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Joint statement on the upcoming Binding Treaty negotiations

- Lee-Anne Bruce

Civil society organisations send an open letter to the government of South Africa on their participation in the negotiation process at the UN in Geneva

We, the undersigned South African civil society organisations, await the upcoming negotiations on the Second Revised Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and other Business Enterprises (“Legally Binding Instrument”) with both concern and resolve.

Recognising the immense need for such an instrument, we have closely followed and, where possible, participated in the negotiations around the Legally Binding Instrument since their commencement in 2014. We write to urge you to continue to be one of the leading parties driving this process – the outcome of which will determine the course of sustainable development globally and locally.

Transnational corporations can contribute to human and environmental harm

The present international economic order has meant that all low and middle income countries have had to court large transnational corporations to invest in their countries. Indeed, in some cases, transnational corporations have more power than states – having assets that exceed the GDPs of entire countries, employing more people than states, commanding their own security forces, and threatening to legally retaliate if states attempt to regulate their operations.

Why do transnational corporations choose to expand into developing countries? Apart from having access to further markets and resources, their reasons often relate to taking advantage of a lack of adequate regulations. Transnational corporations also often have legal domicile in one country, corporate management in another, financial assets in a third, and administrative staff spread over several more. This strategy allows them to maximise profits, but it also often results in impunity for human rights violations and environmental degradation.

Transnational corporations avoid accountability

Despite the well-documented human rights and environmental harms caused by transnational corporations in the developing world, transnational corporations continue to escape accountability.

In South Africa, complex value chains and impossible-to-follow relationships between parent and subsidiary companies have allowed mining companies accused of human rights violations to quietly close and reopen under different management, with a new name. This is but one example.

Given their global reach, the current asymmetries of power between transnational corporations and States, and between transnational corporations and affected communities, must be addressed through binding legislation at the international level. Such an instrument will in turn inform and strengthen national legislative frameworks and enable governments to address human rights violations.

The government of South Africa must continue to play its leading role

We are proud that the government of South Africa, and the Department of International Relations and Cooperation (DIRCO) in particular, continues to share civil society’s vision for corporate accountability. We commend the government for the leadership that it has shown throughout the negotiating process of a new legally binding instrument.

We encourage representatives of the government of South Africa to deepen the collective understanding of accountability by pushing for stronger and more effective provisions to prevent human rights and environmental harms and corporate impunity.

We implore the government to continue to participate and lead in the negotiations, defending the gains included in the second draft of the Binding Instrument, and pushing for further protections.

The current draft still fails to impose direct obligations on corporations to respect, protect and promote human rights - leaving the onus on states, who often lack capacity to enforce domestic laws and who often resist regulating the conduct of transnational corporations out of fear that those corporations may close down operations in their country.

The inability of states to act against transnational corporations that contribute to human rights and environmental harms is an additional reason why it is crucial that individuals are able to lodge complaints and access remedies against transnational corporations at the international level. The current draft does not provide for an independent complaints mechanism to enforce compliance when domestic courts fail to do so.
As the negotiations for a legally binding instrument enter into a phase of concrete textual negotiations, the government of South Africa will need to drive the momentum and international commitment to an effective instrument.

As before, we encourage you to work with other African governments towards the adoption of a legally binding treaty that adequately reflects African realities. A strong, unified African position will send a powerful message to the international community, to transnational corporations and, most importantly, to the African peoples who often bear the brunt of harmful corporate conduct.

To that end, we also encourage you to conduct consultations with civil society, workers and affected communities about the legally binding instrument, ensuring that you truly represent our voice during the upcoming negotiations and beyond. We value the open communication that has often take place, but also note with disappointment that the Government of South Africa failed to attend one such consultation session on Wednesday 21 October, which was organised by a coalition of African civil society organisations, including the undersigned.

Finally, we contend that the government of South Africa must reject and condemn corporate influence in the negotiation process. Undue influence by corporate lobbyists will render the final instrument illegitimate and will further entrench their capture of states.

We, the South African civil society organisations undersigned, work on issues related to economic, social, gender, and environmental justice. We work alongside peoples and communities whose voices are seldom heard, people who have endured the brutality of colonisation and apartheid and are now facing the brutality of a neoliberal global development project that exploits our planet and our people in the name of corporate greed.

Our commitment to a comprehensive, powerful binding instrument remains undiminished. We trust that the government of South Africa will share that commitment.

Signed by:

  • African Coalition for Corporate Accountability (ACCA)
  • Alternative Information and Development Centre (AIDC)
  • Centre for Applied Legal Studies (CALS)
  • Lawyers for Human Rights (LHR)
  • Mining Affected Communities United in Action (MACUA)
  • Affected by Mining United in Action (WAMUA
  • South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), a centre of the University of Johannesburg