By Alexandre Darmame

Le Cap de Bonne Espérance/ Cape of Good Hope, South Africa.
–
This is a transcription of an interview realized in the context of the blog series of the Centre for Human Rights and Legal Pluralism of McGill University. I invited Jessica Lawrence and Thato Gaffane, two lawyers from the environmental rights prorgrame (ERP) at Lawyer for Human Rights, to talk about the growth in corporate accountability as a developing branch of Human Rights.
Lawyers for Human Rights is a Human Rights law firm operating in South Africa. The environmental rights programme is one of its branches and is focused on promoting environmental rights and defending communities against Human Rights violations by the private sector in South Africa, more particularly, violations by the mining Industry. Lawyers for Human Rights accompany and represent communities in litigation against corporations and are involved in multiple advocacy projects for more corporate accountability at the national and International scales.
Alexandre: Thato, Jessica, it’s a pleasure to be speaking with you. Could you take a few minutes to introduce yourselves?
Jessica: Hi, Alexandre. Thank you so much for inviting us to discuss our work. My name is Jessica Lawrence, and I am an attorney at Lawyers for Human Rights. I manage the Environmental Rights Program, which provides assistance to vulnerable people and communities negatively impacted by mining activities. Our work seeks to ensure environmental justice and corporate accountability.
Thato: I’m Thato Gaffane, also an attorney with the Environmental Rights Program at Lawyers for Human Rights. It’s a pleasure to be with you today.
Alexandre: Let’s move on to our first question. How do multinational companies abuse human rights in Africa, and as human rights lawyers, what tools are available to address these violations and support communities?
Thato: Human rights violations begin right from the start as companies come to communities with promises of development. Promises of empowerment and development through projects like infrastructure, malls, and libraries, but often, these promises are not kept.
It’s important to highlight that women are the most affected by such violations—they travel farther for water, firewood, and other resources to sustain livelihoods that have been disrupted by mining operations. It continues until the end of the mining operations, where companies often abandon mines without fulfilling their responsibilities, filing for liquidation or avoiding accountability during mine closure.
At Lawyers for Human Rights, we use various tools, including research into cases to highlight challenges and policy gaps that need government intervention. We engage in strategic litigation to help develop the law, and we participate in negotiations for the Business and Human Rights Treaty, which aids in policy development in this sector.
Alexandre: I assume that being part of the Environmental Rights Department, the right most often violated by companies is the right to a sustainable environment. Aside from broken promises, we’re also talking about violations of the right to a sustainable environment, which is protected by the Constitution in South Africa, correct?
Jessica: Absolutely. In terms of the South African Constitution, the right to an environment that is not harmful to health and well-being is constitutionally protected. Importantly, this is a right that is immediately realizable, not subject to progressive realization like other rights in our Bill of Rights. Recently, this right was also recognized at the international level by the UN. However, what’s important is how this right intersects with many others, particularly socio-economic rights.
When working with mining-affected communities, we see not only the violation of their right to a healthy environment, but also impacts on rights such as access to healthcare, education, water, sanitation, and development. Communities’ socio-economic upliftment, which is tied to the mining industry, is often disregarded due to poor regulatory enforcement, leaving communities behind.
The Environmental Rights Department latest report available here https://www.lhr.org.za/lhr-resources/unpacking-the-state-of-mine-closures-in-the-southern-african-development-community/
Alexandre: More than a right to a sustainable environment, there is thus the need for socio-economic development at stake as well, as communities have a right to benefit from their own resources. We can see that communities are not short of rights, but how are they concretely enforced? Is litigation an effective strategy in that regard?
Jessica: Litigation is an important tool in public interest human rights work, though it’s often a last resort due to its high costs and time-consuming nature. Before litigation, we always try to resolve disputes through alternative methods, but corporations are often unwilling to engage or acknowledge the harm caused by their operations. The regulator is also often unresponsive, failing to process complaints or hold mining companies accountable, which results in corporate impunity.
This lack of response forces us to resort to the courts to ensure compliance with human rights obligations. Additionally, there are gaps in law and policy, which is why we also engage in strategic litigation to develop the law and jurisprudence around business and human rights, particularly in South Africa.
Alexandre: As much as litigation is an important tool, I imagine there are logistical barriers to it. How do you manage these challenges?
Thato: Access to information is a critical challenge, especially as many mining operations take place in remote areas. Communities often lack access to human rights organizations or legal representation. When they try to engage with mining companies or regulators on their own, they frequently receive no response.
