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I am posting and providing brief reflections on the essays that make up the excellent new online symposium organized by the marvelous Caroline Omari Lichuma and Lucas Roorda and appearing on the blog site of the Business and Human Rights Law Journal. Entitled Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe. The essays (and the symposium) means to expand the conversation about human rights from out of its hub in the UN apparatus in Geneva and begin exploring in more depth the sometimes extraordinary developments occurring outside the highest reaches of elite curation in the Global North.
The seventh of the essays is Rimdolmsom Jonathan Kabré--"Business And Human Rights In Africa in The Era of The African Continental Free Trade Area (AfCFTA)."
Rimdolmsom Jonathan Kabré is lecturer in international law at Institut Univesitaire d’Abidjan (Côte d’Ivoire). He completed his doctoral studies at University of Lausanne (Switzerland) for which he was awarded the 2020 Prix de Faculté of the University of Lausanne. He studied law at the University Thomas Sankara in Burkina Faso (LL.B. and LL.M.) and also holds an LL.M. in International and comparative law from University of Lausanne. Dr Kabré’s research interests span across the settlement of international disputes, socio-legal approaches to law and international e
Rimdolmsom Jonathan Kabré's contribution follows below and may be accessed as originally posted here. Kabré makes the following three major points which are worthy of some reflection:
1. African mutli-lateralism on BHR related maters appears to be best embedded in the larger issue of trade. It is through taking a broader view of human rights within economic activity, rather than of economic activity within human rights, that the African periphery may be making its most interesting and perhaps its most important contribution. Kabré focuses on the Agreement establishing the African Continental Free Trade Area (AfCFTA Agreement); "While the main objective of this Agreement is to eliminate trade barriers and boost intra-Africa trade, it also has implications for business and human rights." ("Business And Human Rights In Africa in The Era of The African Continental Free Trade Area (AfCFTA)"). Kabré notes that AfCFTA's BHR can best be understood by the interpenetration of two policy/regulatory/aspirational mechanisms. The first is AfCFTA itself as a bundle of legal norms and administrative measures along with related policies (Kabré's view from the inside). The second is AfCFTA as an expression of the "soft law" normative guidance of the African Union Policy Framework on Business and Human Rights (Kabré's view from the outside). Their interpenetration is mediated with the guidance of the apparatus of international human rights organs (eg, 2023 African Forum on Business and Human Rights; and here).
2. AfCFTA presents an interesting example of institutional and regulatory hybridity. Its provisions constituting the FTA are largely formal and mandatory. On the other hand, the provisions respecting human rights are not. "A closer look at this chapter 5 reveals that it contains recommendations rather than binding obligations whose non-compliance results in legal sanctions. For example, and according to article 33, investors and their investments shall support and respect the protection of internationally recognised human rights." ("Business And Human Rights In Africa in The Era of The African Continental Free Trade Area (AfCFTA)").
3. But more importantly, AfCFTA provides an important, but by no means the last, application, in regulatory form, of the aspirational "flagship project of Agenda 2063: The Africa We Want, which is the continent’s strategic framework that aims to achieve its goal of inclusive and sustainable development." ("Business And Human Rights In Africa in The Era of The African Continental Free Trade Area (AfCFTA)"). There is the key--one that resonates in some respects more with the Chinese BHR emphasis on development, than with the individual autonomy based framework of the liberal democratic West. Mo e in line with the Chinese approach, the focus appears to be on centralized and coherent development from the top down and to some extent the European approach with its elaborate techno-bureaucracies forming an increasingly tight web of operations aligning public and enterprise administrative-planning apparatus. The U.S. system with development as a function of bottom up development under a referee guidance system of the State might appeal less.
4. Kabré astutely draws together the various strands that make up the guidance and aspirational approaches now emerging within the African Union. Kabré emphasizes the aspirations toward legality, but also the way in which the legal frameworks of African institutions may deflect or avoid political aspirations written into regulatory structures as they seek to protect the integrity of African legal traditions, jurisprudence and modes of application. That sets up a tension that Kabré critiques.
