Human Rights

TNSC Regulation may also be at odds with values and domestic policies in third States that are affected by it, which raises the question whether at a certain point the laudable fight against corporate impunity risks becoming an interference in those third States’ regulatory sovereignty. This question, of course, presupposes a broad approach to the notion (and analysis) of regulatory sovereignty. This is because “regulatory sovereignty” is usually referred to in the realm of international investment law, with discussions centering on legal obstacles for host States to freely implement policies in light of obligations on the State vis-à-vis the investor, and its home State, respectively.

A common African position could also facilitate a strong African influence in the international IIA and ISDS reform discussions that are paralysed by diametrically opposed positions of the different players. A prerequisite is to coordinate and put into effect the African reforms in African REIOs – ideally through the AU-, and to speak with one voice in international for a such as the UNCITRAL Working Group III. While the US, EU, and China are caught up in trade wars, this could be an opportunity for Africa to become a rule-maker rather than a rule-taker in making international investment law more sustainable - an opportunity that should be used

A coordinated African voice on FDI would likely enhance the continent’s global competitiveness, prevent destructive competition among countries, help strengthen Africa’s position in investment agreements, and ultimately result in increased FDI flows to the continent.

The Guide should better take into account that land deals and their potential negative impacts go beyond contract law, and require a more consistent incorporation of human rights and environmental law. Even though strengthening legal frameworks and standards at national and international level might be outside of the Guide’s scope, it needs to be clear about the institutional and legal context that is required to protect and guarantee human rights, as well as the importance of cooperation between states, including needed regulations in commercial and administrative law at national and international levels.

By bringing forward this interlegal sensibility, ALIC invites the investor to think of their own best interest in broad term and to take the time to understand already-existing, pluralist socio-legal expectations and practices. It also implicitly reminds the investor to take the time to build a relationship with local communities that is buttressed by an iterative understanding of fairness (a core tenet of commercial law). Without such a relationship and appropriate due diligence, ALIC in effect recommends to the investor and the local community to not pursue the deal – no one benefits from a land transaction that is only made possible by disrupting local people’s lives or dislocating them from their homeland.

Dr. Amaka Vanni is a legal scholar, consultant and documentary filmmaker. Her work lies at the intersection of international economic law, development, and global governance.

This analysis demonstrates three key points. First, it is becoming untenable for central banks to avoid incorporating their human rights impacts into their decision-making and operations. Second, a human rights approach offers central banks a new tool for understanding the true costs and benefits of their operations. Third, central banks can meet their human rights responsibilities without compromising the independence they need to meet their monetary and financial responsibilities.

This short piece argues that while these arguments may hold sway, host African states continue to have primary responsibility and should rise to their obligation to protect human rights of impacted communities against the harmful effects of TNCs’ activities. Moreover, the controversies surrounding the extraterritorial jurisdiction of states and the silence of international law regarding enforceable obligation on TNCs demonstrate the difficulty in embracing the newer approaches regarding the roles of home states and TNCs.

The huge investments in the extractive sector should, in principle, be a catalyst for economic growth, job opportunities, and development. Often, these investments have been a source of environmental degradation, socio-economic malaise and despair. Equatorial Guinea, for instance, is a classic example of the ‘resource curse mystery in Africa. To leverage extractive resources for development, African countries are faced with legal, fiscal, implementation, infrastructure, regulatory and institutional challenges. This contribution addresses state and investor responsibility in the sustainable development of Africa’s extractive sector. It highlights four responsibility indices that will guide states and investors in fostering a shared value approach to an inclusive and sustainable development of Africa’s extractive sector.

This symposium includes contributions that analyze state and investor responsibility for wrongful acts, and responsibility for the development of sustainable extractive regimes, in African countries. The contributions are timely interventions at a time when Africa’s regional institutions and states are developing mechanisms for responding to challenges presented by the extractive industries.