In some provinces, like Limpopo, the regulator is located far from mining activities, making it inaccessible to communities. For example, people have to travel over 50 kilometres just to report a mining company’s misconduct. This requires resources that many communities don’t have.
Alexandre: It’s striking that these issues exist even in South Africa, which has a robust judicial system. For countries with less developed legal frameworks, I imagine litigation is even more challenging. That’s probably why there’s an effort to develop an international treaty on business and human rights. Could you talk more about the treaty being negotiated in Geneva? What potential does it hold for enhancing corporate accountability?
(We refer here to the treaty on Business and Human Rights initiated by South Africa and Equator 10 years ago and still under negotiations. This treaty has for objective of regulating the private sector, preventing human rights violations and offering more access to Justice and reparations for victims)
Thato: The treaty has significant potential. It establishes obligations for companies to respect human rights through due diligence processes, mandatory reporting, and mechanisms for accountability. Once adopted, the treaty could concretely change the landscape by providing clearer legal frameworks for states to enforce against companies that violate human rights.
Human rights lawyers could use this treaty in advocacy and litigation to challenge corporate misconduct and seek remedies for victims at both national and international levels. It’s a crucial step in enhancing corporate accountability globally.
Jessica: And just to add to what Thato said, the treaty presents an opportunity to hold corporations accountable for human rights violations. The treaty introduces legal obligations in the context of business and human rights for the first time in international human rights law. While the UN Guiding Principles on Business and Human Rights were a solid foundation, their voluntary nature has made it difficult to hold corporations accountable.
The Guiding Principles consist of three main pillars: first, that states have an obligation to protect human rights; second, that companies have a responsibility to respect human rights; and third, that there is a right to remedy. However, access to remedy is one of the most underdeveloped aspects of the Guiding Principles. What the treaty offers is the opportunity to strengthen this by ensuring that affected communities can access remedies and hold corporations liable for violations, especially when domestic legislation is insufficient. The treaty will provide concrete solutions as to the transnational nature of multinationals and will ensure domestic frameworks are aligned and responsive to the challenges Indigenous communities are experiencing in the context of business operations.

The Human Rights Council, United Nations. (Image taken from the website of the Human Rights Council : https://www.ohchr.org/en/hrbodies/hrc/home)
Alexandre: Could you tell us more about Lawyers for Human Rights’ role in the treaty negotiation process in Geneva?
Jessica: Lawyers for Human Rights has been involved in the treaty negotiations for several years now, providing expert input on the content of the draft treaty. We analyze the treaty article by article, ensuring it incorporates robust protections for communities and remains community-centred. Our engagement includes working closely with communities affected by corporate misconduct, as well as other African civil society organizations.
We engage with African state representatives, advocating for a stronger African voice in the negotiations. Given that Africa is disproportionately impacted by the extractive industries, it’s crucial that the treaty reflects the concerns of African communities. Over the past decade, South Africa, alongside Ecuador, has played a prominent role in these negotiations.
Alexandre: It seems like the process is complex and involves numerous states with varying interests. Have there been procedural challenges that are slowing down the progress of the treaty?
Jessica: Yes, there have been some procedural challenges. For example, in recent years, there have been criticisms about how the chair of the working group has been handling negotiations, notably when introducing his own textual proposals, which is unusual in a state-led negotiation process. Normally, states should be the ones proposing changes. It had for objective to facilitate negotiations but ended up dividing even more as some states were responsive to those changes and others rejected them completely. Ultimately it just created more delay.
One other significant issue is the lack of participation from African states during certain phases, partly due to visa and travel restrictions during the COVID-19 pandemic. This led to the feeling that Africa’s voice was underrepresented at critical moments. The chair’s proposals were seen as not fully considering Africa’s perspective, creating delays and disagreements during the negotiations. A similar thing happened with the “friend of the chair” mechanism introduced by Equator. It was supposed to be a mechanism to facilitate negotiations by designating a representative country in each regional space. Those representants had for mission to gather observations from continents and pass them on to the chair. The problem is that the chair was unable to find a representative country for the African region. Cameroon ended up stepping up but too late, and African views were not included in the chair proposals. This process is supposed to be inclusive of all 193 countries to ensure ratification by as many states as possible, and yet, a whole continent was excluded from those textual propositions.
As for substance, the scope of the treaty is a contentious point. Some countries consider that the treaty should be limited to multinationals as originally envisioned by the resolution starting negotiations. Now, other countries are advocating for a wider scope including all companies, even those limited to their country only. Because of all of those delays, negotiations have only been as far as article 4 in reviewing the 3rd version of the revised draft.
