Binding Treaty on Transnational Corporations discussed at the African Commission

On the 6 April 2016, the Legal Resources Centre (LRC) held a side event at the 58th session of the African Commission on Human and Peoples’ Rights in Banjul, The Gambia. The side event discussed the United Nations proposed treaty on transnational corporations and other business enterprises with respect to human rights.

The side event attracted participants from various organisations across Africa. Our panel consisted of three staff members of the LRC and a member of the African Commission’s Working Group on Extractive Industries, Clement Voule. Unfortunately, Nomonde Nyembe from the Centre for Applied Legal Studies was unable to join us as a panellist due to an unanticipated injury.

LRC researcher, Mabatho Molokomme, facilitated the session. She gave a brief background on the Human Rights Council resolution and what it envisages for the treaty. This was followed by a summary of the first open-ended intergovernmental working group (IGWG) session that took place in Geneva, Switzerland in July 2015.

The 58th session of the Africa Commission on Human and People’s Rights

 

Drafting the binding treaty

LRC attorney, Sayi Nindi, spoke about community participation and the drafting process of the binding treaty. Some of the key points she raised are as follows:

• The drafting process of the binding treaty is at its preliminary stage and no one knows how the treaty will look like.
• The following still need to be determined, amongst other questions: what rights will be covered by the treaty; what companies the treaty should apply to; if the treaty should define in greater detail the content of states’ duties to protect human rights and ensuring access to justice for the affected people.
• There are different views on whether corporations should be subjected to international law. Positivists say corporations should not be subjects of international law because no international law instrument recognises them as such. Other flexible interpretations say that corporations may have limited international legal personality. Pragmatists are of the view that the issue of whether corporations are subject to international law (and what legal responsibility can be imposed on them) is irrelevant as clearly corporations have both rights and responsibilities.
• The development of this treaty has to be people- and community-centred. Local communities must be empowered to lead and participate in this process. They must bring their experiences to the table.
• Communities have to bear the brunt of the so-called “development” that allegedly comes with transnational corporations.
• There’s a clear gap in the international human rights law framework in its failure to address human right abuses by transnational corporations. They can now participate in debates and resolutions. This is the perfect opportunity to state the importance of Free, Prior and Informed Consent (FPIC)* and insist on it to be a requirement for developmental projects.
• African civil societies should lobby their governments to participate and contribute at the IGWG sessions.

Cases that the LRC are litigating were used to illustrate how the treaty would be beneficial in situations where individuals or communities are victims of human right violations by multinational corporations. There are many examples on the continent where victims of human rights violations perpetuated by multinational corporations are left with no recourse if they solely relied on their domestic laws, which may not be as effective as an international instrument such as the binding treaty.

The LRC have been working with the South African government and we were encouraged that other civil society organisations do the same. The participants were informed of ways in which they can engage with their governments in order to promote the treaty movement at the UN level. A draft letter to be sent to governments was offered to those in attendance.

Right to Development

LRC attorney, Wilmien Wicomb, spoke on Right to Development as enshrined in the African Charter on Human and Peoples’ Rights and Free, Prior and Informed Consent. She raised the following key points:

• The question is sometimes raised why we need yet another treaty with so many existing international and soft law instruments. It was noted that the treaty represents an acknowledgement that transnational corporations have become powerful enough as players in international relations and domestically to perform governmental functions; such as delivery of services and contributing to policy and development decisions. As such, the treaty represents a radical departure from existing international human rights law.
• If that is the case, a key question that continues to be debated is whether transnational corporations should also be the bearer of international human right’s duties?
• To answer this and other difficult questions, it is important to look at the current context. The current resource wave is targeting mainly rural communities – the poorest and furthest away from basic services – in South-South countries: in part because of their insecure and cheap tenure.
• She noted that Africa can bring something different to the transnational corporation discussion. The African context has important differences: a different legal context (from, for example, Latin America with International Labour Organisation 169, FPIC entrenched in domestic law); a different history (in particular to indigenous peoples); old and new mining sectors.
• From our unique legal context, Africa can contribute the African Charter and its Right to Development as a procedural and a substantive right; real choice with an emphasis on outcome and on community-driven development.
• Furthermore, African customary law requires principle of consent, of local decision making, of local living law. Increased recognition of customary law must be utilised to counter common law and business-heavy legal frameworks.

There was a general discussion on why the treaty is not being favoured across the board, given that everyone is aware of human rights violations happening. There was general consensus in the room that the United Nations Guiding Principles on Business and Human Rights (UNGP) are preferred by the home states of the transnational corporations because of their voluntary nature. Much work and negotiation will be required before the treaty can reflect all we hope it will contain.

