Our values: Transparency. Lonmin image campaign in Marikana and surroundings, recorded in Marikana West, 2015.
The information on the role played by the South African state is predominantly sourced from the Department of International Relations and Cooperation (DIRCO), the driving force behind the South African delegation. The wind behind the initiative’s sails has been provided by civil society and various institutions and the range of expertise they have lent to this process. This chapter briefly discusses South Africa’s involvement and ends with the different contributions made by some of the civil society organisations supporting the initiative.
Background
Owing to the gaps and imbalances in the international legal order that undermine human rights, the then UN Subcommission on the Promotion and Protection of Human Rights, which served as a research body for the former Commission on Human Rights (CHR), produced a report on the corporate sector, entitled ‘The Responsibilities of Transnational Corporations and Other Business Enterprises with Respect to Human Rights’ (UN, 2003). This report followed numerous others in which TNCs were implicated in abuses such as child labour, discrimination, unsafe working conditions, repression of trade unions and collective bargaining, limitations on technology transfer, low wages and environmental destruction (Weissbrodt and Kruger, 2003).
When presented before the CHR in 2005 for a decision and way forward, the report became the subject of much debate. South Africa and Ecuador, with the support of a few other countries, called for action on the report by the CHR. South Africa was concerned about the effects of globalisation on the continent as well as the fact that many developing countries do not have legislative frameworks or that, where they exist, they are relatively very weak, presenting an avenue that can be exploited by TNCs. The report spoke specifically to grave and serious violations of human rights by the corporate sector (Weissbrodt and Kruger, 2003).
A compromise was reached which called for a mandate to be created for a special representative of the secretary general (SRSG). John Ruggie1 was appointed as the SRSG and developed the United Nations Guiding Principles on Business and Human Rights (UNGPs), which are both voluntary and non-binding. They are essentially a tool for implementing the Protect, Respect and Remedy Framework underlying international human rights standards, allowing TNCs to monitor themselves and determine their own sanctions.2 The Guiding Principles include three basic assumptions: the duty of the state to protect human rights; corporate responsibility to respect human rights; and access to remedy or redress for victims of business-related human rights abuses. The biggest criticism levelled by South Africa against the UN Guiding Principles is that they are not legally binding nor form part of international human rights law, as they have never been adopted by the General Assembly of the United Nations. They did not follow the usual course of multilateral negotiation by states in an intergovernmental process, which is how treaty law evolves, as Ruggie was primarily responsible for the content.
During his mandate, one of Ruggie’s first visits was to South Africa, where he attended a conference organised by Mary Robinson on an Ethical Globalization Initiative. After the conference he met the South African delegation, who concurred that a binding instrument was controversial and that an all-encompassing approach would be more acceptable. This was to be dealt with in two phases, beginning with one of soft law and eventually culminating in hard law.
The hard law would be in the form of a binding treaty concluded between states governed by international law, and possibly enforced through an international tribunal and effective mechanisms of sanctions, to prevent TNCs hiding behind investment protection agreements and the legal personality of their subsidiaries. To its proponents, the UN treaty consists of internationally binding rules to end the impunity of TNCs and would place people’s rights at the centre, before corporate profits (Ortiz, 2017). This would be in contrast to relying solely on the UN Guiding Principles, which approach human rights from a business perspective, advocate ‘corporate social responsibility’, and provide for voluntary measures though they have so far failed to hold corporations to account. Moreover, once states had signed the treaty they would, in terms of article 27 of the Vienna Convention,3 be precluded from invoking the provisions of their domestic law as justification for their failure to perform a treaty obligation.
While some regard Ruggie’s views as a volte-face and in opposition to the treaty, he believes that they are cautionary and seek to avoid ‘going down a road that would end in largely symbolic gestures, of little practical use to real people in real places, and with high potential for generating serious backlash against any form of further international legalisation in this domain’ or resulting in ‘another instance of the classic dysfunction of doing the same thing over and over again and expecting a different result’ (Ruggie, 2014).
It appears, however, that Ruggie has moved away from his initial view and that his support for a binding treaty has waned considerably now that the Guiding Principles are complete. The South African delegation was surprised by his about-turn as well as by his recommendation that he be replaced as SRSG by a working group instead of an expert representing the African or Asian human rights system for which many were calling. There was also concern about the soundness of the recommendation that a group of experts carry out the mandate, while Ruggie himself had served for two three-year terms on his own.
