African Regional and International Legal Perspectives
In a context where corporate investment is commonly justified in the name of “development,” the question of what exactly “development” is, is central to the design of a binding instrument on transnational corporations and other business enterprises with respect to human rights (Treaty).
On Wednesday 26 October 2016, 30 members of civil society, state representatives and academia met at the Palais du Nationes in Geneva to discuss and debate the evolution of the “right to development.” In particular, this was considered in the context of African regional perspectives on the peoples’ right to development, including an extension of the right to free, prior and informed consent (FPIC) beyond a narrow conception of indigenous peoples.
Moderated by Dominic Renfrey of ESCR-Net, the roundtable discussion benefited from interventions from Akhona Mehlo of the Legal Resources Centre (LRC), Susan Mathews of the Office of the United Nations High Commissioner for Human Rights, Caroline Ntaopane from Womin (African Women United Against Destructive Resource Extraction), Nomonde Nyembe of the Centre for Applied Legal Studies of the University of Witwatersrand, and Roberto Bissio of Social Watch. Through a series of questions, these interventionists guided a stimulating and through-provoking discussion.
What is development?
Caroline Ntaopane opened the discussion by affirming that everyone has a right to development, including the right to say what type of development they want; especially women. Caroline, who has nine years of experience working with women in rural communities in remote South Africa, explained some of the problems that women in rural areas face, including illiteracy, oppression by men, violence and sexual violence, and significant household burdens. Women face discrimination in land tenure and customary laws, which are typically patriarchal. It is common for women to only be able to exercise control over their land through their husbands or brothers, and they lack decision-making power, which is often taken advantage of by businesses and government in cahoots with chiefs or other male authority figures.
Nomonde Nyembe addressed the fallacy of “economic development” and pursued the idea of the nature of true development. Nomonde explained that it is a misconception that gross domestic product (GDP) growth leads to real development. Even the World Bank acknowledges that it is widely recognised now that development is more than this, and other indicators like UNDP’s Human Development Index include life expectancy and literacy. World Bank statistics indicate that 46.8% of sub-Saharan Africans live in a state of poverty. Nomonde argued that the current favoured model of development perpetuates cycles of poverty through supplying survival, rather than living, wages, denying people access to their land, and denying people agency and self-determination.
Poverty is an amalgamation of human rights violations, including water, education and food. As such, when talking about development, Nomonde explained that we need to reframe the discourse to include social and cultural factors; development that facilitates self-determination and serves the most impoverished. Development can have economic outcomes but not be prioritised over other relevant components such as social and environmental concerns, for example, housing and water infrastructure. Development should seek to achieve these goals and be sustainable in the long-term – not harming the environment or people’s livelihoods. In order for this to occur, we need genuine engagement with communities and planning that incorporates all parties. The right to development is a peoples’ rights; one that is held by both individuals and held by peoples as a collective. Development should give effect to this.
Akhona Mehlo of the Legal Resources Centre discussed the procedural and substantive elements of the right to development under the African Charter. Within this framework, Akhona emphasised the need to recognise the customary rights to land and natural resources of affected communities as property rights, whether documented or not. Rural communities across Africa have, for generations, utilised land, forests, marine and other resources in terms of their customary laws, making them owners or rights’ holders of the land and resources. The community’s relationship to the land and resources commonly developed as an integral part of their identity and cultural existence. Customary law refers to the system of rules and principles that the communities use to govern themselves and their access to shared resources. The term “customary communities” refers to communities who regulate their lives and tenure rights in terms of such customary law.
Akhona argued that pursuant to the peoples’ right to development, the free, prior and informed consent (FPIC) of all communities with customary rights to the affected land and resources is required for development projects to go ahead. FPIC is in itself a procedural and substantive right that includes the protection of peoples’ right to full and timely disclosure of all relevant information prior to the approval of the project, the recognition of and respect for the customary decision-making processes of the affected communities and, ultimately, the right to say “no” to a project. The need for investors to recognise this is demonstrated by the ability for communities to halt or delay projects through activism.
To what degree is law and policy helping? Where can we bridge divides in progress we see with law?
Roberto Bissio acknowledged the realities of and the struggles faced by women in Africa. He emphasised that the notion of rebalancing power is key. Robert argued that transnational corporations have been granted rights under international investment agreements that ordinary citizens do not have; for example, the right to sue the host government in an international arbitration panel.
Further, courts in the US and the UK recognise corporations as “people” and are granting them “human rights”, such as the right to privacy in the UK (therefore keeping their tax declarations secret) or the right to contribute to political campaigns in the US, where issuing a cheque in support of a candidate has been constructed as protected under freedom of speech. The result of the increasingly unequal bargaining power between transnational corporations and people is concentration of power and increasing inequalities. He emphasised the adage that people have rights and corporations have privilege. Whereas rights are inalienable, privilege is conditional and revocable – a social value that can be taken away.
