A legally-binding instrument on business and human rights: Implications for the right to development in Africa

 Tamo Atabongawung
 PhD (Antwerp) MA (CERIS, Brussels) Maïtise (Yaounde II) LLB (Buea)
 Lecturer, International Law, Human Rights and Development, Faculty of Laws and Political Science, University of Buea, Cameroon
 https://orcid.org/0000-0002-9858-6294
atabs. This email address is being protected from spambots. You need JavaScript enabled to view it.
 I am grateful to two anonymous reviewers for their feedback on this article. I acknowledge the fellowship I received from the Bernheim Foundation, and the supervision of Professor Axel Gosseries, during my stay at the Chaire Hoover d’éthique économique et sociale (Université catholique de Louvain, Belgium)

 Edition: AHRLJ Volume 21 No 1 2021
  Pages: 262 - 289
 Citation: T Atabongawung ‘A legally-binding instrument on business and human rights: Implications for the right to development in Africa’ (2021) 21 African Human Rights Law Journal 262-289
http://dx.doi.org/10.17159/1996-2096/2021/v21n1a12
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Summary

This article examines the relationship between business actors and the implementation of the right to development in Africa. It focuses on the implications of a possible (future) international legally-binding instrument on business and human rights. Although there is no guarantee that such an instrument will eventually be adopted and ratified by states in the near future, the article nevertheless critically examines ways in which the clarification of some issues associated with this process could help revitalise the implementation of the right to development in Africa. It concludes that a legally-binding instrument on business and human rights might elucidate certain contested human rights principles such as international cooperation and assistance; extraterritoriality and accountability, which are central to a meaningful implementation of the right to development on the continent.

Key words: Africa; transnational corporations and human rights; right to development and accountability; African Charter

1 Introduction

The UN Declaration on the Right to Development (RTD Declaration) proclaims the right to development as ‘an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised’.1 Both the content and obligations that flow from the RTD Declaration remain contested although its status as part of the international human rights framework has been reaffirmed at the Vienna World Conference on Human Rights2 as well as the 2030 Agenda for Sustainable Development.3 The right to development could be referred to as an umbrella right that amalgamates all other rights and seeks to mainstream human rights principles into development. In its current form, the obligations towards the realisation of the right to development are placed primarily on states thus reinforcing the conservative analysis of international law, which still suggests that states are the only subjects of international law.4 Within the African regional human rights system, the African Charter on Human and Peoples’ Rights (African Charter) promulgates a legally-binding right to development with corresponding duties5 and remains ‘one of the precious few hard law guarantees of a [right to development] that currently exist in the realm of international human rights’.6

Notwithstanding the clarity that exists within a regional human rights system such as that of Africa on the content of the right to development, international human rights law still lacks certainty regarding the obligations of transnational corporations (TNCs).7 TNCs as non-state actors profit enormously from economic globalisation in the form of trade liberalisation. The dramatic changes brought about by economic globalisation and advances in communication technology have rendered the state-centric focus of international law increasingly obsolete and have led human rights scholars to call for a ‘reimagining’ of our conception of the nature of human rights and the relationship between different actors within the human rights regime.8

This is because the opportunities presented by globalisation for business actors have consequences on global development and may sometimes result in human rights violations, including the denial of the right to development, especially for those in the global South.

Take, for instance, the recent conviction of Royal Dutch Shell’s subsidiary in Nigeria by The Hague Court of Appeals, regarding environmental contamination in Nigeria’s Niger Delta region with wider implications on the right to development of the Ogoni peoples.9 When such events occur, human rights practitioners and scholars are confronted with the fundamental question as to what it means to have an efficient global economy, operating in parallel with a more accountable legal system that ensures social justice for local communities.10 It is increasingly obvious that the current misalignment between international law and business actors, such as TNCs, ‘creates intolerable gaps in the structure of the international normative order’ in terms of inclusive human rights accountability and ensuring sustainable development.11

In June 2014 the United Nations (UN) Human Rights Council adopted a resolution calling for the creation of an Open-Ended Intergovernmental Working Group to elaborate on the possibility of an international legally-binding instrument on TNCs and other business enterprises with respect to human rights.12 This momentum is built on previous attempts and initiatives, including the 2003 UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises With Regard to Human Rights (UN Norms);13 the Organisation for Economic Co-operation and Development (OECD) Guidelines for Multinational Enterprises;14 the UN Global Compact;15 and the UN Guiding Principles on Business and Human Rights (UN Guiding Principles).16 The current effort seeks an instrument that legally binds states while imposing direct legal obligations on TNCs with regard to human rights.17 The initiative is driven by two principal reasons. First, the recognition that the existing soft law instruments in the area of business and human rights, which include the UN Guiding Principles, so far have failed to clarify the most important hurdles – whether or not TNCs indeed can be attributed with human rights responsibilities and be held to account based on existing practice under international law. Second, some commentators maintain a view that most soft law instruments currently in place are fragmented and have failed to commit states to ‘enforce well described set of international norms against transnational corporations and to change their domestic legal orders to comply’.18 This includes states being duty bound under international law to not only respect human rights but also to protect persons from third party violations, including violations committed by TNCs.

