A binding instrument for multinationals and human rights : Why and how Africa must engage

This article was originally published in French by Mutations #4487 (Cameroon Media) on October 30 as “Un instrument contraignant sur les multinationales et les droits humains : Pourquoi et comment l’Afrique doit s’engager”

On Monday, October 22, 2017, the third session of the UN Human Rights Council’s Open-ended Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises with Respect to Human Rights was opened at the United Nations Office at Geneva (UNOG). Under the terms of Resolution 26/9 of June 26, 2014, adopted and implemented by the Human Rights Council, this working group’s mandate is to “elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” This treaty could, at last, protect local populations against the human rights violations committed by multinational corporations and guarantee access to justice for their victims. However, the States, which usually present themselves as champions of democracy and the rule of law, have opposed this initiative and are refusing to set up a more restrictive legal framework that would make corporations and their executives accountable for human rights violations, in the same way as the States and any other players in the public sphere.

As in the first two sessions, held in 2015 and 2016, the African continent was conspicuous for its noticeable and noteworthy absence from the debates, and its resounding silence has left observers befuddled and bemused. With the notable exceptions of South Africa, which co-sponsored, along with Ecuador, the resolution that instituted the Working Group and which firmly supports the process of developing a legally binding treaty, and Ghana, which opposes it on the grounds of the United Nations Guiding Principles on Business and Human Rights (but which at least was present to make its voice heard), and a few other States (Nigeria and Tunisia) that spoke sporadically and rather timidly, the countries of Africa do not appear interested in what is happening in the Human Rights and Alliance of Civilizations Room (Room XX), which houses the Working Group at the Palais des Nations. At a time when the European Union is mobilizing as a group, with its lobby visible at each session of the working group, the members of the pan-African organization are absent. Often – all too often, from this author’s perspective – the African Union’s headquarters have remained hopelessly empty, although the question at hand is one that directly affects the lives of millions of Africans. The argument that has been advanced, and that was presented to the author by an African diplomat by way of an excuse, is the size of the African Missions in Geneva: the shortage of personnel and, in some cases, technical knowledge of the question would explain the absence of the majority of the continent’s States. Another diplomat admitted to this author that this empty chair policy is the result of the pressure placed on African countries, which prefer to keep quiet, rather than make a choice that they consider to be a risky one. But as Jean-Paul Sartre eloquently put it, “if I do not choose, that is still a choice,” or, in other words, “the only bad choice is the lack of choice” (Amélie Nothomb). It is time for Africa to stop being a subject of international relations to become a protagonist in them. This means taking clear positions in major international discussions, particularly those that concern or will affect the lives of millions of Africans. The current process at the United Nations Human Rights Council is an important one, and Africa needs to engage with it and support it for a variety of reasons, at least three of which appear to be fundamental.

Increased consistency in international law

A community that is deprived of drinking water because one individual decided to monopolize the village’s only source of water to water and sell his plants… Children with a serious skin disease, newborns coming into the world with a respiratory impairment caused by the discharge of waste created in the village, with no waste treatment measures… Each of these situations troubles us, and we would undoubtedly not hesitate to demand that the guilty parties be punished, that reparations be awarded to those innocent victims, and that the violation be brought to an end. Yet thousands of similar events happen every day, due to actors who can grab communities’ land, deprive them of drinking water and pollute their environment with impunity, without the possibility of bringing the matter before a judge, demanding reparation and/or shutting down the illegal activity. In today’s globalized world, multinational companies enjoy unrivaled powers. Every day, their activities and those of their subsidiaries affect the lives of millions of human beings and the future of the planet as a whole, with the exploitation of workers, expulsions of populations, funding of militias, irreversible pollution, and so on. They do this with complete impunity, because they have an unparalleled influence over governments and political decision-makers. And because they are not held legally responsible for the human rights violations that they perpetrate around the world. States can be prosecuted for human rights violations, heads of State can have their immunity revoked and be sentenced before international courts for their responsibility in the suffering inflicted upon human beings. But, paradoxically, not multinationals. There is some inconsistency here in international law, which surely needs to be remedied.

The discourse of/about international law seems to establish an international legal shift toward a system centered on human beings. International relations have ceased to be that immoral framework in which anything is permitted in the name of reasons of State. The protection of human beings is the end goal of international relations, and even of the State, which has no meaning other than by and for its citizens, for whose collective and individual well-being it is responsible. “A man’s home is no longer his castle,” and sovereignty should not serve as a pretext for violations amidst total indifference to human rights, wherever they may occur. It is on the basis of this new paradigm, which specialists refer to as the emergence of an international public order, that proceedings have been launched before international courts against African governments (Charles Taylor, Jean-Pierre Bemba, Muammar Gaddafi, Laurent Gbagbo, Uhuru Kenyatta, William Ruto, Omar al-Bashir, and so on). Some of these legal actions have aroused the ire of African countries, accusing the international courts of taking a selective approach to their prosecution, focused almost exclusively on African nations. It is surprising that, at a time when they are offered the possibility of participating in the establishment of a broader framework that would enable the prosecution of those who, as the case may be, finance and support the perpetrators of these crimes in Africa, in the name of base mercenary interests, African countries and the African Union are refusing to see things through to create a framework capable of cracking down on all of the perpetrators of massive human rights violations. In doing so, African leaders are making the case of those who assert that they are less interested in an action that would target all of the perpetrators, without restriction, than they are in protecting themselves from any wrongdoing on their part…

