International Accountability in the Implementation of the Right to Development

December 18, 2019 Jon Goud

The Report of the UN High-Level Panel on the post-2015 Development Agenda (May 2013), the HPLR, called on all concerned, to make “five big transformative shifts”: move from reducing to ending poverty (with no one left behind); put sustainability at the core of development; transform economies for jobs and inclusive growth; build peace, as well as effective, open and accountable institutions for all; and forge a new global partnership (based at least in part on mutual accountability). This call was supported by the UN Secretary-General’s Report (July 2013). Thus, both key UN reports stressed the need for attention to be paid to accountability as a key factor in facilitating the attainment of the then proposed SDGs; something that was not meaningfully present in the framework of the now defunct Millennium Development Goals (MDGs).

It should be noted, however, that the particular conception of accountability espoused in these two reports is a limited one. Its near-entire focus is on accountability at the national level. Not nearly as much is said about the role of good governance on the international plane in fostering the kind of mutual accountability that is envisaged. Despite this gap, however, it did seem like some thought went into considering the role that the international rule of law could play in fostering the desired level of mutual accountability. From the “monitoring and peer review mechanisms” proposed by the HLPR to the “participatory monitoring frameworks for tracking progress” and “mutual accountability mechanisms for all stakeholders” suggested by the Secretary General, the UN appeared at this point to have been on the right (albeit quite modest) path of embedding accountability into post-2015 international development thought and practice.

Yet, the SDGs themselves do not include any meaningful mechanisms for holding the relevant actors accountable for delivering on the resources without which almost all of the goals cannot be achieved. Instead, the SDG document is filled with now quite tired and historically less than effective platitudes about the need for greater international partnerships in realising the right to development, including presumably across the South-North axis. Such mere platitudes have rarely if ever convinced, let alone cajoled, states to deliver on their ambitious promises to provide capital, technology, market access, and human resources to the countries that need them.

Instructively, meaningful mechanisms for ensuring some accountability with regards to development praxis have existed for some time at the African regional level – whatever the lapses in their utilization. Article 22 of the African Charter on Human and Peoples’ Rights provides for a legally binding right of peoples to development. This right has formed the subject of petitions at the African Commission on Human and Peoples’ Rights, and has been litigated at the African Court of Human and Peoples’ Rights – successfully in some cases. For example, in the Endorois case (2009), the African Commission held that the right of the Endorois people of Kenya to development required that they be properly consulted and compensated when the state embarks on development projects which would involve the seizure of their lands and affect their lifestyle. In the Ogiek case (2017), the African Court held similarly regarding the Ogiek people of Kenya.

This accountability framework does not, however, apply outside Africa and as such does not completely plug the accountability gap at issue here. They are, however, a good example of the ways in which hard law can be brought to bear to help enhance accountability in the development field. This is necessary because, despite the benefits of soft-law, they do not always suffice to do the job. For, the framing and naming of a norm as something called “law” (as hard law) is almost never an idle exercise, and is hardly ever inconsequential. At a minimum, classifying a violation as a violation of law takes away from relevant actors the often-heard excuse that they will not comply with a norm because it is non-binding. Law limits the field of argument available to the actors addressed by a norm and constricts the size of the ball park within which they can play. In this way does it strengthen the hands of those who would demand the vindication of the relevant (development) norm. In sum, hard law matters! This is exactly why all-too-many actors on the global level have historically resisted the classification of the right to development as a legal norm. And that is why the widespread tendency today is to subject the most heinous or egregious international crimes to hard law norms and processes and not merely to non-law or soft law norms.

Interestingly, in the international criminal law realm, there is now a kind of graduated and calibrated scale of responsibility and accountability in which the more heinous the international crime and the more responsible for it one is, the more there is a tendency to use hard law to deal with it. A broad analogy with international criminal law would suggest that a similar kind of graduated and calibrated scale of responsibility and accountability might be in order in the realm of the international law of development. For example, we can as a first step identify a very small core (or umbra) of the most serious violations of the right to development and deploy hard law norms and mechanisms to advance greater compliance with these norms. One way of doing so is to include these core violations either in a new treaty, or in a new Protocol to the Covenant on Economic Social and Cultural Rights. In this respect Article 22 of the African Charter and the increasing number of interesting decisions which have interpreted and applied it situations are a kind of avatar. As a second step, we can then identify for inclusion in the penumbra a larger set of violations of the right to development which may be suitably dealt with in softer ways (such as preparing new guidelines or compacts for implementing that right, and mainstreaming the right into the Un Human Rights Council’s Universal Periodic Review process).

All in all, what should be kept in mind is that, as the wise Canadian thinker and diplomat Ivan Leigh Head once noted, an element of law (and of accountability), some measure of it, will be needed in the effort to realize the right to development. It is for this reason that the African example of establishing meaningful regional-level accountability mechanisms in the development field, undergirded by hard law, ought to be replicated at the UN level.

* Professor and York Research Chair in International and Transnational Legal Studies (Tier 1) at the Osgoode Hall Law School, York University, Toronto, Canada; This blogpost is based on a forthcoming paper that I co-authored with Dr. Uche Ngwaba.

Officer and Director Liability in Transnational Human Rights Litigation

December 17, 2019 Jon Goud

Michael Marin

Tort actions have emerged as a legal strategy for promoting accountability for human rights violations committed by transnational corporations (TNCs) involved in natural resource extraction. In the typical scenario, a parent company incorporated under the laws of a developed state invests in a project in a developing state through a series of subsidiaries. The corporate chain ends with an operating entity established under the developing state’s laws, which are lax with respect to labour and environmental standards. In addition, these projects often encounter opposition from the people affected.

The combination of strong financial incentives for both the parent company and developing state, an angry and vulnerable local population, and laws that are often inadequate to protect them has proven to be a recipe for human rights violations. The quest for corporate accountability for such violations reflects the Goal 10.2 of the UN Sustainable Development Goals, which is to reduce inequality by promoting social, economic, and political inclusion.

Given the challenge posed by complex corporate structures and multiple jurisdictions, one of the first questions that victims’ counsel needs to confront is who to sue. In Canada, the predominant strategy is to sue the parent company based on the theory that it is directly responsible for the wrongdoing associated with its operating subsidiary. For example, in Choc v. Hudbay Minerals Inc., 2013 ONSC 1414, the plaintiffs alleged that a Canadian mining company was negligent in supervising the activities of its foreign subsidiaries, which employed security forces that committed a series of human rights violations. Despite the fact that the plaintiffs’ pleadings alleged wrongdoing by executives of the parent company, the action names only the corporate entities as opposed to the people who directed them: see Choc at para. 60. The same is true of a more recent case against a Canadian mining company that operated a project in Eritrea: Araya v. Nevsun Resources Ltd., 2017 BCCA 401 at para. 4.

The central argument of this blog post is that suing the agents of the parent company (e.g. its directors or officers) is likely to be a more effective deterrent than suing the parent company itself. In other words, I suggest that personal liability, as opposed to corporate liability, may be a better way of using tort law to ensure that TNCs respect human rights.

The Deterrent Effect of Personal Liability

The main argument in favour of personal liability is that it places the burden directly on the people who are responsible for corporate decisions and policies. Conversely, corporate liability is indirect. It rests on the assumption that since shareholders will ultimately bear the costs of a judgment, they will have a financial incentive to pressure the company to behave responsibly. But there are a number of problems with this assumption.

First, the path to reform is indirect and thus uncertain because the will of shareholders must be translated through multiple levels of the corporate hierarchy. Conversely, personal liability in tort has the potential to affect everyone in this hierarchy. Second, due to coordination problems, it will be difficult for shareholders to act collectively, especially in the context widely held companies, which are common in extractive industries. Third, because of limited liability, each shareholder only bears a fraction of the risk of corporate wrongdoing, which may be offset by the benefits that accrued prior to its discovery. Fourth, since large TNCs are highly diversified, shareholder losses due to human rights abuses at one site may be offset by profits generated elsewhere. In addition, shareholders, particularly institutional ones, are themselves diversified, meaning the losses associated with one project of one company amid a large portfolio of investments is unlikely to incite much activism.

Finally, shareholders, as non-participants in the wrongdoing, are unlikely to feel stigma as intensely as those who actually carried it out. Even in the most extreme case imaginable, shareholders can liberate themselves of stigma by simply divesting, and the fictional corporate entity can dissolve. But the human beings who were at fault will have a much harder time overcoming the emotional and reputational consequences of what they did. The impact of this personal stigma is something that cannot be indemnified or insured against.

The Legal Basis for Personal Liability

Even if personal liability is desirable from the standpoint of deterrence, it must be a viable legal option. The liability of corporate agents in tort is a subject that’s fraught with misunderstanding, due largely to the interaction between corporate personality and basic principles of tortious liability.