The above notwithstanding, any concerted efforts aimed at regulating corporate human rights conduct can also be observed from at least two perspectives. First, these initiatives reinforce the view that duties to realise human rights can no longer be limited to sovereign states. They must involve all global actors whose actions affect human rights. Second, corporations as economic actors can affect the development capabilities of individuals. It is widely agreed that ‘TNCs and other businesses are central actors in development [although] … development discourse has only recently manifested concern with the ethics of corporate behaviour and specifically the human rights impact of TNCs in the global economy as “agents of development”’.19 Some scholars also maintain that trade and investment fulfil an important role in alleviating abject poverty from communities.20

Evidently, TNCs cannot secure long-term sustainable development when their activities fall short of international human rights standards, including the protection of the right to development for local communities in which they operate. Unlike the economic development construct, the right to development specifically addresses development from the human rights perspective, deviating from the classical gross domestic product (GDP) quantification of development and growth. This may explain why the United Nations Development Programme (UNDP) conceives development as ‘human development’ that is focusing on ‘an environment in which people can develop their full potentials and lead productive, creative lives in accord with their needs and interest’.21 Similarly, Sengupta has defined the right to development as incorporating a ‘process of development which leads to the realisation of each human right and of all of them together and which has to be carried out in a manner known as rights-based, in accordance with the international human rights standards’.22 Accordingly, any development process and actors involved therein should be respectful of all human rights and fundamental freedoms, and advance the realisation of human rights for all.

In this article I examine the connection between business actors (particularly TNCs) and the implementation of the right to development in Africa by focusing on the implications of a possible (future) international legally-binding instrument on business and human rights.23 Although there is no guarantee that such an instrument will eventually be adopted and ratified by states in the near future, I nevertheless critically examine ways in which the clarification of some of the concepts associated with this process could help revitalise the implementation of the right to development in Africa. In so doing, I adumbrate on the relationship between TNCs and human rights with a particular focus on development. The article considers the peculiarities of TNCs’ activities on the right to development in Africa and concludes that a legally-binding instrument on business and human rights might elucidate certain contested human rights concepts such as international cooperation and assistance, extraterritoriality and accountability, which are central to the implementation and realisation of the right to development in Africa.

2 Transnational corporations and human rights

Corporations are generally not excluded from international law and remain beneficiaries of rights under specific regimes of international law.24 In terms of rights, Cassel and Ramasastry have noted that ‘[c]urrent investment and trade treaties grant corporations both substantive and remedial rights’.25 These include the right to arbitrate in international investment disputes alongside states.26 Within the human rights regime, there is jurisprudence from the European Court of Human Rights to suggest that corporations share certain rights with natural persons, such as the right to a fair trial and due process.27 Nevertheless, these rights have not translated into concrete duties and the question of whether an obligation to realise human rights extends to TNCs still is not sufficiently addressed.

Regarding the question of whether an obligation to realise human rights extends to TNCs, the former UN Independent Expert on the Right to Development has responded affirmatively by indicating that human rights obligations ‘fall not only on states nationally and internationally, but [also] on international institutions’.28 Although the meaning of international institutions is contested, it can nevertheless be understood as implying both formal international organisations, for example, the World Bank, as well as other prominent players, such as non-governmental organisations (NGOs) and TNCs of which the impact is felt increasingly within the international normative order.29 TNCs have become powerful global institutions, in part due to their economic and sometimes political power. They are capable of jostling the state for influence on both the domestic and international scenes. In Africa, for example, the delivery of certain public goods and services such as security, education and health, which traditionally were perceived as the sole province of the state, are increasingly being carried out by powerful business actors. A practical example here will include companies that operate in conflict zones and maintain their own private security arrangements, sometimes beyond state oversight. In general, corporations have for a long time exerted influence ‘over natural resources, state sovereignty, and [the] national identities of developing countries’, and this is seen as a precursor for the establishment by the UN General Assembly in 1974, of the New International Economic Order (NIEO).30 The UN Resolution establishing the NIEO forms a key contribution to the subsequent adoption of the RTD Declaration.31 This notwithstanding, the exact nature and scope of corporate obligations towards international human rights, and the right to development in particular, remain a subject of debate, despite the fact that the corporate duty to respect human rights might be grounded in several human rights instruments. Even with this growing understanding of attributing human rights obligations to corporation, its normative content, if not ‘coverage is scattered and often indirect and incomplete’.32

In general, the human rights responsibility of non-state actors, such as the corporate responsibility to respect human rights, begins with the Universal Declaration of Human Rights (Universal Declaration.33 The Universal Declaration embodies a variety of rights ranging from political, civil to economic, social and cultural rights while being ‘recognised as the foundation for establishing worldwide consensus on a universal jurisprudence of human rights’.34 Its Preamble states:35

[As] a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance.