Roberto then provided an international perspective on the right to development and highlighted certain key provisions in the United Nations Declaration on the Right to Development. For example, article 8 provides that people should have equality of opportunities (such as health and education) and a right to a fair distribution of income. He emphasised that the right to development explicitly includes the right of women to have an active role in development and the duty of governments to encourage popular participation. In this respect, Roberto referenced that other human rights instruments, such as the International Convention on Economic Social and Cultural Rights require international cooperation through inter-state obligations. The right to development, he added, also imposes obligations on governments towards their own citizens, that is, intra-state rights.
Susan Mathews showed how “development” was historically conceived of as an ordering of the world in postcolonial times, by quoting the 1951 United Nations, Department of Social and Economic Affairs, Measures for the Economic Development of Underdeveloped Countries:
There is a sense in which rapid economic progress is impossible without painful adjustments. Ancient philosophies have to be scrapped, old social institutions have to disintegrate, bonds of caste, creed and race have to burst, and large numbers of persons who cannot keep up with progress have to have their expectations of a comfortable life frustrated. Very few communities are willing to pay the full price of economic progress.
Susan referred to Arturo Escobar’s 1995 book “Encountering development: The making and unmaking of the Third World,” explaining Escobar’s view about development as a dream and imaginary; a siren call to societies emerging from their postcolonial histories. Susan pointed out the continued relevance of Escobar’s critique, including that “[p]erhaps no other idea has been so insidious, no other idea gone so unchallenged.” Her perspective on development is that it is captivating, but also holds us captive as an end or goal. In Africa, as in Asia, development representations continue to dominate our thinking, our governance and the paths we take in the name of development. Instead, the idea of right to development should be turned on its head and taken out of its political trappings to reimagine it as peoples’ agency and resistance to dominant development models. Such rethinking is a necessity given the contemporary environmental challenges we face. Transitioning out of carbon-dependent paths is no longer a luxury, it is crucial. In spite of this, Africa’s mega regional Continental Free Trade Area (CFTA) agreement is presently being designed to focus on industrialization’s past, not its future.
She referenced Susan Sontag who wrote that our privileges fall on the same map as our suffering, arguing that with the idea or dream of development, this could not be truer. “Development” gives and it takes away. In order for us to break or challenge that vicious cycle, peoples’ agency and resistance must come to the fore.
How can the peoples’ right to development be made operational for overcoming power differentials on the ground? How does a distinctly African understanding of the peoples’ right to development and FPIC make it into a UN Treaty discussion where the elements might be understood more strictly?
Caroline explained that there is a distinct gap between what is talked about in international forums such as this second session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, and what actually occurs on the ground. For example, at the United Nations, a country might present good people who talk about positive things such as the need to for a legally binding instrument to make sure corporate investment-related abuse stops, but this good will and intent is not seen in-country and on the ground. Caroline emphasised that the peoples’ right to development can only be realised if the right to environment is protected, including healthy soil for food production, clean water and clean air. In terms of practicalities, transparency is key and, given the cost of lawyers for communities to prove they have been affected by an investment, a reversal of the burden of proof would go some way to rebalancing power dynamics.
Nomonde talked about the gap between instruments and actions in the context of the Amadiba community in Xolobeni, Eastern Cape. The people there do not want extractives as their form of development and are opposing it by all means possible. Earlier in the year, one of their leaders, Sikhosiphi “Bazooka” Rhadebe, was murdered as a result of state and investor resistance to this community opposition. Nomonde discussed the importance of the informed element of FPIC, and highlighted the differences in community members’ conception of development, such as ecotourism and local business initiatives, as compared to the state and mining companies.
The LRC has been representing this community in a number of cases. CALS has intervened in one of the cases wherein it contends that self-determination (which is even wider than FPIC) aligns with FPIC and that, accordingly, people can decide for themselves how they live their lives and make their own decisions. Importantly, these rights are not limited to indigenous peoples, as communities such as those in Xolobeni might not satisfy requirements of indigeneity, but to communities that govern themselves by their own systems of customary laws and are considered customary communities.
At this point in the discussion, a number of fascinating statements and questions were posed by audience members:
- It is implied in the word “consent” that such consent can be withheld at any stage in the process. Is this understanding shared by those with great power, that is, states and TNCs?
- Communities are pluralist with inequalities and different views – how is this dealt with in practice?
- The manner in which development is talked about is a major constraint for Africa. Too many members of civil society buy into the extractives paradigm as the only route for development in Africa and so seek to help negotiations, but will that work? Is that the way out of poverty for Africans? So far it has not proven to be. Robust debate about development in Africa is needed. Instead of top-down economic development, people want protection of rural small scale farmers, prevention of land acquisition for commodity exports instead of staple foods, and protection of the environment.
