By Boaventura Monjane and Anesu Dera | Daily Maverick | 02 Jul 2023
On 28 and 29 June, community members, popular formations and civil society organisations from across the African continent gathered in Johannesburg to participate in the African Regional Indaba on the UN Binding Treaty on Transnational Corporations and Human Rights.
At the African Regional Indaba last week, community members learnt about the current status of negotiations and got to know the content of drafts of the binding treaty, so as to better articulate demands to be made to the continent’s governments. The Indaba, attended by more than a hundred people from nearly 20 countries, adopted a resolution to be handed over to African governments as a basis for negotiating a strong, people-led, pro-poor binding treaty.
In July 2014, the UN Human Rights Council passed a historic Resolution (A/HRC/RES/26/9) for the elaboration of an international legally binding instrument on transnational corporations and other business enterprises with respect to human rights. The treaty process was first sponsored by Ecuador and South Africa and supported by five Asian members of the UNHRC.
This resolution followed decades of discussions about the plague of corporate human rights abuses. The international community has developed a series of soft legal instruments, culminating in the 2011 UN Guiding Principles on Business and Human Rights, a set of guidelines for states and companies to prevent and address human rights abuses committed in business operations. However, the UN Guiding Principles are considered by many to be a “soft” approach consisting of the adoption of voluntary guidelines for businesses.
The UN binding treaty on transnational corporations and human rights is of immense importance to communities, workers, and the environment in Southern Africa. This treaty aims to address the power imbalance between transnational corporations (TNCs) and affected communities by establishing international legal obligations to protect human rights and hold corporations accountable for their actions.
In Southern Africa, communities are often the ones who suffer as a result of the activities of transnational corporations, particularly in extractive industries such as mining. Often marginalised and lacking adequate legal protection, these communities face numerous human rights abuses, including forced displacement, land grabbing, and environmental degradation.
The binding treaty provides an opportunity to strengthen the rights of affected communities and ensure their voices are heard.
The environment in Southern Africa is also under severe threat from the activities of transnational corporations. Irresponsible corporate practices such as pollution, deforestation and water consumption have serious consequences for local ecosystems and biodiversity.
Transnational corporations often benefit from the support of trade and energy agreements that provide them with a degree of impunity and allow them to engage in various economic ills, including illicit financial flows, wage evasion, and other harmful practices. These agreements provide transnational corporations with favourable conditions that allow them to circumvent national regulations and operate with minimal accountability.
The binding treaty can help put in place stronger regulations and accountability mechanisms to mitigate environmental damage and promote sustainable practices.
In addition, the treaty’s focus on extraterritorial obligations is critical for Southern Africa and Africa. TNCs often operate across borders, making it difficult for affected communities to seek justice within their own national legal frameworks. The binding treaty can provide a framework for cross-border cooperation and redress that ensures affected communities have access to justice and can hold TNCs accountable regardless of their home country.
It is an important step in overcoming the imbalance of power between transnational corporations and those affected by their activities, ultimately contributing to a more just and inclusive society.
In Southern Africa, only South Africa and Namibia are actively participating in the negotiations. Mozambique and Botswana have spoken out in the past but have gone quiet in recent years. Zambia and Malawi are occasionally present, but without raising their voices in the negotiations.
These and other countries in the SADC region should also prioritise the process, as the binding treaty will play an important role in exercising our sovereignty over corporate power and corporate impunity.
Globally, the process has been kept on track thanks to the support of governments of the Global South, parliamentarians, affected communities, civil society organisations, social movements and trade unions from every continent. We highlight the valuable contributions of the Global Campaign to Reclaim Peoples’ Sovereignty, Dismantle Corporate Power and Stop Impunity (Global Campaign), to which movements and organisations, including our own, belong.
During the last treaty negotiations, the same disagreements that featured in previous sessions and discussions on the treaty appeared, with countries from the Global North trying to dilute the text of the treaty as much as possible. These include the use of and distinction between terms like “responsibilities” and “obligations” in relation to business activity.
While the duties of states are framed as “obligations”, previous drafts have framed the duties of corporations as “responsibilities”. This difference in language is a point of contestation as the former has a stronger connotation than the latter, yet the treaty is meant to regulate business activity.
The argument is that corporations must have human rights obligations grounded in the treaty’s provisions, as the term “responsibility” seems more like a social expectation that is merely recommendatory as opposed to mandatory.
Given the above, power dynamics and presence in the negotiation room are vital to what is incorporated in the treaty text. As a result, governments in Southern Africa have a unique opportunity to join South Africa, Namibia, Botswana, and Mozambique in pushing for a strong, binding treaty that protects citizens’ human rights and the environment while taking control of their resources, most of which are in the hands of transnational corporations.
It is worth noting that the United States of America (home to some of the world’s biggest corporations responsible for human rights violations and abuse) is finally attending the negotiations after years of silence. Although her presence at the session is a welcome development in some ways, it is unfortunate that it unravels eight years of work that has been done as it proposes “alternative ways” to regulate the relationship between business and human rights.
As such, one would rather hope to see more of a united front from the Global South, especially Southern African States, as these countries are largely affected by business activities given the extractive nature of their economies. DM/MC
Boaventura Monjane is Coordinator of the Southern Africa Campaign to Dismantle Corporate Power at the Alternative Information and Development Centre (AIDC). Anesu Dera is an Attorney at the Centre for Applied Legal Studies (CALS).
*This Opinion Piece was first published by the Daily Maverick.