The strong need to balance the developmental agenda of a country with the obligation to protect the rights of the local communities has gained much traction over the years.
In Africa and specifically Zimbabwe, this has been particularly so in the natural resources sector because of the rich endowment of the continent with minerals, land, forestry, wildlife, and water resources, among others.
Also, given that natural resources are at the beginning of most essential supply chains, they are critical to the production of energy and consumer goods.
Therefore, their use, development, and depletion become critical for development and local community rights.
The exploitation of natural resources on the continent has been rife with human rights violations in communities with limited or no recourse to a substantive remedy, especially when transnational companies are involved.
This is particularly so when one looks at the extractive sector, from the oil fields in Nigeria, the diamond fields in Zimbabwe, the copper fields in Zambia, and the coal mines in South Africa. As the late Prof. J. Ruggie said,
“Extractive companies have had adverse impacts on a broad array of human rights, such as resettlement of communities without adequate consultation and compensation; environmental degradation and its effects on health, sources of livelihood, and access to clean water; as well as charges of forced labor, rape, and even extrajudicial killings by security forces protecting company assets, with some cases meeting the legal definition of corporate complicity.”
With the increase in human rights violations also came the increased recognition that businesses need to respect human rights.
While traditionally the human rights discourse involved the state’s obligations to protect, promote, and fulfill human rights, recently there has been an increased realisation that companies have a responsibility to respect human rights.
This recognition has also brought with it the emergence of concepts such as corporate social responsibility (which lacks accountability), industry certification schemes, guidelines, and other self-regulation standards.
Because of the voluntary nature and other limitations of these mechanisms, natural resource host communities still face human rights violations during the exploitation of these resources.
As the Zimbabwe Environmental Law Association (ZELA), we believe that strong, enforceable laws and regulations remain the best means of ensuring companies respect human rights, particularly those of local and frontline communities, and the protection of the environment.
It is for this reason that ZELA has been involved in the work on the negotiations for a legally binding instrument on Transnational Corporations and Other Business Enterprises (Binding Treaty) happening at the United Nations level.
This is a process that began in June 2014, when, at its 26th session, Ecuador and South Africa presented to the UN Human Rights Council a resolution proposing the Binding Treaty.
An open-ended intergovernmental working group (IGWG) with the mandate to negotiate the Binding Treaty was subsequently established and chaired by Ecuador.
So far, the IGWG has held eight sessions to negotiate the text of the treaty, among other processes.
In line with this work, from June 26 to 30, ZELA will be joining communities, civil society organisations, and other stakeholders to learn about progress and challenges, share best practices, identify needs, and engage in peer learning through dialogue.
The Binding Treaty Indaba seeks to prepare for the next set of negotiations on the drafting of the Binding Treaty to ensure that African perspectives are represented at the negotiations and ultimately included in the final draft of the Treaty.
The key recommendation and points of engagement from ZELA will emerge from the acknowledgement that many natural resources host communities experience human rights violations with impacts or risks to their livelihoods, health, and environment from different projects, and the existing vulnerabilities of such communities are exacerbated by the impacts from the exploitation of natural resources.
Therefore, there is a need to ensure that there are strong and direct human rights obligations placed upon companies and that the barriers to accessing remedies for communities are removed.
Josephine Chiname is a legal officer at the Zimbabwe Environment Law Association
