The role of Transnational Corporations (TNCs) in Africa continues to be of vital importance for the economic development of the continent in terms of generating wealth, developing technologies, and creating jobs for new generations.
But TNCs have a contradictory role because, on the one hand, TNCs carry out an economic transformation through different spheres of action (whether in finance, infrastructure, services, natural resources, or agriculture), on the other hand, TNCs cause one of the greatest difficulties for the integral development of peoples, causing inequalities and injustices.
At present, the States have the exclusive jurisdiction to enforce respect for human rights and to monitor the care of the environment within their territories. There are no international mechanisms to prosecute violations and abuses of these rights or the destruction of the environment by TNCs and their subsidiaries or suppliers throughout the value chain. In addition, the business lobby develops all its capacities to nullify or reduce the punitive force of legislative initiatives, both at the national and international levels that attempt to control its power.
In the face of any initiative to control TNCs by the States, companies position themselves by asking to maintain the current legal status of international legislation through voluntary mechanisms. However, these mechanisms have proven ineffective over the last decade since the UN Guiding Principles on Business and Human Rights were approved. The OECD Guidelines for Multinational Enterprises have been shown to be equally ineffective, which are government recommendations directed at TNCs that operate in countries other than where these companies have their headquarters.
In other cases of international legislative initiatives, such as in the current negotiation for a UN legally binding treaty on TNCs and human rights or the mandatory Due Diligence law of the EU on companies and human rights and the environment, TNCs companies show a false attitude of collaboration. The business strategy makes requests that create confusion in the scope of application of the new legislation with the intention of lengthening the legislative processes and weakening the content of the norms that seek to regulate the behaviour of TNCs (a toothless regulation).
Thus, the responsibility to respect human rights and the environment should correspond to both the States and the TNCs through a shared responsibility and direct obligations that prioritize the protection of human rights over the economic benefit of companies. In other words, legislation is necessary that contains clear and direct obligations for companies so that States can control the behaviour of TNCs.
The EU has publicly recognized that voluntary TNC control systems are ineffective, and yet there is no explicit will on the part of the European Commission to limit impunity for large corporations. Respect for human rights and the environment is at the mercy of large corporations that take advantage of the democratic weakness (corruption, lack of adequate legislation or inability to implement the necessary control measures) of the developing countries in which they lead to carry out the activity. In this sense, the direct obligations of the Companies and the rendering of accounts to the States are the best guarantee of respect for the economic, labour, social, health and environmental rights of the peoples.
The shared responsibility between the States and the TNCs must encompass the entire activity process of the companies (and their subsidiaries) as well as a proactive attitude to prevent risks that may cause human rights violations, mitigate the negative impacts caused by TNCs and with the obligation to restore the damages caused both to the people and communities. In this sense, the main political parties with representation in the European parliament (except for the far-right parties Identity and Democracy, and European Conservatives and Reformists Group) have spoken in their letter to the European Commission in which they demand a liability regime in place under which undertakings can be held liable for any harm arising adverse impacts on human rights, the environmental or good governance.
However, this responsibility would not be complete if it is limited to preventive means of human rights violations or environmental destruction. The responsibility of TNCs must also include the harm caused by their activity even if they have carried out the preventive actions established by law. TNCs must be held liable for damages their business may cause even if they have done everything possible to prevent it. In other words, until now, companies justify their impunity for the preventive actions they carry out: environmental impact studies, compliance with national laws or prevention of occupational hazards. Companies consider that taking certain precautions exempts them from the result caused by potential damages that they may cause indirectly. AEFJN denounces this preventive limitation of civil liability and requires the EU to include civil and criminal liability for the result caused despite the precautions carried out by the TNCs.
The responsibility of governments also requires facilitating everything necessary so that people and communities affected by human rights violations or environmental degradation can access justice. Often, victims are unprotected or helpless in the face of abuses of power without finding an answer to their complaints. It is the responsibility of TNCs to listen to victims and not litigate against them.
The EU is in the process of creating a Due Diligence law on Business and Human Rights and Environment that gives hope to a new model of civil and criminal liability for TNCs. The European Parliament has shown its desire for the proposed legislation to respond to the current injustices of impunity created by the behaviour of TNCs. Africa Europe Faith and Justice Network (AEFJN), together with civil society, asks the European Commission not to allow itself to be manipulated by the TNCs lobby and to be consistent with its development and economic partnership policies, giving priority to human rights and creating solidarity mechanisms. The economic and sustainable growth of Europe cannot be based, once again, on the colonialist abuse of TNCs but on respect for human dignity and justice.
José Luis Gutiérrez Aranda, Trade Policy Officer, Africa Europe Faith and Justice Network (AEFJN)