"The African Court on human and peoples’ rights (ACHPR) had recently the opportunity to rule on the question of corporate accountability. But this continental Court missed that opportunity and rendered a decision that is questionable in many respects. In the case of Ivorian League For Human Rights (Lidho) And others v. Republic of Côte D’Ivoire, the African Court * * * did not draw all the consequences arising from the recognition of direct corporate responsibility. Rather than directly holding the multinational company accountable for its human rights violations that occurred in Cote d’Ivoire, the ACHPR preferred to ask the Respondent state to ensure that corporate entities are held accountable for their acts relating to environment and the handling of toxic waste” (page 65). ("Business And Human Rights In Africa in The Era of The African Continental Free Trade Area (AfCFTA)").The solution, for those inclined toward mandatory measures in Africa, then, appears to be the same as for many in Europe and North America--an international legally binding business and human rights instrument, the the African Regional Legally Binding Instrument to Regulate the Activities of Transnational Corporations and Other Business Enterprises, currently being developed by the African Commission. That may well be the best way to align European and African paths toward business and human rights regimes. The measure of its value will have to be the value added for Africans. And to those ends African states continue to have conversations similar to those elsewhere: about the role fo the state, about the location of the power ot direct economic activity, and ultimately about the fundamental purpose of that activity as and to human rights.
5. At the same time, that thrust toward a treaty, or some other sort of legally binding international instrument, as a means of structuring a robust BHR framework suggests the great challenge of multi-lateralism from the periphery. The challenge is this: multi-lateralism, in whatever form it takes, cannot place the periphery at the center--unless, paradoxically enough, it is the metropolis that seeks to center the periphery for reasons of their own (whether or not those reasons are marvelously good or cynically strategic--it doesn't matter). The periphery has a place at the table, but they do not drive either process or result. That stands to reason. And whatever one thinks of the functional realities of a sociology and hierarchy of the contemporary culture of the society of States, the reality is unavoidable (even if narrative can be used to diffuse the sharpness of that reality for the masses or to develop aspirational notions).
6. Where does that leave Africa, should its State collectives seek to develop multi-lateralism that centers that continent? Kabré nicely points to the inevitable solution--regional multilateralism. One can wait until the time of the extinction of our solar system before one can expect an Afro-centered multilateral apparatus. Or one can begin to develop--and apply--Afro-centic structures and apparatus to further regional applications of human rights, including the rights of development and of the protection of peoples as well as people. Kabré notes the foundations for African BHR treaty regionalism are already in place through the structures of the African Union--including its judicial apparatus. The question, then, is one of vision, and will. In the absence of both, the periphery will remain, like other peripheries--on the margins of the great BHR movements in form and function. The differences between the global BHR project and those that are Afro-centric may be small, and there will likely be a rough alignment of objectives and results in most cases; but the differences at the margins will likely make capacity building, acceptance, and application more plausible; and it may provide a bit of protection against the (altogether natural) projection of metropolitan interests into Africa.
Links to all Essays in the BHR Blog Symposium here:
Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 10: Lisa J, Laplante, "The United States 2024 National Action Plan on Responsible Business Conduct"
Symposium on Business and Human Rights (BHR) Regulatory Initiatives Outside Europe: Part 11: Erika George and Enrique Samuel Martinez, "The Uyghur Forced Labor Prevention Act: An Assessment Of Enforcement Efforts"
Africa has played an important role in advancing the business and human rights agenda. For many decades, this role was rather ‘passive’ and consisted mainly of witnessing complex human rights and environmental violations resulting from business activities on its territory and to provide courts and tribunals, located outside Africa (Canada, France, United Kingdom, Netherlands, United States of America etc.), with cases. Although legal instruments such as the 1982 Community Investment Code of The Economic Community of The Great Lakes Countries and the 1990 Charter on a regime of multinational industrial enterprises of Eastern and Southern Africa States already contained some rules on the obligations of investors, the production of norms and principles regarding business and human rights was rather exceptional.
However, over the last decade, the African continent has played a more ‘active’ role with the proliferation of initiatives aimed at better regulating the activities of companies and mitigating the harmful consequences of their actions. One of these initiatives is undoubtedly the adoption of the Agreement establishing the African Continental Free Trade Area(AfCFTA Agreement), on 21 March 2018. While the main objective of this Agreement is to eliminate trade barriers and boost intra-Africa trade, it also has implications for business and human rights. This contribution therefore discusses the impact of the AfCFTA on business and human rights and looks at the extent to which it can enhance responsible business conduct in Africa. The contribution adopts a twofold approach and analyses, on the one hand, the AfCFTA Agreement, and its protocols to discuss the provisions that have a direct link to responsible business conduct (a view from inside). In addition to being a free trade agreement, the AfCFTA is also part of the African Union Policy Framework on Business and Human Rights which includes other legal texts addressing issues related to business and human rights in the African context. This African Union Policy Framework will be analysed to determine the extent to which it can complement the AfCFTA in terms of responsible business conduct (a view from outside).
