A Legally Binding Treaty on Business and Human Rights (Legally binding Instrument- LBI) is being negotiated at United Nations since 2014. The idea of a treaty of this character is not something that came from the whim and caprice of civil society but from the need to protect the people of developing countries from the violations and crimes committed by Transnational Companies (TNCs) in the exercise of its economic activity (such as the cases of the Shell company in Nigeria, Chevron in Ecuador, Brumadinho in Brazil, or Rana Plaza in Bangladesh).

Inappropriate behaviours causing environmental disasters, economic crimes, or systematic violations of human rights carried out by TNCs has been reported against public and private institutions during decades. However, only through this means would is there a real possibility of achieving effective mechanisms to hold TNCs responsible for such behaviour and that allow those responsible to be brought to justice. Therefore, this LBI is an opportunity to end the impunity of TNCs and allow local communities in the poorest countries to have the tools to protect their natural resources and guarantee the protection of their population.

Although the western countries of the Global North have consolidated democracies in which the rule of law prosecutes, with greater or lesser severity human rights abuses, the countries of the Global South often lack the institutional power and mechanisms to prosecute crimes against human rights in their territory, especially those committed by TNCs. In the case of Africa, governments have for decades facilitated the arrival of foreign investment through TNCs and they have abused their economic power to put their economic benefits before the rights of the populations. Consequently, TNCs continue to operate today with impunity for crimes committed against human rights.

Thus, to know the importance of the LBI, it is necessary to know what is at stake. Among other objectives, the most relevant demands of this instrument would be: to ensure the responsibility of companies for crimes committed against human rights and the environment, guarantee access to justice for victims and affected communities, remedy violations of the human rights and compensate the victims, as well as ensuring that the standards of respect and prevention of human rights are mandatory and not voluntary. Likewise, it is important to point out that the norms of prevention of the abuses of the human rights cannot exempt the TNCs of the responsibility for the damages caused by them.

Recognizing the relevance of a LBI, it would be expected that developing countries and especially African countries (which have suffered for decades from the plunder and abuse of TNCs) would put all their joint efforts to achieve a treaty to protect their populations. Unfortunately, the presence of the African Union and the different African governments in the negotiation of the treaty was almost insignificant in the last session of the working group for the elaboration of the LBI. Only 4 out of 54 countries have made significant contributions such as Namibia, Egypt, Cameroon, and South Africa. Other countries have attended the sessions, but without making any comments or presenting proposals.[1]

In recent years, the commitment of the African governments has decreased with the progress of negotiation of the LBI, and they have hardly made interventions expressing strong interest in achieving the objectives of the treaty. Not even the African Union has sent a delegation or read any institutional statement supporting the creation of the LBI. This silence during the LBI negotiations is difficult to understand when what is at stake is the lives of millions of people in Africa.

The lack of commitment of African governments in the negotiations of the LBI allows the positions defended by rich countries that are more permissive to the economic powers of large corporations (Corporate Capture) to gain prominence in the negotiations. Likewise, the lack of a forceful position that defends the interests of Africa allows TNCs to develop their strategies and exempt themselves from their obligations to respect human rights and the environment, which is ultimately respect for the lives of people living in Africa.

The paradox is even greater when countries that are against the LBI such as the United States, Russia or China or those that present less demanding positions such as the European Union have been present in the negotiations defending their interests. Meanwhile, Africa is silent and this attitude allows large companies to continue developing their strategies to exploit Africa’s natural resources to enrich themselves at the expense of the needs of the population.

In my point of view, African governments should present a more active attitude in the future of the treaty negotiation and ensure that their presence among the group “Friends of the Chair” that defend the achievements made in the negotiation in recent years. The political commitment of governments in Africa must be above the interests of each country and region, working together to defend the human rights of their peoples.[2]

However, the success of the LBI will not depend exclusively on the result of the text that emerges from the negotiations but will require a serious commitment from the governments of the States that sign the treaty to facilitate its implementation, as well as the creation of adequate national legislation to prosecute human rights violations. Along with this, a serious commitment against the corruption that is threatening the prosperity of the African continent will be necessary.

Indeed, the United Nations and the EU have the obligation to extend democratic values in their treaties, establishing standards of respect and social commitment to all peoples. But it is the responsibility of all governments to work for international treaties that strengthen democracies and protect their populations. The LBI is one more step in the construction of economic and social justice with the countries in Africa, but this cannot be done without the constant commitment of their governments. Governments in Africa cannot abandon to its fate a treaty that wants to be born with a vocation of ending impunity for TNCs and protecting human dignity.

José Luis Gutiérrez Aranda

Policy Officer

[1] Report of the last session https://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Session7/Pages/Session7.aspx

[2] The Chair of the LBI Negotiation Working Group has proposed the creation of a group of closer collaborators (friends of the chair) for the intersessional period to help him select the treaty proposals, as well as determine the choice of the content in case of conflict. For this working group, countries can apply as collaborators and civil society is excluded.