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Newsletter no 25 - In the Spotlight

Tuesday 15 March 2016, by Manu

Identifying the patterns: crimes and abuses by TNCs [1]

Transnational corporations (TNCs) have become leading actors in accelerating global trade during the last decades, thereby redefining modes of production and patterns of consumption, as well as prompting social and environmental consequences. There is an increasing number of cases of TNCs and other business enterprises severely restricting the enjoyment of all rights. These societal actors have been involved in offenses against economic, social and cultural rights, as well as breaching civil and political rights. Despite the principle of the indivisibility and interdependency of human rights, enshrined in the International Bill of Human Rights, TNCs have impeded the full realization of the right to adequate food and nutrition of individuals and communities, especially of those most disadvantaged and marginalized.

TNCs’ threats and offenses against the right to food and nutrition

TNCs and other business enterprises have the potential to adversely impact on peoples’ food sovereignty. Extractive industries, agribusinesses, programs for the compensation of CO2 emissions, tourism and megaprojects are some of the main causes of forced evictions and displacements of people from public lands, forests, grazing lands and mobility routes, which they use to collect or produce food [2].

In addition to denying people access to productive resources, business activities also negatively affect the access to natural resources and harm ecosystems, which are crucial for communities to feed themselves and their families. The spreading of agro-chemicals not only destroys crops and poisons animals but also harms the health of agricultural workers and food consumers.
The human right to adequate food and nutrition is further jeopardized by TNCs’ labor practices, based on the subcontracting of cheap workforce. Agricultural workers, for instance, are victims of modern forms of slavery, forced labor, non-payment of wages, illegal detention, and unsafe working conditions. On top of that, rural women workers are severely discriminated, with unequal pay, social marginalization and sexual harassment. The human rights defenders and trade unionists that raise their voices against these injustices are physically and psychologically harassed and criminalized through private armed forces and are prevented from a due process of law.

TNCs’ commercial practices also severely harm peoples’ right to food. By dumping their products on small food producers’ markets, they impede the economic subsistence of farming communities who are unable to compete with the prices of imported products. To maintain low costs and high profit, these products may be unsafe, causing physical and mental diseases to the consumers, including diabetes, obesity and depression [3]. Breast milk substitutes, highly-industrialized and with elevated levels of added sugar, are an example of such harmful products.

Additionally, the access to adequate food and nutrition is harmed by price-fixing cartels, buyer cartels or other cartels, when companies manipulate food and agricultural prices, rendering basic food products too expensive for many families [4]. The abusive loan conditions imposed on small farmers, as well as the speculation with land and other natural resources, which cause food price volatility, further contribute to the impoverishment and high rates of suicide of small farmers – one finds such cases in countries like India, Belgium and France. Finally, TNCs’ complicity with States in food blockades during armed conflicts has deadly consequences by impeding entire populations from accessing food, as in some communities in Colombia.

The hurdles to stopping impunity

Unfortunately, the victims of such human rights offenses are often left without any effective legal remedy. Meanwhile, a great number of TNCs continue to operate with gross impunity. A series of structural hurdles to stopping impunity and achieving remedy for victims have been observed. Amongst them, one finds the lack of regulation, monitoring, investigation and sanction of businesses in the countries where the harm takes place, due to States’ lack of will or capacity.

Many States lack effective criminal, civil and administrative mechanisms capable of holding national and transnational companies liable for human rights offenses and abuses. Furthermore, where mechanisms are available, the implementation of protective judicial decisions is often undermined by undue corporate influence on the authorities responsible for implementing them.

Home and host States’ reticence to regulate TNCs and other enterprises of transnational character and to provide effective remedies to victims of corporate human rights abuses have prompted the elaboration of different international regulatory frameworks. However, these frameworks fail to include clear and obligatory international standards on the duties of States regarding crimes and abuses by TNCs and other business enterprises, ignoring their territorial and extraterritorial human rights obligations.

