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Opinion

13 Oct 2022

Author:
Department of International Relations and Cooperation, South Africa

Reflections on the Binding Treaty discussion - South Africa

What role can the treaty play in helping to achieve corporate legal accountability on a global scale? Do you see particular value of the treaty for the Global South?

South Africa remains concerned that Transnational Corporations (TNCs) and Other Business Enterprises (OBEs) do not uphold uniform standards in their operational activities which are, in essence, transnational in character. In the Global North, these entities are compliant with national laws prescribing human rights norms and standards, while in the Global South the same entities are reluctant or not willing to abide or to be bound by domestic laws of countries of the South prescribing human rights norms and standards, or even laws regulating the activities of these companies (tax evasion).

Currently, there are no binding rules in international law that regulate the activities of TNCs and OBEs, particularly those activities that impact human rights. The existing void and legal gap in international law with regard to TNCs and OBEs thus permit human rights violations and impunity in various areas, including child labour, modern forms of slavery and servitude, failure to provide safe and healthy working conditions, the transnational dumping of toxic wastes and environmental degradation. These violations disproportionally affect the Global South and have a detrimental impact on the ability of people in these countries to enjoy human rights and fundamental freedoms. These violations will continue if the actions of these entities remain unchecked because TNCs and OBEs are amongst the key drivers of globalisation and owners of a big share of global wealth. To this end, they dominate the global economy and have unmitigated influence at the national level on matters relating to policymaking and development of national law.

South Africa believes that this Treaty is of value based on the following considerations, including:

  • When it has binding legal effect with a strong focus on legal accountability, it will provide effective legal remedies to the victims of grave and serious violations of human rights and fundamental freedoms which are committed by or flow from the activities of TNCs and OBEs.
  • The binding international instrument will compel TNCs and OBEs to act responsibly and impact in a positive manner the economic livelihoods and living standards of communities in which they operate.
  • It would provide for an equitable sharing of the benefits of globalisation, through enhancing the role that TNCs can play in poverty alleviation and development, through, among others, long term investment in productive activities with improved access to international markets, modern technology, and skills development.
  • It will ensure the creation of uniform standards across the globe which will provide legal certainty and predictability as opposed to the current situation where TNCs and governments of the Global North rely on non-binding guidelines, which, as we have seen, are not effective in compelling these companies to comply with human rights norms and regulations in the jurisdictions where they operate.
South Africa supports the UNGPs but believes they are not enough and cannot be equated with a legally binding obligation or instrument for transnational corporations to promote and protect all human rights.
Department of International Relations and Cooperation, South Africa

What are your priorities for this session and are there any key elements you would like to see pushed forward during the debate?

South Africa is keen to see constructive participation in the IGWG from all regions. There is an urgent need for the UN to address constructively and comprehensively the issue of human rights violations by TNCs and OBEs.

The IGWG should move beyond the United Nations Guiding Principles (UNGPs) into hard law. South Africa supports the UNGPs but believes they are not enough and cannot be equated with a legally binding obligation or instrument for TNCs to promote and protect all human rights. UNGPs are voluntary and constitute soft law which cannot protect people from violations nor secure effective remedies should violations occur.

South Africa will focus on the following elements of the text, including:

  • Scope: The Treaty must align with the mandate of HRC resolution 26/9.
  • Jurisdiction: South Africa recognises and respects the sovereign equality, territorial integrity, and the political independence of states. Therefore, the issue of jurisdiction and mutual legal assistance should be clarified in the text.
  • Rights of victims: South Africa believes that this instrument should be victim-centric and should ensure that victims get remedies when violations occur. It should be made clear that the compensation should be provided by the entities responsible for those violations.
  • Prevention: The Treaty must ensure that violations do not take place because some violations are irreversible. In this regard, TNCs and OBEs must be vigilant at every stage of their business, including supply chain, and cognisant of the different factors and level of vulnerabilities of potential victims (women, children, persons with disabilities and Indigenous Peoples).
  • International cooperation: The Treaty will only become a reality if states work together on this issue.

How can stakeholders (civil society, businesses) engage supportively and effectively in the treaty process?

  • Civil Society Organisations (CSOs) should continue to engage with their governments on this issue nationally and internationally.
  • CSOs should continue with research and publications on this important issue.
  • Businesses should establish internal mechanisms to protect human rights as well as constructively participate in the process.

The current advocacy work done by NGOs/ civil society should continue and intensify.

Taking stock: Reflections on the progress of the UN Binding Treaty

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