The Ontario Court of Appeal stated the basic principle as follows: “The consistent line of authority in Canada holds simply that, in all events, officers, directors and employees of corporations are responsible for their tortious conduct even though that conduct was directed in a bona fide manner to the best interests of the company”: ADGA Systems v. Valcom (1999) 43 O.R. (3d) 101. This principle is reflected in the Supreme Court’s earlier judgment in London Drugs v. Kuehne & Nagel International, [1992] 3 S.C.R. 299 at 408, which held that employees are not immune from tort liability simply because the wrongdoing occurred in course of their duties.

More recently, the Supreme Court confirmed that, in accordance with ordinary principles of tort liability, directors and officers may owe a duty of care to people other than the corporation they serve, and the objective corporate law standard of care may inform the behaviour expected of them: see Peoples Department Stores v. Wise, [2004] 3 S.C.R. 461 at para. 57; BCE Inc. v. 1976 Debentureholders, [2008] S.C.R. 560 at para. 44.

Since the corporation is a creature of statute, the principal source of any departure from ordinary principles of tort liability would be the incorporating legislation. But whereas Canadian corporate statutes expressly grant immunity to shareholders, there is no equivalent provision relating to directors, officers, or employees (see e.g. CBCA, s. 45(1)). In fact, these statutes implicitly contemplate such personal liability through indemnification provisions that are broad enough to capture obligations owed to third parties (see e.g. CBCA, s. 124(1) – “…any civil, criminal, administrative, investigative or other proceeding”).

Circumstances that May Give Rise to a Personal Duty of Care

The most promising route to personal liability is through an action for negligence, which would reinforce many of the objectives of the existing voluntary codes and guidelines related to TNCs and human rights. In particular, a common theme of the OECD Guidelines for MNEs, the Guiding Principles on Business and HR, and the Voluntary Principles on Security and HR is the expectation that parent companies, and by extension, their agents, will be proactive in preventing those engaged in their foreign activities from violating human rights. Although tort law is traditionally skeptical of such positive obligations, in recent years Canadian courts have adopted principles that will allow for their recognition in appropriate circumstances.

The most relevant category of such positive obligations is so-called third-party liability, in which it is alleged that the defendant had a duty to prevent a third party from harming the plaintiff. To illustrate this scenario using the facts in Choc, the defendant is a director/officer/employee of the parent company, the third party is the security force in the host country, and the plaintiffs are the victims of alleged human rights violations committed by the securities forces.

The recent Supreme Court jurisprudence on third-party liability provides the following lessons for personal liability in the context of TNCs:

The director/officer/employee must have actual or imputed knowledge that the security forces’ actions would expose the plaintiff to a risk of harm. The nature of the risk posed by the third party will likely have to be specific and clear (see e.g. Fullowka v. Pinkertons’s of Canada; Childs v. Desormeaux);

The nature of the relationship between the director/officer/employee and the security forces must be such that the latter cannot be considered wholly autonomous actors (Childs);

The director/officer/employee must have the capacity to “exert some control” over the risk posed by the security forces. This may be satisfied by the ability to influence the risk environment, rather than the actual perpetrators. The nature of the defendant’s role within the TNC or an undertaking on his or her part will be relevant in establishing this capacity (Fullowka);

There must have been a reasonable expectation and reliance on the part of the Plaintiffs that the director/officer/employee would exercise care with respect to their safety. Again, an undertaking by the Defendant to this effect and his or her role are important factors (ibid.)

The ability of the Plaintiffs in the Choc to overcome a motion to strike was attributable to the fact that their pleadings hit most of these elements with sufficient particularity. Interestingly, the allegation that the defendants had declared their adoption of the Voluntary Principles was among those that the Court considered relevant in terms of proximity. Of course, Choc is an action against the parent company, not its directors/officers/employees.

Nevertheless, by convincing the Court that a parent company may have a duty of care to prevent the harmful consequences of activities associated with a foreign subsidiary, the plaintiffs in Choc overcame a major hurdle. Given the relationship between personal and corporate liability, it is at least plausible that this duty of care will be extended to directors/officers/employees of the parent company, resulting in a stronger deterrent effect.

To the extent that a shift toward personal liability improves compliance with human rights, tort litigation may play a role in furthering the UN Sustainable Development Goals. Specifically, it may help ensure the basic conditions necessary for the inclusiveness of the economic development associated with TNCs.

Can Transnational Private Regulation Facilitate Achievement of the Sustainable Development Goals?

December 10, 2019 Jon Goud

Mariam Momodu

Introduction

The 2030 Agenda for Sustainable Development can be described as an emphatic collective acknowledgement of the world’s interconnectedness and shared destiny. It is a global call to action for governments, organisations, businesses and individuals to embrace the joint responsibility of transforming our world by eliminating poverty, entrenching prosperity, fostering peace and protecting the planet.

The SDGs are ambitious; and there is a clear recognition that critical engagement of all actors is vital for the goals to be achievable. While the SDGs recognise that traditional development partners such as governments, international organisations and non-governmental organisations, are vital, the SDGs also identify the private sector as an agent of development, whose choices have the potential to produce positive externalities that may facilitate the attainment of the SDGs.

However, unlike governments who are duty bound to pursue the interests of its citizens, or NGOs which generally have some “greater good” motivating their activities, the private sector exists primarily to pursue profit. In its pursuit of profit, the private sector is frequently implicated in violations of the very principles that underpin the SDGs – think violations of labour laws, environmental pollution, and so on. It is therefore easy to understand why the combination of the “private sector and SDGs” may be received with disillusion.

Here lies the conundrum. If the SDGs acknowledge the role of the private sector in its attainment, but the private sector’s primary goal of maximizing profit is often-times at odds with these SDGs, how then is it possible for the private sector to take an active role in achieving the SDGs?

In this essay, I examine traditional and emerging approaches through which the private sector contributes to the attainment of the SDGs. Thereafter, I consider whether transnational private regulatory schemes are an emerging and viable way for businesses to actively facilitate the achievement of SDGs, while simultaneously “minding the business that pays them.”

The Private Sector and Sustainable Development: Traditional Approaches

The private sector traditionally contributes to the attainment of the SDGs using several direct and indirect methods. Some of these include instituting corporate social responsibility projects in host communities or around specific industries along the business’ value chain. The private sector also commits to SDGs through internal procedures and policies. For instance, businesses’ commitment to gender equality and equal pay, directly advance target 2 of SDG 10 (inequality). Also, the private sector is demonstrating increased awareness about the long-term impact of their business activities on the environment and available resources. Hence, many businesses are consciously choosing raw materials from sustainable sources or are actively working to reduce their carbon footprint. Other businesses are taking the initiative to develop products that satisfy consumers’ demand for environmentally friendly products.

While these traditional efforts are beneficial, questions linger around their effectiveness. For instance, one could question whether privately led community development projects survive in the long term. Also, some private actors are constantly accused of greenwashing their products and processes to appeal to consumers. In addition, questions arise around the efficiency of these traditional efforts in handling the magnitude of the challenges which motivated the creation of the SDGs in the first place. Finally, many of these traditional efforts are often voluntary and do not necessarily provide returns for the businesses; therefore, there is no guarantee that the private sector will deploy their resources towards such projects.

The Private Sector and Sustainable Development: Hybrid Approaches

Recognising the limitations of traditional approaches of businesses to contribute towards sustainable development, the private sector is evolving in its approach to sustainable development and this approach is underpinned by the concepts of “ownership” and “responsibility”. Admittedly, the private sector is not a charity. They take on the risks of entrepreneurship, the strain of management and the burden of work, therefore reward for these efforts are expected. However, when the private sector develops a sense of ownership towards the host community and a sense of responsibility for addressing a local or global issue, hybrid approaches emerge. The private sector in these instances begins to explore how to do well as a business while simultaneously doing good. Within the African context, this idea rests firmly on one of the pillars of Africapitalism – a sense of place and belonging. Where businesses are rooted in the areas they operate, they make business decisions conscious of the implication of their decisions on the surrounding physical and social ecosystem.

The rise of social entrepreneurship in Africa in education, healthcare, and so on, stems partly out of a sense of ownership and responsibility. Through social entrepreneurship, businesses are meeting social needs while also running profitable businesses. Companies like Zipline supply medicines to remote areas using drones, while Easy Solar distributes energy solutions on affordable payment plans to communities underserved by the grid.

Also stemming from a sense of ownership and responsibility is the increase in impact investing globally. Investors are deliberately channelling funds to address pressing global challenges such as renewable energy, healthcare and microfinance. Individual and corporate investors can express their commitment to environmental, social and corporate governance goals by directing their financial resources to sustainable projects.

This hybrid approach of pursuing profits and making an impact is promising. However, the sense of ownership and responsibility that drives social entrepreneurs and impact investors may not have significant impact on a large scale, as presently, only a limited number of investors pursue impact investing. Furthermore, it is sometimes difficult for social entrepreneurs to access funding. However, it is possible to galvanize more interest in these hybrid approaches through government incentives that may encourage the private sector to strongly consider sustainability factors in business decisions.

