Human Rights

Access to justice for victims of business-related human rights violations, including harm caused by transnational resource extraction projects, remains a pressing global concern. A 2018 study by the Office of the United Nations High Commissioner for Human Rights (OHCHR) notes that such victims “continue to struggle to achieve effective remedies for the harm they have suffered”. This is despite the development and widespread endorsement by states and businesses of the Sustainable Development Goals (SDGs) and the United Nations Guiding Principles on Business and Human Rights.

Human rights principles and standards are strongly reflected in the 17 Sustainable Development Goals (SDGs) adopted at the UN Sustainable Development Summit in 2015. However, for victims of human rights violations at the hands of transnational corporations the question of redress remains daunting. Access to justice challenges faced by such victims before domestic courts have placed this issue at the forefront of international discourse. Accordingly, one of the ‘pillars’ on which the United Nations Guiding Principles on Business and Human Rights (UNGP) are founded is the “need for rights and obligations to be matched to appropriate and effective remedies when breached”, including state-based judicial, state-based non-judicial, and non-state–based remedies.

The purpose of this workshop was to debate on the role of the SDGs in the Business sphere. And we will only be able to achieve this is we are capable of exploring the different alternatives and challenges in all parts of the world. I believe that there is a role for the SDGs within the IAHRS and it is left to us to determine the best ways to use it.

In short, the SDGs and its interesting set of targets are a fertile ground not only to reimagine past UN led decade themed goals and their implications for (sustainable) development, but, to also situate them in contemporary discourse of the activities of nations, transnational corporations and other non-state actors. As part of the 2019 Purdy Crawford Workshop, the contributions to the symposium on “Sustainable Development Goals, Trade, Investment, and Inequality” critically examine these goals from the vantage point of each contributor’s scholarly expertise.

It is important to ensure that such grievance mechanisms are robust with a clear mandate to hold corporations accountable to internationally recognised human and labour rights. The threat is that such processes will amount to no more than a PR campaign used by corporations in order to project that they act responsibly. The evidence so far is that most non-binding grievance mechanisms used by corporations have not delivered human rights compatible solutions to victims or communities. At least their use is not widely documented and has not been transparent or a source of continuous learning as per the requirements of Principle 31 of the UNGP.

These cases are usually brought by public-spirited individuals, human rights lawyers, NGO’s and civil society groups; all of whom have been variously accused of inviting the court to put its jurisdictional treaty limits. Karua’s case, therefore, also invites the court to resolve and settle the debate on its express versus implied jurisdiction and powers in matters regarding human rights, democracy and rule of law.

Nigeria is obligated under extant international and municipal laws to acidulously respect, protect and fulfill PRTD. Though PRTD created under ACHPR is legally enforceable in Nigeria as exemplified in the enforcement of right to healthy environment (also created under ACHPR) in the case of Gbemre vs. SPDC (Supra); PRTD remains unpopular in Nigeria due to lack of awareness of its existence among the Nigerian people.

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.