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The importance of a legally binding treaty on business and human rights to protect communities

- Zanele Malindi and Jessica Lawrence

Reflections ahead of the next round of treaty negotiations at the United Nations in Geneva later this month

On 27 and 28 July 2022, the Centre for Applied Legal Studies (CALS), the Alternative Information and Development Centre (AIDC), and Lawyers for Human Rights (LHR) hosted a two-day Indaba on the United Nations Binding Treaty on Business and Human Rights in Johannesburg.

In June 2014, the United Nations Human Rights Council took steps to develop an international legally binding instrument to regulate the activities of transnational corporations and other businesses. It is currently referred to as the UN Binding Treaty on Business and Human Rights. The Resolution to begin the process on the Binding Treaty was put forward by Ecuador and South Africa.

Out of 20 countries that voted in support of the Resolution, 10 were African countries, an indicator that the continent is committed to protecting communities from corporate impunity and holding corporations accountable for rights’ violations. This is because African communities are the ones who bear the burden of the social, political, economic, and environmental effects of business.

Activists from host communities, trade unionists, civil society organisations and social movements from Southern Africa, and government officials from South Africa participated in robust discussions on a legally binding instrument on corporate accountability for human rights at the Indaba. Although the Fourth* revised draft of the Binding Treaty is yet to be published, participants discussed what should be included into the next draft of the Binding Treaty, emphasising that communities must be at the centre of this process.

It was important to highlight the lived experiences of communities impacted by large natural resource extraction during the Indaba. This informed the discussions on how the lived experiences of the communities and lessons learnt from the Covid-19 Pandemic could influence the next draft of the Binding Treaty as well as the negotiations at the 8th session of the Intergovernmental Working Group, which will take place from 24 – 28 October 2022 in Geneva, Switzerland.

The Pandemic highlighted existing inequalities, and further disproportionately impacted marginalised communities and individuals, including precarious and informal workers, and communities impacted by corporations, in a myriad of ways.  As has been the case globally, efforts to contain the virus brought into sharp relief again the fault lines of inequality that so many bear the brunt of on a daily basis, particularly vulnerable host communities that disproportionately shoulder the environmental and social impacts of natural resource extraction and corporations’ activities. The Pandemic further highlighted the need for a legally binding instrument to protect vulnerable communities from corporate abuse where power and wealth are often highly concentrated.

Activists noted that some corporations excluded host communities and workers from process of developing Covid-19 policies and used the Pandemic as an opportunity to reduce workforces, mechanise processes and maximise profits.

The Indaba focused on learning from experiences during the Pandemic, amplifying communities’ voices, and findings ways to strengthen African states’ participation during the Geneva negotiations.  The attendees identified several examples of how threats to communities’ land, rights, and well-being can manifest in the natural resource space and ways the Binding Treaty could hold corporations accountable for rights’ violations. A strong theme of the Indaba was the need for communities to be involved in decisions about what happens on the land they own and use. This has been spotlighted recently in the South African courts, with the successful appeal to Shell’s exploration rights along the Wild Coast. Many supporters of the exploration claimed that the community was “anti-development”, however, the judgement highlighted the fact that communities deserved to be listened to and properly consulted on matters regarding their own land, and have a say on what kind of development is best for each community.

The UN Binding Treaty on Business and Human Rights is an important instrument for protecting human rights and helps shift the way in which human rights are viewed. Traditionally, human rights’ protection has been seen as something that exists between the State and civilians, but now we see that it includes corporations, and they can no longer hide behind those assumptions.

Following the two days of discussions and reflections, the group developed and endorsed resolutions, which calls for inter alia communities’ right to say no in addition to the inclusion of free prior and informed consent in the draft Binding Treaty, and the use of processes such as the Indaba to bring labour, civil society organisations, and governmental organisations together.

Participants acknowledged and commended the South African government’s important, positive, and proactive role that it has played in the Binding Treaty process, and welcomed the Department of International Relations and Cooperation (DIRCO), Department of Mineral Resources and Energy (DMRE), Department of Justice, and Department of Trade and Industry’s (DTI) continued support for the Binding Treaty and South Africa’s role keeping up the momentum to regulate transnationals corporations under international human rights law.

Zanele Malindi is an attorney based at the Centre for Applied Legal Studies, Wits University, and Jessica Lawrence is an attorney based at Lawyers for Human Rights.

* Since the writing of this article, the Chairperson of the IGWG has released a statement advising that the Friends of the Chair process could not start working on a new text proposal for the treaty and therefore this year’s negotiations will focus on the Third Revised Draft of the treaty.