By Claudio Schuftan MD*

Already the Universal Declaration of Human Rights of 1948 interpreted the issue as implying that no State, group or person has the right to engage in any activity aimed at the destruction of any of the rights and freedoms set forth herein. (Art.30)

* It is, thus, of the utmost importance that State (Country) parties ensure access to effective remedies to victims of corporate abuse of economic, social and cultural rights through judicial, administrative, legislative or other appropriate means. And no distinction is to be made between violations committed by a State, a physical person or a legal person. There is a ratified optional protocol pertaining to business enterprises operating abroad on this, but there are no means of enforcement since available means are not legally binding. Therefore, for now, norms applied to transnational corporations (TNCs) are merely voluntary codes, i.e., with no sanctions and no compliance --so impunity continues.

* Regarding corruption though, the UN General Assembly has adopted a legally binding instrument (UN Convention Against Corruption, 2003) and, in 2009, a review mechanism for the implementation of the convention was passed.

* Furthermore, the existing norms applicable to legal persons, hence to TNCs, are fragmented, do not deal with the entirety of human rights (HR), are not universal (since they are not ratified) and they have no coherent implementation.

* It is now possible to bring the management of TNCs before the International Criminal Court. Since 2008, the HR Council has emphasized that TNCs and other business enterprises have a responsibility to respect HR. TNCs being legal persons are thus subjects and objects of the law; they are indeed bound to respect HR.

* TNCs have greatly influenced commercial treaties in their own favor. Most trade agreements place TNCs above the State thus above the people. Hence these entities have all the rights, but they are not accountable for their acts. They typically short-circuit national courts, but have the right to bring states before the World Bank’s tribunal (the International Center for Settlement of investment Disputes), their favorite court, which is unfailingly favorable to them while states are denied this right. The ICSID ignores national and international legislation on HR, the environment and worker’s rights.

* So, by virtue of current international HR law, TNCs are bound to respect HR. All that remains is to clarify the HR obligations of these entities and to establish binding enforcement mechanisms. It is possible to demand they refrain from acts that violate HR and compel them to act so that the respect of these rights is guaranteed.

* As soon as possible, measures must be taken to require accountability before the courts for their non-respect of HR. Such respect is more than ever indispensable given that privatization policies are being imposed by the IMF and the WB, especially affecting public services previously provided by the State. Simply put, the people must have the possibility to defend their rights.

* With their economic and political power, the most powerful TNCs can and do escape all democratic, administrative and legal control. Their strategy consists of reinforcing their dominant position in the market in practically all areas of production and services by the way of acquisitions and mergers. Moreover, legal responsibility must reach all the way to their downstream contractual chains (affiliates, subcontractors, licensees). The parent company is indeed responsible for the offenses these downstream entities commit. The parent company must also assume responsibility for the debts of their affiliates in case they go bankrupt.

* The treaty now under negotiation at the UN pertaining TNCs liability will have to establish universal jurisdiction enabling legal action in the TNCs’ host State for their offenses committed regardless of where they occur. Host countries must guarantee access to their courts to the victims of violations committed by these entities in foreign countries. The treaty will further have to reassert the hierarchical superiority of HR norms over trade and investment treaties.

* Additionally, to fight impunity, victims will have to be guaranteed: the right to know, the right to justice, the right to compensation and the right to guarantees of non-reocurrence of violations with states having the obligation to take effective measures to fight impunity. There will have to be: i) no court costs to claimants, ii) the possibility of class action suits, iii) speedy trials (justice delayed is justice denied), and iv) limits to out-of-court settlements, i.e., TNCs offering easy transactional solutions to victims to avoid conviction and victims accepting a partial monetary compensation in exchange for abandoning litigation. Lawyers’ fees will have to be assumed by the State or supported by a special tax on TNCs.

* Bottom line: In an era of neoliberal (in)justice, the power is in the hands of the biggest TNCs while this power has no correlative counterpart accountabilities. The initiatives taken so far have been limited and are far from responding to what is at stake. The new treaty will also have to take into account environmental crimes and even killings of HR defenders that elude justice. Given the colossal magnitude of the violations committed by TNCs, an international instrument (treaty), as the one under consideration, may appear insufficient. But this will be a significant first step. The existence of such an instrument will be a clear message to HR violators.

* Completing the current UN negotiations setting binding norms on this is indispensable. People must mobilize and network to back these negotiations.
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*Claudio Schuftan, M.D. (pediatrics and international health) was born in Chile and is currently based in Ho Chi Minh City, Vietnam where he works as a consultant in public health and nutrition. He is an Adjunct Associate Professor in the Department of International Health, Tulane School of Public Health, New Orleans, LA. He received his medical degree from the Universidad de Chile, Santiago. He also studied nutrition and nutrition planning at the Massachusetts Institute of Technology (MIT) in Cambridge, MA. Dr. Schuftan is the author of 2 books, several book chapters and over fifty-five scholarly papers published in journals, plus over three hundred additional publications as training materials and manuals developed for food/nutrition activities and human rights in different countries . He is currently an active member of the Steering Group of the People’ Health Movement and has coordinated the People’s Health Movement Global Right to Health Campaign for 5 years.

Извор: WUNRN – 31.01.2017