There was acknowledgement of the high standard of rights as set out in the African Charter. No one will be campaigning for anything less than that standard.

Mabatho Molokomme, Sayi Nindi, & Wilmien Wicomb

 

African participation

Clement Voule spoke on civil society advocacy and mobilisation. He emphasised that there has been marginal participation from Africa in the process thus far. He encouraged people to be a bit more proactive in their involvement in the upcoming IGWG session in October 2016. He noted that the content and its negotiations will take a long time. There may not even be a treaty in the end but this should not deter people from joining the process. He also stated that the treaty conversation should not be kept separate from the UNGP conversation. The treaty must be viewed as the next step in the process and not a replacement of the other. States reaching common ground on the UNGP may be a window of opportunity and a better space to discuss the treaty.

Outcomes

The side event induced a worthwhile conversation and we invite the proposals that were put forward. A participant who works for the African Commission proposed that they could assist us to host a panel discussion at the next African Commission session in November 2016 in order to reach a broader audience. We also made contact with one of the Commissioner’s working with the Working Group on Extractive Industries, who is interested in participating – through the working group – in the work of the binding treaty. The participants at the side event also suggested that this conversation be opened at the African Union Summit.

 

By: Mabatho Molokomme, Sayi Nindi, and Wilmien Wicom

 

 

*Read more about the FPIC principle here: https://za.boell.org/sites/default/files/perspectives_april_2016_web.pdf

**Read more about the treaty debate here: https://realisingrights.wordpress.com/2016/03/31/south-africa-debates-the-merits-of-the-proposed-treaty/

South Africa Debates the Merits of the Proposed Treaty

The Legal Resources Centre (LRC) and the Centre for Applied Legal Studies (CALS) co-hosted a public debate entitled “A binding treaty on transnational corporations and other business enterprises with respect to human rights: A good or bad idea?” on Friday 19 February at the University of Witwatersrand Law School. The panellists were Ana María Suárez Franco (FIAN International), Alan Fine (Russell & Associates) and Nomonde Nyembe (CALS). Mabatho Molokomme (LRC) facilitated. The debate proved an engaging platform for a diverse range of people to meet and talk corporate accountability. This piece presents some of the stories and opinions that were shared at the public debate.[i]

South Africa has an obligation to set an example in the debate surrounding the proposed binding instrument on transnational corporations and other business enterprises with respect to human rights (Treaty). It is one of the two countries[ii] that sponsored the Human Rights Council resolution creating a negotiation space towards such a Treaty. It is also the source of significant corporate activity, especially in extractive industries, with some very serious human rights implications. For example, in some instances, people in South Africa live near mines in appalling conditions; without access to safe water, staying in makeshift shanty huts next to sewerage and waste dumps, and breathing in the hazardous by-products of mineral wealth.

Africa needs to mobilise. African civil society should grasp this opportunity for change. But how, and to what end? What use is a Treaty to address these problems? Here is what was said.

Audience: Henk Smith, Attorney at the Legal Resources Centre

 

What current mechanisms do we have to address corporate human rights abuses and crimes and are they adequate? Is there a need for a Treaty? Might the Treaty distract from achieving short-term gains?

Alan Fine: The important question is what kinds of corporate breaches of human rights are not covered in state domestic law – whether statute, code, common law or other? What acts or omissions do supporters of the Treaty think need to be included in the treaty? Would a Treaty really add to the existing mechanisms under human rights law? Citizens should try to have gaps in their own legal systems filled before the Treaty eventuates, as this will likely take a long time to eventuate. Countries should develop National Action Plans (NAP) under the United Nations Guiding Principles on Business and Human Rights (UNGPs). State-owned enterprises should put in place systems for dealing with human rights of stakeholders, similar to Swedish state entities.

Nomonde Nyembe: While the strengthening of domestic systems to regulate corporate conduct is essential, corporations look for weak zones with little or no governance. Recognising that working towards a Treaty is a long-term process, the value of such a treaty, if ratified, would be its broad application to all states.