South Africa is not alone in expressing concern that the process which Ruggie oversaw was derailed from its original intent. Patricia Feeney, the executive director of the UK-based NGO Rights and Accountability in Development and director of the Centre for the Study of Governance and Transparency at Kellogg College, University of Oxford, has also expressed ‘an abiding suspicion that the corporate world was persuaded to give strong endorsement to the Guiding Principles only in return for a promise that there would be no move towards binding regulation’ (Feeney, 2013).
Cause for further misgiving was given by the establishment of an annual UN Forum on Business and Human Rights4 with the support of the EU. Some view this as a platform at which TNCs embellish their image by presenting themselves as saving the world and uplifting the marginalised around the world but which fails to realise a true dialogue between stakeholders or address instances of business-related human rights abuses raised by rights holders (Van Huijstee, 2012). Feeney (2013) and others are of the view that the first forum lacked a focus on human rights, was dominated by industry voices or their agents purporting to be ‘experts’ in the field of business and human rights and allowed only one plenary session on the victims of corporate abuse. The UN Forum for Business and Human Rights is, in this view, being used to punt the UN Guiding Principles and promote a managerial response to corporate-related human rights violations, reducing them to a communications issue (Feeney, 2013). The forum’s objective, which could potentially complement the treaty initiative, is at odds with the UN treaty approach.
These are not the only initiatives that may present challenges to the treaty process, however. Another arose when the Committee on Economic, Social and Cultural Rights (CESCR) drafted the general comment on state obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities.5 While general comments are usually welcomed with open arms, this initiative was cause for concern to the South African delegation, because the instrument would be based on the UN Guiding Principles. South Africa believed this might expose the CESCR general comment to the same shortfalls which continue to plague the UN Guiding Principles, i.e. in respect of implementation as well as the lack of proper means to ensure access to remedy (Treaty Alliance, 2016).
Despite Ruggie’s misgivings about a binding instrument, the process of intergovernmental negotiations and discussion on a regulatory framework for transnational corporations and other business enterprises regarding human rights continued within the United Nations.
The treaty process
On 26 June 2014 the HRC adopted Resolution 26/9 in order ‘to establish an open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, whose mandate shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’ (UNGA, 2014). It was decided that the first session of the working group would have an initial constructive exchange; would solicit the advice of independent experts; and would inform the various delegations about the main issues of the future instrument in order to lay the groundwork for the second session of the working group (CETIM, 2015). At the third session, negotiations would begin on the content of the instrument on the basis of a proposal prepared by the chair-rapporteur of the working group.
The first session of the working group took place from 6 to 10 July 2015 and was attended by governments, international governmental organisations, the Council of Europe, the International Labour Organization, the United Nations Conference on Trade and Development, national human rights institutions and accredited nongovernmental organisations (ICJ, 2016). The working group presented its report to the Council at its 31st session.
During the first session the EU made objections to the adoption of the work programme, reiterating its conditions for participation, which were viewed by some as an attempt to block the session and derail the entire process. The objections were mainly in regard to (a) the appointment of a ‘neutral chair’; (b) expanding the scope of the instrument from being applicable not only to TNCs but to domestic companies as well; and (c) having the corporate sector form part of the meetings of the working group (CETIM, 2015).
The demand for a ‘neutral chair’ appeared inexplicable to many participants because the usual practice is that the chair of a working group is held by a representative of one of the countries that first presented the relevant resolution to the HRC, which in this case was Ecuador or South Africa. All intergovernmental working groups are chaired by an ambassador, someone whose government has an interest in the matter and appreciates what is at stake, but in this case the EU demanded a neutral chair. This call was seen as a cover for the EU to install its own preferred candidate, John Ruggie, who critics believed was firmly under the EU’s control and under the influence of TNCs. The EU also took the opportunity to secure the commitment of all to enforcing the Ruggie principles and requested an additional panel on the implementation of the UN Guiding Principles despite the fact that this did not fall within the working group’s mandate (CETIM, 2015).
The EU’s demand that the work programme refer explicitly to all businesses and not only to TNCs was the subject of heated discussion at the time of the adoption of the resolution. Indeed, it was the deciding factor in getting many countries that had initially been against the treaty to come on board. The resolution adopted by the HRC provided that the instrument would cover TNCs and other enterprises but clarified in a footnote that ‘other enterprises’ referred only to those whose activities have a transnational character. Because the EU was so determined to impose its position, the session was suspended for several hours to find a compromise and an additional panel on the Guiding Principles was added although no change to the text concerning the scope of the instrument was made (CETIM, 2015).
Aside from the Western countries, the intergovernmental working group involved major emerging countries or developmental states such as Brazil, China, India, Russia and South Africa, which took the lead. Other countries from Latin America, Africa and Asia were present but mainly to hear the experts and ascertain the various positions of other states. There was also a strong civil society presence, representing social movements. Victims and communities affected in the global South also attended in numbers (CETIM, 2015).
