Statement on the negotiation of a UN treaty on business and human rights

    The Working Group on Extractive Industries, Environment and Human Rights (Working Group) of the African Commission on Human and Peoples’ Rights (African Commission);

    Recalling the mandate of the African Commission to promote and ensure the protection of human and peoples’ rights in Africa under the African Charter on Human and Peoples’ Rights (African Charter);

    Noting that Articles 20, 21, 22 and 24 of the African Charter enshrine the rights of peoples to pursue their social and economic development according to the policy they have freely chosen; to freely dispose of their wealth and natural resources; to their economic, social and cultural development; and to a generally satisfactory environment favorable to their development;

    Acknowledging that in many African countries economic cooperation with transnational companies constitutes a source of revenue representing a substantial part of foreign direct investment which, if managed in a viable, sustainable and transparent manner respectful of charter-based rights, can contribute to socio-economic development;

    Mindful of the continued evidence brought before the African Commission of the violation of the environmental, land and resource rights of the people of Africa by transnational companies, including the threats posed to the defenders of these rights;

    Recalling that the African Commission in its Resolution 236 expressed deep concern that Africa is embroiled in a vicious circle of poverty because its revenue potential is being drained by many transnational companies and individuals through exploitation of the loopholes and weaknesses of laws and of the monitoring system;

    Underscoring the primary responsibility of State Parties to the Charter to prevent and provide redress in accordance with the African Charter for all forms of violations of human and peoples’ rights, including violations involving non-State actors, as well as the duty on States to eliminate all forms of foreign economic exploitation, particularly that practised by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their natural resources, as provided for under Article 21(5) of the African Charter;

    Concerned about the persistent challenges to holding transnational companies to account for their violations on the continent as a result of jurisdictional and other loopholes;

    Recalling the various resolutions of the African Commission relating to the human rights implications of the operations of multinational companies in Africa including in particular Resolution ACHPR/Res.236 (LIII) 2013 on illicit flight of capital from Africa; and Resolution 367 on the Niamey Declaration on Ensuring the Upholding of the African Charter in the Extractive Industries Sector;

    The Working Group:

    1.            Reiterates the imperative of establishing binding and effective regulatory frameworks at national, regional and international levels to address the human and peoples’ rights issues arising from the operations of multinational companies;

    2.              Urges State Parties to the African Charter to pursue legislative and other reforms in accordance with Articles 20, 21, 22 and 24 of the Charter which would enable them to hold companies to the standards of the African Charter;

    3.              Welcomes and expresses its full support to the mandate of the open-ended Inter-governmental Working Group on transnational companies and other business enterprises with respect to human rights, established through United Nations Human Rights Council Resolution 26/9 of 2014 co-sponsored by Ecuador and South Africa, with the mandate to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational companies and other business enterprises;

    4.            Commends States Parties to the African Charter and particularly South Africa for the role that they have played in the establishment of the Inter-governmental Working Group and its work to date;

    5.             Further urges States Parties to the African Charter and South Africa as co-sponsor of the treaty process, to focus the negotiation on the role of transnational companies whose power and impact is beyond the capacity of individual states, particularly in the context of weak states with limited technical capacity and weak regulatory regimes; and

    6.           Calls on States Parties to take active part in the process of the Inter-Governmental Working Group and adopt a common African Position within the framework of the African Charter.

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      Date: 12 December 2017

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