Next, it may be time now to give real meaning to the principle of the universality of human rights, which are not only attributed to human beings in the territory of the State in question, but to all of the different States. Nearly all regional human rights systems have recognized these obligations, either directly or indirectly, through their protection mechanisms (European Court of Human Rights, Inter-American Court of Human Rights, African Commission on Human and Peoples’ Rights, etc.). Indeed, it is unacceptable that what a French company is not allowed to do in France may be possible for a subsidiary of that company in Cameroon: the Baka should be able to invoke and enjoy the same rights as the Savoyard. France has just enshrined this, in part, with its promising law on French companies’ duty of vigilance. The African States, concerned with protecting their citizens’ rights, as affirmed and reaffirmed in their constitutions and in a multitude of regional and international instruments, now have an opportunity to push for this universality. The debates on the future treaty have mentioned the possibility of defining an obligation for host States to open up their courts to victims, and to punish shareholders and parent companies of their own nationality for human rights violations committed by subsidiaries contributing to the violation of communities’ rights. There is undoubtedly a real opportunity here to translate the universality of human rights and the equal dignity of humankind into punishments.

Finally, the African governments and African civil society have often complained of the contradictory obligations imposed on African States, in terms of human rights and the protection of investments. Structural adjustment programs and bilateral investment treaties have frequently deprived these of the resources needed to implement policies that would enable the achievement and satisfaction of human rights. Legislative freezes and stabilization clauses, the prohibition on challenging contracts, even when the private foreign operators has violated human rights, under penalty of paying clearly punitive damages, and the refusal of investment law arbitration systems to take human rights standards into consideration, have all driven African States – and most of the Southern States, in general – into a continuous balancing act that is very delicate and virtually impossible (it is no accident that none of the investment promotion treaties binding the OECD’s member countries contains a stabilization clause…). This almost schizophrenic inconsistency in international law must be brought to an end, clearly ensuring the imperative nature of human rights standards that all parties – States and companies alike – are compelled to respect. This means the States must not, in any way, undermine the guarantee of any rights, either directly or indirectly, namely by undermining a foreign State’s ability to fulfill its human rights obligations through bilateral investment treaties, structural adjustment programs, or other economic accords. This also entails, as has already been stated, the obligation to regulate third parties (multinational corporations headquartered in the country), to ensure that they are not in violation of human rights. This obligation to regulate would apply whenever a risk of damage is caused or takes place within a country, if the non-State actor has the nationality of the State in question, if it is registered or domiciled there, or if it exercises all or a substantial proportion of its business there. This offshore protection obligation would implicate the States’ responsibility through their actions at the intergovernmental institutions of which they are members, and would require that the States monitor and supervise the activities of private players, particularly transnational corporations. This is the price of better protection for the numerous native and/or local communities living close to investment projects in Africa, and it is the duty of the African States to work on it and watch over it.

A voice for distraught African victims

Listing all of the victims of investment projects and multinationals’ activities in Africa would be an interminable process: many communities have paid and continue to pay a heavy toll for projects implemented with no social or environmental impact assessment, regardless of the law, with no consultation of the populations, or simply ignoring their fundamental rights. A few examples are provided here, as a reminder. On August 20, 2006, toxic waste dumped at approximately 18 sites around the city of Abidjan in Côte d’Ivoire affected the health of tens of thousands of people, not to mention the resulting environmental pollution. That waste was carried on board the Probo Koala, a cargo ship chartered by Trafigura, an oil trading company based in Switzerland (operational base) and the Netherlands (corporate headquarters). The transnational’s website reports that it has offices in 36 countries and announces a profit of $2.6 billion for 2015, out of annual revenue totaling $97.2 billion. For the more than 110,000 victims affected by the dumping, obtaining satisfaction would be a real ordeal. In another instance, the Swiss NGO Berne Declaration expressed its surprise, in a report published on September 10, 2015, that tons of gold – worth several tens of millions of euros – were imported each year from Togo, a country that is not on the list of producers of that precious metal. Starting with that observation, it traced the supply chain backward… all the way to Burkina Faso. The Swiss NGO proved that this “Togolese gold” had, in reality, been extracted from mines in the northern and western parts of Burkina Faso, where child labor is commonplace, before passing through many different hands. Exporters in Burkina Faso are believed to have facilities the crossing into Togo. Wafex and MM Multitrade, two subsidiaries of the Ammar Group (a Lebanese trader), respectively located in Lomé and Geneva, received the gold. The Lebanese group then organized the logistics of its transportation by air, using Air France, with stops in Paris and Zurich, and then by truck to the Valcambi refinery in Balerna, in the southernmost part of Switzerland, close to the Italian border. According to the Swiss NGO, this trafficking via Togo generated a tax loss of nearly FCFA 3.5 billion (€5.35 million) for the State of Burkina Faso. Above all, it encouraged child labor and operating conditions that were particularly hazardous to human health.

