Maria Fernanda Espinosa Garcés is the elected chairperson-rapporteur of the Open-Ended Intergovernmental Working Group (OEIGWG) on Transnational Corporations and other Business Enterprises with Respect to Human Rights. She is a top Ecuadorian politician and diplomat who is currently the ambassador of her nation to the UN Office at Geneva. Earlier, Garcés has served as Ecuador’s minister of national defence (2012-14), minister of natural and cultural heritage (2009-12) and minister of foreign affairs, trade and integration (2007-08). She was the ambassador of Ecuador to the UN in New York from 2008 to 2009.She has co-authored five books on geopolitics and the environment, indigenous rights and international cooperation for the environment, among others. She has led many multilateral negotiations on a number of international conventions. She spoke with Shreerupa Mitra-Jha.

READ: Behemoths of our times
 
What is the intent of Ecuador in taking the lead in this initiative?

This initiative has a long story. For more than 40 years, the international community, civil societies around the world and victims have requested, have cried out for an instrument that would make corporations comply with fundamental human rights and with human rights standards at the international level. Looking at the globalisation process and how the production chains are organised it is true that we need a common and universal framework, because production is delocalised to deal with issues of extraterritoriality, for instance.
Of course, Ecuador has a strong commitment but this has been an initiative that we have had together with South Africa and the core group countries that are behind this idea. But perhaps, more importantly, more than 1,000 NGOs around the world are really looking for establishing an internationally legally binding regime for protecting human rights around the world.

How optimistic are you in getting a positive outcome from these deliberations, given that the EU was insistent on adding a footnote which would effectually expand the mandate of the WG and given also that the US is not attending the sessions?

This issue is complex, of course. But I think that when we progress on the dialogues, on the exchanges of views and when there is a wide recognition of the need of an international framework, I think, little by little we are going to have more and more states that are going to be interested in shaping something that is for the benefit not only of the victims, but also of the general society, our public – of the human beings.

I think it is very favourable to ensure a very predictable and safe investment environment. This is good for business, this is good for states, this is good for society and human beings. So, I think, there is some initial reluctance but this is so important and so natural... looking at how globalisation has delocalised production that it is a need. And, of course, it is not an easy question because when you are dealing with the interests of big companies around the world, there is some concern.

But here [at the UNHRC WG session] we have had an incredible collection of experts from around the world looking at the feasibility and the necessity of having a universal and international standard that would guide the operation of TNCs in different countries around the world. 

Do you think that the fact that TNCs do not have a legally recognised definition will prove to be an obstacle like it has been in the case of the Comprehensive Convention on International Terrorism because of a lack of consensus on the definition of terrorism?

There is already an incredible wealth of norms internationally regarding TNCs. ILO [International Labour Organisation] already has a lot of pieces of convention regulating, for instance, child labour and the right of freedom of association. So there is already out there different definitions. But in this case, I think, what counts is a general agreement on an operational definition. 

I think this should not be an obstacle if there is the political will of coming up with an agreed operational definition. And what we have out there, the guiding principles and the bodies of legislations in terms of children’s rights, in terms of women’s rights with regard to business, I think, that provides the necessary elements to come up with an agreed operational definition to go forward. But it is more of a political challenge, of course.

Given the complex nature of global supply chains, what will be the extent of reach of this legal instrument, if and when adopted? Also, the dispute tribunals at WTO often resolve the matter with scant consideration for human rights and their abuse.

What this internationally legally binding instrument is called to solve is precisely to close gaps – the legislation gaps that we have – and also balance rights and responsibilities of TNCs because, as we know, there are these international arbitration tribunals where states are brought to court. Most of the times they are considered guilty and have to pay enormous amounts of money to transnationals.

Transnationals do have rights; they can have access directly to these international arbitration mechanisms that emerge from bilateral investment treaties, for example, but they don’t have the obligations towards the people, societies and countries where they operate. So this legally binding instrument is called to resolve the jurisdictional issues and also to balance the rights and responsibilities for corporations but also for states. 

How do you think discussions on public-private partnerships where the state itself may be party to violations of human rights pan out in these deliberations?

In the case of states you have the set of international conventions on human rights of the human rights council, you have treaty bodies, mechanisms to make states liable. What we don’t have so far is a standard that would be universal, that would look at delocalisation of the production chain. So that is what we are trying to deal with. It is true some states violate fundamental rights, yes, but there are mechanisms to make states liable. What we have so far are norms, guiding principles, but they are soft laws. We need some kind of universal standard in order to have this environment of certainty, equality and competition. Because fair competition has to be also with universal and equal rules for everybody.

How do you see the positions of countries like India and China, who are recipients as well as origin countries of TNCs, evolving in this discussion?

These countries have supported Resolution 26/9. They are very active during the deliberations and dialogues here. This is really a very good sign because this means that the world has to evolve towards a healthier globalisation – more just, more equal and with high standards of environment protection and human rights protection. This is a very good sign, because it means that they don’t want to repeat the mistakes that other countries have made in the past. They are emerging economies, but they have high consciousness for the benefit of everyone to have this same level-playing field to operate in.

This shows the commitment of India, and also China, Russia and South Africa who have teamed up with Ecuador to bring this idea forward. And this is the first time during the working group meetings where states together with civil societies seek seriously to discuss the crafting of a legally binding instrument. What we have had so far are consultants coming up with soft law norms that had been adopted as a reference, as a tool kit for member states. But in this case it is the effort, the political will and the crafting of a legally binding instrument by the states themselves. And I think that’s the value of this working group. 

shreerupa@gmail.com

(The interview appears in the July 16-31, 2015 issue)