Treaty-level agreements
At the highest level — globally and multilaterally — the rules of the game are first decided through treaties. Consequently, treaty bodies and processes are frequently mentioned as both vulnerable points for capture as well as scalable opportunities to stop capture.
International Commission against Impunity in Guatemala (CICIG)
The CICIG was a treaty-level agreement established between the United Nations and the Government of Guatemala to investigate and help prosecute illegal security forces.During its mandate, the CICIG investigated well over 100 criminal networks and succeeded in dismantling more than 70 of them.“For Guatemalans, the CICIG was an essential anti-corruption mechanism, which later expanded to take on fiscal issues, corruption in the public sector, financing of political campaigns, and money laundering.”
Among its many cases, the CICIG dealt with capture on more than one occasion. Most notably, “Discovered by the Department of Justice and the CICIG on June 2, 2016, the [case of widespread massive government fraud] originally sprung from the investigations into the then-fledgling La Línea case. The initial wiretapping that formed part of the investigation led to the discovery of a fully-formed criminal organization, which reached then President Otto Pérez Molina and then Vice President Roxanna Baldetti. In subpoenaing seemingly innocuous documents (tax statements), investigators were able to piece together an immense financial scheme, which reported fraud stretching back to 2008. The case also revealed an intricately connected money laundering scheme meant to enrich the Partido Patriota, whose platform captured the government in 2011; the scheme continued until the resignation of the President and most of his associated cabinet. In this way, various government institutions were co-opted by the scheme which used its widespread network to illegally enrich its colluders.“
The innovation of the CICIG was to use a treaty-level mechanism to criminally investigate and prosecute instances of grand corruption, including State capture. The potential and scalability of such a mechanism for other countries and situations is promising.
Binding Treaty on Transnational Corporations and Human Rights
The Binding Treaty — “the U.N. Human Rights Council passed Resolution 26/9, which established an open-ended intergovernmental working group (IGWG) with a mandate to develop an international legally binding human rights treaty to regulate the activities of transnational corporations and other business enterprises” — is a space characterized by the hopes, hard work, and innovation of advocates, communities, rightsholders, and other stakeholders worldwide. The process to propose, negotiate, and eventually ratify the Treaty prominently features leadership from the Global South, where many organizations see this as a chance to at least partially correct the power imbalances of other spaces dominated by companies and organizations from the Global North. In particular, theESCR-Net’s Corporate Accountability Working Group(CAWG) is a key organizer globally, ensuring the authentic participation of different experiences and voices in this process.
Unlike theU.N. Guiding Principles on Business and Human Rights,which has become a space categorically labeled as captured, the Binding Treaty largely remains a civil society – State dialogue at the global and national levels, with meaningful but ringfenced participation for corporations in the negotiations. A key concern of CSOs has been to ensure that the Binding Treaty process does not succumb to corporate capture, as corporate lobbyists and associations have attended many of the negotiations.
The potential of the Binding Treaty to address and remedy corporate-sponsored human rights violations, both nationally and extraterritorially, not to mention corporate capture, cannot be overstated.
According to Conectas, the process itself — even prior to ratification — already has an impact on accountability. “It is important to emphasize that corroborating corporate accountability is essential to approve the Human Rights and Business Treaty as an instrument that could encourage states to improve their legislation and public policies and to protect human rights from the power of corporations. Recently, the Federal Prosecutor’s Office for Citizen’s Rights (PFDC), a body linked to the Brazilian Federal Public Prosecutor’s Office, shared a note with the Brazilian government with [inputs] for the new treaty draft. It recognizes that the Brazilian regulatory field is advanced and imposes standards of conduct on companies, but also that the country is still vulnerable to various forms of violation, especially in the context of global value chains.”
Additionally, theAfrican Commission on Human and People’s Rights (ACHPR)passed a resolution on business and human rights. As a Binding Treaty is unlikely to address all needs, having a regional treaty is a complementary measure for accountability in Africa.
Global Tobacco Treaty
Several advocates point to the World Health Organization Framework Convention on Tobacco Control as an example of how to use treaties to prevent corporate capture. Namely,the guidelines for Article 5.3— which states: “In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law” — contain four important principles:
- “There is a fundamental and irreconcilable conflict of interest between the tobacco industry and the interests of public health policy.”
- “Those working with the tobacco industry or to advance its interests must be held accountable and be transparent.”
- “Require the tobacco industry and those working with them to be accountable and transparent.”
- “Since their products are lethal, no incentives should be offered for tobacco industry businesses.”