The insertion of organ of society into the Preamble to the Universal Declaration is given a broader interpretation as extending human rights duties beyond the state to include other organs and actors that are capable of affecting those rights.36 Similarly, article 29 states that ‘[e]veryone has duties to the community in which alone the free and full development of his personality is possible’.37 In the same vein, article 30 imposes a negative duty by stating that ‘[n]othing in this Declaration may be interpreted as implying for any state, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein’.38 Some human rights treaties offer similar formulations, for example, article 5 of the International Covenant on Civil and Political Rights (ICCPR).39 The Committee on the Rights of the Child (CRC Committee has equally interpreted the UN Convention on the Rights of the Child (CRC) as extending the ‘duties and responsibilities to respect children’s rights in practice beyond the state and state-controlled services and institutions and apply to private actors and business enterprises’.40 Accordingly, business actors are increasingly being considered actors capable of affecting human rights both positively and negatively.41

The UN Guiding Principles – though not a legally-binding instrument – have also elaborated on the ‘corporate responsibility to respect human rights’.42 In particular, Ruggie has noted that ‘there are few if any internationally recognised rights [that] business cannot impact – or be perceived to impact – in some manner’43 and ‘[b]ecause business enterprises can have an impact on virtually the entire spectrum of internationally recognised human rights, their responsibility to respect applies to all such rights’.44 It is in this respect that Alston has argued that

[a]n international human rights regime which is not capable of effectively addressing situations in which powerful corporate actors are involved in major human rights violations, or ensuring that private actors are held responsible, will not only lose credibility in the years ahead but will render itself unnecessarily irrelevant in relation to important issues.45

The UN Human Rights Council, while endorsing the Guiding Principles on Business and Human Rights, calls ‘upon all business enterprises to meet their responsibility to respect human rights in accordance with the Guiding Principles’.46 At the same time, the current disagreement among states regarding the need for a legally-binding instrument on business and human rights does not so much involve the substance but rather a manifestation of decades-long ideological divides. As De Schutter has noted:47

The gap between the states supporting the proposal by Ecuador and South Africa and the other states – including all industrialised countries who are members of the OECD (Organisation for Economic Co-operation and Development) club – is less wide than the voting patterns seem to suggest. The suspicion towards the Ecuador-South Africa proposal is in fact largely a matter of perception, to be explained by the connotation attached to the initiative. Many see this proposal as an attempt to reopen a battle fought during the 1970s, when the regulation of transnational corporations (TNCs) was a major component of the attempts to establish [NIEO], or as a resurrection of the proposal made in 2003 by the UN Sub-Commission for the Promotion and Protection of Human Rights for the adoption of a set of Norms on the Human Rights Responsibilities of Transnational Corporations and Other Business Enterprises (Draft UN Norms).

2.1 Business actors and development

The role of business actors as ‘vehicles for social development’ was accentuated at the World Summit on Social Development at Copenhagen (1995),48 which ‘marked a paradigm shift from development through aid, to development through trade and investment’.49 Since then the role of corporations and the private sector as development actors has been increasingly recognised. The contribution of private actors, including business actors, towards the realisation of human rights (and development) is emphasised in several international instruments. For example, the Vienna Declaration and Programme of Action,50 the High-Level Plenary Meeting of the UN General Assembly on the Millennium Development Goals,51and the now adopted 2030 Agenda on Sustainable Development, which incorporates the Sustainable Development Goals (SDGs)52 reiterate the role of non-state actors in development, while emphasising the need for public-private partnerships in ensuring the full and effective enjoyment of human rights.53 In particular, the SDGs acknowledge the role of business in development and governance. It

call[s] upon all businesses to apply their creativity and innovation to solving sustainable development challenges … [and States have pledged to] foster a dynamic and well functioning business sector, while protecting labor rights and environmental and health standards in accordance with relevant international standards and agreements.54

A holistic reading of the 2030 Agenda and the SDGs would seem to suggest a bold attempt at placing the future of international development in the hands of business actors alongside states.

The RTD Declaration identifies states as both right bearers and duty holders at the same time. Nonetheless, the Declaration also alludes to the individual’s contribution towards the realisation of the right to development. The RTD Declaration calls upon individuals to actively participate in development, both individually and collectively as members of a community.55 Unlike the interpretation of organs of society referred to above in the context of the Universal Declaration, it is difficult to conceptualise the individual in this case as encompassing legal entities such as corporations. The RTD Declaration is more explicit on the role of states, which requires that states

[create] national and international conditions favourable to the realisation of the [RTD] … States have the duty to co-operate with each other in ensuring development and eliminating obstacles to development … States have the duty to take steps, individually and collectively, to formulate international development policies with a view to facilitating the full realisation of the right to development.56

The ramification of the above formulation is that the legal and political debates that follow right to development tend to revolve around states with a strong demarcation of ideologies between the developed and less developed countries. Commenting on the need to move beyond the state-centric model and embracing a multi-actor approach for the realisation of right to development, De Feyter has suggested a rethink of the role of TNCs and other actors in the implementation of right to development as one of the possible outcomes of negotiating a Framework Convention on the right to development.57 Similarly, Vandenbogaerde has noted that ‘in order to change the current international order … it should be possible to hold all relevant international organisations accountable … [and they] be made legally responsible for implementing the right to development’.58