Private Regulation and Sustainable Development Goals

Private regulation constitutes a body of rules, practices, and processes, created primarily by private actors including firms, NGOs, independent experts like technical standard setters and epistemic communities who either exercise autonomous regulatory power, implement delegated power conferred by international law or national legislation or have their rule-making, enforcement and compliance mechanisms recognized by state actors. Private regulation could operate as a complement or competitor to conventional state-led regulatory authority, depending on the objectives of the private regulatory regime, the identities of the parties involved as well as the area within which it operates.

The growth of private regulation is attributable to several factors including the desire for standardization to reduce transaction costs and increase efficiency. In other cases, it has developed as a response to failure or inability of governments to effectively regulate or monitor compliance over transnational concerns as well as private concerns in relation to environmental sustainability and human rights violations. In this essay, the emphasis is on the latter motivation.

The private sector’s involvement in developing private regulatory schemes is arguably also an approach through which the private sector has taken initiative in leading the drive for sustainable development. Private regulation is not without its concerns, such as issues relating to legitimacy, accountability, regulatory capture amongst others. However, private regulation presents a potential option for the private sector to address industry concerns, avoid over-regulation by the state and also contribute towards a sustainable future.

For instance, the Forest Stewardship Council (FSC) is a global not-for-profit organization that sets standards for responsible forest management and certifies forest products as both environmentally and socially sustainable. The early founders of the FSC were timber users, traders and representatives of environmental and human rights organizations. The organisation was created after the 1992 Earth Summit in Rio failed to produce an agreement to stop deforestation. In light of intergovernmental failure to provide acceptable action on deforestation, environmentalists and community leaders championed the FSC which was designed to operate as a voluntary, market-based approach that would improve forest practices worldwide.

Another example is the Global GAP, one of the largest private sector food safety certification bodies which was created in response to failed application of environmental regulation by farmers in Europe. It began as a private initiative by retailers who sought to harmonise their standards and procedures to develop independent certification systems for Good Agricultural Practice. Global GAP is a global quality assurance standard for food safety, occupational health and environmental protection in relation to agricultural activities.

These are examples of market motivated regulatory schemes which have a certain attraction for the private sector. For example, by pursuing harmonised certification, businesses are able to reduce transaction costs and also distinguish their products within markets by easily signalling to consumers who are also concerned about sustainability. Businesses can also contribute their expertise within an environment where their commercial interests are understood. Furthermore, unlike government regulation, private regulatory schemes are not mandatory, therefore giving the private sector flexibility in adoption. However, it is important to note that these private regulatory schemes could become de-facto mandatory where the private regulatory scheme act as a barrier to market access.

Private regulation offers a platform for the private sector to take responsibility for the impact of their business on communities, the environment and individuals. Using this approach, government and civil society can also employ a collaborative stance when engaging the private sector on sustainable development.

Conclusion

This essay highlights the traditional, hybrid and private regulation-inspired approaches through which the private sector arguably facilitates the achievement of the SDGs. Private regulation is not a silver bullet in the global quest for sustainable development, considering the inherent legal, administrative, institutional and political concerns. However, seeing the private sector as a partner in rule making and enforcement opens a realm of possibility in terms of possible collaborative models among stakeholders towards achieving the SDGs.

Using International Investment Agreements to Address Access to Justice for Victims of Human Rights Violations Associated with Transnational Resource Extraction

December 4, 2019 Jon Goud

Penelope Simons and J. Anthony VanDuzer

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. SDG 16.3 calls on actors to “[p]romote the rule of law at the national and international levels and ensure equal access to justice for all”. A central pillar of the UNGPs is the need on the part of both state and non-state actors to ensure access to an effective remedy for victims of alleged business-related human rights violations. While neither document is legally binding per se, they reflect the international human rights law obligation of states to respect, protect and fulfil the right to an effective remedy as well as businesses’ responsibility to ensure access to an effective remedy “in terms of both process and outcome”.

Civil liability in home state courts of extractive multinational enterprises (MNEs) is one of the few mechanisms available for victims of alleged business-related human rights violations to seek justice and to hold MNEs to account. However, there are well-known legal, structural and practical obstacles to bringing such claims. Additionally, where an international investment agreement (IIA) is in place between the home and host state, the protections provided to investors under these agreements, which is typically coupled with a right to bring the host state to binding international arbitration, can impair host state efforts to respect, protect and fulfil human rights of individuals and groups affected by foreign investors’ activities, while providing no process for those affected to seek relief for human rights violations. In some cases, investors may be able to use investor-state dispute settlement (ISDS) and other mechanisms, to prevent victims from attaining reparations through civil litigation.

The pernicious effects of IIAs are far more wide ranging than the direct costs of claims.[1] Potential exposure to large awards and the substantial costs that states incur when forced to participate in ISDS, even when they win, means that IIAs can discourage states from regulating in ways that even might be the subject of an investor-state claim. This “regulatory chill” can and does discourage host states from discharging their obligation to protect individuals and communities from human rights violations perpetrated by private actors and ensure access to justice for harm caused. Extractive MNEs have been the subject of a significant proportion of allegations of wrongdoing and defendants in civil suits.[2] Additionally, a number of extractive MNEs, that have been implicated in human rights violations, have made ISDS claims and been awarded significant damages.

Some scholars argue that, given the well-recognized problems with IIAs and the ISDS system, states should refrain from negotiating and ratifying IIAs or at least dispense with ISDS. Others suggest that the problems posed by the international investment regime, including corporate impunity, might most effectively be tackled at the grass roots level through multi-actor contracts between local communities, the state and extractive MNEs.[3] We agree that there is strong argument that states should cease to negotiate IIAs. Nonetheless, to the extent that states continue to see IIAs as valuable instruments for the protection of their investors and therefore continue to negotiate and sign them, these agreements present an opportunity for activists and experts to encourage states to modify them in a manner that would ensure compliance with states’ international human rights obligations to respect, protect and fulfil human rights in the context of transnational business activity. Such reform of the international investment regime needs to be tackled in a multifaceted way and the top-down approach proposed here would be complementary to bottom-up strategies for reform.

It is certainly arguable that the right to an effective remedy imposes an obligation on states, when negotiating an IIA, to ensure, not only that the provisions of the IIA do not undermine the right to an effective remedy, but that they operate so as to ensure an effective remedy for individuals and communities affected by investor conduct. The UN Human Rights Council has invited states in a number of resolutions to “work through relevant intergovernmental processes to enhance accountability and access to remedy for victims in cases of business involvement in human rights abuses”.^{^[4]} The negotiation of IIAs is one such intergovernmental process.

IIAs can address the well-known obstacles faced by victims of business-related human rights violations in seeking justice in home state courts. These obstacles include (i) the difficulty of framing the harms suffered as torts, (ii) convincing domestic courts of the home or host state to assert jurisdiction over a claim involving an MNE, and (iii) defending a variety of motions brought by investors to stay, dismiss or strike the case such as motions based on forum non conveniens, the impugned action being immune from review as an act of state, comity and failure to disclose a cause of action, that may (have to) be litigated or defended all the way up to the highest court. Each of these motions may be fatal to the suit and thus undermine the right to an effective remedy. One of the largest stumbling blocks for plaintiffs bringing civil claims for business related human rights abuses is the separate legal personality of entities within an MNE which has implications at both the jurisdictional and merits stages of a civil suit. While we address all of these issues in our full paper, we confine our remarks here to the question of how to modify an IIA to address the separate legal personality of the entities within an MNE (investor) to facilitate access to justice for victims through civil claims.

The principle that a corporation has a separate legal personality insulates shareholders from liability for corporate acts. MNEs can exploit this principle through complex organizational structures that involve tiers of corporations linked through shared ownership. Separate legal personality allows shareholder corporations to avoid liability for the actions of the corporations in which they hold shares. Rigidly applying this principle in the context of the global activities of MNEs constrains the ability of individuals and groups who have suffered from the actions of MNEs to obtain relief in at least two ways. First, if the local subsidiary corporation operating in the host state has insufficient assets to pay compensation awards in favour of local people, shielding the parent corporation and others in the MNE group from liability will prevent full recovery. Second, domestic courts may refuse to hold corporations in an MNE group liable on the basis that only the local subsidiary directly implicated in wrongdoing is responsible. Attempts to get domestic courts to push the boundaries of corporate law to disregard the separate personality of corporations in a corporate group have been largely unsuccessful.^{^[5]} Similarly efforts to get domestic courts to attach direct liability to parent corporations or its executives based on their being a party to the subsidiary’s actions or their failure to discharge a duty of care under domestic tort law to prevent a subsidiary from abusing the human rights of individuals and groups in the host state have typically failed.^{^[6]} Other legal regimes have grappled with how to hold corporate groups responsible for the acts of one member of that group. [7]

With these kinds of models in mind, what provisions would be needed in an IIA to address separate legal personality in the context of civil suits by victims of investor-related human rights violations? First, there would need to be an obligation on the investor to respect human rights either in the IIA or in the domestic law of both parties, as well as an obligation in the IIA on the party states to provide a civil remedy for an investor’s violation of this obligation. Direct civil liability for breaching such an obligation could be imposed on all entities within an MNE group without a requirement for an independent finding of fault against a particular entity within the group so long as one entity in the group had committed a breach.