The second session of the open-ended intergovernmental working group took place from 24 to 28 October 2016, after which it presented its report at the HRC’s 34th session from 27 February to 24 March 2017. It was characterised by wide participation by states and civil society groups. In contrast to the first session, the EU and some of its member states were present for the entire session and the programme of work was adopted unchallenged. The EU reiterated its position on expanding the treaty’s application to include domestic businesses and ensuring that discussions be rooted in and complement the UN Guiding Principles (ECCJ, 2016a). As a whole, the session involved robust engagement, culminating in disagreement between Russia and the EU with South Africa on the chair’s mandate in preparing the 2017 session. A compromise was reached in which it was agreed that the focus of the next meeting would be on preparing elements for the draft of the legally binding instrument for substantive negotiation (ECCJ, 2016b).
SOUTH AFRICA’S ROLE IN THE TREATY PROCESS Role played internationally
As has already been mentioned, the current treaty process was revived thanks to an initiative by Ecuador and South Africa, which demanded that the HRC take action on the basis of a report furnished by the Subcommission. With Ecuador chairing the process, South Africa provided the political support needed to sustain the process against the backdrop of what some have termed disruptive and intimidation tactics on the part of the EU (CETIM, 2015). The collaboration between the two states has, however, not been as robust as it could be, considering that at the time of writing they had not even issued a joint statement. Given the small size of the South African delegation and the limited financial resources of both delegations, the two states may have to reassess their current approach of working mostly independently except in the context of the working group, where they endeavour to maintain a united front. Matters are not entirely unpropitious, however. South Africa and Ecuador need to nurture and capitalise on the support of powerful countries which joined and even sponsored the creation of the resolution. In the past two years, the two countries have engaged with the UN system, including all the regions. They consulted with the then president of the General Assembly, Sam Kutesa, who gave the process the full support of his office. They also spoke to the chairperson of the Non-Aligned Movement, a political formation of the countries of the South.
Regional advocacy
Although it has managed to involve individual African countries, South Africa has had little engagement on the matter with the SADC, leaving much to be done given that a lot of these countries are not represented at the UN in Geneva within this specific sector. To rectify this, South Africa sought to arrange a meeting at the AU Summit in June or July 2017 where African leaders could meet the Ecuadorian ambassador and other key stakeholders so as to engage them in the treaty process and allay their fears that support for the treaty might result in divestment. This meeting was then postponed to January 2018. Such an event is crucial given that the competing initiative, the UN Forum on Business and Human Rights, which is promoting voluntary mechanisms, seems to be far ahead in terms of popularisation and creating public awareness of the Guiding Principles. Moreover, the forum has been more successful in engaging political and corporate supporters globally.
It is at the AU Summit that South Africa also hopes to discuss with African states the Malabo Protocol, which the AU adopted and which involves issues of corporate criminal liability, human rights violations and the exploitation of African minerals without benefit for the continent, issues that resonate with the work done towards a treaty process.6 One of the matters that will hopefully be discussed at the Summit is the irony of the EU cautioning African states against the adverse consequences of insisting on a treaty which provides for decent wages, criminalises child labour, prohibits exploitation and protects the environment, when the EU member states expect nothing less in their own jurisdictions
South Africa also reiterated that international law is always the law of last resort. If companies promote and protect human rights in the course of their operations, the provisions in the treaty may never be invoked against them. They will only apply where there are violations and there is no domestic protective mechanism. The victims will thus be able to look to the international system for remedies. This is particularly relevant for the southern African region, which lacks a functional human rights tribunal (Fritz, 2015).
South Africa seems uncertain about the stance of the other BRICS countries. Russia’s and China’s position on this issue is unclear, particularly given their ambitions as up-and-coming superpowers. The matter is further complicated by the fact that both China and Russia are host countries of TNCs as well as state-owned enterprises (SOEs).
At the time of the adoption of the HRC resolution, many countries that were later convinced to come on board did so upon the insertion of a footnote within the resolution, which made a distinction between domestic companies and TNCs and OBEs (other business enterprises). Russia and China were under immense pressure to support the resolution to avoid being seen in a negative light. It is unclear, as far as South Africa is concerned, how they will position themselves when negotiations commence, but South Africa plans on engaging them during bilateral discussions.
Domestic initiatives
South Africa has enacted new legislation which endeavours to balance the public interest and the promotion and protection of human rights, on the one hand, and the interests of investors who want to profit from their operations within the country, on the other. The purpose of the Promotion and Protection of Investment Act of 2015 is to ensure ethical conduct and respect for human rights. Countries such as Switzerland, Norway and Denmark have not welcomed this initiative and have used bilateral forums to voice their displeasure (Joubert, 2017).