Ana María Suárez Franco: There is much work being done in relation to the current mechanisms. For example, FIAN International and others are conducting community support, awareness raising, domestic litigation – in affected communities and beyond, monitoring implementation of cases decided by courts, and working at all levels for compliance with extra-territorial obligations – including all human rights bodies. Other organisations are involved in assessing NAPs, particularly ahead of the 5^th anniversary evaluation of the UNGPs in June this year. While standards such as the UNGPs might have some positive elements, they remain soft law and are just a step towards stronger legal protection at the international level, namely, hard law. We must be wary of the risks of touting human rights due diligence processes as a criterion to define corporate liability, due to the risk of misuse of these processes as company checklists that exclude corporations from accountability. Criteria for the determination of corporate liability should be centred on the affected communities and not derive from mere conduct obligations of corporations.

Pitso Montwedi (Department of International Relations and Cooperation): The corporate sector is exploiting weak national legislation and engaging in political corruption. In the context of grave human rights violations, strengthening national legislation is not necessarily the best route. Instead, we need to create an international criminal court for corporations that commit crime against human rights. In relation to NAPs, South Africa is not opposed to states going ahead with NAPs, but the country does not believe it is the way to go because the UNGPs were never inter-governmental, and they are voluntary and were never adopted by the General Assembly.

Audience commentary: NAPs are not taking us further; look at the utter inadequacy of the due diligences processes of South African companies Lonmin and Aquarius. They are merely pretending to comply with instruments, including UNGPs. What are we doing in domestic regulation to set an example? For example, Zambian communities are suffering some shocking abuse from South African security companies which are employed there by Canadian companies, such as First Quantum Minerals. Zambia has no recourse against the Canadian company, and so is using South African law as a bridge.

Audience commentary: Corporate dialogue is what we are looking for and we don’t necessarily need to look beyond the UNGPs to find it. In order for corporations to stop bad things happening, they must get involved and make sure good things are happening through, for example, due diligence worker councils and participation. Human rights due diligence is actually a very radical proposition, that is, what it means to put rights holders at core of corporate decision-making.

What are some major concerns that need to be addressed?

Suárez Franco: Three specific concerns of FIAN International relate to: (1) the weakness of existing remedy mechanisms, which do not cover the extraterritorial obligations, and the use of grievance mechanisms to hinder access to justice, (2) the risk of “human rights abuse-based dumping” – that is, the higher costs of those businesses that respect human rights compared to those that do not and so the associated need for a level playing field at the international level, and (3) the need to combat the fear of a negative impact on investments in those states supporting the Treaty process.

Panelists:  Alan Fine (Russell & Associates), Nomonde Nyembe (CALS) and Ana Maria Suarez Franco (FIAN International)

What content should the Treaty cover?

 

Nyembe: The Treaty should not be limited to gross human rights violations; this would miss the challenges that people face every day with human rights abuse. The Treaty should further be mindful of how corporate activities play out in a gendered way and be gender-conscious. This would allow the Treaty to not be narrow in its avenues for relief. For example, the victims of mine-related silicosis are not just the sufferers themselves, but may also include the women who must then care for the sick. Not only should the content be gender conscious, but so too should the process be sure to involve people from intersectional backgrounds. For those civil society members and NGOs who are not ECOSOC-accredited, the Treaty process should be more accessible.

In particular, the Treaty should attempt to address poverty. Economic development is consistently valued over other types of development. This approach exacerbates systems of poverty. While we recognise that not having access to essentials such as housing, education and water are individually violations of human rights, the collective outcome of “poverty” is not a violation. It should be. The Treaty process should be mindful of the current global economic status and disaggregate corporate benefit from the current wealth structure.

Suárez Franco: The Treaty should only impose human rights obligations on states and not on corporations. Imposing human rights obligations on corporations is legally impossible under international human rights law, since human rights are designed to limit state power, based on the principles of democracy and people’s sovereignty. Enforcement is only possible through the states, jointly or separately. Nonetheless, the Treaty could include a list of corporate obligations under administrative, civil and criminal law, which would be enforced by states, jointly or separately in compliance with their obligations to protect human rights, nationally or extraterritorially.

The focus of the Treaty should be on transnational corporations, including parent companies, subsidiaries and other businesses that are a part of the supply chain. The crimes in which diverse entities of transnational corporations are involved or from which they benefit require human rights extra-territorial obligations, and extra-territorial remedy. The Treaty must be based on clear principles – such as the primacy of human rights, dignity, good faith and transparency

Audience commentary: Poverty and socio-economic indicators are the challenge. The African Commission definition of the right to development is key; we must re-appropriate this concept for the communities and civil society, and not let corporations steal our human rights language around development.

Audience members

 

Who is responsible for poverty?