The high-level task force on the implementation of the right to development has examined Millennium Development Goal 8, on the ‘global partnership for development’,59 which now features as SDG 17 under the 2030 Sustainable Development Agenda.60 The criteria it has developed for periodic review of global partnerships from a right to development perspective includes the ‘mainstreaming of [RTD] in policies and operational activities of relevant actors at the national, regional and international levels, including multilateral financial, trade and development institutions’61 which extend to corporations and other business actors. As elucidated by Andreassen, the formulation in the RTD Declaration of states being the ‘primary’ duty holders in realising the right to development ‘indicates that there are “secondary” or “lower order” responsibilities for the implementation of [RTD]’.62 In particular, some of the core human rights principles, such as participation and self-determination, which the right to development seeks to protect, can be violated by TNCs in the course of doing business. As pointed out elsewhere, corporations can violate these human rights either directly or as accomplices to the state.63 Self-determination and participation are mutually reinforcing in this context and speak to the central idea that locals must be given a right to participate in the design and implementation of any development agenda that affects them. This has been a noteworthy factor in some of the complaints that have appeared in the African regional human rights system in respect of TNCs’ violation of human rights, to which I now turn.

2.2 Transnational corporations and the right to development in Africa

Recent litigations around the globe have shown that business violations of human rights form a significant proportion of right to development infringement on the African continent. For example, in the Democratic Republic of the Congo (DRC) alone, more than 80 multinational corporations from around the globe have been implicated in the illegal exploitation of natural resources, forced labour, and the distribution of weapons to different armed groups.64 Corporate greed continues to be detrimental to the realisation of the right to development for these communities. The sheer volume of cases that have sprouted globally in the realm of corporate violation of human rights are linked to the African continent considering that ‘African countries contain more than half of the world resources [such as] cobalt, manganese, gold and significant supplies of platinum, uranium and oil’.65 These resources are mostly situated in territories deemed indigenous. Indigenous communities, in particular, continue to face legal challenges in the struggle against the increasing encroachment from foreign investors, especially those in the extractive resource sector.

Mujyambere has observed that

the lack of redress regarding human rights abuses committed by TNCs in [Africa] has become a major concern. There are many TNCs that stand accused of involvement in human rights abuses [in Africa] and yet their victims still face many barriers to access effective remedies.66

The current economic race to the bottom67 makes African states less inclined to any stringent forms of corporate regulation partly due to the desire to attract direct foreign investments.68 Relatedly, some domestic courts are equally hesitant at using their remedial power to enforcing violations of economic and social rights, including the right to development. For example, in the case of South Africa, Ngang has attributed this hesitancy on the part of domestic courts to some inclination towards upholding the separation of powers doctrine in a constitutional democracy.69 Whatever the justification, the reality is that most victims of corporate human rights violations in Africa can mostly rely on forum shopping in other jurisdictions (sometimes beyond Africa) for seeking justice. Some high-profile cases emanating from Africa have been litigated in the United States under the Alien Tort Claim Act (1789),70 as well as in the United Kingdom and The Netherlands.71

As noted earlier, the African Charter promulgates a legally-binding right to development with corresponding duties as follows:72

All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind … States shall have the duty, individually or collectively, to ensure the exercise of the right to development.

The African Commission on Human and Peoples’ Rights (African Commission) has ruled on cases concerning the right to development with business links, for instance, in the case brought before the African Commission by the Social and Economic Rights Action Centre (SERAC) concerning environmental degradation and health concerns resulting from the contamination of the environment in the Niger Delta region of Nigeria.73 SERAC and the ESCR Committee alleged that the contaminations resulted from oil production by a consortium jointly owned by the state oil company, the Nigerian National Petroleum Company (NNPC) and Shell Petroleum Development Corporation (SPDC), which is a local subsidiary of the Royal Dutch Shell plc.74 This case involved several alleged violations of the African Charter, including article 21 on free disposition of wealth and natural resources in the exclusive interest of the people, read together with articles 22 and 24 of the African Charter. In granting its decision against the Nigerian government, the African Commission did not directly attribute any human rights responsibility to the corporations involved but stated that ‘the state is obliged to protect right-holders against other subjects’ including business actors.75 Some have suggested that the reason for the African Commission not discussing the ‘direct’ human rights responsibilities of corporations in this case probably is the lack of substantive jurisprudence in the area of direct corporate accountability for the violation of any specific category of human rights.76 Nevertheless, others have noted the direct responsibility of Royal Dutch Shell plc in these violations,77 and in a recent judgment of 29 January 2021 a Dutch Court of Appeals in The Hague did find Royal Dutch Shell plc, Nigeria’s subsidiary, liable for this environmental contamination as well as the related human rights violations associated therewith.78

The above case illustrates that corporate responsibility towards the right to development lies at the core of the discourse on business accountability for human rights. Dias has identified two tasks that are vital if the right to development is not to be relegated to the dustbin of history. These include the fact that ‘[c]orporations must be held fully, and expeditiously accountable for all of the adverse human rights impacts that result from their activities and conduct [and secondly] communities affected by the activities of corporations must have all of their human rights fully respected, protected, promoted, and fulfilled’.79

The ongoing negotiations in Geneva concerning a possible international legally-binding instrument on TNCs and human rights seem to incorporate some of these concerns. If such an initiative succeeds notwithstanding the political sensitivities that have marred previous attempts, it could be beneficial for the revitalisation of the right to development in many ways, especially its implementation by clarifying certain contested human rights principles such as extraterritoriality, as well as the range of accountability for the different actors. The current draft of the legally-binding instrument allows for cases to be filed in a wide range of jurisdictions, including any country where an act or omission contributing to the human rights abuse occurred, and against individuals who are not domiciled in a jurisdiction if the claim is connected to an individual who is domiciled there.80 Equally, the draft document emphasises accountability and access to remedies that are central to the right to development discourse.