There are hundreds of other cases like these across Africa. Dealing with and putting an end to them will require that court proceedings no longer be limited to local subsidiaries and branch offices, but that they be traced back to the end clients that profit from these crimes, wherever they may be. It is absurd that shareholders should be able to receive dividends and profits from all subsidiaries and branches, wherever they may be located, but that, in the case of a lawsuit brought by their victims, those same shareholders are able to hide behind the “national” character of those subsidiaries in their refusal to make remedy or be held responsible, leaving the victims with no compensation or satisfaction.

Now, African States and NGOs concerned with the well-being of African citizens have an opportunity to facilitate the institution of a framework for taking action in the early states, in order to prevent systematic violations of communities’ rights by transnational corporations, but also to ensure the victims’ right to access to the courts and to compensation. The States opposed to the elaboration of a binding instrument argue that international legal mechanisms already exist, namely the Guiding Principles on Business and Human Rights (still known as the Ruggie Principles) and the OECD Guidelines. And yet, the African States and the civil society organizations that support victims every day know that those instruments are unsatisfactory and insufficient, if not completely ineffective. The voluntary nature of the guidelines makes human rights obligations purely optional for companies, which can limit themselves to purely “cosmetic” actions, from a marketing perspective, and which do not hesitate to sacrifice human rights on the altar of the “high economic interests” of the company and its shareholders, whenever necessary. Over and above the fact that the guiding principles are not universal and are restricted to one region of the world, the many examples of non-implementation of the decisions of the National Contact Points (NCPs) demonstrate that mechanism’s limitations. Add to that the US Supreme Court’s restriction of the scope of the Alien Tort Claims Act (ACTA), which granted universal civil jurisdiction to foreign victims of human rights violations before the American courts, the only logical, obvious conclusion is that we need something else, a new and binding instrument capable of ensuring respect for human rights in the philosophy of the proclaimed new international legal order. Because of this, and by virtue of their constitutional obligations, the African governments should be at the negotiating table, to make their voices heard and to share their experience in this area.

African vision and expertise

Rightly or wrongly, African States have often been considered as consumers of international standards, incapable of legal originality or engineering to design solutions suited to the problems that they face. On their end, African governments have often decried international standards as tools of neocolonialism, developed without them and imposed upon them. Perhaps the time has finally come to break with preconceptions and be consistent, by actively participating in the debate and in the development of standards. It is obvious that, if we stay silent, if we do not dare to take a clear stance and say what we believe should be the standard, others will have to decide for – and sometimes against – us.

It is all the more necessary for Africa to be at the negotiating table and to make its voice heard, because it has proven expertise in the subject at hand. Thanks to the tremendous adaptation and dynamic evolution work carried out by the African Commission on Human and Peoples’ Rights, the African Charter on Human and Peoples’ Rights makes it possible, for example, to consider the States’ offshore human rights obligations. At the African Commission on Human and Peoples’ Rights, the Working Group on Extractive Industries, Environment and Human Rights Violations has gradually been developing a series of guidelines to improve the incorporation of human rights issues into investment projects, as well as the protection of communities and, if applicable, of any victims. This experience should be shared with the rest of the world. Of even greater interest is the Malabo Protocol, which created the African Court of Justice and Human Rights. Over and above its widely publicized extension of the African Court’s jurisdiction to international crimes, it also contains a number of innovations that express the changes desired by African States. For example, its text expands the category of international crimes beyond the traditional crimes (genocide, crimes against humanity, war crimes and aggression) to also punish, for example, illegal trafficking in hazardous waste (Article 28L) and the illicit exploitation of natural resources (Article 28L bis). More interesting still, Article 46C defines corporate criminal liability. This represents a real evolution in international law, enacted by the African continent, worthy of universal extension…

There are assuredly many other reasons why Africa should – or rather, must – have a presence in the Working Group: the continent and countries of Africa have an obligation and a responsibility to participate. In conclusion, an important distinction should undoubtedly be made: being in favor of the treaty does not signify being against companies and their contributions to the development of African States. It is merely a matter of aligning the approach and the strategy, to ensure that the desired development and investments result in the improved well-being of one and all, not only for a few, or for some to the detriment of others. There are merely choices to be made, after careful consideration, to find the right balance between two equally important imperatives. But to achieve this, awareness is first necessary, as well as a presence where history is being made. The empty chair policy is a terrible failure that can only lead to regret. Africa must make its own choices and stop being seen as an “incompetent” that lets others make decisions in its stead… Africa has the capacities, the resources and the expertise, so perhaps the time has finally come for it to takes its rightful place in international relations.

Apollin Koagne Zouapet
International Lawyer
Center for the Environment and Development

This article was originally published in French by Mutations #4487 (Cameroon Media) on October 30 as “Un instrument contraignant sur les multinationales et les droits humains : Pourquoi et comment l’Afrique doit s’engager”

Image: Victor Barro