How states are failing

States have failed to regulate, monitor, adjudicate and enforce judicial decisions regarding abuses perpetrated by TNCs, towards ensuring the liability of the involved companies and enable individuals and communities to access effective remedies. The undue influence and lack of cooperation of States where the parent companies of TNCs are headquartered, impedes States from effectively complying with their obligation to protect human rights and to enforce judicial decisions.
Furthermore, the home States of TNCs – or those where controlling legal entities are based – very often fail to comply with their extraterritorial obligations to protect and respect human rights, by influencing the drafting of laws that are favorable to the investments of their “national companies”, which cause harm to human rights beyond their national borders.

An additional hurdle to stopping impunity and achieving a remedy for victims stems from the complex nature of global supply chains, where manufacturing and services are subcontracted at different levels. Currently, difficulties exist in determining the liability of the diverse legal entities involved in human rights abuses, such as the companies in a parental-filial relationship, a contractual relationship, a supply chain relationship or those who have a business link with the company directly involved in an abuse [5].

Last but not least, the inclusion of arbitration clauses in investment and trade agreements, such as investor-state dispute settlement (ISDS) [6], has opened the door for companies to present claims against States when the latter decide to suspend the implementation of such agreements in order to protect the human rights of their citizens. The arbitration tribunals, as private justice mechanisms in which the application of human rights and the access to traditional justice systems are fully excluded, are blocking the compliance of States with their international human rights obligations, causing systematic violations to these rights, including the right to food and nutrition [7].

Corporate impunity and States’ non-compliance with their international human rights obligations have spurred civil society to claim for an international binding instrument (treaty) [8]. An Intergovernmental Working Group at the UN level is, since 2014, in charge of drafting such an instrument to regulate TNCs and other business enterprises with regard to human rights. This will hopefully oblige States to regulate and sanction activities of TNCs and other businesses in their or in other countries’ territories where they exercise jurisdiction [9]. With such a future treaty, human rights-minded individuals and civil society groups aim to put an end to such corporate impunity and ensure adequate remedy for the affected individuals and communities.


[1Ana-Maria Suárez Franco and Daniel Fyfe. This article was first published in FIAN’s “Right to Food Journal 2015”, vol. 10, www.fian.org/fileadmin/user_upload/Right_to_Food_Journal_2015.pdf

[2Illustrated by cases such as Mubende and Benet in Uganda, el Hatillo in Colombia, GuaraniKaiowá in Brazil, and Sawhoyamaya in Paraguay. More information at www.fian.org/whatwe-do/case-work/

[3Cedeno, Marcos Arana and Xaviera Cabada. “Nutrition Policies Taken Hostage by Multinationals and Conflicts of Interest: The Obesity and Diabetes Epidemic in Mexico,” in Right to Food and Nutrition Watch 2015, www.rtfn-watch.org/fileadmin/media/rtfn-watch.org/ENGLISH/pdf/Watch_2015/RtFNWatch_EN_web.pdf#page=70. On cases regarding pesticides-related depression, please see www.environmentalhealthnews.org/ehs/news/2014/oct/pesticides-depression

[4For more information, De Schutter, Oliver, “Food Commodities Speculation and Food Prices,” September 2010, www2.ohchr.org/english/issues/food/docs/Briefing_Note_02_September_2010_EN.pdf

[5It was the case of the Rana Plaza disaster in Bangladesh. For more information, please see www.cleanclothes.org/news/press-releases/2013/09/09/brands-failing-victims-ofbangladesh-disasters

[6For instance, in the case of the Tran-Pacific Partnership (TTP) trade agreement. For more information, please see www.rtfn-watch.org/fileadmin/media/rtfn-watch.org/ENGLISH/pdf/Watch_2015/RtFNWatch_EN_web.pdf#page=51

[7Such as the case of Chevron vs. Ecuadorian citizens on alleged oil pollution. For more information, please see www.business-humanrights.org/en/texacochevron-lawsuits-reecuador

[8Such as the Treaty Alliance, which is comprised of a large and growing group of human rights organizations, platforms, social movements and affected communities. For more information, please see www.treatymovement.com

[9Extraterritorial Obligations Maastricht Principles, 2011, Principle 9, “Scope of jurisdiction”. For more information, please see www.etoconsortium.org/en/main-navigation/library/maastricht-principles/