On the occasion of the African Regional Forum on Business and Human Rights on 16-18 September 2014 in Addis Ababa, Ethiopia, the Campaign to Dismantle Corporate Power and Stop Impunity of TNCs, brings to the attention of participants to the historic June 2014 United Nations Human Rights Council (UNHRC) Resolution which mandated the establishment of an Inter-Governmental Working Group (IGWG) to develop a binding Treaty for Transnational Corporations and Human Rights.
Statement on the historic Resolution of the UNHRC on a Binding Treaty for Transnational Corporations and Human Rights
The African Regional Forum on Business and Human Rights is being organised to promote the voluntary United Nations Guiding Principles on Business and Human Rights in Addis Ababa on September 16-18, 2014. An evidence-based track record of corporate violations of human rights and environmental standards has established the relatively ineffectiveness of voluntary principles in terms of regulating the operations of TNCs. The necessity and urgency of a legally binding instrument, long advocated by civil society organisations, was recognized in the passing of the historic Resolution at the UNHRC mandating an Inter-Governmental Working Group (IGWG) to develop a binding Treaty for Transnational Corporations and other business.
Attracting foreign direct investment (FDI) continues to be seen as the core pathway for the African region to meet economic “growth” aspirations. This strategy merely serves to open the door for greater control and ownership by transnational corporations over African countries and resources. Key investment sectors include the extractive industries (mining, oil, gas and timber), agriculture and services (finance, ICT and infrastructure).
Trade and investment agreements and financial instruments are central to the architecture, which allows transnational corporations (TNCs) to operate without the risk of being punished for ongoing violations. This impunity gives greater rights to investors over people’s rights.
Governments appear to be in a ‘race to the bottom’ to attract investments. They are often ‘enticed’ into entering into investment agreements either in the form of bilateral investment treaties (BITs) or agreements with investors directly. These agreements are extremely dangerous with respect to economic sovereignty and the well being of African people and the environment. These agreements become vehicles for facilitating huge capital outflows, and the privatisation of public goods as well as creating a legal framework to dispossess communities from access to land, water and other natural resources and a number of other corporate violations of human, cultural and environmental rights.
Cases of corporate human rights violations by major transnational corporations in Africa that were presented at a hearing of the Permanent Peoples Tribunal in Geneva on the 23 June 2014 included:
- The case of Shell Nigeria whose operations are having devastating effects on the people of Ogoniland and the environment. More than in a million people have been affected by hydrocarbon pollution in surface water in wetlands of the Niger delta, one of the world’s largest oil disasters;
- Lonmin, a UK based platinum mining corporation is associated with the Marikana Massacre of August 16, 2012, in which 34 workers were killed and 78 were injured by South African Police Forces while protesting peacefully. Lonmin is also accused of environmental damage caused by exceeding the limits of emission of dust, causing water pollution with illegal discharges as well as not meeting their statutory undertakings and corporate social responsibility commitments in providing adequate housing for mineworkers and their families;
- Glencore’s operations in the Democratic Republic of Congo and Zambia were presented through testimony, which exposed a number of violations. In the area of Mufulira, Zambia, and through its subsidiary Mopani Copper Mines. Glencore’s operations has contributed to the pollution of land, waters and air, particularly due to the uncontrolled emissions of sulphate dioxide, which dramatically affects the local populations causing severe respiratory diseases, and contaminating of the fauna and flora upon which they depend almost completely for their own sustainment. In the Democratic Republic of the Congo, in the mining area of Kolwezi, Katanga and through its subsidiary Kamato Copper Company (KCC), Glencore has been accused of security and human rights violations. The company continues to rely on the police who all too readily use live ammunition against intrusions by artisanal miners. Over the past 18 months a number of people have been killed or seriously injured on or near the KCC concession. Glencore operations also result in environmental degradation causing air and water pollution.
In both the DRC and Zambia, independent audits have revealed fiscal and tax avoidance by transferring profits to tax havens, robbing governments of the much-needed revenue to meet the socio-economic needs of people.
These are but a few examples of corporate human rights and environmental transgressions, despite corporations signing up to a number of voluntary agreements and standards. For example since 2012, Glencore has claimed to align its policies with the UN Guiding Principles on Business and Human Rights and it has joined the International Council on Mining and Metals (ICMM), which promotes ‘sustainable’ mining. Both of these voluntary initiatives are inadequate and incapable of providing justice to impacted communities.
During the recent African Commission on Human Rights and People’s Rights Working Group on the Extractives Industries Sub-regional consultation held from August 29-31 at the South African Human Rights Commission in Johannesburg, reports from the various countries considered the human rights record of the extractive industry, particularly in the mining sector. An overview of national legislation, trends and impacts (economic, developmental, environmental and human rights) that were presented by Botswana, Mozambique, South Africa, Zambia and Zimbabwe suggests that remedies to deal with violations are inadequate.
On June 26th, 2014, the United Nations Human Rights Council (UNHRC) adopted a groundbreaking Resolution to establish an intergovernmental working group with the mandate of investigating the drafting of a legally binding instrument that will enforce human rights obligations on Transnational Corporations (TNCs). This resolution is critical, given the extent of continuing human rights violations, the immense environmental degradation and the growing power of corporations, which is facilitated by a free trade and investment regime that gives corporations more rights than governments and people.
We welcome the fact that a number of African governments, Ethiopia, Democratic Republic of Congo, Namibia and South Africa voted for this historic resolution.
Intense advocacy work was carried out with governments both in National capitals and with Permanent Missions in Geneva. The Global Campaign and other civil society organisations and human rights networks cooperated to form a Treaty Alliance, which rallied 610 organisations and 400 individuals from 95 countries to sign a statement calling for a Binding Treaty on the operations of Transnational Corporations.
This declaration affirms that the Guiding Principles will not have any lasting impact unless a framework based on legally binding instruments that can regulate and sanction the illegal actions of transnational corporations is created. Free Trade Agreements and their investment chapters protect the rights of TNCs through legally binding instruments while affected communities experiencing violations of their rights have nothing similar to protect their rights.
Some legal measures already exist and there are processes that have been developed that can inform this legal framework. In Africa we have the Charter of African Human and Peoples’ Rights that was adopted in 1981 and has been in force since 1986. We can also draw on aspects of customary law. The African Charter is a people centred and developmentally orientated document deeply rooted in an African understanding of custom and practice. It embodies free prior informed consent (FPIC), which refers to the right of local communities, to participate in decision-making about issues impacting them. Therefore the African Charter is the most significant binding international treaty for the purpose of asserting the right to FPIC in Africa and can make a significant contribution to developing the binding obligations for TNCs with respect to human rights.
We therefore urge the UN Human Rights Council to initiate the work of the IGWG and concretise the roadmap for its two-year mandate. We likewise call on African and all other governments, related Human Rights Commissions, and civil society organisations to support the work of the IGWG and contribute to the substantive development of the Binding Treaty. This can be vigorously pursued in parallel to the Action Plans on the Guiding Principles on Business and Human Rights. The Resolution for a binding Treaty on TNCs opens an unprecedented opportunity to go beyond Voluntary Guiding Principles and we, as advocates of a legally binding instrument, are taking on this challenge.
CONTACT: For more information, please email, Michelle Pressend, Southern Africa Corporate Power Campaign Coordinator at the Alternative Information and Development Centre (AIDC) on +27 21 4475770 or firstname.lastname@example.org or Brid Brennan at the Transnational Institute, email@example.com