By Ruwan Subasinghe, Legal Director, International Transport Workers' Federation (ITF); Jeff Vogt, Rule of Law Director, Solidarity Center; and Paapa Danquah, Legal Director, International Trade Union Confederation (ITUC)

With multilateralism under attack, the international legal order besieged, and regulatory efforts to clamp down on abusive business practices being dismantled, the process to develop a UN Treaty on Business and Human Rights represents a bulwark against corporate impunity. The global labour movement, which has long sought the international regulation of business for their human rights impacts, has renewed its call for a Treaty that ensures justice and accountability for millions of workers in global supply chains.

The impetus provided by last year’s Human Rights Council decision 56/116 (adopted by consensus) to give enhanced power to the Treaty process, including through funding for inter-sessional consultations, will undoubtedly build the necessary momentum to help advance the negotiations more effectively. The global labour movement will participate in the mid-April consultations related to rights and protection of victims (Articles 4 and 5) and access to remedy (Article 7) and continue to provide constructive proposals from a workers’ and trade union rights perspective.

Rights and protection of victims

Taken together, Articles 4 and 5 set a solid foundation for the protection of and respect for human rights in a business context. Trade unions would like to see those who have suffered harm in intervening to assist victims also afforded the same protections as the immediate family members and dependents of the direct victim. This will be especially important to counter the regular victimisation of workers’ representatives, including by way of retaliation, when assisting rights-holders. We also believe that human rights abuses and violations should cover all direct and indirect harm in the context of business activities that impede the full enjoyment of internationally recognised human rights and fundamental freedoms, including the right to a safe, clean, healthy and sustainable environment. It is imperative that the adverse human rights impacts associated with the climate crisis are explicitly recognised in what should be a future-proof legal instrument.

A significant challenge for workers exercising their right to freedom of association is the fear of discriminatory dismissal. In such cases, the appropriate remedy must be reinstatement in employment given that compensation alone may continue to contribute to an atmosphere of intimidation in the workplace. We would therefore expect to see reinstatement added to the non-exhaustive list of remedies.

The asymmetry of power in labour relations necessitates wholesale access to information for workers and trade unions to effectively pursue claims over rights violations. The provisions on access to information in the current draft text can be further strengthened by explicitly guaranteeing victims information relating to the transnational business activities of enterprises alleged to have engaged in human rights abuse, such as their ownership, control and business relationships.

Noting that trade unionists as human rights defenders continue to face the brunt of state and non-state led repression, it is imperative that the Treaty places an explicit obligation on states parties to adequately protect the rights of workers to protest and strike without interference.

Access to remedy

It is critical that the Treaty reflects the complexity and interrelated nature of today’s global economy in order to address the existing accountability gaps with respect to corporate human rights obligations. The separate entity doctrine has effectively converted transnational corporations (TNCs) into de facto networks of national level entities, each protected by the corporate veil. There is usually no effective remedy at home against a local supplier, which may be under-capitalised and essentially judgment-proof. Transnational corporations are therefore basically immune from legal accountability when a violation is caused by a supplier.

Therefore, the Treaty must include a robust provision ensuring that courts, especially in the home states of TNCs, do not decline jurisdiction on the basis of forum non conveniens (a court dismissing a case because in their view another court may be better suited to deal with the matter). Transnational corporations should no longer be able to rely on this doctrine to evade accountability, which in many cases has constituted a serious obstacle for rights-holders.

The Treaty should also seek to reduce obstacles for victims seeking an effective remedy without setting unreasonable and arbitrary limitation periods. Similarly, recognising the gross power imbalance between enterprises and right-holders, the draft provisions on the reversal of the burden of proof should be further strengthened to genuinely fulfil the victim’s right to an effective remedy,

Way forward 

The outcomes of this year’s intersessional consultations will set the tone for the 11th round of negotiations in October. While we may be at an impasse on several issues, including the scope of the Treaty, these informal sessions will be where genuine progress can be made. There simply is no time to waste. The trade union movement remains mobilised and ready.