International:
Binding treaty on transnational corporations and their global supply chains with regards to human rights
Establish a legally binding instrument, currently under development at the United Nations Human Rights Council, to regulate the activities of transnational corporations and other businesses via international human rights law.
What does this look like?
Governments are currently negotiating the text of a draft treaty on business and human rights. This instrument should adhere to the detailed guidance put forth by global civil society[1] and:
Reaffirm and operationalize the primacy of human rights and the rights of nature (see below) over and above international trade and commerce and any associated agreements or treaties.
All action taken to protect the rights of nature must reinforce and support the rights of people, local communities (including peasants, fisherfolks, nomadic and rural peoples), indigenous peoples, and collective rights.
Create national and international legal mechanisms to hold liable and sanction polluting transnational corporations and other businesses and force them to remediate and restore the environments they have polluted, damaged, or adversely impacted, and compensate the affected people.
Establish direct obligations for transnational corporations to respect human rights and socio-economic rights covering the activities of their subsidiaries, controlled companies and any entity in their global value chain.
This should also include the direct obligation to respect all relevant United Nations covenants and conventions, including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)[2] and the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas,[3] including fisherfolks.
Establish a state’s obligation to protect human rights and the rights of the nature in a holistic and harmonious manner. In other words, the protection of rights of nature should support and further ensure the protection of human and collective rights.
Adopt guidelines that prohibit international economic and international financial institutions from giving money toward or participating in activities that directly or indirectly enable corporations to continue to act with impunity.
Prohibit international financial institutions from funding the fossil fuel industry and other polluting industries.
Prohibit subsidies from going to the fossil fuel and agribusiness industries.[4]
Eliminate Investor-State Dispute Settlements (ISDS), which serve as a mechanism for corporations to evade legal responsibility or respect human rights and nature, as well as a way to formally condemn States that prioritize to the protection and guarantee of human rights and nature.[5][6]
Suspend all trade and investment treaty negotiations.
Expand these measures to default on the payment of outstanding debts as a result of ISDS awards.
Revoke the immunity of international financial institutions such as the World Bank’s International Finance Corporation (IFC), following the lead of the U.S. Supreme Court’s ground-breaking decision that such institutions can be held liable for environmental damages, following the claim brought by Indian fishermen.
To understand why these measures are necessary to be able to meaningfully advance liability and to counteract attempts by corporations to avoid liability, read these examples:
The claim brought by Indian fishermen in U.S. Supreme Court.
This report with 10 examples of how corporations have hijacked justice through Investor-State Dispute Settlements (ISDS).
Several jurisdictions have begun to develop versions of regimes that enshrine the rights of nature, including Ecuador, Bolivia, New Zealand, and India. Not all of these regimes take nature as a whole to be a legal person; in some cases, parts of nature—for example, a river or a species—are granted personhood or are otherwise equipped to litigate their own rights. Additionally, not all have adequate measures to ensure that protecting the rights of nature serves to reinforce the protection of human rights, which is essential. See here for more information on the measures advanced in these countries.
Implementing the measures of the liability roadmap
Decision-makers and movements at all levels should keep the following in mind when implementing the measures laid out in this roadmap:
Enacting these policies and measures is simply the first step to holding polluting and destructive industries liable: There will be much work for government officials, decision-makers, activists and civil society alike to do to ensure these measures are fully implemented and move us toward the transformative change the world needs.
Liability should be applied to all industries and corporations that make business decisions that contribute to climate change and its impacts, or that cause harm to people and nature. In addition to the fossil fuel industry, these industries include but are not limited to agribusiness, forestry, mining, and the energy sector.
Many of these measures could equally apply to State-owned corporations. Because the national contexts and unique needs vary from country to country, it is worth considering where to apply and how to adapt the principles and measures listed in the liability roadmap to address State-owned polluting corporations. Factors to consider when doing so could include but are not limited to the degree of democratic control over the entity, role and use of funding from oil/gas revenues, and responsiveness of the entity to transition to regenerative, renewable energy sources.
Measures implemented at the national level should support and reinforce, rather than contradict, measures implemented at the sub-national and local, and vice versa.
1 Global Campaign to Reclaim People's Sovereignty, Dismantle Corporate Power and Stop Impunity. Treaty on Transnational Corporations and Their Supply Chains with Regard to Human Rights: Treaty Text Proposal, October 2017, accessed August 25, 2020, https://www.stopcorporateimpunity.org/treaty-transnational-corporations-supply-chain-regard-human-rights/.
2 The United Nations General Assembly. "Declaration on the Rights of Indigenous People," New York, 2007.
3 UN Human Rights Council. "United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas," resolution adopted on 28 September 2018, 39th sess., Geneva, accessed August 25, 2020, https://digitallibrary.un.org/record/1650694?ln=en.
4 Oil Change International. "Fossil Fuel Subsidies Overview," Fossil fuel subsidies, 2018, accessed August 25, 2020, http://priceofoil.org/fossil-fuel-subsidies/.
5 Friends of the Earth Europe, Friends of the Earth International, Corporate Europe Observatory, and Transnational Institute. "Red Carpet Courts: 10 stories of how the rich and powerful hijacked justice," June 2019, accessed August 25, 2020, https://10isdsstories.org/.
6 Corporate Europe Observatory and Transnational Institute. "Cashing in on the pandemic: how lawyers are preparing to sye states over COVID-19 response measures'" May 19, 2020, accessed August 25, 2020, https://longreads.tni.org/cashing-in-on-the-pandemic.