Even though those delays are annoying, we’re still hopeful for the future. After all, 10 years might seem a lot, but in the long history of corporate impunity, it is but a short period. Moreover, things are moving at the regional scale, considering the recent adoption of the OECD framework and the CSDDD by the European Union.
Alexandre: You mentioned earlier that Africa and the Global South have been disproportionately affected by corporate abuses. Has the African bloc been able to form alliances, perhaps with Latin American countries, to counter the influence of more powerful Western blocs?
Jessica: Absolutely. We have seen strong collaboration between African states and Latin American countries, particularly last year. Africa has been speaking with a more unified voice, which is critical given the disproportionate impact of transnational corporations on the Global South. South Africa, alongside other key African States, has played a leading role in ensuring that African concerns are heard.
That said, there has been pushback from Western countries, notably the European Union and the United States. The EU, despite participating in the negotiations, does not have a formal mandate from its member states, limiting its ability to make meaningful contributions. There’s also resistance from Western states to the stricter provisions in the treaty, especially regarding corporate accountability.
Alexandre: Given this opposition from Western states, how are African actors responding to the lack of cooperation?
Jessica: The response from African states has been strong. They’ve consistently pushed back against attempts to water down the treaty, particularly regarding its scope and provisions for corporate liability. African representatives have been receptive to civil society’s input, and we’ve seen meaningful engagement from them to strengthen the treaty’s provisions on access to remedy and corporate accountability.
However, there are challenges—particularly when African states are economically dependent on investments from Western countries, which complicates efforts to push back against corporate abuses. Many fear that stricter regulations might lead to a withdrawal of foreign investments, although we argue that the treaty is not about overregulating but about placing human rights at the center of development.
Alexandre: What are some of the key challenges preventing the treaty from moving forward at the moment?
Jessica: One of the main challenges is the vagueness of some of the treaty’s provisions, which certain states argue makes implementation difficult. For example, the current draft mentions administrative, criminal, and civil liability for companies, but not all states have domestic systems that provide for criminal liability. This disparity is causing concerns about implementation.
There are also disputes regarding due diligence obligations, with some states arguing that the provisions are too vague and need more specificity. Others, including civil society, believe the due diligence provisions should be aligned with international standards, such as the OECD guidelines. The scope of the treaty—whether it applies only to transnational corporations or all business enterprises—remains a highly debated issue as well.

The business and Human Rights Resource Center make available precious resources on the negotiation process of the Binding Legal Treaty : https://www.business-humanrights.org/en/big-issues/governing-business-human-rights/un-binding-treaty/.
Alexandre: Moving to the last subject, recent publications on the Resources Center for Business and Human Rights blog have highlighted how the latest draft displeased many human rights advocates, as some obligations on states were weakened. Are you pleased with the trajectory the treaty is taking? How do you see the treaty evolving in the future?
Jessica: Well, we’ve noticed a softening of the language in the latest draft (for example the transition from “obligations” to “responsibilities”), and many of us in civil society are pushing for stronger wording. For example, we’ve seen the removal of key language that acknowledges the barriers communities face in accessing remedies. One important element missing from the current draft is the principle of “forum non conveniens,” which may prevent communities from suing companies in their home states, instead forcing them to seek justice in their own, often strained, legal systems.
We’re advocating for the reinclusion of this principle, as well as stronger language around the burden of proof and access to information. Often, the evidence communities need to prove harm lies within the company itself, and the current draft does not do enough to address this. We’re also calling for the recognition of specific vulnerable groups—women, children, human rights defenders, indigenous communities—and ensuring the treaty responds to the unique harms they face.
Thato: There’s also an issue around participation. Travelling to Geneva is expensive, and it’s challenging for marginalized communities to have their voices heard. The treaty process, being state-led, must do more to integrate the lived experiences of those directly affected by corporate abuses. Finally, the treaty lacks a clear and concrete enforcement and monitoring mechanism, like an independent oversight body to hold corporations accountable for their human rights violations.
Alexandre: It seems clear that civil society will play a crucial role in pushing the treaty back on track.
Jessica: Absolutely. We remain hopeful. The treaty is a significant opportunity, and our work is essential to ensuring that it ultimately centers communities and provides real protections against corporate abuses.
Following our discussion, Lawyers for Human Rights shared the recent update that the 2024 round of negotiations will be rescheduled from September 2024 to December 2024, introducing a new and unexpected change in negotiation.