An intricate net of law firms, “reciprocal” investment protection agreements, multilateral institutions that ensure the right to profit over human rights, and marketing campaigns are the elements that make this possible and legitimize this situation to the point of transforming aggressive companies into victims. Victims who in turn demand huge compensations and manage to turn their own impunity into a new source of profit.

This was shown by the work of the Permanent Peoples Tribunal (PPT) held on June 23rd in Geneva, Switzerland, in the framework of the mobilization week against corporate crime, where the behavior of corporations in Nigeria, Colombia, Uruguay, Guatemala, Philippines, Zambia, Peru, Congo, South Africa, Ecuador and Palestine was analyzed.

The companies tried were Swiss-British Glencore, Pacific Rim (Canada), Chevron and Phillip Morris (US), Lonmin (UK), Shell (British-Dutch), Mekorot (Israel), Colombian subsidiary of Coca-Cola and Hidralia Energía (Spain).

Among the multiple human rights violations confirmed by the PPT and summarized in their final declaration / sentence, there is a chapter focused on the rights linked to life (food, healthy environment), another that makes reference to the privatization of public goods and water, together with land and territorial displacement (most of the transnational companies analyzed were extractive corporations). Through the testimonies and documents delivered to the members of the Tribunal, the PPT managed to identify that the corporations resort to attacking women rights, labor rights and resort to child labor, in addition to persecution (by means of violence, but also media and legal attacks) against human rights defenders.

But access to justice in national spaces is also difficult for victims, whether individual or collective victims. The jury stated: “In the case of treaties, access to justice and remedy for victims is seriously affected by the lack of resources and also by the political and security implications, in addition to the asymmetry of the conditions for litigation”.

The jury also found “complicity” links between the countries that receive transnational investments and the countries of origin of these companies that benefit from the profits, because of the actions or omissions in terms of human rights attacks.

This, together with the action of the companies themselves and the ICSID (International Center for Settlement of Investment Disputes) of the World Bank, represent the four sides of the “architecture of impunity” mentioned by the PPT. This concept also served as a basis for the strategy of the “dismantle corporate power” campaign, made up by over 150 social movements, unions and civil society organizations from the five continents.

Breaking with the voluntary nature

Juan Hernandez Zubizarreta, Doctor of Law (Basque Country University) and member of the Institute of Development and International Cooperation Studies (HEGOA) wrote several books and articles related to transnational corporations, human rights and the crisis of the regulatory systems.

“Transnational companies against human rights: History of a regulatory asymmetry” and “The Business of Responsibility”, both published in 2009, are some of his books focused on this issue. But Juan is also an activist at national and international level.
Real World Radio interviewed him after the Human Rights Council had approved the resolution (see main article). There follow some key elements of his thoughts.

The PPT is playing a key role in denouncing the impunity of TNCs. Especially in the sentence of Madrid 2010, when a doctrine followed by the hearing of Geneva (2014) was established. This doctrine shows how human rights violations by transnational corporations are something systemic and systematic. The PPT also established that corporate impunity has four sides: the TNC itself, the country of origin, the country that receives the investment and multilateral institutions. The impunity with which the corporations act is not new to the International Monetary Fund policies, the policies of the World Trade Organization or the structure of the investment protection and trade agreements, whether regional, bilateral or multilateral ones.

In Geneva we saw that this system continues and that we are facing an architecture of impunity.

The PPT not only denounces, but it makes proposals: the ethical and moral feature of its resolutions is also a call to countries and international institutions to end with this impunity. And in order to put an end to this impunity, we need to eliminate the voluntary nature invading international institutions, such as the United Nations.

Two examples of this are the Global Compact and the United Nations Guiding Principles on Companies and Human Rights (Ruggie Principles). These are two examples of the voluntary nature of expressions that are incapable of controlling transnational corporations. The power of transnational corporations is a political, economic and also a legal power. This means that their rights are defended by deeply coercive and executive regulations. And they are deeply protected. An example is the case of Chevron-Texaco vs. Ecuador. Here, we can perfectly see how the transnational corporation, with the help of its country of origin, reinterpreted jurisdiction regulations and made a perfectly valid and legitimate law within Ecuador to be appealed by the US. We can also see it in the “vulture funds” against Argentina. The legal architecture is extremely strong and its enforcement is mandatory.

International law and human rights face difficulties when trying to neutralize the power of big transnational corporations. This assymetry takes us to the fact that within the United Nations there have been advances in terms of voluntary regulations, but without any type of control or follow up. This is beneficial for corporations, which capture this structure and get it closer to a non binding nature, weakening mandatory rules.

What happened in the HRC is a very important step that opens spaces for a possible mandatory regulation. This was a victory of the resistance struggles, of the social movements and the struggle of thousands of people who resist against transnational corporations. Sometimes one is not sure if this work is moving forward, and this was a clear sign that we are in fact moving forward. It is not enough to say that there will be an international regulation, we need to talk about content. And the losers in this small battle, the big economic powers, are angry and will do anything in their power to weaken this process.