3 Legally-binding instrument on business and human rights

Since June 2014 there have been concerted international efforts toward the drafting of a legally-binding instrument on business and human rights (legally-binding instrument). This follows the adoption of Human Rights Council Resolution 26/9, which was co-sponsored by Ecuador and South Africa on exploring the possibility of an international legally-binding instrument to regulate TNCs and other business enterprises with respect to human rights.81 Currently in its second draft, this instrument seeks:

1. to clarify and facilitate effective implementation of the obligation of states to respect, protect and promote human rights in the context of business activities, as well as the responsibilities of business enterprises in this regard;
2. to prevent the occurrence of human rights abuses in the context of business activities;
3. to ensure access to justice and effective remedy for victims of human rights abuses in the context of such business activities; and
4. to facilitate and strengthen mutual legal assistance and international cooperation to prevent human rights abuses in the context of business activities and provide access to justice and effective remedy to victims of such abuses.82

As in the case of most human rights instruments, the proposed legally-binding instrument is bound to face enforcement as well as compliance challenges even when fully ratified by states. This is partly attributable to the fact that the human rights system is ‘designed with significantly limited enforcement capacity’83 and a proliferation of new human rights instruments as such is no guarantee for universal adherence. Nonetheless, a monumental shift brought about by the current draft legally-binding instrument is in its expansive understanding of corporate human rights accountability as well as the range of business actors included in the process. It specifically takes notice of the RTD Declaration as one of its guiding human rights frameworks.84 The draft instrument, whenever adopted, certainly will be opened for ratification by states. Accordingly, it shall be binding on state parties while at the same time defining a set of legal standards ‘apply[ing] to all business enterprises, including but not limited to transnational corporations and other business enterprises that undertake business activities of a transnational character’.85 While reinstating the current international human rights standards, the legally-binding instrument reminds states of their primary duty to

[r]egulate effectively the activities of all business enterprises domiciled within their territory or jurisdiction. For this purpose states shall take all necessary legal and policy measures to ensure that business enterprises … within their territory or jurisdiction, or otherwise under their control, respect all internationally recognised human rights and prevent and mitigate human rights abuses throughout their operations.86

Under the proposed framework, business actors are under a duty to exercise human rights due diligence procedures as well as measures to prevent and mitigate other human rights and environmental impacts of their activities. In terms of granting access to remedy, the draft instrument specifically calls on both home and host states to ensure access to adjudicative remedies and to eliminate all forms of procedural hurdles such as forum non conveniens,87 which remains a significant hurdle for most plaintiffs seeking compensation for a corporate violation for human rights.

The most impactful elements of this proposed legally-binding instrument (from a right to development perspective) involve adjudicative accountability, mutual legal assistance and international cooperation as well as its extraterritorial scope. As Arts and Atabongawung have argued elsewhere, these are essential concepts necessary for the revitalisation of the right to development in international law.88 In what follows, I will adumbrate on how these principles are particularly consequential in the African context as it pertains to the implementation of the right to development.

3.1 International cooperation

The duty to cooperate has a long-standing history in international law and features prominently in several human rights treaty regimes. In particular, the International Covenant on Economic, Social and Cultural Rights (ICESCR) calls on states to ‘take steps, individually and through international assistance and cooperation, especially economic and technical’89 to realise the Covenant. Since then several legally-binding instruments have re-emphasised international cooperation and assistance. For example, the Convention on the Rights of Persons with Disabilities (CRPD) is among some of the most recent to recognise the principle.90 The normative content of the duty to cooperate can further be found in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT),91 which calls on state parties to provide each other ‘the greatest measure of assistance in connection with criminal proceedings ... and the supply of all evidence at their disposal necessary for the proceedings’.92 Other similar clauses containing international cooperation and assistance can be found in the International Convention for the Protection of all Persons from Enforced Disappearance.93 Equally, article 4 of the Convention on the Rights of the Child (CRC),94 read together with the first two Optional Protocols to the Convention on the Rights of the Child, oblige states to cooperate to prevent and punish the sale of children, child prostitution, child pornography, and the involvement of children in armed conflict. They also require states to assist victims and, if they are in a position to do so, to provide financial and technical assistance for these purposes.95

There also is a growing understanding that

states must cooperate to ensure that non-state actors do not impair the enjoyment of the economic, social and cultural rights of any persons. This obligation includes measures to prevent human rights abuses by non-state actors, to hold them to account for any such abuses, and to ensure an effective remedy for those affected.96

The different treaty bodies through their General Comments have further elucidated and emphasised the instrumentality of international cooperation towards the realisation of human rights. As noted elsewhere,

