The year 2021 marked the tenth anniversary since the United Nations Human Rights Council (HRC) unanimously endorsed the United Nations Guiding Principles on Business and Human Rights (UNGPs). The UNGPs seek to provide a global standard for preventing and addressing the risk of adverse human rights impacts linked to business activity. They also represent a consensus between state governments, the business community, and human rights defenders.
Sikho Luthango is a Public Policy Analyst and a Programme Manager for Labour Relations and Economy at the Rosa Luxemburg Foundation's Southern African office.
A decade later, however, access to justice for the victims of human rights violations and grave environmental damage remains mostly elusive, building a more compelling case for a different approach in international law. It was against this backdrop that, in 2014, South Africa and Ecuador initiated the adoption of resolution 26/9 to elaborate on an international legally binding instrument (LBI) to regulate transnational corporations (TNCs) and other business enterprises at the United Nations HRC. While the UNGPs have had an undeniable impact in seeking common clarity between states, companies, and civil society, the governance gaps and lack of compliance by TNCs, especially in the Global South, still allow for human rights abuses and serious environmental damage that threatens the human rights of others.
For example, South Africa’s gold “sunset industry”, although a contested term, is characterized by unprofitability, a decline in outputs since the 1990s, and job losses. It is also defined by derelict and unrehabilitated mines, where there is increased difficulty in tracking and tracing the owners of historic mine dumps, investigating, or assigning responsibility for the required remedial measures, especially in environmental rehabilitation as required by law. Consequently, the victims of unrehabilitated mine sites who suffer irreversible illnesses and violations of their human rights are without access to remedy.
The below policy paper aims to illustrate that the emphasis placed by the UNGPs on states to protect and remedy human rights violations does not account for the governance gaps faced by some states like South Africa. In addition, the paper recommends that a state’s extraterritorial obligations (ETOs), together with mutual legal assistance that can be implemented through the Binding Treaty on Business and Human Rights, offers victims an opportunity to better access remedy for human rights violations linked to business activity.
This argument is in line with the increasing recognition among scholars that while a state may be unwilling to enforce and monitor legislation, it is also possible that a state is unable to do so due to capacity constraints and weak governance. In the case of South Africa, scholars concede that the mine closure legislative framework is comprehensive, yet that its enforcement and monitoring is in part ineffective, thus creating a governance gap.
In addition, insolvency laws further exacerbate the existing governance gap, which makes it difficult for victims to access remedy. This leads one to conclude that the South African government is unable to enforce the mine closure legislative framework due to capacity constraints. Moreover, while a closer study into South Africa may conclude that this is a case where a government may be both unable and unwilling to implement the mine closure legislative framework, it is beyond the scope of this paper to explore the latter.