Johanna Sydow: Erika Mendes, while many people and NGOs here in the EU are fighting for a European supply chain law, you are campaigning for an agreement on business and human rights at the UN level. Why?
Erika Mendes: We have been trying to understand corporate power and impunity for many years now. The way that large corporations invest in countries like Mozambique shows that their power is often much greater than that of our governments. The annual revenues of some of these companies amount to ten times the gross domestic product of Mozambique. In other words, there is a very large imbalance of power. This is also evident in negotiations, for example when it comes to projects that require a lot of land. There is a large imbalance of power between investors and the rural population in areas where the former want to extract certain resources.
An imbalance of power that makes it easy for companies to shirk responsibility.
We call this the «structural impunity of corporations». This concept includes legal, political and economic aspects, and media and communication as well. Taken together, this leads to a preponderance of power on the part of transnational corporations, a preponderance that, as you put it, means that they can shirk responsibility – even when it comes to serious human rights violations, environmental degradation or the climate crisis. Something has to be done about that. We’re talking about transnational corporations that operate in many countries and across borders.
National rules are not enough then to rein in the complex and powerful structures of transnational corporations?
No. This is the reason why there have been demands for internationally valid rules for corporations for decades. It is not uncommon for corporations to try to choose a jurisdiction that suits their interests, as we have seen with Shell in Nigeria. Shell does not want to be sued before Dutch courts for environmental destruction in the Niger Delta, because the company knows, of course, that it has an easier time in court in Nigeria. We therefore need to ensure that corporations that profit from projects in countries in the Global South can be held accountable for the consequences in their home countries. The responsibility must lie with the parent companies rather than just with subsidiaries, i.e. there, where the decisions are made and where the capital comes from. This, of course, includes those who are financing such projects. This is the only way to put a stop to corporate overreach.
A number of countries in the European Union – and probably soon the EU itself – will make human rights due diligence mandatory for companies. Why is this not enough?
In our opinion, the concept of due diligence falls short, seeing as it primarily operates from a corporate perspective and relies on making human rights part of corporate ethics. This is the wrong approach; it has to be the other way around. Human rights have to be the foundation upon which the obligations of transnational corporations are to be defined. Requiring companies to assess the impact of their investments, however carefully, is not enough and often ends up having the opposite effect. When companies meet their due diligence obligations by checking a box on a form, and human rights violations occur nonetheless, such a regulation can even serve as liability shield.
What exactly are you asking for?
We demand that corporations be required to provide redress and access to legal remedies in the event of violations. This is the only way that we can ensure that corporations and their decision-makers can be held liable for violations – whether or not they have conducted due diligence.
But would an international agreement not rely on due diligence procedures to some extent as well?
Now that the EU is moving forward with its own due diligence rules, we find that this is interfering with the UN’s intended process of reaching binding agreements. The EU has taken eight, indeed almost nine years to enter into the UN process, and yet it still has no mandate to negotiate a binding agreement here. The EU has, however, made it clear that it will only support due diligence within the framework of existing regional regulations. This shows the extent to which due diligence procedures can potentially undermine projects such as a binding UN agreement. International agreements may also contain mechanisms for due diligence, of course, but these would be just a small component. A binding agreement must create mechanisms to allow the effective regulation of companies, and the rights of those affected must be at the heart of the negotiations. This entails that they are involved in the negotiations and the implementation of the agreement. There also has to be cooperation between the countries that sign such an agreement to ensure that corporations involved in human rights violations will be prosecuted. This involves access to information and international legal assistance.
Could strict European laws on due diligence – including legal remedies – be a small step in the direction of the kind of agreement you would like to see?
If you look at similar processes, you can tell that the outlook is not good. Legislative initiatives tend to be formulated very ambitiously but their intent gets diluted during the legislative process because corporations and lobbyists are not prevented from exerting their influence. Obviously, it is positive that people are trying to get companies in the EU regulated, but it seems that those in responsible positions are not really interested in solving the problem; they want a cosmetic solution. Perhaps I’m too pessimistic, but experience shows that new due diligence laws cannot be expected to translate into greater accountability in practice in our countries in the Global South, where most violations occur.
What challenges does such an international agreement face?
Some of the challenges are the same. Here, too, corporate lobbies and corporations try to influence the path to an agreement. They even presented «studies» that are supposed to show that the economic consequences of such an agreement would be devastating for the Global South. It basically boils down to the threat of economic retribution – namely, that corporations might pull out of the Global South. Behind closed doors, of course, they really get down to business. At the same time, it is a global process in which many countries of the Global South actively participate – not to mention social movements, civil society organizations and trade unions from around the world. This is very important because it is the only way that we can apply pressure during the negotiations to ensure that the voices of those affected are heard and that progressive experts have a part in writing the text of the agreement.
I would like to see European civil society get involved in obtaining this mandate and then also in the international negotiations, because it is in these negotiations that the Global South has a voice.
So there is hope of negotiating an effective agreement since so many parties, so many voices are involved in the negotiations – and not just the powerful. What would you like to see from European civil society?
The negotiations on due diligence in the EU mean that many civil society organizations in Europe work towards this legislative process rather than a binding international agreement. They don’t have the capacities to do both. Accordingly the focus of their work has shifted. But the EU cannot impose its own rules on the world. It still has no mandate to negotiate a binding international agreement. I would like to see European civil society get involved in obtaining this mandate and then also in the international negotiations, because it is in these negotiations that the Global South has a voice.
Which role should European countries play?
I hope that they will push for progressive regulations, regulations that really address the problem of the power and the impunity of those companies that have their headquarters in Europe. Another reason that a binding agreement is important is that it would create a level playing field worldwide. Companies from all over the world would have to respect human rights. It is my hope that the European governments will recognize that companies in their countries are responsible for the most serious violations of human rights and for the destruction of the environment, and that they must regulate these companies appropriately – on a national, regional and, above all, the international level.
Erika Mendes works for Justiça Ambiental, a civil society organization in Mozambique that works on issues such as climate justice, land rights and environmental justice. Mendes primarily coordinates the areas «corporate impunity» and human rights.
Johanna Sydow heads the International Environmental Policy Division at the Heinrich Böll Foundation. Her fieldwork on mining in Ghana, Peru and Ecuador (2009-2013) turned her into an advocate for the reduction of raw materials consumption and for binding rules for companies.