As the 2017 State of Civil Society Report identified, private sector influence on international governance is an increasing civil society concern. CIVICUS speaks on this issue with Thea Gelbspan, Membership and Solidarity Director at ESCR-Net – the International Network for Economic, Social and Cultural Rights. ESCR-Net is a collaborative initiative of groups - grassroots organisations, social movements, civil society organisations and academic centres - as well as individuals from around the world working to secure economic and social justice through human rights. With over 280 members in 75 countries, ESCR-Net seeks to strengthen all human rights, with an emphasis on economic, social and cultural rights, and further develop the tools for achieving their promotion, protection and fulfilment. ESCR-Net members engage in mutual learning and exchange, deepen solidarity, enter into collaborations and join collective work in efforts to build a global movement to make human rights and social justice a reality for all.
1. What are the current major trends in private sector partnerships with the United Nations system, particularly with regards to Agenda 2030?
All agencies and offices of the United Nations (UN) are subject to frameworks that the UN system adopts and operates under, including the last of the Sustainable Development Goals (SDGs), SDG 17, to revitalise the global partnership for sustainable development. That goal clearly states that its “sustainable development agenda requires partnerships between governments, the private sector and civil society.” Moreover, it cites an urgent need for action to “unlock the transformative power of trillions of dollars of private resources.” Through Goal 17, the UN system has, regrettably, enshrined a mandate for its various agencies and operations to explore partnerships with companies and private investors. The UN Secretary-General's Guidelines for a Principle-Based Approach to Cooperation between the United Nations and the Business Sector, adopted in 2000, also detail the UN’s internal rules and procedures and have provided further guidance that directs this trend.
In the face of these developments, ESCR-Net members have expressed a growing concern about what they have termed the corporate capture of UN processes and institutions. Corporate capture refers to the means by which an economic elite undermines the realisation of our human rights and our environment by exerting undue influence over decision-makers and public institutions, in domestic and international spheres. Softening regulations, weakening regulatory powers, bankrolling elections, utilising state security services against local communities, causing judicial interference and implementing revolving-door employment practices are just some of the instances of corporate capture that ESCR-Net members have tracked.
We are concerned that even the most progressive UN agencies and offices have become vulnerable to the threat of corporate capture. For example, on 16 May 2017 the UN Office of the High Commissioner for Human Rights (OHCHR) announced a new five-year partnership with Microsoft, consisting of a US$5 million grant, plus a commitment of pro-bono assistance to the OHCHR. After an exchange between the ESCR-Net Secretariat and the OHCHR, on 17 October 2017 the members of ESCR-Net’s Corporate Accountability Working Group sent a letter to raise concern regarding the actual or perceived effect that this partnership will have on the OHCHR’s independence.
2. What do you think is motivating partnerships, both from the private sector and UN viewpoints?
The UN Charter establishes that its member states are fiscally responsible for UN activity expenses (Chapter IV, article 17.2). Yet, as many UN member states fail to fulfil their obligations in terms of member dues and the overall financing of agreed-upon priority activities, a worrying gap has emerged that the private sector is now seeking to fill. Similarly, in the face of a substantial crisis in terms of public development financing, we have witnessed the whole-hearted embrace of public-private partnerships across the UN system, with a notable deficit in terms of critical assessments of this model.
3. What are the implications of this on the space for civil society participation at the international and local levels?
Human rights defenders (HRDs) play a critical role in identifying, mitigating, exposing and ensuring accountability for the adverse human rights and environmental impacts associated with some corporate activity and development projects. Yet all too often, governments have criminalised legitimate activity to defend and promote human rights and corporate accountability. We have witnessed a series of attacks, harassment, restrictions, intimidation, reprisals (including arbitrary arrest and detention), disappearances, judicial harassment, torture and killings of HRDs confronting human rights abuses that derive from private sector activity. Too often the application of restrictive or vague laws - such as those relating to national security, counter-terrorism, and defamation - inhibit the work of HRDs at the behest of private sector interests. Business actors also have been known to interfere with access to information and communication, financial freedom and trade union activities undertaken by HRDs.
Unfortunately, as the UN system has forged more and more partnerships with private sector interests, the ability of its human rights mechanisms to uphold universally recognised standards effectively with actors who do not believe that such standards apply to them could be compromised, as could the system’s ability to provide protection for HRDs at risk.
To counter these trends, ESCR-Net members have called on states to recognise and support the leadership and contributions made by communities affected by business-related abuses and generate sustainable economic and development models that align with human rights and minimise environmental impacts. In order to create an enabling environment for the defence of economic, social and cultural rights, states must mandate human rights and environmental due diligence, including project assessment, implementation, monitoring and evaluation, and ensure the rights of people affected, or potentially affected, by corporate activity to participate actively, freely and meaningfully in those processes.
4. What can be done in the face of these challenges?
I think that a challenge of this magnitude truly requires collective efforts - across borders and regions - to confront these trends and elevate alternative approaches to advancing sustainable development that promote an environment that is friendly to human rights and those who defend those rights.
This model of work can prove to be quite effective. For example, the ESCR-Net Corporate Accountability Working Group (CAWG) was central to the advocacy that led to the UN Human Rights Council’s creation of an Open-Ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises (IGWG) to begin drafting a binding treaty on transnational corporations and human rights. As part of this work, CAWG participants in three regional consultations and strategy meetings repeatedly raised the issue of corporate capture, as well as the possibility of using the UN process, and the international attention it attracts, to confront this trend at the national level.
Now, as the negotiations within the IGWG have progressed, ESCR-Net members are calling attention to the risk of corporate capture of the binding treaty process itself and advocating for clear lines to be respected in terms of private sector participation.
This is not the first time the UN system has grappled with the threat of undue influence that corporations or industry sectors may exert over the very treaties or bodies that are supposed to regulate corporate practices. The World Health Organization’s Framework Convention on Tobacco Control contains an explicit recognition that establishes the tobacco industry’s irreconcilable conflict of interest in public health matters. Its article 5.3 states: “In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law.” Accordingly, precedents exist. We can insist on clear lines that keep private sector interests out of spaces that are not appropriate for their participation.
In any accord, human rights are clear, universally accepted and non-negotiable standards that imply clear obligations for states and, progressively, responsibilities for non-state actors including those from the private sector. ESCR-Net understands human rights to transcend the UN system and the purview of law, being derived, essentially, from long legacies of struggles by social movements and communities for a life of dignity. We must stand together to support these values that we share, in the face of ongoing efforts to turn public affairs over to market forces. Together with CIVICUS and other important civil society networks, ESCR-Net envisions a world where all people can enjoy human rights and social justice.