Doing so would require an IIA provision that defines what links are sufficient to connect a particular entity to the group. Corporations or other entities that control (directly or indirectly through intermediary entities) (here called “Controlling Entities”) the entity directly responsible for the human rights violation should be held responsible on the basis that they are the ultimate beneficiaries as well as the controllers of the business in which the human rights abuse occured. Ownership of equity sufficient to create a relationship of legal control should create a rebuttable presumption of control, but control should include contractual and other control mechanisms that give control in fact.

Apart from Controlling Entities themselves, entities they control that are engaged in carrying on the business in connection with which the human rights abuses occurred should also be responsible on the basis that they too benefit from the business with respect to which the human rights abuse occurred. Liability could also be extended to (i) all entities linked by ties of control (here called a “Controlled Group”) even if they do not participate in carrying on the business in which the human rights abuse occurred (resource extraction) and (ii) entities outside the Controlled Group, such as to sub-contractors and suppliers, who are have some specified close relationship to the group and benefit from the business in which the human rights abuse occurred.

With respect extending liability to all entities in category (i), the main justification for liability would be that it is necessary to minimize the risk that MNEs will segregate assets outside the reach of victims of human rights abuse and improve the chances of recovery by plaintiffs. With respect to entities in category (ii), liability could be justified based on their close connection to the business in which the human rights abuse occurred and benefits they derive from that business. An alternative to imposing liability on all entities in category (i) would be to hold only Controlling Entities in the Controlled Group responsible, either strictly or only where they could not establish that they had been duly diligent to prevent the human rights abuse.

International human rights law obliges states to provide an effective remedy for victims of alleged human rights violations associated with business activity. But ensuring access to justice and redress for victims of human rights violations committed by or with the complicity of extractive MNEs is a complex issue that requires a multifaceted response.^{^[8]} IIAs provide an opportunity to address some of the barriers faced by victims in bringing civil claims in the MNE’s home state, but such measures are only a small part of necessary broader reform. The proposed revisions to IIAs discussed here are not sufficient on their own to address fully access to an effective remedy in this context. A range of modifications to IIAs are needed to tackle the imbalances of these treaties and the problems they pose for the protection of human rights and host state regulatory capacity. We have considered how to undertake more holistic reform in our book, Integrating Sustainable Development Into International Investment Agreements.

Penelope Simons, Associate Professor, Faculty of Law (Common Law Section) University of Ottawa.

J. Anthony VanDuzer, Professor and Hyman Soloway Chair in Business and Trade Law, Faculty of Law (Common Law Section) University of Ottawa.

[1] Zoe Williams, “Investor-State Arbitration in Domestic Mining Conflicts,” (2016) 16 Global Environmental Politics 32, at 32.

[2] UNHRC, “Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie – Corporations and Human Rights: A Survey of the Scope and Patterns of Alleged Corporate-Related Human Rights Abuse, Addendum” (23 May 2008) A/HRC/8/5/Add.2, p. 9 Figure 1; Menno T. Kamminga, “Company Responses to Human Rights Reports: An Empirical Analysis” (2016) 1 BHRJ 95 at 100; Jonathan Drimmer, “Human Rights and the Extractive Industries: Litigation and Compliance Trends” (2010) 3:2 J World Energy L & Bus 121 at 121-123; and Directorate General for External Policies of the Union, “Access to Legal Remedies for Victims of Corporate Human Rights Abuses in Third Countries” (2019) at 5, online: <http://www.europarl.europa.eu/RegData/etudes/STUD/2019/603475/EXPO_STU(2019)603475_EN.pdf>.

[3] Odumosu-Ayana, I. T. “Governments, Investors and Local Communities: Analysis of a Multi-Actor Investment Agreement Framework” (2014) 15:2 Melbourne J of Intl Law 473, at 478-482. See also, James Gathii & Ibironke Odumosu-Ayanu, “The Turn to Contractual Responsibility in the Global Extractive Industry”, (2015) 1:1 BHRJ 69.

[4] See also UNHRC, Business and Human Rights: Improving Accountability and Access to Remedy, 38th Sess, UN Doc A/HRC/RES/38/13 (18 July 2018) at para 5.

[5] Regarding the UK, see Martin Petrin & Barnali Choudhury, “Group Company Liability” (2018) 19 European Business Organization Law Review 771, at 774-5. For some other jurisdictions, see Siel Demeyere,“Liability of a Mother Company for Its Subsidiary in French, Belgian, and English Law” (2015) 3 European Review of Private Law 385.

[6] This kind of claim was made unsuccessfully by members of the local community affected by the investor in the Piedra v Copper Mesa Mining Corporation, supra note 91. Cases in the United Kingdom are surveyed by Bueno (Nicolas Bueno, “Corporate liability for violations of the human right to just conditions of work in extraterritorial operations” (2017) 21 International Journal of Human Rights 565, at 575-578). See Ma Ji, “Multinational Enterprises’ Liability for The Acts of Their Offshore Subsidiaries: The Aftermath of Kiobel and Daimler” (2015) 23 Michigan State International Law Review 397. Ji deals with the distinctive experience of the United States.

[7] Eg, France’s recently enacted Law of Vigilance, Loi n° 924 du 21 février 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre; and EU competition law (see Case C-41/90, Klaus Höfner and Fritz Elser/Macrotron GmbH, 1991 E.C.R. I-1979, at 21, Case 48/69, Imperial Chemical Industries/Commission, 1972 E.C.R. 619, Case C-440/11P, Commission/Stichting Administratiekantoor Portielje, ECLI:EU:C:2013:514. Recent academic proposals and some other reform efforts in this regard are discussed in Petrin & Choudhury, note 5 at 779-782.

[8] P Simons & A Macklin, The Governance Gap: Extractive Industries, Human Rights and the Home State Advantage (Routledge 2014) at 271.

The Inter-American Human Rights System and social justice: What role for the SDGs to enforce human rights in the Americas?

December 2, 2019 Jon Goud

Salvador Herencia Carrasco *

Introduction

Between September 26 and 28, the Schulich School of Law of Dalhousie University hosted the workshop “The Role of Business Regulation in Advancing the Sustainable Development Goals”. The organizers were kind enough to invite me to present on the role of the Inter-American Human Rights System (IAHRS) and I thought that a new case that was just submitted to the Inter-American Court of Human Rights (IACtHR) a few weeks ago could help us discuss if there is a role for the Sustainable Development Goals (SDGs) in human rights, particularly in international litigation.

Martina Vera, private health policies and the duty to protect of the State

On September 6, 2019, the Inter-American Commission of Human Rights (IACHR) submitted to the IACtHR a case against Chile. The case focuses on the alleged violation of the right to life, personal integrity and the right to health of Martina Vera.

Martina Vera is a child that, months after her birth in 2006, was diagnosed with Leigh syndrome, a chronic condition that leads to the loss of mental and psychomotor abilities. Due to the impossibility of the public hospital in their hometown of Arica (located in northern Chile) to provide adequate medical treatment, her parents contracted a private health policy (Instituciones de salud previsional, ISAPRE), which included home medical daycare. According to the admissibility report of the IACHR, Martina Vera received private health care in her home between 2007 and 2010. But at the end of that year, the ISAPRE unilaterally canceled the policy, due to the chronic condition of the child.

The family filed a lawsuit against the company, yet despite winning in lower courts, in May 2011, the Supreme Court of Chile ruled in favour of the ISAPRE. The reason was that, according to Chilean regulations at that time, chronic conditions were not covered under home medical daycare insurance policies.

The family presented a claim before the IACHR in November 2011. In addition to the alleged violation of the rights mentioned in the second paragraph, the petitioners argued that this case showed the impact that the lack of regulation in the health sector has on marginalized populations. They were forced to take a private medical policy because the public hospital did not have the equipment or trained doctors to treat their daughter. This was not a personal preference; it was the only alternative to keep their daughter alive.

The public hearing of the case will take place in 2020 and a judgement should be released late next year or early 2021. As local media has reported, the case of Martina Vera could open the possibility for the IAHRS (i) to examine the duty of the state to protect human rights in a region where health and education services are increasingly provided by private companies; and (ii) to examine the responsibility of states for the lack of supervision and regulation towards private health insurance companies.

This last element is important because, as it happens with specialized fields like policy insurances, it is a usual practice in Latin America for the state and the private company that will provide the service (like health services), to co-draft the regulations. Potentially, this could be a case about the right to health, the SDGs and Business & Human Rights.

The IAHRS and social justice: Navigating a sea of uncertainties

As background information, the IAHRS is a regional human rights body created in 1969 by the Organization of American States. The American Convention on Human Rights (ACHR) is the governing instrument of this system. Its object is to protect individual rights and freedoms, similar to those established in the Universal Declaration on Human Rights or the International Covenant on Civil and Political Rights.

