Human Rights

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.

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.