[s]ince 1989, the Committee on Economic, Social and Cultural Rights has adopted more than 23 [General Comments]. Only four of these lack references to international cooperation/assistance … while the Committee on the Rights of the Child has issued over 17 General Comments. All except two of these refer (succinctly or elaborately) to international cooperation and/or assistance.97

The draft legally-binding instrument has gone a step further in reaffirming not only the importance of international cooperation in achieving human rights,98 but also the duty of state parties to offer mutual legal assistance and international judicial cooperation.99 De Schutter has identified ‘[t]he lack of effective cooperation between the different states across which … corporations operate … as a major source of impunity in this area’.100 Accordingly, states are called upon to ‘cooperate in good faith to enable the implementation of their obligations recognised under this (legally-binding instrument) and the fulfilment of the purposes of this (legally-binding instrument)’. Furthermore, they

recognise the importance of international cooperation, including financial and technical assistance and capacity building, for the realisation of the purpose of the present (legally-binding instrument) and will undertake appropriate and effective measures in this regard, between and among states and, as appropriate, in partnership with relevant international and regional organisations and civil society.

The measures imposed on States for the realisation range from

promoting effective technical cooperation and capacity-building … [to] raising awareness about the rights of victims of business-related human rights abuses and the obligations of states … [equally] facilitating cooperation in research and studies on the challenges, good practices and experiences in preventing human rights abuses in the context of business activities, including those of a transnational character; [not excluding their duty to contribute] within their available resources, to the International Fund for Victims.101

Unlike other instruments mentioned earlier, the draft legally-binding instrument goes a step further in elaborating a legal duty of state parties to request and provide mutual legal assistance. The provision dealing with mutual legal assistance is the most detailed of all its articles and offers a break through on one of the most important hurdles that human rights victims in Africa have to confront. Too often allegations of corporate violation of the right to development in Africa are complex and with limited resources on the side of host states, and these allegations usually are not properly investigated or prosecuted. A clear case in point involves allegations brought against the Canadian-owned corporation Anvil Mining operating in the DRC. The allegations documented in the UN Report involving this company included the killing of more than 100 civilians, torture, rape, widespread looting, extortions of civilians’ properties and arbitrary detentions.102 Despite proceedings initiated in both the DRC (host state) and Canada (home state), these litigations were dismissed as ‘inadmissible’103 and a lack of forum, respectively.104 Accordingly, the draft legally-binding instrument expands on judicial cooperation from civil to criminal litigation as including ‘the gathering of evidence, [p]roviding information, evidentiary items and expert evaluations’105 and other forms of documentary evidence. The provision also emphasises cooperation in ensuring the protection and assistance of ‘victims, their families, representatives and witnesses, consistent with international human rights legal standards and subject to international legal requirements, including those relating to the prohibition of torture and other forms of cruel, inhuman or degrading treatment or punishment’.106 At the level of enforcement, states are called upon to consider

any judgement of a court having jurisdiction in accordance with this legally-binding instrument which is enforceable in the state of origin of the judgement and is not subject to any appeal or review shall be recognised and enforced in any State Party as soon as the formalities required in that State Party have been completed.107

African states are already duty-bound to realise the right to development under the African Charter, As observed earlier, the African Charter remains the only international or regional human rights instrument that legally binds states on the right to development. Thus, assuming that many African states, led by South Africa, are in favour of a legally-binding instrument on business and human rights108 and are committed to its ratification, one can rashly presume that these efforts will help concretise current regional efforts. The jurisprudence emerging from the African human rights system on the right to development has emphasised the need for international cooperation among states in achieving the right to development. In particular, the African Commission in the case of Democratic Republic of the Congo v Burundi, Rwanda and Uganda109 noted that

[t]he deprivation of the right of the people of the Democratic Republic of Congo, in this case, to freely dispose of their wealth and natural resources, has also occasioned another violation – their right to their economic, social and cultural development and of the general duty of states to individually or collectively ensure the exercise of the [RTD], guaranteed under article 22 of the African Charter.110

Thus, it is evident that by reinstating the duty for states to cooperate in the realm of corporate accountability for human rights, it adds another layer of concretisation and fills an important gap in the current debate on human rights accountability. It will be instrumental in the revitalisation of the right to development in Africa, especially as the instrument targets both states and non-state actors (businesses).

3.2 Extraterritoriality

In the context of business and human rights, extraterritorial obligations are thought to

arise when a state party may influence situations located outside its territory, consistent with the limits imposed by international law, by controlling the activities of corporations domiciled in its territory and/or under its jurisdiction, and thus may contribute to the effective enjoyment of economic, social and cultural rights outside its national territory.111

There have been growing calls within the UN treaty bodies for states to ‘take steps to prevent human rights contraventions abroad by business enterprises that are incorporated under their laws, or that have their main seat or their main place of business under their jurisdiction’112 The Committee on Economic, Social and Cultural Rights (ESCR Committee) has persistently noted that states’ obligations under ICESCR does not stop at their territorial borders and, as a result,

states parties were required to take the steps necessary to prevent human rights violations abroad by corporations domiciled in their territory and/or jurisdiction (whether they were incorporated under their laws, or had their statutory seat, central administration or principal place of business on the national territory), without infringing the sovereignty or diminishing the obligations of the host States under the Covenant.113