The IACtHR is the judicial body of the IAHRS and its decisions are legally binding on states parties to the ACHR. Since the publication of its first judgment on the merits for the Velásquez Rodríguez vs. Honduras case in 1988, the Court has adopted 382 decisions addressing issues related to due process, freedom of expression, the right to collective property of Indigenous Peoples, among other rights protected under the ACHR and other Inter-American conventions, like the Belém do Pará Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women.

Going back to the situation of Martina Vera, one of the rights that most likely will be litigated before the Court is the alleged violation of her right to health. I am speculating at this point because the IACHR has not published the merits report of the case. But for the sake of this post, let’s assume this is correct. The right to health is one of the essential economic, social and cultural rights (ESC right). Article 26 of the ACHR expressly posits that ESC rights have a progressive nature and not judicially enforceable by the IACtHR. This has been the standard –and limitation- under which the IAHRS has operated, until late 2017.

The IACtHR and the direct enforceability of ESCR rights

In December 2017, the IACtHR significantly changed its jurisprudence related to the progressive nature of ESC rights. In Lagos del Campo vs. Peru, the Court determined for the first time that a state was responsible for an autonomous violation of an ESC right. In this case, it was the right to work and job security. Since then, the IACtHR has adopted three other decisions determining the direct responsibility of states for breaching ESC rights. The case of Dismissed Employees of Petroperú vs. Peru was also about the right to work, while the case of Poblete Vilches vs. Chile and the case of Cuscul Pivaral and others vs. Guatemala focused on the right to health.

Of these four cases, only Cuscul Pivaral marginally makes a reference to Agenda 2030 of the SDGs. The case deals with the responsibility of Guatemala for not having any public policy to treat people with HIV/AIDS between 1992 and 2004. Of the 49 victims, 15 died due to the lack of medical attention. Even though the facts of the case took place before the adoption of the SDGs, this could have been used by the Court to assess what the state has done since then and to perhaps adopt a reparation to assure guarantees of non-repetition and compliance with objectives 3 (ensure healthy life), 3.3 (end the epidemics of AIDS) and 3.8 (universal health coverage) of the SDGs. Instead, the Court uses these objectives to remind the state of its political commitments to assure the right to health.

The IAHRS and the SDG: Connecting the dots

As the IAHRS consolidates its jurisprudence on ESC rights, the SDGs could contribute to set specific targets for states which could bolster non-repetition guarantees and institutional reforms ordered by the IACtHR. As Prof. Okafor posted in his blog for this workshop, the SDGs “(…) do not include any meaningful mechanisms for holding the relevant actors accountable for delivering on the resources without which almost all of the goals cannot be achieved”. However, this could change if international courts begin to use these instruments as elements to measure the fulfilment of human rights.

Going back to the case of Martina Vera, SDG 3 focuses on different activities to ensure healthy lives and promote well-being for all at all ages. In particular, objective 3.8 determines the following goal:

3.8 Achieve universal health coverage, including financial risk protection, access to quality essential health-care services and access to safe, effective, quality and affordable essential medicines and vaccines for all.

A rights-based approach could easily be constructed under this goal in support of Martina Vera’s case. The family adopted a financially onerous decision to treat their daughter, the only quality health-service available in their hometown was offered from the private company and the unilateral termination of the policy by the ISAPRE affected Martina’s right to access the essential medicines to keep her alive. If these arguments are successful, the SDGs could have a direct impact on the enforcement of the right to health. In addition, it could contribute to assure a stronger supervision and regulation by the state towards health insurance companies.

In June 2019, the UN Economic Commission for Latin America and the Caribbean (ECLAC) released a progress report on the implementation of Agenda 2030. Regarding health coverage, the report shows that despite some progress in the past years, only 34.2% of the lowest income population in Latin America is affiliated to a health system while this percentage spikes to 71.2% in the population with the highest income. In the latter, these are usually affiliated with a private health policy.

Chile is one of the most unequal countries in Latin America. As we have seen in the news, Chileans have massively protested against a system that perpetrates inequalities like the case of Martina Vera. These protests were triggered by a 30 pesos (0.04 USD) increase in the subway ticket. But this was the last straw in a series of measures that seem to protect the elite rather that the people. After a series of violent confrontations, which include serious allegations of violations of human rights by the police and military, the government has agreed to call for a plebiscite in April 2020 to constitute a new Constitutional Assembly.

In all of these discussions, including the calls for a Constitutional Assembly to replace the current Pinochet-era Constitution, civil society organizations have adopted a strong rights-based approach. Yet, there is no mention or reference to Agenda 2030 and how restrictive policies could impact its fulfillment. Although I am focusing on the case of Chile, this could be applicable throughout Latin America.

I am not sure why the IAHRS has not used Agenda 2030 in a more consistent manner. And this is not only a problem of the Court. For example, the IACHR released in early September the thematic report “Public Policy with a Human Rights Approach”. This report, which could become an authoritative source for states to draft policies do not include a single reference to Agenda 2030.

In a similar manner, an early thematic report titled “Situation of Human Rights of the Indigenous and Tribal Peoples of the Pan-Amazon Region”, released in early October, does not include any reference to Agenda 2030, even though there are specific goals and targets in the SDGs related to Indigenous Peoples. In all fairness, in 2016 the IACHR published the report “Poverty and Human Rights”, which included a section on the SDGs, focusing on the potential impact that this instrument could have in fighting poverty.

I believe that there is a need to connect the dots between this fairly new judicial practice of enforcing ESC rights by the IACtHR with the SDGs or other international instruments. Perhaps workshops like this could help us come with new ideas and collaborative efforts towards stronger public interest litigation.

Before I conclude, I would like to point out that the enforceability of ESC rights and the growing interest in the impact that economic and fiscal policies have towards the enjoyment of human rights have not been well received by all. Some states as well as some academics are concerned that the IAHRS is overreaching the scope of the ACHR. In addition, there is a growing concern that these groundbreaking decisions of the IACtHR are nothing more than symbolic victories while nothing really changes.

These criticisms are valid and merit a thoughtful response. However, it is interesting to see how, despite its enormous and severe limitations, the IAHRS seems to be going against the tide on human rights. While some are talking about a post-human rights world, the IACtHR determines that ESC rights as well as the right to environment are internationally enforceable. As the U.S. Department of State creates a Commission of Unalienable Rights, which includes a former member of the IACHR, Paolo Carozza, the IACtHR could assess the responsibility of states in the provision of health services by private corporations.

Conclusions

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.

The case of Martina Vera shows the impact of self-regulation in the health sector in Chile. Her case is only starting before the IACtHR. So I would like to extend an invitation to those interested in working together in an amicus brief regarding the SDGs, the right to health and the duty of the state to oversee the work of private health insurance companies.

* Director, of theHuman Rights Clinic of the Human Rights Research and Education Centre at the University of Ottawa. E-mail: shere045@uottawa.ca Twitter: @Sherencia77

Barriers to Implementation of SDGs in Africa: The Need for Effective Business and Government Collaboration

November 29, 2019 Jon Goud

Eghosa Osa Ekhator PhD (Hull), FHEA^*

The 193-Member United Nations General Assembly formally adopted the 2030 Agenda for Sustainable Development on 25 September 2015, along with a set of bold new Sustainable Development Goals, which the former Secretary-General Ban Ki-moon hailed as a universal, integrated and transformative vision for a better world. In January 2016, the 17 SDGs of the 2030 Agenda for Sustainable Development came into force. Thus, within the next fifteen years, these new goals apply universally, and countries will intensify efforts to end all forms of ‘poverty, fight inequalities and tackle climate change, while ensuring no one is left behind’ (UN website 2018). Some of these global (and inter-connected) goals include end to poverty, gender equality and quality education amongst others.

There have been recent reports on the performance and implementation of SDGs and Agenda 2063 (these are some initiatives developed under the auspices of the African Union) in Africa. For example, the 2017 African Sustainable Report states that approximately six out of every ten SDG indicators cannot be tracked in Africa due to severe data limitations. The 2017 report states that slow progress towards poverty reduction in Africa despite accelerated growth enjoyed over the past decade. The report states that Africa’s infrastructure deficits undermine industrial development. The report concludes that successful implementation of the SDGs and Agenda 2063 will require an integrated approach that coordinates the efforts of all sectors of government working in collaboration with the private sector and civil society. In the 2018 African Sustainable Report, notwithstanding that ‘Africa is making steady progress in building the critical ingredients for sustainable and resilient societies, but the pace is slow. Access to basic infrastructure such as energy, water and sanitation services is improving but falls well below the global average.’

Furthermore, one of the major ills affecting the successful implementation of SDGs in Africa is funding. Many African countries are not economically capable to fund the implementation of the SDGs framework in their countries. The total investment cost of actualising the SDGs range ‘between USD 5 and USD 7 trillion per year at the global level and between a total of USD 3.3 and USD 4.5 trillion per year in developing countries’. Thus, governments and the private sector (including businesses) are expected to collaborate to actualise the SDGs. Goal 17 of the SDGs emphasizes that the ‘SDGs can only be realised with strong global partnerships and cooperation’.

