Transnational Corporations, Indigenous Peoples and the Ambiguity of the Law: Some Thoughts on Current Developments in the Area of Business and Indigenous Rights
A Judgment in South Africa
Sometimes, one’s studies and the developments of the “real world” come together in surprising ways. As I make the very last adjustments to my paper on the engagement of mining corporations with the indigenous right to “free, prior and informed consent”, a South African court ruling makes headlines around the world. In the small indigenous community of Xolobeni, a mining company has – for the first time in history, to my knowledge – been required by a court to obtain an indigenous community’s consent for it to mine on this community’s traditional lands.
The Umgungundlovu people of Xolobeni have fought a long and hard fight for this victory. In the course of this fight, the leader of their movement got murdered.
Their struggle, albeit concerning only a relatively small piece of South African soil, transcends the local context. More specifically, the victory of the Umgungundlovu people of Xolobeni would certainly have been less probable without the accomplishments of the international indigenous rights movement, the most notable of which was the adoption of the United Nations Declaration on the Rights of Indigenous Peoples by the UN General Assembly in 2007 – a key requirement of which is to obtain indigenous peoples’ “free, prior and informed consent” prior to mining on their traditional territories. In other words, the Umgungundlovu’s local success would have been less probable without the decision of many indigenous communities from all over the world to move to the international arena, forge an international indigenous identity and strategically use this identity for political goals. The South African judgment, in turn, will certainly resonate in the international realm and, in the best of cases, have positive repercussions for the advancement of indigenous rights worldwide.
What consequences does this increasing recognition of their rights entail for indigenous peoples? In the concrete example of the Umgungundlovu people, and in the best of scenarios, the judgment will cause an an increase in freedom – the freedom for cultural self-determination, the freedom to withhold the consent to a mining corporation’s operations, and the freedom to keep a distinct way of life.
Yet, the securement of rights for indigenous peoples is not purely emancipatory. As the authors Sawyer and Gomez have noted, rights in and of themselves do not entail a democratic, participatory force. By regulating diversity and confining it to clearly laid out categories, the language of rights creates new forms of supposed authenticity. This can cause restrictive, as well as emancipatory, outcomes. This ambiguity is fortified by the fact that oftentimes, the indigenous rights would not be in indigenous peoples’ hands. In the case of Xolobeni, it was ultimately a court (which, as far as I know, was not composed of Umgungundlovu judges) who decided about the character and the extent of rights to be granted to the indigenous community. In other cases, mining corporations themselves have taken up the idea of “free, prior and informed consent” and designed the procedures through which it is to be granted. It is only rarely indigenous peoples themselves who design these procedures.
Two conferences in Geneva
Change of scene: We are at the United Nations in Geneva, at the fourth session of the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights. Or in short: the OEIGWG on TNCs and OBEs. This name in itself, coming from the dark cellars of absurdities of UN technocratic language, should give an idea of the level of political priority given to this process. The Working Group was initiated within the UN Human Rights Council with the aim of creating a binding treaty for ‘business and human rights’ – that is, to fight the massive international accountability gap for human rights abuses committed by business corporations, including the violation of indigenous land rights in the course of mining projects. The process is supported by only a handful of states, with all major industrial nations either fighting the initiative or simply ignoring it.
The Working Group’s fourth session in Geneva was the first time I, as a fresh master student in Geneva, attended an event at the UN. I was surprised at the prosaicness and lack of excitement surrounding the session: The number of NGO delegates seemed to exceed that of state delegates by far, but overall, there were simply not many people present, and most of the ones who came showed up late. Apart from a protest tent next to the ‘broken chair’ in front of the UN, little indicated that the Working Group was meeting – after all a meeting that had been a major issue of discussion and advocacy work within human rights NGOs and related organizations all over the world for months and years. During the part of the negotiations reserved for NGO contributions, a representative of an indigenous rights group from Brazil spoke, but failed to finish his comment before the end of his 2-minute-time-slot and got automatically cut off. In contrast to the many NGO representatives, few business representatives seemed to have shown up; or if they did, they were not participating very actively. One of the few business interventions was that of the International Organization of Employers (IOE), whose representative blatantly threatened states with a decrease of foreign investment if they should consider signing any document which would mean stricter legal regulation of transnational corporations. The fear of an impending decrease in investment flows was in the following taken up by many government representatives – which led the independent expert Olivier de Schutter from the University of Louvain to a remarkable comment before the conclusion of the negotiation session. With the voice of a schoolmaster speaking to petulant children, he clarified that: “You’re here to change the rules of the game” and that “this is the Human Rights Council, not the International Chamber of Commerce”.