The African Continental Free Trade Area and Business and Human Rights
The AfCFTA Agreement entered into force on 30 May 2019 and trade under AfCFTA officially began on 1 January 2021. Although the AfCFTA Agreement does not directly address business and human rights-related issues, its Protocol on investment does. This protocol, adopted in February 2023, during the 36th African Union Summit in Addis Ababa (Ethiopia), includes a full chapter dedicated to investors’ obligations (chapter 5, articles 31 to 40) with a wide range of obligations ranging from compliance with human rights and labour standards to environmental protection, respect of the rights of indigenous peoples, etc. The level of specificity on investor obligations, contained in this chapter 5, has been described as “unprecedented” for an investment agreement and, according to some scholars, this protocol is “likely to constitute a reference point for the regulation of investor obligations in future investment treaties”.
However, it is difficult to deduce, from these articles, legal obligations imposed on investors particularly because the exact elements of such obligations are unclear. A closer look at this chapter 5 reveals that it contains recommendations rather than binding obligations whose non-compliance results in legal sanctions. For example, and according to article 33, investors and their investments shall support and respect the protection of internationally recognised human rights. What are the legal consequences if these human rights are not respected? Do these investors incur a sanction? And if yes, which sanctions ? These questions are not answered by AfCFTA Protocol on Investment.
To address some of these unanswered questions, it may be important to look beyond the AfCFTA Agreement and examine the African Union Policy Framework on Business and Human Rights
Beyond AfCFTA, the African Union Policy Framework on Business and Human Rights
The AfCFTA is more than a free trade agreement. It is also a flagship project of Agenda 2063: The Africa We Want, which is the continent’s strategic framework that aims to achieve its goal of inclusive and sustainable development. This continental framework must therefore be taken into consideration since AfCFTA refers to other continental legal instruments such as the African Charter of Human and Peoples’ Rights (see article 34 al 1 of AfCFTA Protocol on Investment). Also, the African Commission on Human and Peoples’ Rights, in its Resolution on Business and Human Rights in Africa – ACHPR/Res.550 (LXXIV) 2023, called on the African Union to take into account and reflect the AfCFTA in finalizing the African Union Policy Framework on Business and Human Rights.
An important instrument to examine is the African Charter of Human and Peoples’ Rights, Article 27 of which imposes duties and obligations on individuals. The African Commission on Human and Peoples’ Rights has interpreted this article 27, in its State Reporting Guidelines and Principles on Articles 21 And 24 of the African Charter relating to Extractive Industries, Human Rights and the Environment, and stated that “if this obligation can be imposed on individuals, there is an even stronger moral and legal basis for assigning these obligations to corporations and societies” (page 37). This Commission has also clarified the nature of these obligations which are legal obligations and not just matters of social responsibility: when and where breaches occur on account of the activities or actions of companies, various administrative, civil and criminal responsibilities ensue (pages 38-40). However, in cases such as Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) / Nigeria – 155/96 and Institute for Human Rights and Development and Others v Democratic Republic of Congo, Communication 393/10, the African Commission failed to hold corporate actors directly accountable for their actions that resulted in violations of human and peoples’ rights.
The African Court on human and peoples’ rights (ACHPR) had recently the opportunity to rule on the question of corporate accountability. But this continental Court missed that opportunity and rendered a decision that is questionable in many respects. In the case of Ivorian League For Human Rights (Lidho) And others v. Republic of Côte D’Ivoire, the African Court noted that even though the “responsibility to respect the obligations of international law is incumbent primarily on States, it is also true that this responsibility is incumbent on companies, notably, multinational companies” (page 36). However, this continental Court did not draw all the consequences arising from the recognition of direct corporate responsibility. Rather than directly holding the multinational company accountable for its human rights violations that occurred in Cote d’Ivoire, the ACHPR preferred to ask the Respondent state to ensure that corporate entities are held accountable for their acts relating to environment and the handling of toxic waste” (page 65). Why did the Court not directly hold multinational companies responsible, especially since there is a clear normative basis? This approach was criticized by Judge Blaise Tchikaya who, in his dissenting opinion, advocated for a “departure from the classic structure of international liability in human rights” in order to “establish the liability of private individuals who infringe environmental law or life” (page 16).
It is hoped that the African Regional Legally Binding Instrument to Regulate the Activities of Transnational Corporations and Other Business Enterprises, currently being developed by the African Commission, in collaboration with other relevant special mechanisms, will not only take into consideration and integrate all these normative standards but, more importantly, establish effective mechanisms to ensure accountability and access to remedies for business-related human rights violations in Africa.
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