In the past, the ESCR Committee has expounded on this extraterritorial application by addressing specific extraterritorial obligations of state parties concerning business activities [in its] General Comments relating to the right to water,114 the right to work,115 the right to social security,116 and the right to just and favourable conditions of work,117 as well as in its examination of states’ periodic reports.118

While the above formulation of extraterritoriality may seem controversial at first sight considering that sovereignty and territoriality principles are fundamental to international law,119 the ESCR Committee nevertheless has clarified that it is

consistent with the admissible scope of jurisdiction under general international law, [that] states may seek to regulate corporations that are domiciled in their territory and/or jurisdiction: this includes corporations incorporated under their laws, or which have their statutory seat, central administration or principal place of business on their national territory.120

Accordingly, the ‘competence of the state to regulate the conduct of its nationals abroad is well established under international law, which in this regard refers to the principle of active personality’.121 The American Law Institute’s Third Restatement on Foreign Relations Law affirms extraterritorial regulation of corporations ‘on the basis that they are owned or controlled by nationals of the regulating state’.122 This understanding is further clarified under the Maastricht Principles on the Extraterritorial Obligations of States (Maastricht Principles).123 Although not a binding instrument, the Maastricht Principles, aimed at clarifying states’ duties towards a violation of human rights outside of their own territorial borders, remain ‘an important point of reference both for civil society and international human rights bodies’.124

The legally-binding instrument incorporates the extraterritorial obligations of states under article 9 dealing with ‘adjudicative jurisdiction’.125 In particular, it recognises:

Jurisdiction with respect to claims brought by victims, irrespectively of their nationality or place of domicile, arising from acts or omissions that result or may result in human rights abuses covered under [the legally-binding instrument], shall vest in the courts of the state where:

1. the human rights abuse occurred;
2. an act or omission contributing to the human rights abuse occurred; or
3. the legal or natural persons alleged to have committed an act or omission causing or contributing to such human rights abuse in the context of business activities, including those of a transnational character, are domiciled.126

Extraterritoriality (especially adjudicative) is timely for many human rights victims in Africa considering that the lack of local enforcement mechanisms has typically led to ‘forum shopping’, which itself encounters different obstacles, including forum non conveniens. Most cases emanating from Africa have gained public awareness not because of the efforts of local law enforcement in their host states but rather the fact that victims have been able to form coalitions with powerful NGOs to explore extraterritorial adjudication. The recent judgment of the Dutch Court of Appeals in The Hague, cited above, is a clear example of how extraterritorial adjudication can be beneficial for victims in Africa. This case, spanning more than a decade, involved four Nigerian farmers and Friends of the Earth Netherlands as plaintiffs.127 In a related case (Okpabi & Others v Royal Dutch Shell Plc) the United Kingdom Supreme Court has allowed proceedings and asserted jurisdiction over the tort claim brought by the plaintiff against the defendants in the UK.128 This follows the same Court’s previous judgment in a similar litigation from a group of Zambian citizens regarding toxic emissions from the Nchanga copper mine in Zambia.129 Accordingly, these recent developments may bring hope to human rights victims of the potential use of extraterritorial adjudication, although it remains to be seen which other jurisdictions will follow suit.

However, there are still thousands of victims across Africa that are not able to benefit from these coalitions, worse still, not able to dismantle the current hurdles associated with forum non conveniens. To this effect, the draft legally-binding instrument specifically notes that ‘[w]here victims choose to bring a claim in a court as per article 9.1, jurisdiction shall be obligatory and therefore that courts shall not decline it on the basis of forum non conveniens’.130 By so doing, the draft legally-binding instrument notes that

all matters of substance regarding human rights law relevant to claims before the competent court may, upon the request of the victim of a business-related human rights abuse or its representatives, be governed by the law of another state where … the natural or legal person alleged to have committed the acts or omissions that result in violations of human rights … is domiciled.131

3.3 Accountability

In arguing for a new momentum towards the implementation of the right to development under international law, Arts and Atabongawung have noted that a ‘vital element in pushing for more implementation action concerning the RTD is that of assigning more concrete responsibilities to both rights holders and duty bearers’.132 The responsibility of states towards the implementation or realisation of the right to development is not so contested despite the political and ideological wrangling that persists between northern and southern states with respect to the legal binding nature of those duties. In the African regional human rights system, the duties imposed on states are pretty clear but, most importantly, these duties are legally binding.133 Nevertheless, and as noted earlier, the African Charter, like most human rights instruments, is silent on the responsibility of non-state actors such as corporations despite being the only human rights instrument to forcefully pronounce on both the ‘rights and duties’ of man.134

The African Commission in rendering its decisions (communications) on the right to development has been very careful in maintaining a state-centric interpretation of human rights law – that is, states being the primary duty holders. As discussed earlier, some have noted that a failure by the African Commission in the SERAC case to attribute direct human rights responsibility to Royal Dutch Shell plc was mostly guided by the Commission’s perception of the lack of substantive jurisprudence in the area of direct corporate accountability for the violation of any specific category of human rights.135