Overall, it is highly improbable that the Working Group will ever agree on a binding treaty for business and human rights which runs any chances of being ratified by a high number of states.
About a month after the OEIGWG meeting, the Palais de Nations hosted another event on business and human rights, but about this one, everyone in international Geneva knew. The UN Forum on Business and Human Rights, the platform to discuss and forward the implementation of the “UN Guiding Principles on Business and Human Rights”, attracts thousands of visitors from the inter-state world, academia, business and civil society each year. The “Guiding Principles” are not a legally binding document, but list voluntary due diligence measures that business enterprises should take to respect human rights. The role business plays in this forum is a pro-active and cooperative one, presenting themselves as responsible partners for states and civil society. Countless events bring together high-profile representatives from these different sectors.
Several events at the Forum dealt with indigenous rights and “free, prior and informed consent”. The audience during these events was dominated by representatives of indigenous rights groups. The atmosphere was often heated, the disparity between indigenous representatives’ experiences with corporate interventions into their territories and those corporations’ assurance of their responsible human rights policies was mostly (and unsurprisingly) glaring. Towards the end of an event which was meant to discuss the implementation of the “free, prior and informed consent” principle by corporations, a woman from a Sub-Saharan indigenous group raised her hand and asked, somewhat unrelated to the previous discussion, if there was “some kind of law” with which corporations could be held responsible for what they were doing to her community and their lands.
The Ambiguity of the Law
What can we answer this woman? What role does the law play in indigenous emancipation and self-determination? Both of the examples given – the fight of the Umgungundlovu people in South Africa and the two contrasting events in Geneva – display a certain ambiguity. The Umgungundlovu have won an important fight, but it is important to keep in mind and explore the conditions of this victory, and the real, tangible consequences it will bring about for this indigenous community. The Working Group on a Binding Treaty is meant to create global human rights obligations for transnational corporations, yet the outcomes of this process are more than uncertain. The UN Forum on Business and Human Rights, in contrast, is an example of what one could call the “fetishism of voluntariness” in the area of corporate responsibilities. Many of the criticisms applying to the practice of Corporate Social Responsibility (CSR) apply to this process as well. In spite of its shortcoming, many observers, including from the non-corporate world, have highlighted the relative effectiveness of the more ‘integrative’ approach of the UN Guiding Principles. Yet, an honest answer to the African indigenous woman’s question from above would need to be: No, there is still no international law to hold corporations accountable for anything they do – nor does it look like there will be such a law any time soon.
 UN Environment, South African indigenous community win environmental rights case over mining company, available at: https://www.unenvironment.org/news-and-stories/story/south-african-indigenous-community-win-environmental-rights-case-over-mining
 Sawyer, Suzana and Terence Gomez. 2012. On Indigenous Identity and a Language of Rights. In: Sawyer, Suzana and Terence Gomez (ed.). 2012. The Politics of Resource Extraction: Indigenous Peoples, Corporations and the State
 Doyle, Cathal 2015. Indigenous Peoples, Title to Territory, Rights and Resources: The Transformative Role of Free Prior and Informed Consent. London/New York: Routledge, 240-45
 See e.g. Doyle, Cathal and Cariño 2013. Making Free Prior & Informed Consent a Reality. Indigenous Peoples and the Extractive Sector, 29-39
 United Nations Human Rights Council, Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, available at: https://www.ohchr.org/en/hrbodies/hrc/wgtranscorp/pages/igwgontnc.aspx