the performance of the states in this negotiation is to understand that the internal context and politics of the country determines how will be its performance in the international sphere. It was this second factor that made Ecuador lose some of its prominence in the discussion of which it is leader, since the country’s politics has undergone several internal changes over the past years. Another clear example of this situation is Brazil, which, despite having been a country with an internationally recognized diplomacy in defense of Human Rights, with the rise of the right-wing in the country and Jair Bolsonaro’s government, it ended up perceptibly receding in the acceptance to new proposals in various international discussions, including the negotiation of the Treaty.

The Treaty needs to be able to attract a significant number of States and a language and content that actually prioritize the defense of Human Rights over the business logic so that its implementation makes a real difference. This is why all the sessions and discussions become necessary in its scope of negotiation, so that it is possible to pressure the largest number of States to adopt a position and vote in a text that meets the demands of the populations that are affected by the violations of companies. Furthermore, the sessions have also counted on the participation of Civil Society (NGOs, organizations such as the Global Campaign “Stop corporate impunity”, among others), which is an uncommon factor and a major advance in the international sphere, even though the dialogue with the community is of little influence on determining measures to the Treaty. We will explain more about Civil Society participation and what it advocates!