DIRCO has taken the discussion of the treaty to other government departments, engaging with the Department of Labour, the Department of Mineral Resources, the Department of Water and Sanitation and the Department of Trade and Industry, to name a few. It has also approached the Social Protection, Community and Human Development cluster of ministries and the Anti-Poverty cluster to speak about this initiative. In addition, it has raised the matter with relevant Chapter 9 institutions,7 notably the South Africa Human Rights Commission. DIRCO has also been in contact with research institutions, universities and human rights centres, such as the Centre for Human Rights at the University of Pretoria, the Dullah Omar Institute at the University of the Western Cape and the Centre for Applied Legal Studies (CALS) at Witwatersrand University; and civil society organisations such as the Legal Resources Centre (LRC) and the Foundation for Human Rights (FHR).
As some of the concerns raised have involved labour issues, DIRCO has also spoken to labour unions such as the Congress of South African Trade Unions, a federation of organised labour movements which has a key interest in the matter. DIRCO views this as essential for the working group session in October 2017 as it would be imperative for it to go to Geneva to represent the interests of the labour movement and present its crucial perspectives.
Considering that at the heart of the South African state’s initiative there should be a commitment to ensuring that communities are protected from TNCs, it is vital that DIRCO engages with them.8
Collaboration with civil society
Despite opposition from the EU and the United States, which at some point asserted they would not participate, the Treaty Alliance, a coalition of NGOs from across the globe, seems determined to establish a treaty which can protect victims of corporate abuse and rein in corporate power (Treaty Alliance, 2016). One cannot imagine the treaty process having come this far without the invaluable support the alliance has provided to the treaty-initiating states. The energetic role played by civil society, particularly in raising awareness within governments, significantly propelled and bolstered the initiative. Most crucial and indispensable has been their central role in drawing attention to the need to protect vulnerable groups, such as women and girls, children, people with disabilities and indigenous peoples, who are usually the most affected by abuses by business enterprises. Indeed, many NGOs have provided substantial contributions to the debate, presenting rigorous legal and theoretical proposals during the working group sessions (OHCHR, 2017a, 2017b).
Another important role played by civil society has been in providing expertise and helping develop the content and scope of the draft treaty. This is an essential task for South Africa and Ecuador, which seek to have a draft convention ready for consideration and negotiation by the third session of the working group. This, South Africa believes, is crucial in countering opponents of the convention who propose a blank canvas and that everyone participate in writing the instrument together, paragraph by paragraph, thereby ensuring that the drafting process is drawn out indefinitely. The South African delegation is of the opinion that this is not necessary in view of the plethora of NGOs and institutions at the chairperson’s disposal. Furthermore, given that stakeholders have already worked out the structure, nature and scope of the draft, South Africa proposes that members of civil society join as consultative experts in the development of a base document for negotiations.
Submissions regarding the content of the treaty
While South Africa is yet to release its own version of a model law, this section lays out the broad strokes of its position, which reflects similar positions held by various South African NGOs and institutions such as the Legal Resources Centre, the Centre for Applied Studies and the South African Institute for Advanced Constitutional, Public, Human Rights and International Law, which made submissions to the working group in support of a binding treaty instrument.
The most contentious aspect of the treaty is its scope of application. South Africa agrees that domestic companies should be held accountable for human rights violations but disagrees with grouping them together with TNCs. It proposed that in the instrument there should be a chapter on state complicity in human rights violations, which can in turn address state-owned enterprises. As far as the government is concerned, there should be corporate accountability in respect of all human rights and not just gross human rights violations.
South Africa regards a TNC as a corporation that is registered in one country but has operations in other jurisdictions. Such an entity should have an obligation to uphold human rights wherever it operates and apply the same standards worldwide. It is untenable for TNCs to uphold the highest standards in the global North and substandard ones elsewhere. With regard to OBEs, they stand firmly behind the definition in the footnote of the resolution, which provides that OBEs in the context of the envisaged instrument include those that operate in other jurisdictions as well.
While this may be quite ambitious, South Africa would welcome discussion on the definition of globalisation and its impact, particularly considering TNCs are drivers of globalisation and owners of global wealth, which imposes a cost on everyone, with few reaping its benefits.
