“This commentary is part of the Reflections on the Revised Draft Treaty blog series. Our Debate the Treaty Blog highlights a diverse range of voices from across the globe on the proposed legally binding treaty on business and human rights, which we believe is complementary to the implementation of the UN Guiding Principles.

This post is co-published by the Business and Human Rights Journal Blog as part of its symposium on the revised draft of a binding treaty on business and human rights.”

The release of the revised draft of a legally binding treaty and accompanying efforts to address significant gaps in the regulation of transnational corporations and other business enterprises with respect to human rights speaks to a vital struggle of our time: ending corporate impunity! However, to ensure that the binding treaty achieves its full potential, the instrument must have critical power analysis at its core, taking into account the lived realities of women, girls and gender non-conforming persons.

This year, 2019, we have witnessed one of the largest environmental protests led by children under the banner #YouthStrike4Climate joining worldwide campaigns highlighting the climate crisis. As global mobilization demanding political action on climate justice is on the rise, the voices of those often at the frontlines of defending land and territory continue to be silenced, delegitimized and repressed. In fact, so bold are these forces that in a rather unfortunate state of events, Victoria Tauli-Corpuz, the United Special Rapporteur on Indigenous Rights, was listed as a suspected terrorist by the administration of Philippines President Rodrigo Duterte. Her name features alongside approximately 600 people that the government wants to be declared as terrorists.

According to  recently launched Global Witness report, Enemies of the State?, the Philippines was reported as the country with the highest number of deaths of defenders, with at least 30 rights defenders murdered in 2018, figures that could be conservative owing to the number of cases that go unreported.  The report documents 164 killings of defenders from across the world fighting to protect their land and territories from destructive industries like mining, logging and agribusiness.

It is against this backdrop, that the highly anticipated revised text of the draft treaty was released. This revision from the Zero draft, is the culmination of efforts of consultations and inputs from various actors including more than 94 States and 400 civil society organizations who were present for the first-ever negotiations of a binding treaty to regulate the activities of transnational corporations and other business enterprises (TNCs-OBEs) at the 4^thsession of the Intergovernmental Working Group (IGWG) held in October 2018.

For three years now, #Feminists4BindingTreaty Coalition, a feminist collective movement, has pushed for the inclusion of a gender perspective in the Treaty process. Coalition members’ work has been driven and informed by the lived experiences of women human rights defenders (WHRDs) and the stark reality that approximately three human rights defenders lose their lives each week in defense of their land  and their territories. If the protections afforded by the status of the United Nations Special Rapporteur were not enough to stop Victoria Tauli-Corpuz from being threatened as described above, it can only be imagined what ‘ordinary’ women defending lands and territories face every day.

In the lead up to, and during the October 2018 sessions, the Feminists for a Binding Treaty coalition articulated its visions advancing the need to incorporate a gender perspective where ‘advancing gender justice not paying special attention.’ In this, we emphasized that a gender perspective is not about treating women as a ‘vulnerable group’ requiring ‘special attention’ 

Recommendations on Content

Notable efforts to incorporate language in the revised text that acknowledges the gender-specific impacts of corporate abuse, include, for example, the Preamble: ‘Recognizing the distinctive and disproportionate impact of certain business-related human rights abuses on women and girls, children, indigenous peoples, persons with disabilities, migrants and refugees, and the need for a perspective that takes into account their specific circumstances and vulnerabilities [emphasis added].’

While welcoming the highlighted additions below, there is an opportunity to further strengthen the following sections, informed by comprehensive feminist analysis and elaborate recommendations in the joint brief, ‘Women's Rights Beyond The Business Case: Ensuring Corporate Accountability’ by Feminists for Binding Treaty Coalition.

In Article 4, which speaks to the ‘Rights of Victims,’ there is inclusion of language that ensures, ‘[v]ictims shall have the right to benefit from special consideration and care to avoid re-victimization in the course of proceedings for access to justice and remedies, including through appropriate protective and support services that ensures substantive gender equality and equal and fair access to justice [emphasis added].’ 

Furthermore, is the recognition of the risks, threats and various forms of discrimination that WHRDs, particularly at community level, face while challenging corporate power. This article recommends that State Parties ‘take adequate and effective measures to guarantee a safe and enabling environment for persons, groups and organizations that promote and defend human rights and the environment, so that they are able to act free from threat, restriction and insecurity [emphasis added].’

This section can be strengthened by highlighting that such measures should take into account the gender-specific and other identity-based risks to and impacts on women human rights defenders, and those in their care, and include allocation of resources for holistic protection as it is understood by defenders themselves. The multiple and often intersecting forms of discrimination should be properly recognised and addressed, such as those experienced by indigenous, +LGBTQI, and migrant and refugee women.

In Article 5, focusing on ‘Prevention,’ we particularly welcome the recognition of the ‘ILO 190 Convention concerning the elimination of violence and harassment in the world of work.’ This Article further recognizes ‘[s]pecial attention to those facing heightened risks of violations of human rights within the context of business activities, such as women […]’ and that ‘[c]onsultations with indigenous peoples will be undertaken in accordance with the internationally agreed standards of free, prior and informed consultations, as applicable.’

Moreover, we embrace the introduction of language that calls for periodic reporting ‘on human rights, environment and labour standards concerning the conduct of their business activities, including those of their contractual relationships’and the recognition of ‘human rights due diligence requirements.’

-       Effective prevention crucially depends on the incorporation of a gender justice approach. This section can be further strengthened by explicitly stating that gender impact assessments shall be conducted by an independent entity chosen by or agreed upon amongst the communities and the women from whom information will be gathered, in a process of free, prior and informed consent (FPIC).

-       As pertains to periodic reporting, this should include timely gender-disaggregated and other gender relevant data so as to make visible the disproportionate effects of business-related human rights violations and abuses on women, girls, trans and gender non-conforming persons.

Finally, in addressing barriers to justice, the revised text makes a recommendation that would seek to overcome financial barriers by stating that, ‘[i]n no case, shall victims that have been granted the appropriate remedy to redress the violation, be required to reimburse any legal expenses of the other party to the claim.’

-       The treaty should go even further by recognizing the additional forms of discrimination and barriers faced by women and marginalized groups seeking remedy and pursuing justice. Economic barriers are just one among the many hurdles that often make justice out of reach for women, girls and gender non-conforming persons. This section can be strengthened by making recommendations to remove gender-specific barriers, that are upheld by patriarchal social structures and power relations, such as linguistic, cultural and even physical barriers to accessing justice. In addition, the treaty should compel states to take appropriate measures to transform institutional structures, discriminatory laws and social practices that undermine participation and access to justice of women and affected communities.

What Next? A Feminist Binding Treaty

So far, the energy and presence of massive civil society mobilization and social movements has underscored the timeliness and importance of the treaty and speaks to the progress achieved thus far. Going forward, it is crucial that governments that champion gender equality and rights and allied progressive States engage with the substance and content of the negotiations, and in this ensure that the comprehensive suggestions by feminist contributors are meaningfully integrated.

While no single instrument is capable of fixing corporate impunity that is rooted in capitalism and neoliberalism, a legally binding treaty holds the promise of advancing feminist demands for an economic system that does not increase inequalities and puts an end to the commodification and exploitation of our bodies, territories and natural world for profit. These feminist demands for systemic change have to be transformative and the commitment to this change must be visible as we prepare for yet another round of negotiations in October 2019.

Aluta continua!

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BIO: Felogene is a pan-African feminist activist who is passionate about using her creativity, politics and intellect to strengthen feminist movements to build collective power. She co-leads the Building Feminist Economies program at the Association for Women's Rights in Development (AWID).