Audience commentary: This is a good conversation to have, but it is important to understand the context that transnational corporations operate in when they come to Africa, especially sub-Saharan Africa. Where does the responsibility lie with the notion of poverty as a human rights abuse? For example, if a mine is set up and people move into the area looking for employment when the project starts, are the living conditions of these people the responsibility of government or of the mining company? Would a Treaty addressing poverty deal with these issues?

Nyembe: There are “negative” obligations (for example, to respect) and “positive” obligations (for example, to fulfil). States hold both negative and positive obligations. Corporations more typically hold negative obligations. For example, they must not obstruct the realisation of a right or create a system of poverty. Ideally, however, they should also actively seek to realise certain rights by, for example, building houses and schools. If such contributions are seen as obligations, more positive effects could be felt in those areas.

What is the relevance of extra-territorial obligations?

Fine: Extra-territoriality cannot be ignored. The business community must acknowledge that international financial institutions and trade are run on the basis of extra-territorial law, much of which is useful to companies.

Suárez Franco: States alone sometimes are weak; states together can be stronger. If home and host states of a transnational corporation whose activities are resulting in human rights abuses cooperate to protect the human rights of affected communities and ensure remedies, the excuse of state weakness would not be valid anymore. We must connect African governments in order to strengthen the state and ensure implementation. Justiciability of extra-territorial obligations could support better results.

We need country ratification for the realisation of a Treaty. Even if NGOs support it, would it not jeopardise ratification to include economic social and cultural rights considerations?

Suárez Franco: The question of ratification will be difficult, but we must not allow it to stop the process entirely. Strong civil society pressure will be essential for realisation. In terms of form, it could take from the example of the Montreal Protocol and include follow-up mechanisms of revision, which advance the issues that cannot be agreed upon in the Treaty that is adopted during the first phase.

Fine: While the Treaty is a great campaigning idea, if the mechanism does arise, it will not be in the near future. A relatively small minority of states have expressed support for the idea in the Human Rights Council. Apparently the more in-depth the Treaty tries to go, the fewer countries that are likely to ratify it in the end. While this is not a reason not to go for it, it is a practical consideration to be grappled with.

Pitso Montwedi (DIRCO): People said the Tobacco Framework would never happen, yet it exists today.

Audience members

 

What can African civil society bring to the corporate accountability table?

Fine: Business must be persuaded that human rights due diligence and remedy is the right thing to do and in the best interests of shareholders. Civil society can play a role in persuading business of this. Business is vulnerable and sensitive to NGO work. Clever and effective work by NGOs can be influential.

Suárez Franco: While it is a difficult political battle, people will move due to suffering. Corporate abuse is touching the lives of all people around the world and awareness is increasing. States can be moved by civil society. Momentum in the UNGP NAPs process might even have picked up since the Treaty process began. Over 1000 organisations comprising the Treaty Alliance are pushing for the Treaty, at what is still the beginning of the process. Students and civil society organisations in Africa should get involved. Your knowledge will enable the development of a more interesting and representative instrument.

So… is a Treaty a good or bad idea?

Nyembe: Yes. CALS emphatically supports the Treaty in the context of the corporate-controlled and corporate-favoured system in which we operate.

Fine: We should continue if we think a Treaty would be more successful, but not be distracted from more immediate and practical work that can be done.

Suárez Franco: FIAN International and the Treaty Alliance do think a Treaty is an essential tool in the evolving character of international human rights law to ensure justice for all.

Conclusion

Africa has myriad stories to tell in the realm of corporate accountability. It is vitally important that these stories be shared on the international stage. African voices must be heard.

May the debate continue!

By: Anna Bulman

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

[i] Stories and opinions, where not those of the three panellists, have not necessarily been attributed to specific contributors at the debate. For a copy of the notes taken at the debate which provide this context, please contact the author Anna Bulman at anna@lrc.org.za.

[ii] Ecuador being the other. Human Rights Council resolution 26/9 (26th sess.), 26 June 2014.

The article is also available at:

http://business-humanrights.org/en/african-voices-must-be-heard-in-business-human-rights-treaty-debate

Goverance and the Human Rights Challenge in Africa

Last week I attended an African regional dialogue at the Pan-African Parliament in Midrand, Gauteng, to discuss the “Post-2015 Development Framework”, a pseudonym for the vision of development after the expiration of targets for the Millennium Development Goals (MDGs). Considering the discussion centred on governance in Africa, subsequent thoughts on the meeting have been in turn determined by the failure of the Mo Ibrahim Foundation to award its annual prize for governance in Africa to any leaders. This is the third time in its six year history that the prize has not had a winner.

