[Image: Mustafa Yalçın - Anadolu Agency]

The African Coalition for Corporate Accountability (ACCA) and the Centre for Human Rights, University of Pretoria participated in the 8th session of the negotiations for a legally binding instrument on business and human rights. The session was held in Geneva from the 24th to the 28th of October 2022 at the United Nations, in Geneva, Switzerland.

The negotiations are an integral part of both the ACCA and CHR’s work around corporate accountability and business and human rights issues. There is indeed a growing recognition by all stakeholders of the need for a treaty that regulates issues of human rights affected and/or perpetuated by businesses, particularly those of a transnational character, and as such the treaty negotiations are key to this goal.


The ACCA and the CHR intervened during negotiations for particular articles relevant to the work towards protecting victims of human rights violations and/or abuses by corporations. To this end we called for and reiterated that key elements of the current draft binding instrument need to be central to the treaty namely access to effective remedy for victims of business inflicted human rights abuses, the rights of victims, prevention as well as adjudication. The ACCA and the CHR, during their interventions joined other CSOs and States, mostly from the Global South in insisting and reiterating that the Third Revised Draft and the comments and suggestions made by States during the 7th session was a good basis for discussion, and the only legitimate basis from which to carry out negotiations. This was in light of the Chair Rapporteur’s informal proposals which were presented to participants as part of the working documents of the Session, contrary to the working methods of the Working Group on business and human rights.

During the substantive negotiations of Articles 6-13, ACCA and the Centre made joint interventions.

On Article 6, which deals with prevention we reiterated the comments and suggestions we had made during the 7th session with some of our partners. In summary we noted that the draft as it reads still contains gaps when it comes to assessing the potential abuses arising from business activities and taking appropriate measures to enforce compliance. We therefore aligned ourselves with statements made by South Africa and the State of Palestine during the 7th session, which they endorsed in this session again that business enterprises should be required to undertake ongoing/continuous and frequently updated human rights due diligence across the value chain. Our intervention on Article 6 also emphasized the need for the recognition of indigenous peoples’ rights to free prior and informed consent (FPIC) and their meaningful consultation.

On Article 7 dealing with access to remedy we stressed that access to remedy is a core component of the UNGPs and should be contained as such in the legally binding instrument. We contended that without thorough revision of some of the provisions in Article 7, the legally binding instrument might end up suffering the same fate as the voluntary frameworks that have existed before it, like the UNGPs which have demonstrated their ineffectiveness to ensure full compliance with the relevant regulatory framework.

The last intervention was on Article 9 of the Draft treaty in which we aligned with, and endorsed interventions made by the State of Palestine and South Africa during the 7th session. Again, our joint intervention was focused on how the provisions of Article 9 and the treaty broadly can better protect victims of human rights abuses and violations. We reaffirmed the need to keep reference to forum non conveniens in the draft treaty as suggested by the State of Palestine and Namibia, and contrary to the suggestion to delete reference to the principle in the treaty.

Africa and the treaty process

A crucial focus of the ACCA and CHR’s participation in the 8th session was the involvement or lack thereof of African stakeholders in the treaty negotiation process. We were pleased to note the presence of State delegates from South Africa, Egypt, Togo, Cote D’Ivoire, Ethiopia, Namibia, Algeria, Kenya, Cameroon Burkina Faso, Senegal, and Malawi during the negotiations. We still believe that African States’ participation in this treaty process could improve, and we will continue to engage States to see how best this can be achieved. Beyond Africa, it was also very encouraging to see other States from the Global South, taking a firm stance on how the treaty should be framed in order to protect those most affected by corporate human rights abuses and violations. In this regard, ACCA and CHR acknowledge the State of Palestine and indeed endorse a majority of its interventions made during the 8th session and in previous sessions as well. We note that these interventions align with the views and mandate of ACCA and the Centre, to protect victims of business induced human rights abuses.

To tackle the key issues of African participation in the process, ACCA and CHR hosted an event on the sidelines of the negotiations titled ‘Where is Africa in the treaty negotiation process’, on Thursday the 27th of October. This side session interrogated the need for Africa to be involved in the treaty process and indeed generally on the dialogue on business and human rights. It also touched on key issues of African affected communities’ involvement in the treaty process, to ensure an outcome that is beneficial to those most affected by business induced human rights abuses. It was also emphasized during this session, the importance for the treaty to reflect a gender sensitive and feminist perspective, especially considering the human rights abuses women and girls face, directly and indirectly linked to the conduct of business operations in their communities.

We acknowledge and applaud the steps in remedying the lack of participation by Africa in the treaty process, particularly the election of Cameroon to the ‘Friends of the Chair’ group. Cameroon is the first African country to join this group, which was proposed by the Chair of the Working Group in the 7th session. The group has the aim of engaging in intersessional consultations to advance work on the draft, aiming for the ‘broadest possible cross-regional support’. This was a welcome proposal as it showed that the treaty process may finally be on a serious diplomatic track. However, until the 27th of October 2022, there had been no African States in this group, yet Europe and Asia had two representations each.

It is important that Africa be actively involved in this treaty process. The continent is one of the biggest recipients of foreign direct investment and has a considerable interest in the adoption of the treaty. The continent therefore has motivations to scrutinize the effects of treaty provisions, on TNCs and OBEs and must do so actively. We note also that a significant number of human rights violations by TNCs happen in developing countries, including a significant number of African countries. There is therefore a pressing need for a strong African voice on the treaty to ensure that it is alive to this context and can be effective in addressing key business and human rights challenges on the continent.

Issues around corporate capture were also prevalent in the 8th session, with some of our partners organizing events to tackle the issues of corporate capture in the treaty negotiation process. During the negotiations, CSOs also made strong interventions against the involvement of corporations in the process, citing a clear conflict of interest. The ESCR-Net, which ACCA and the Centre are member organisations of, organized an event on corporate capture and how a binding treaty could help to prevent corporate human rights abuses and violations on the first day of the session. We also attended a session hosted by the Global Campaign on the ‘Right to Say No’, which is very relevant to discussions around the treaty but also ties into a key work stream of ours which is Free Prior and Informed Consent.