- It must be recognised that there is always going to be some degree of hostility within communities, but so too must it be recognised that there is a legacy of colonialism that companies take advantage of. How can this dynamic be reflected in law? Can it?
- How does the consent principle really operate in practice within a community? For example, how do gender dynamics play out, and how can a person external to the community determine if consent is real? How can corporations ensure the consent is genuine, and how can the law hold them to this?
- Corporations have different motives when considering what “development” is, in particular, profit motives. How can we ensure that corporations contribute to real development while still harnessing their goals?
- How can the term “communities” be defined and how can conflict inter- and intra- community conflict be adjudicated? Under the consent element of FPIC, should the right be an absolute veto or some kind of mechanism for balancing? How can compensation be determined if people have to leave their land?
Roberto picked up on the environmental points raised and explained that the heart of the dilemma that developing countries face at the international level is that they need to conserve the environment and biodiversity on the one hand, but also secure funds to deliver antipoverty measures such as health services and education. He referred to the example of Ecuador and the oil reserves of Yasuní in the Amazon. If the Yasuní resource is exploited, indigenous peoples and biodiversity – that is, all of humanity – suffer. On the other hand, Ecuador is a poor country and needs the income. Ecuador proposed that in order to leave the oil in the ground, the international community should compensate for global benefits, suggesting that half of what Ecuador would have earned for exploiting that oil (USD6bn) be paid by the international community. USD200m was pledged, of which only USD13m was delivered. Ecuador announced that oil exploration might eventually be resumed. The Yasuní example, Roberto concluded, warns against voluntary guidelines and pledges in the international setting. He contended that these non-binding statements are nice but cannot be brought to the bank to solve real problems.
Akhona took on some of the questions relating to the nuance of the term “community.” She explained that extending the peoples’ right to development and FPIC beyond indigenous communities to customary communities is necessary in Africa. In terms of the broader term of affected communities, that is more of a political issue and should be considered on a case-by-case basis. Akhona recognised the inequalities and intersectionalities within communities and referenced some of the issues faced where chiefs (sometimes legitimate in title, sometimes illegitimate) claim community compensation that is not necessarily then fairly distributed. Concerns that customary law can exclude women are legitimate, but it is important to understand that the South African Constitution provides that customary law needs to be infused with the values and rights enshrined therein, such as equality and dignity. Akhona emphasised the importance of site-specific determination of community structures and values, in order to apply the broader rights and principles.
At this point, Dom highlighted that there are similarities between customary communities in Africa and Mexican “Ejido” – lands held communally in the traditional system of land tenure – flagging the potential cross over for inter-regional discussion. Dom further emphasised that FPIC is not a tick box exercise that can be checked off at the start of a project; it refers to both conduct and result. Critique of the UNGPs helps us outline conduct, but we need to go a step further and recognise that the peoples’ right to development is not fulfilled unless shown in the results. Dom also suggested that not only are we dealing with collective rights, but we must also think about collective obligations. These concepts must be extended to questions of corporate liability.
Caroline pointed out that air pollution knows no boundaries. She also emphasised the importance of development processes being proactive and not just reactive, as remedy is sometimes inadequate. The example given was of an Eskom power station that local peoples did not want to be built, as the selected site was a sacred location where graves of ancestors lay. In spite of this, the graves were relocated. Sometimes compensation can never be adequate, as their ancestry was literally dug up and removed.
Susan posed Cooke and Kothari’s notion of participation as tyranny, where people participate in “development” and yet became disempowered when they cannot change the status quo. In this sense, participation also brings into play questions of representation, who speaks and on whose behalf, as benefits are distributed in quite complex ways. Consent has a legal definition but it is not a neutral concept. It is mediated through knowledge and power. Asymmetries in terms of information and temporal components of FPIC must be addressed in order for the basis of any consent to remain viable.
Nomonde argued that there is an obligation on corporations to do no harm, that is, to respect human rights. On the topic of positive obligations (taking action that enables realisation of human rights) and negative obligations (refraining from action that harms), she believes that corporations have both positive and negative obligations. For example, if a mining company uses migrant labour and new communities are established near the mine for those workers but are without services, the company should provide those services.
There remain many questions to be answered. What this event and the ensuing discussion showed is that “development” and the peoples’ right to development are central concepts when talking about corporate and state investment and projects. Only if those who are directly affected by a proposed project are able to genuinely engage in the process, and only if customary and indigenous communities can choose what path they – as a community – take, can “development” be truly said to occur.
As Dom forewarned, it is incumbent upon civil society working on these issues to find answers to these difficult questions. If gaps are left, then such gaps could be filled by others with different intent.
*featured picture shows Xolobeni in the Eastern Cape
Article by: Anna Bulman, Research Fellow at the Legal Resources Centre
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