The right to development is simply unachievable without an inclusive accountability – that is, the identification of all actors involved in the process of globalisation who can impact this right. Thus, a need to move beyond the state-centric model and embracing a multi-actor approach for the realisation of the right to development or, what De Feyter has suggested, as a rethink of the role of TNCs and other actors in the implementation of the right to development,136 thus making it ‘possible to hold all relevant international organisations accountable … [and] be made legally responsible for implementing [RTD]’.137Inclusive accountability remains crucial for the implementation of the right to development. Lamenting on this point, Dias has identified two tasks that are vital if the right to development is not to be relegated to the dustbin of history. These include the fact that

[c]orporations must be held fully, and expeditiously accountable for all of the adverse human rights impacts that result from their activities and conduct [and secondly] communities affected by the activities of corporations must have all of their human rights fully respected, protected, promoted, and fulfilled.138

By identifying corporations as potential violators of human rights and the setting up of what is presumed to be a monitoring mechanism similar to the Special Procedures of the Human Rights Council, the legally-binding instrument on business and human rights seeks to clarify at least some of the above concerns. Article 2 of the draft legally-binding instrument identifies as one of its purposes to ‘clarify and facilitate effective implementation of the obligation of states to respect, protect and promote human rights in the context of business activities, as well as the responsibilities of business enterprises in this regard’.139 In addition to that, article 3 stipulates that the draft legally-binding instrument ‘shall apply to all business enterprises, including but not limited to transnational corporations and other business enterprises that undertake business activities of a transnational character’.140 In addition, it ‘shall cover all internationally recognised human rights and fundamental freedoms emanating from the [Universal Declaration], any core international human rights treaty and fundamental ILO convention to which a state is a party, and customary international law’.141 Even more meaningful is the fact that the draft legally-binding instrument in paragraph 4 of its Preamble clearly refers to the RTD Declaration as one of these instruments.142

It is acknowledged that

all business enterprises have the capacity to foster the achievement of sustainable development through an increased productivity, inclusive economic growth and job creation that protects labour rights, environmental and health standards in accordance with relevant international standards and agreements.143

More specifically, it affirms

that all business enterprises, regardless of their size, sector, location, operational context, ownership and structure have the responsibility to respect all human rights, including by avoiding causing or contributing to human rights abuses through their own activities and addressing such abuses when they occur, as well as by preventing or mitigating human rights abuses that are directly linked to their operations, products or services by their business relationships.144

If states were to adopt and ratify the legally-binding instrument, it will fill an important gap in the current jurisprudence on the right to development in Africa by extending accountability to business actors. As noted above, the impact of business activity on communities across Africa is enormous – something which the draft legally-binding instrument reaffirms by ‘[r]ecognising the distinctive and disproportionate impact of business-related human rights abuses on women and girls, children, indigenous peoples … and other persons in vulnerable situations’.145 It will make it normative and provide a legal guide for communities affected by business activities in Africa to have certainty when bringing such litigations before the African Court on Human and Peoples’ Rights (African Court), the African Commission and elsewhere. In the past, both the African Court and the African Commission have demonstrated their boldness in ruling on right to development cases despite the lack of clarity on corporate accountability for a human rights violation. With the over 260 decisions that have been rendered by the African Commission until September 2020, at least seven have centred on the violation of article 22 of the African Charter, dealing with the right to development.146 If there were to be a global consensus on a common set of codified norms on business and human rights, this will create new momentum and go a long way in clarifying doubts that persist in this domain.

4 Conclusion

I have examined the relationship between business actors and the implementation of the right to development in Africa by focusing on the implications of a possible international legally-binding instrument on business and human rights.147 In so doing, I adumbrated on the current lacunae that exist in human rights law in the realm of inclusive accountability for business actors. The focus has been on the implementation of right to development in Africa and how a possible legally-binding instrument on business and human rights can both revitalise and bring more meaning to its implementation. While acknowledging that there is no guarantee that a final draft of this instrument will eventually be adopted in the near future, I have nevertheless critically examined ways in which the clarification of some of the issues associated with this process could advance the implementation of the right to development in Africa and perhaps human rights accountability, more generally, on the continent. Several conclusions are drawn in respect of international cooperation and assistance, extraterritoriality and accountability, which are central to the right to development discourse. First, the article reveals that international cooperation and assistance already feature prominently in international human rights law. The jurisprudence emerging from the African human rights system on the right to development has emphasised the need for international cooperation among states in achieving the right to development. Therefore, reinstating the duty for states to cooperate in the realm of corporate accountability for human rights adds another layer of concretisation and fills an important gap in the current debate on human rights accountability and, in particular, the right to development in Africa. Second, I have emphasised that the extraterritoriality principle developed in the draft legally-binding instrument on business and human rights is particularly timely for many human rights victims in Africa considering the lack of local enforcement and the fact that most victims of corporate human rights violations continue to rely on forum shopping. Lastly, I conclude that if the draft legally-binding instrument on business and human rights is adopted and ratified, it will fill an important accountability gap in the current jurisprudence on the right to development in Africa by extending accountability to business actors considering the impact of business activity on communities across Africa. What remains to be seen is whether the current efforts in Geneva will galvanise global consensus for the legally-binding instrument to come to fruition and attract significant state ratifications.