Submissions by the Legal Resources Centre
In essence, the Legal Resources Centre’s proposals for the treaty were:
Submissions by the Centre for Applied Legal Studies
The submissions by CALS proposed that a gendered lens and poverty be added to both the process for the development of the binding instrument and the content of the binding instrument. They further called for poverty to be considered by the working group in both the process and the content of the binding instrument. In summary, the CALS submissions called on the working group to use the treaty process as an opportunity to address the multifaceted and intersectional human rights impacts of corporate activities (CALS, 2015).
Submissions by the South African Institute for Advanced Constitutional Public, Human Rights and International Law
The submissions of the director of SAFAIC, David Bilchitz, focused on possible approaches that a treaty on business and human rights could adopt in apportioning obligations to promote or protect individuals against the violation of their rights by third parties such as corporations. Bilchitz considered both the direct and indirect model approach to be adopted for purposes of such a treaty. The indirect model, which focuses on the obligation of the state to protect individuals against the violation of their rights by third parties, would place an international legal obligation on the state to ensure that corporations do not violate the human rights of individuals. Corporations would, however, have no direct obligations flowing from international human rights law. The direct model, in contrast, imposes direct obligations on corporations by international human rights law or provides for their creation by states (SAFAIC, 2015).
Bilchitz advocates a direct approach. This would start with a beneficiary- or victim-orientated evaluation of whether particular actions or omissions of corporations have an effect on the interests protected by fundamental rights. This would then be followed by a consideration of reasons to limit the obligations of corporations in such circumstances, either for reasons relating to their nature or for reasons relating to the nature of the normative considerations underlying any potential limitation.
Conclusion
In the current circumstances, South Africa and Ecuador face a mammoth task. Both countries will have to find more efficient methods of advocacy and lobbying to nurture and capitalise on the support of the powerful countries which sponsored the resolution. It is crucial to ensure that African states, whose people are among the most severely affected by TNCs, stand firmly behind the initiative.
While the UN Guiding Principles are deficient, their proponents are well resourced and have made advances in terms of popularisation and public awareness. South Africa must proceed with caution given that this process could drag on indefinitely, proceeding along a well-trodden path from which past sojourners have returned empty-handed. DIRCO’s concern with globalisation and divestment and its lack of contact with communities on the ground might do more to undermine the South African initiative than the UN Guiding Principles. Having come so far and expended a lot of energy and limited resources, it would be regrettable if, as Professor Ruggie cautioned, a successful treaty ended up as a largely symbolic gesture, of little practical use to affected communities on the ground.
1 John G. Ruggie is the Berthold Beitz Professor in Human Rights and International Affairs at the Harvard Kennedy School, Affiliated Professor in International Legal Studies at Harvard Law School, and Faculty Chair of the Corporate Responsibility Initiative.
2 The UN Guiding Principles on Business and Human Rights are a set of guidelines for states and companies to prevent, address and remedy human rights abuses committed in business operations. See www.business-humanrights.org/en/un-guiding-principles and www.un.org/press/en/2005/sga934.doc.htm.
3 Vienna Convention on the Law of Treaties (23 May 1969) 1155 UNTS 331, enacted on 27 January 1980.
4 Established in terms of UN Doc. A/HRC/RES/17/4 of 16 June 2011, para. 12 in order to accompany the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights, including challenges faced in particular sectors, operational environments or in relation to specific rights or groups, as well as identifying good practices. See also www.ohchr.org/EN/Issues/Business/Forum/Pages/ForumonBusinessandHumanRights.aspx, accessed 20 July 2017.
5 General comment no. 24 (2017) on state obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities has since been adopted; see E/C.12/ GC/24, www.ohchr.org/EN/HRBodies/CESCR/Pages/CESCRIndex.aspx, accessed 13 September 2017.
6 At the regional level, a new Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (article 46C) expands the jurisdiction of the court to try a number of crimes when committed by corporations.
7 Chapter 9 Institutions, named after their place in the Constitution, are ‘State Institutions Supporting Constitutional Democracy’, consisting of the Public Protector (PP), the Auditor-General (AG), the Independent Electoral Commission (IEC), the South African Human Rights Commission (SAHRC), the Commission for Gender Equality (CGE) and, lastly, the Commission for the Protection of the Rights of Cultural, Religious and Linguistic Communities. They are independent of government, subject only to the Constitution and the law, and report annually to Parliament.
8 Owing to the lack of interaction with communities, LRC tried to convene a roundtable in collaboration with DIRCO and other NGOs. This was in the hope that affected communities would be able to engage government and representatives from the mining sector on harmful practices by corporations and discuss how a binding treaty would assist in protecting them. This, however, did not materialise.
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Our values: Transparency. Lonmin image campaign in Marikana and surroundings, recorded in Marikana West, 2015.