This post will seek to answer the following questions:

With the history and activities of Multinational Corporations (MNCs) in Africa, can we expect a fruitful partnership with the governments of African states?
Are the existing frameworks capable of delivering national outcomes or development programmes envisaged by the SDGs in Africa?

Africa has been at the epicentre of the devastating effects of the activities MNCs and hence ‘… transnational corporations operating primarily out of the global North have enjoyed de facto impunity for human rights abuses related to their global business activities, particularly those in the global South’. For example, some of the negative consequences of the MNCs in the oil sector in Nigeria include gas flaring, oil spills, environmental pollution, negative social impacts, conflict and violence. Thus, due to these negatives impacts arising from the activities of oil MNCs, many oil companies in the country have developed Corporate Social Responsibility (CSR) initiatives in an effort to mitigate these negative consequences.

Some scholars have argued that the likelihood of ‘realizing SDGs via effective CSR initiatives in the Delta [Nigeria] is doubtful’. Also, some scholars have argued that Millennium Development Goals (MDGs) and SDGs promote neo-colonialist polices in developing countries. For example, Langan argues that ‘SDG’s pivot to economic growth and private sector development (PSD) represents a reinforcement of existing donor commitment to free market policies in Africa.’

Notwithstanding the aforementioned criticisms of the SDGs, the SDGs have set a baseline or standards that countries should adhere to. One way of actualising the aims and objectives of the SDGs in African countries by relying on effective collaboration or collaborative governance between government, businesses and the private sector (including local communities and civil society). Arguably, the SDGs cannot be achieved without the contributions of MNCs. However, MNCs can only achieve legitimacy by engaging directly with the relevant stakeholders to realize progress on the SDGs. Thus, SDGs can serve as a framework that can support MNCs in enhancing their CSR ‘engagement in a way that contributes to sustainable development’.

Also, under the subhead of multistakeholder partnerships , SDG 17 highlights two targets:

17.16: Enhance the global partnership for sustainable development, complemented by multistakeholder partnerships that mobilize and share knowledge, expertise, technology, and financial resources, to support the achievement of the SDGs in all countries, in particular developing countries.

17.17: Encourage and promote effective public, public–private, and civil society partnerships, building on the experience and resourcing strategies of partnerships.

Many reports, surveys and guides have been published by a plethora of international organisations which emphasises the important role of businesses (private sector) in the implementation of the SDGs and the tools and strategies that the businesses should use in actualising the SDGs. A recent development in this regard is the creation of the Sustainable Development Goals Fund (SDGF). The SDGF is a ‘development cooperation mechanism created by the UNDP to support sustainable development activities through integrated and multidimensional joint programmes.’ The SDGF is the first ‘UN development cooperation mechanism’ explicitly established to actualise or implement the 2030 Agenda. It brings together a diverse range of actors including UN agencies, national governments, civil society, business and academia to ‘address challenges of poverty, promote the 2030 Agenda for Sustainable Development and achieve SDGs.’ The SDGF is supporting joint programmes in 23 countries including African states such as Côte d’Ivoire, Ethiopia, Mozambique, Nigeria, Sierra Leone and Tanzania. To enhance public-private collaborations or partnerships, the SDGF has created a Private Sector Advisory Group, comprised of business leaders of major companies around the world. The overarching aim of the SDGF Private Sector Advisory Group is ‘to provide the SDG-F Secretariat with guidance and strategic support to achieve better development results in coordination with the private sector.’

Furthermore, reforming the tax system in African countries and mandating MNCs to pay appropriate taxes will go a long way in funding the SDGs. Many MNCs engage in tax evasion, tax havens and illicit financial flows activities amongst others. Similarly, the Report of the High Level Panel on Illicit Financial Flows from Africa (Mbeki Report) UNECA 2014 states that ‘Africa is estimated to have lost $1 trillion in illicit financial flows” from corporations and organised crime rings.’ Recently, the Independent Commission for the Reform of International Corporate Taxation (ICRICT) has suggested a global minimum effective corporate-tax rate on multinationals of between 20% and 25%. Advocates of this global tax regime argue that it ‘would greatly weaken these firms’ financial incentives to use so-called transfer pricing among their subsidiaries to shift recorded profits to low-tax countries.’

Conclusion

This paper aligns with Godwell Nhamo who states that ‘if the SDGs are to be a vehicle for poverty eradication in Africa, then the continent needs to do more for itself, including domestic mobilization of financial resources’. In essence, effective partnerships or collaborations (e.g. between government, academia, public sector, private sector, civic society and local communities amongst others) need to be developed in order to achieve sustainable SDGs outputs.

* Eghosa Osa Ekhator LL.M (Hull), PhD (Hull), FHEA. Senior Lecturer in Law, University of Derby. Email address: e.ekhator@derby.ac.uk

The role of sub-national governments in ‘localising’ the UN SDGs in Nigeria

November 28, 2019 Jon Goud

Dr Ohio Omiunu

The Localisation Agenda

The push for a stand-alone ‘urban’ goal – SDG 11 (sustainable cities and communities) by sub-national multilateral groups underscores the crucial role to be played by sub-national governments (SNGs) in the successful implementation of a majority of the UN Sustainable Development Goals (UN SDGs).[1] More importantly, SNGs are advocating for a localisation of the UN SDGs. Localisation in this context is a mandate to see SNGs be involved ‘…in all phases of the policymaking process…’ The appeal of the localisation agenda is in the idea of a local approach to global development. Focusing on Nigeria as a case study, this contribution aims to examine the localisation of the UN SDGs in Nigeria critically.

Localising the UN SDGs in Nigeria

According to the OECD, an ‘estimated 65% of the 169 targets behind the 17 SDGs will not be reached without the engagement of local and regional governments.’ Nigeria’s 2017 National Voluntary Review (NVR) acknowledges that it is ‘…at the sub-national (State and Local Government) level where the most critical development challenges reside…’ (Nigeria NVR, 2017: p. 6). This admittance underlines the need to involve Nigerian SNGs as critical stakeholders in all phases of the SDG policymaking process. More so, given the federal nature of Nigeria, SNGs have concurrent powers with the central government under the 1999 Constitution to legislate on a majority of the issues relevant to the UN SDGs.

However, it was argued in a UCLG 2017 Report that: Although many national governments acknowledge the role of sub-national governments, their national plans and VNRs do not always reflect a clear strategy for their inclusion (p. 13). In Nigeria, this appears to be the case. For example, reading through Nigeria’s 2017 NVR, Nigeria’s strategy reflects SNGs as rule-takers rather than as co-designers of polices. In comparison, in India’s 2017 NVR, it is stated that in keeping with the country’s long-standing federal tradition, the SDG policies and strategies are being ‘…prepared with the active participation of the sub-national governments’ (India NVR, 2017: p. 5 ff P. 31). The different designation of SNGs in the NVRs of both India and Nigeria are in the very least, an indication of the level of priority accorded to the ‘localisation agenda’ in both countries.

Beyond the semantics, another issue militating against the localisation agenda in Nigeria is the SDG financing gap. Finding sustainable financing strategies at SNG level to achieve SDG targets is a burden shared across the international system. Countries have approached this common issue differently. For example, in terms of financing the UN Millennium Development Goals (MDGs) and now the SDGs, Nigeria’s flagship Conditional Grant Scheme (CGS) was introduced in 2007. This innovative scheme is now available from 2019 for capacity building and post-intervention support services for micro-enterprises. However, is this a sustainable strategy? For example, with successive changes at the helm of government in Abuja, question marks have been raised about corruption and nepotism in the administration of this federal government scheme (see Yusuf and Hulme, 2019). As such, it is questionable if upscaling the CGS, in itself will be sufficient to meet the financial commitments needed at the sub-national level for implementing the SDGs. This argument is premised on the fact that financing the SDGs at the subnational level requires a radical rethink to financial strategies relied upon across the international system. In India, in addition to special-purpose grants (similar to Nigeria’s CGS), the fiscal devolution to states in India has been increased substantially (from 32 to 42 % of the central pool of tax proceeds). In addition to an increase in fiscal devolution, the Centre supplements Local Body finances by providing them with appropriate fiscal space (see India’s NVR, 2017: p. 27). In Nigeria, a similar approach is needed.

As laudable as the Nigerian CGS is, there is a need to broaden the tax base of SNGs to meet the expanded tasks posed by the SDGs compared to the MDGs. For example, in the Netherlands, it has been argued by The Dutch Association of Municipalities, that ‘central funding system in the Dutch governance model does not do justice to the vastly expanded tasks and powers at the provincial and municipal levels’ (UCLG Report, p. 60). This underscores how critical it is for there to be parity between allocated responsibilities and the corresponding fiscal powers to fund these responsibilities (Dang, 2013: p. 6).

