The Proposed Treaty on Business and Human Rights: Strengths and Weaknesses for Protecting Communities in Africa’s Critical Minerals Sector
The extraction of critical minerals in Africa has become a focal point of global energy transition policies. As demand for cobalt, lithium, and rare earth minerals surges, African communities bear the disproportionate costs of environmental degradation, labor exploitation, and social dislocation. The proposed Legally Binding Instrument on Business and Human Rights (LBI), currently being negotiated at the United Nations, offers a potential tool for rebalancing the asymmetries of power between multinational corporations and affected communities. This article provides a legal analysis of the LBI, highlighting its strengths in advancing corporate accountability and its limitations in addressing the lived realities of African mining communities. Ultimately, the article argues that while the treaty marks an important normative step forward, its effectiveness will depend on its capacity to integrate community-centered protections, enforce supply chain responsibility, and align with regional legal frameworks in Africa.
1. Introduction
Critical minerals—such as cobalt, lithium, and coltan—are indispensable to the global shift toward renewable energy, electric vehicles, and digital technologies. Africa, particularly the Democratic Republic of Congo (DRC), Zimbabwe, Zambia, and South Africa, supplies a significant proportion of these resources. Yet behind the discourse of “green energy” lies a stark paradox: the very minerals touted as solutions to the climate crisis are extracted under conditions that reproduce historical patterns of colonial exploitation, ecological destruction, and human rights abuses.
The international legal system has long struggled to regulate transnational corporate behavior in ways that effectively protect vulnerable communities. Voluntary initiatives such as the UN Guiding Principles on Business and Human Rights (UNGPs) and corporate social responsibility programs have proven insufficient, as they lack binding force and strong enforcement mechanisms. In this context, the proposed LBI represents an attempt to move from soft law to hard law, imposing direct obligations on states and potentially on corporations.
This article evaluates the treaty’s potential strengths and weaknesses with a focus on its implications for African communities in the critical minerals sector.
2. Background: The LBI and Its Evolution
The LBI is being developed under the mandate of the UN Human Rights Council’s open-ended intergovernmental working group (OEIGWG), established in 2014 by Resolution 26/9. Its purpose is to create a binding international instrument that regulates, in international human rights law, the activities of transnational corporations and other business enterprises.
The draft text (revised most recently in 2023) seeks to codify principles such as:
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Corporate human rights due diligence obligations.
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Liability across the supply chain.
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Access to justice for affected individuals and communities.
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International cooperation in enforcement.
For Africa, where multinational companies dominate mineral extraction and where states often lack the regulatory capacity—or political will—to hold corporations accountable, the LBI offers the possibility of shifting the balance of power in favor of rights-holders.
3. Strengths of the Proposed Treaty
3.1 Binding Human Rights Due Diligence
One of the LBI’s most significant contributions is its attempt to move due diligence obligations from voluntary codes into binding international law. Corporations would be required to identify, prevent, and mitigate human rights abuses across their operations and supply chains. For African mining communities, this could strengthen claims against companies that currently escape liability by outsourcing risk to local subcontractors or suppliers.
3.2 Extraterritorial Jurisdiction and Supply Chain Accountability
The treaty envisages provisions allowing states to exercise jurisdiction over corporations domiciled in their territory, even for abuses committed abroad. This could enable affected communities in Africa to bring cases against multinational parent companies in European or North American courts—similar to existing but inconsistent litigation under doctrines like the UK’s Vedanta precedent or the French Duty of Vigilance Law.
3.3 Access to Remedy and Collective Redress
The LBI emphasizes access to justice for affected communities, including collective redress mechanisms. For mining-affected communities in the DRC or Zambia, collective claims could be critical, given the systemic nature of abuses such as forced displacement, water contamination, and widespread health impacts.
3.4 Recognition of Environmental and Indigenous Rights
The draft treaty increasingly incorporates language on environmental harm and recognizes the rights of Indigenous peoples. This aligns with African realities where mining often threatens sacred lands, water sources, and traditional livelihoods.
4. Weaknesses and Gaps
4.1 State-Centric Enforcement
The treaty primarily relies on states to implement and enforce corporate obligations. Yet in Africa, many states are simultaneously regulators and beneficiaries of extractive industries, leading to conflicts of interest. Weak governance, corruption, and dependence on mining revenues may undermine effective enforcement.
4.2 Ambiguity on Direct Corporate Obligations
While the draft gestures toward holding corporations accountable, it stops short of unequivocally imposing direct international legal obligations on business entities. Instead, it places obligations on states to regulate corporate behavior. This risks perpetuating gaps where states lack capacity or willingness to act.
4.3 Limited Integration with African Regional Frameworks
The LBI has not yet fully engaged with existing African frameworks such as the African Charter on Human and Peoples’ Rights, the African Commission’s work on extractive industries, or the African Mining Vision (AMV). Without alignment, the treaty risks duplication or fragmentation rather than synergy.
4.4 Remedies Without Reparations
While the LBI highlights “access to remedy,” it does not robustly address reparations that include restitution, rehabilitation, and guarantees of non-repetition. For communities devastated by critical mineral extraction, mere access to courts is insufficient; holistic reparations are necessary to restore ecosystems, livelihoods, and dignity.
4.5 Power Asymmetry in Negotiations
Finally, the negotiation process itself reflects structural inequities. Major resource-importing states (e.g., EU, US) have been resistant to the LBI, while resource-exporting states in Africa often lack negotiating leverage. This imbalance may water down the final text, limiting its transformative potential.
5. Implications for Communities in Africa’s Critical Minerals Sector
The LBI’s potential effectiveness for African communities depends on how the treaty addresses the specific challenges of critical mineral extraction:
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Supply Chain Exploitation: Cobalt mined in artisanal conditions in the DRC often enters global supply chains without transparency. Binding due diligence could impose real accountability on downstream companies (e.g., EV manufacturers).
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Land and Resource Rights: African customary land rights often lack formal recognition. The treaty’s recognition of Indigenous and local community rights could strengthen protections against forced evictions.
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Health and Environmental Harms: Communities living near mines face water contamination, air pollution, and occupational diseases. Stronger environmental obligations in the treaty could enable claims for ecological restoration.
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Youth and Child Labor: Child labor in artisanal mining persists in several African countries. The LBI could reinforce existing ILO conventions by making corporate actors directly accountable for child labor in their supply chains.
6. Conclusion: A Step Forward, but Not Sufficient Alone
The proposed LBI represents a historic opportunity to strengthen the protection of communities affected by critical mineral extraction in Africa. Its binding due diligence obligations, extraterritorial jurisdiction provisions, and emphasis on access to remedy mark significant advances over the voluntary UNGPs.
However, the treaty’s reliance on state-centric enforcement, its ambiguity regarding direct corporate obligations, and its limited engagement with African regional legal frameworks risk undermining its effectiveness. For African mining communities, true protection will require not only a robust LBI but also strong domestic legal reforms, empowered regional institutions, and grassroots mobilization.
The African experience reveals the deeper challenge: international law must confront the structural inequalities embedded in global supply chains. Unless the treaty explicitly addresses the asymmetries of power between the Global North’s demand for critical minerals and the Global South’s burden of extraction, it risks becoming another well-intentioned but under-enforced instrument.
Thus, while the LBI is a welcome development, its promise will only be realized if it integrates the lived experiences of African communities, operationalizes ecological reparations, and fosters genuine corporate accountability across borders.