Sitting in the parliamentary chambers, listening to both African MPs and civil society discuss their thoughts and experiences of governance and the MDGs in their respective countries, it struck me that very few people attending had a reliable, broad and inclusive idea of the many development and governance-related challenges faced by Africa as a continent, or if they did, few were willing to speak critically of their own governance weaknesses. But this is to be expected due to the heterogeneity of the African continent. It is difficult to generalise the African experience and this is what makes defining a universal development trajectory almost impossible. As Geraldine Fraser-Moleketi (UNDP) stated in her speech at the dialogue, development involves and requires complexities.

However, with few exceptions, there was resounding agreement that the democratisation of African states is necessary to drive development. The question though, is whether democratisation is “good governance” and why the facets of this continue to fail in African states; as is indicated by the failure to award the prize. It was generally agreed that there has been some success in the achievement of MDGs. However, the success has been blighted by the failure of the goals to make the changes to peoples’ lives that were hoped for. Widening inequality in developing states is one indication of these inadequacies. Another is how the MDGs are foreshortened or subverted by other issues which may or may not have been taken into account. For instance, as Jay Naidoo so rightly points out, even though we have reached near universal enrolment in basic education, high rates of school dropout leave our children with poor skills and education levels and condemns them to a life of little opportunity; thereby subverting any tangible difference the education-related goals can make.

There was some consensus on those issues, past and current, who threaten the development trajectory of Africa. Time again, the following was mentioned:

• The use and distribution of natural and financial resources through means which are not transparent or effective;
• The restlessness and anger of the youth and the large percentage of the population who are youthful and unemployed;
• An ineffective and corrupt civil service;
• Unfair and imposed conditionalities on aid;
• Growing inequalities despite overall positive growth trends;
• The effects of climate change;
• Poor education levels leading to lack of basic numeracy and literacy;
• The on-going and future reduction in donor commitments.

However, a reoccurring theme throughout these discussions was lack of participation. This was in reference to youth, women and the poor in relation to governance, and governments in relations to donors. As Charles Abugre Akelyira (UN Millennium Campaign) said tellingly, when discussing the convergence of the political elite with the economic elite, “We need to contain the powerful so that the weak have space”. A commentator from the audience insisted that the international community is supporting the symbols of corruption by supporting the dictatorships which currently exist in Africa, thereby entrenching the powerlessness of citizens.

How do we open up spaces for participation in Africa? How does the governance framework for post-2015 look and how do states go about overcoming their development challenges? Does development require good governance or does good governance require development? Trends indicated by the Ibrahim Index of African Governance are concerning, especially when South Africa’s governance rating seems to have declined and stagnated at 71/100, with reductions in Safety & Rule of Law and Participation & Human Rights. As one of the more developed states in Africa, and in light of the fact that our Constitution is considered one of the most progressive in the world, the declining rating on human rights is particularly disconcerting.

The representative of the UN High Commission on Human Rights, Marco Kalbusch, gave a strong case for the importance of human rights and democracy in sustainable governance. However, his referral to human rights made me consider how poorly Africa seems to be doing in this regard. Although human rights principles include universality, indivisibility, equality and non-discrimination, accountability and the rule of law and participation, even in the more advanced democratic and constitutionally-driven countries in Africa, the commitment to human rights holds few of these principles. In fact, I would even suggest that Africa’s commitment to human rights is inconsistent and at times, invisible.

This is just one challenge to both governance and development. Development is about people; it is about giving people access to benefits of development and the ability to participate actively and without fear in their social, economic and political worlds. This requires a commitment to socio-economic rights and development processes; including the continued commitment to the MDGs, despite their imminent expiry date.

For the future, it is important that the facets of good governance are part of the development agenda. These facets can include: free, impartial and fair elections, people’s development, commitment to rule of law, political freedom and non-discrimination; to name a few. This should also include a commitment to human rights. In fact, it may be important to have this commitment as a separate one, divorced from its dependency on governance, but a requirement free and off itself.

More importantly, it is not about some human rights for some, but all human rights for all. It concerns me that there is no universality of human rights within Africa, that gender disparities are deeply entrenched, that xenophobia is enhanced and supported through discriminatory laws, that children are still recruited as soldiers and that homosexuals still face prison sentences. There is no justification for these continued discrepancies and it is time that Africa starts to seek a common human rights agenda. Without it, the governance index in Africa will continue to decline and development will continue to disappoint.

By: Claire Martens

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.