Under the current strategic plan by president Buhari’s government to restore Nigeria’s economic fortune – ‘The Nigerian Economic Recovery and Growth Plan (NERGP) 2017-2020’, the emphasis is placed on sub-national fiscal coordination, rather than on creating appropriate fiscal space (see NERGP, p. 103-104). SNGs are encouraged to be fiscally responsible, i.e. rationalise public expenditure; improve public financial management and manage debt sustainably. This is all well and good because the contribution of SNGs to Nigeria’s debt profile in the 4^th republic is a worrying trend. However, SNGs are facing dwindling revenues compared to their growing responsibilities to implement the SDGs successfully. As such, SNGs need more control of their resources and/or a broadened tax base to boost revenue receipts. This raises the perennial political question of resource control which has been a recurrent agitation from some sections of the country (see Ekuri and Etim, 2017).

Conclusion

Evidence from Nigeria’s 2017 NVR indicates that the strategic framework for operationalising the SDG goals are far from localised. This top-down approach for designing SDG policies in Nigeria does not encourage SNGs to ‘foster actual ownership of the goals and embody their vision of the future in concrete actions and initiatives’ (UCLG Report, p. 15). Localising the SDGs is not a magic bullet solution to development problems in Nigeria; however, the involvement of SNGs as collaborators and co-designers of rules is crucial to the successful attainment of the SDGs. Especially, as funding is a significant impediment to the actualisation of the SDG goals, the federal government and SNGs must work in tandem to create innovative solutions.

[1] The sub-national multilateral groups that were part of the campaign include the such as United Cities and Local Governments (UCLG), Metropolis, C40 and the other members of the Global Taskforce of Local and Regional Governments (GTF)

Sustainable Development and Community Content in the Oil and Gas Industry

November 27, 2019 Jon Goud

Ibironke T. Odumosu-Ayanu, PhD

Local content measures are being advanced as mechanisms that foster achievement of the sustainable development goals (SDGs). The oil and gas industry as represented by IPIECA, “the global oil and gas association for environmental and social issues”, has situated itself within the SDGs, outlining the industry’s “potential to contribute to all 17 SDGs” in a report developed in partnership with the United Nations Development Program and the International Finance Corporation and presented at the United Nations High-Level Political Forum in 2017. As the executive summary to the joint report – “Mapping the Oil and Gas Industry to the Sustainable Development Goals: An Atlas” – notes, “oil and gas production can foster economic and social development by providing access to affordable energy, opportunities for decent employment, business and skills development, increased fiscal revenues, and improved infrastructure. However, oil and gas development has historically contributed to some of the challenges that the SDGs seek to address – climate change and environmental degradation, population displacement, economic and social inequality, armed conflict, gender-based violence, tax evasion and corruption, increased risk of certain health problems, and the violation of human rights.” Local communities that host and/or are impacted by natural resource extraction are at the fore of the impacts that these challenges generate. This contribution, therefore, focuses on the inequalities that result within countries as a result of the activities of the oil and gas industry and which endure in spite of the local content policies that are adopted. Without endorsing local content as a legal/policy option that captures the position of local communities regarding the oil and gas industry, it argues that it is necessary to clarify the definition of local content because if the scope of local content is unknown, there is a likelihood that it will remain difficult to determine whether goals are being met especially with regard to host and impacted communities.

Local content policies and requirements vary across jurisdictions and so does the definition of local content. Usually, local content is mostly understood as local content requirements (“LCRs”) that are mandated by government through legislation or policy or included in investor-state natural resource contracts. Countries adopt LCRs in order to “maximize the gains” of FDI “through the promotion of local participation in FDI and the use of local raw materials”. LCRs usually require local procurement of goods, local service provision, employment of citizens of host states as well as active participation of local companies. Some commentators regard local content as measures that extend beyond government mandated requirements. In their definition of local content, these commentators mostly outline the government mandated view of LCRs but also note that “[l]ocal content may even refer to the provision, by the oil company, of infrastructure (schools, medical facilities) that is not an input into its own production but intended for the benefit of the local populations (either of the nation generally or the neighborhood of the installations).” While local content is now mostly viewed through the lens of a “compliance regime”, these authors argue that many oil and gas companies adopted the view that local content is part of CSR.

As the Nigerian Oil and Gas Industry Content Development Act demonstrates, LCRs mostly have a national focus which, in Nigeria’s case, involves the promotion of “Nigerian content”. Beyond the national view of local content, it has been argued that community development agreements (“CDAs”) formed between host and impacted communities and extractive companies by which the companies pledge to provide benefits, including infrastructure development, to host and impacted communities form part of local content. The Nigerian Content Development and Monitoring Board specifically incorporates these CDAs, known in Nigeria’s oil and gas industry as the Global Memorandum of Understanding, as part of its local content monitoring work. Commentators also regard community content, a set of government mandated requirements akin to LCRs but which focus specifically on host and impacted communities, as part of local content. Beyond commentary, the Nigerian Content Development and Monitoring Board has adopted a set of community content guidelines.

The broad view of local content then includes government mandated LCRs that operate nationally (including government incentives to facilitate local content), mandatory community content measures, CDAs, and voluntary CSR initiatives. However, the dominant view of local content remains the government mandated LCRs. Many Third World countries that adopt the government mandated model of LCRs do so to foster economic development. However, LCRs have been critiqued as being “both a mechanism for promoting large-scale economic development and at the same time a mechanism for the elite to capture oil rent by legitimising policies that play favourites and privilege particular capitalists.” While relevant for economic development, LCRs may not generate the necessary benefits for local communities and are not panacea for the challenges that pervade natural resource extraction. Hence, community content has garnered some traction.

In Nigeria, the Nigerian Oil and Gas Industry Content Development Act requires that all entities involved in Nigeria consider “Nigerian content” as an “important element” of their “management philosophy.” Nigerian content is the philosophy that currently drives the execution of projects and other activities in Nigeria’s oil and gas industry. The Act defines Nigerian content as “the quantum of composite value added to or created in the Nigerian economy by a systematic development of capacity and capabilities through the deliberate utilization of Nigerian human, material resources and services in the Nigerian oil and gas industry.” It focuses on “Nigerian” content with almost no specific references to host and impacted communities. It is the recently adopted community content guideline that turns its attention toward host and impacted communities. Viewed from the perspective of government-required guidelines such as Nigeria’s community content guideline, community content is a set of measures that seek to effect LCRs in host and impacted communities. The purpose for which these measures are adopted is not only to further economic development in the communities but also somewhat problematically to serve as a mechanism for industry’s acquisition of a social license to operate and mitigating conflict in oil-producing areas. Nigeria’s community content guideline requires that host and impacted communities receive preference regarding employment, training, procurement and other relevant areas of LCRs. Community content remains within the shadow of local content, broadly defined, making it difficult to assess whether references to local content in the policies of governments, international institutions and extractive companies include community content initiatives or only refer to measures that do not yield direct benefits to host and impacted communities.

The joint report referenced in the first paragraph of this contribution outlined several aspects of the SDGs that are impacted by the broad definition of local content in the oil and gas industry. SDG 1 (end poverty in all its forms everywhere) in this view would require inter alia investment in “local development” and CDAs while SDG 4 (ensure inclusive and equitable quality education and promote lifelong learning) would require the establishment of “company strategy for local content to promote sustainable development”, which would in turn facilitate acquisition of the social license to operate. For its part, achievement of SDG 8 (promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all) is interpreted to require, inter alia, local procurement and supplier development as well as local employment – a more traditional view of local content. SDG 10 (reduce inequality within and among countries) and SDG 16 (promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels) would involve communication with local communities, and community engagement and consent respectively.

Clearly, the report severally incorporates the range of issues that are regarded broadly as ‘local content’ and often references them individually. However, in its discussion of SDG 17, it states that “[t]ransparency around plans and policies, particularly related to such issues as the environment and local content, can also be important for communicating with local stakeholders, managing risk and maintaining a social licence to operate”. Here, local content could mean any of the measures discussed above and does not necessarily suggest a focus on the host and impacted communities, who often mostly encounter the challenges that the SDGs seek to address at a scale that is more severe than those encountered by citizens outside these communities. Hence, clear articulation of policies and measures directed to respond to challenges that host and impacted communities encounter cannot be overemphasized. And even where a measure, such as CDAs, is directed towards host and impacted communities, while it is convenient to easily brand them as contributing to the SDGs, it remains necessary to critically assess their place as measures that, according to Kenya’s Endorois community, reflect communities’ “choice and self-determination” and reflect the view that development is “an increase in peoples’ well-being, as measured by capacities and choices available.” This also exposes a fundamental consideration for which even the SDGs do not necessarily provide a robust response. While building schools, ensuring that community members have employment preference or implementing other measures that assist industry actors in the acquisition of a social license to operate are laudable initiatives that could foster achievement of the SDGs, host and impacted communities’ choice and self-determination mostly remain elusive.

Symposium on Sustainable Development Goals, Trade, Investment, and Inequality

November 26, 2019 Jon Goud

Convener: Olabisi D. Akinkugbe

The Purdy Crawford Workshop

This Symposium, co-hosted by Afronomicslaw and the Dalhousie Law Journal Blog is an outcome of one of the streams at the 2019 Annual Purdy Crawford Workshop at the Schulich School of Law. The theme of the Workshop which took place from Sept. 26–28 was “The Role of Business Regulation in Advancing the Sustainable Development Goals.” Co-organized by three Schulich School of Law Professors, the Workshop featured three inter-disciplinary and simultaneous streams as well as cross-over plenaries that focused on: “SDGs and Revenue Mobilization” – convened by Kim Brooks, the Purdy Crawford Chair in Business Law; “SDGs, Trade, Investment, and Inequality” convened by Olabisi D. Akinkugbe; and “Business Responsibilities for Human Rights and Environmental/Climate Justice – convened by Sara Seck.” The contributions to this symposium were initially presented as part of “SDGs, Trade, Investment, and Inequality” stream.

Introduction to the Symposium on Sustainable Development Goals, Trade, Investment, and Inequality

The adoption of the United Nations Sustainable Development Goals (SDGs) by all Member States of the United Nations in 2015 committed them to undertake a range of actions that will reduce poverty, promote prosperity, protect the environment, but, also take steps towards addressing inequality within and among nations. In this regard, the 2030 agenda for sustainable development aim at transforming the world by ensuring, simultaneously, human well‐being, economic prosperity, and environmental protection.

The SDGs are embedded in long standing ideological and philosophical debates about the relationship between developing and developed countries on the one hand, and the relationship of these countries vis-à-vis the exploitation of their natural resources in contemporary times. The debate has since assume a different dimension based on the activities of multinational/transnational corporations in the extractive industries in many developing countries.

Although anchored on the currency of “sustainable development”, the challenges that the SDGs address are not novel. The SDGs are ambitious; riddled with accountability and evaluation challenges; as well as measurement of implementation or operationalization at the national and international levels to mention a few. These challenges have deep historical roots; they typify the perennial Global North and Global South socio-economic and environmental issues which critical third world and development scholarship have and continue to examine.

For example, inequality in trade, investment, and financial relations between develop and developed nations is an important goal of the SDGs. Target 6, Goal 10 aims to “[e]nsure enhanced representation and voice for developing countries in decision-making in global international economic and financial institutions in order to deliver more effective, credible, accountable and legitimate institutions.” To “reduce inequality within and among countries”, the SDGs Target 8 will “[i]mplement the principle of special and differential treatment for developing countries, in particular least developed countries, in accordance with World Trade Organization agreements”; while Target 9 will “[e]ncourage official development assistance and financial flows, including foreign direct investment, to States where the need is greatest, in particular least developed countries, African countries, small island developing States and landlocked developing countries, in accordance with their national plans and programmes.” The foregoing targets raise significant issues that intersect existing debates on inequality, trade, investment and development in the context of the relationship between state and non-state actors in international law.

On the one hand, the aspirational nature of these targets invoke a curious, and rather pessimist, feeling of how has the plight of the unequally rivalled territories of the world been improved by previous UN related projects that were centered around various decades of development, such as the precursor to the SDGs, the Millennium Development Goals, or the 1960 UN Decade of Development that began these UN led agendas. On the other hand, the SDGs also provoke a nostalgic feeling regarding previous political projects led by Third World Countries such as the New International Economic Order of the 1970s and the unsuccessful attempt to restructure an oppressive international economic order and legal regime.

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.

The Symposium features 10 excellent contributions from the participants. Following this Introduction by Olabisi D. Akinkugbe is Ibironke T Odumosu-Ayanu’s post titled “Sustainable Development and Community Content in the Oil and Gas Industry”. In many developing countries, Prof. Odumosu-Ayanu notes, “oil and gas development has historically contributed to some of the challenges that the SDGs seek to address – climate change and environmental degradation, population displacement, economic and social inequality, armed conflict, gender-based violence, tax evasion and corruption, increased risk of certain health problems, and the violation of human rights.” Her contribution “focuses on the inequalities that result within countries as a result of the activities of the oil and gas industry and which endure in spite of the local content policies that are adopted” by looking at the context of the industry in Nigeria.

Using Nigeria as a case study, Ohio Omiunu’s contribution examines the “localization of the UN SDGs” through the sub-national governments. Highlighting the problems that are inherent in the current vertical nature of the SDGs, he argues that merely “localizing the SDGs is not a magic bullet solution to development problems in Nigeria.” In his view, the involvement of sub-national governments “as collaborators and co-rule designers is crucial to the successful attainment of the SDGs.” Dr. Eghosa Osa Ekhator’s contribution stretches the analysis beyond national boundaries to the African continent. He assesses the barriers to the implementation of the SDGs in Africa. In particular, he reflects on two pertinent questions: (i) “With the history and activities of Multinational Corporations in Africa, can we expect a fruitful partnership with the governments of African States?” (ii) “Are there existing frameworks capable of delivering national outcomes or development programmes envisaged by the SDGs in Africa?” Like, Dr. Omiunu, Dr. Ekhator argues that “effective partnerships or collaborations (e.g. between government, academia, public sector, private sector, civic society and local communities amongst others) need to be developed in order to achieve sustainable SDGs outputs” in Africa. He contends that mobilizing domestic financial resources within and by Africans is critical to the achievement of these goals.

Providing a different perspective outside of the African continent Salvador Herencia Carrasco’s contribution examines the role of the Inter-American Human Rights System (IAHRS) and in particular, the jurisprudence from the Inter-American Court of human Rights (IACtHR) in probing the role of SDGs in human rights litigation. Salvador argues that “as the IAHRS consolidates its jurisprudence on ESC rights, the SDGs could contribute to set specific targets for states which could bolster non-repetition guarantees and institutional reforms ordered by the IACtHR.

The challenge of access to justice for the victims of international investment by transnational corporations is at the heart of Tamar Meshel; Akinwumi Ogunranti, Michael Marin as well as Penelope Simons and Anthony Vanduzer’s excellent contributions. Tamar Meshel examines the plight of the “victims of human rights violations at the hands of transnational corporations [noting that] the question of redress remains daunting. With the challenge of access to justice confronted by these victims before domestic courts now an issue at the forefront of international discourse, she examines the potential of the the draft UN Treaty for Business and Human Rights to provide access to remedy for these victims. On their part, Penelope Simons and Anthony Vanduzer contextualize the challenge of access to justice in relation to international investment agreements. They proffer some concrete but measured proposals with respect to how international investment agreements can be drafted and leveraged upon to seek justice for the victims of human rights violations in the extractive industries.

Michael Marin’s contribution moves the analysis further in asking a pertinent question relating to the liability of officers and directors in transnational human rights litigation. In search of remedy for the victims of human rights violation in transnational extractive industry, Marin contends that “suing the agents of the parent company (e.g. its directors or officers) is likely to be a more effective deterrent than suing the parent company itself. In other words, … that personal liability, as opposed to corporate liability, may be a better way of using tort law to ensure that TNCs respect human rights.” In his contribution, Akinwumi Ogunranti, examines the question whether a Business and Human Rights Arbitration is worth establishing. Situating his analysis in the context of the ongoing reform of the International Center for Settlement of Investment Dispute and the United Nations Commission on International Trade Law, he contends that the omission of the local communities undermines the legitimacy of the reform efforts in two respects. Amidst the reform processes of the ICSID and UNCITRAL, Akinwunmi, contends that the introduction of Business and Human Rights arbitration Rules is unnecessary in international dispute resolution.

The penultimate post by Mariam Momodu asks whether transnational private regulation can facilitate the achievement of the SDGs while simultaneously “minding the business that pays them.”? Noting the ambitious nature of the SDGs, Mariam Momodu examines “the traditional and emerging approaches through which the private sector contributes to the attainment of the SDGs. She argues that while “private regulation is not a silver bullet in the global quest for sustainable development, considering the inherent legal, administrative, institutional and political concerns. … seeing the private sector as a partner in rule making and enforcement opens a realm of possibility in terms of possible collaborative models among stakeholders towards achieving the SDGs.”

The final post by Obiora Okafor on focuses on “International Accountability in the Implementation of the Right to Development” via an examination of the notion of ‘accountability’ espoused in two Reports of the UN – the UN High-Level Panel on the post-2015 Development Agenda (May 2013) and the UN Secretary-General’s Report (July 2013). For Okafor, “the particular conception of accountability espoused in these two reports is a limited one. Its near-entire focus is on accountability at the national level. Not nearly as much is said about the role of good governance on the international plane in fostering the kind of mutual accountability that is envisaged.” Okafor showes that development praxis have existed for some time at the African regional level to demonstrate what meaningful mechanisms for ensuring some accountability may look like, and while he cautions that the approach, as is, does not apply outside Africa and “does not completely plug the accountability issue” in relation to the SDGs, he suggested an augmented form of the approach – one that “ungirded by hard law” as an approach that “ought to be replicated at the UN level.

On a final note, I would like to acknowledge Dr. Joy Kategekwa and James Thuo Gathii, both of whom were also participants at the 2019 Purdy Crawford Workshop.

Category: Afronomics

The Localisation Agenda

Localising the UN SDGs in Nigeria

Conclusion

The Purdy Crawford Workshop

Introduction to the Symposium on Sustainable Development Goals, Trade, Investment, and Inequality