1. Introduction
There is a rise in mandatory human rights due diligence legislation (mHRDD) in Europe, which requires businesses to identify, prevent, mitigate, and address human rights and environmental abuses in their supply chain activities.Footnote 1 States, including France, Germany, and Norway, have enacted these laws.Footnote 2 The latest initiative is the European Union’s Corporate Sustainability Due Diligence Directive (Directive) and its proposed amendments, which aim to create a uniform mHRDD legislative framework across European states.Footnote 3 The European Union (EU) seeks to impose obligations on selected multinational corporations (MNCs) whose parent companies are headquartered in Europe to conduct human rights due diligence (HRDD) in their operational activities and relationships with partners and subsidiaries outside their home state.Footnote 4 By its nature, the Directive has an extraterritorial reach, as it controls corporate behaviour outside Europe through global value and supply chains. Indeed, it has been noted that ‘domestic supply chain-related regulation is an avenue by which home states can potentially set environmental and human rights related norms for third party suppliers and their host governments via multinational companies’.Footnote 5
Scholars, including Caroline Omari Lichuma, Fatimazahra Dehbi, Olga Martin-Ortega, Zhuolun Li, and Yu Xiang, criticize unilateral home state regulation of the global value and supply chain governance.Footnote 6 Using a Third World Approaches to International Law (TWAIL) lens, they argue that the views of Global South governments, stakeholders, and rightsholders were excluded in the making of the Directive. However, these scholars have differing views on ways to protect the interests of Third World Peoples.Footnote 7 Dehbi and Martin-Ortega propose an ‘integrated approach’ that enables regional co-operation between home and host states. Although Lichuma agrees with the approach, she contends that ‘… the best and most effective way of regulating the GVCs [global value chains] of TNCs is through the use of international rather than national law’.Footnote 8 She proposes resorting to the international treaty to regulate MNCs, which is currently being negotiated.Footnote 9 In her view, instead of an ineffective and unrealistic unilateral home state regulation of MNCs, international law ‘offers a protective shield, however fragile, to the less powerful states in the international system’.Footnote 10
This article poses the question of how African states should respond to the EU Directive and the proposed amendment, which further dilutes corporate responsibility. I invite us to look beyond international law or inclusive home-state global supply chain regulation and more toward subsidiary norms in supply chain governance. Contextualizing the discourse within Africa, I argue that resorting to Europe or international law entrenches the ‘white savior’ rhetoric.Footnote 11 This is because, despite the good intention behind unilateral home state regulation, ‘home states are often interested in promoting the foreign investments of their corporate nationals and in benefiting from their economic benefits abroad’.Footnote 12 Also, considering the capitalist history of international law, it is impossible for it to save Third World Peoples from neocolonial norms.Footnote 13 Therefore, instead of looking to Europe or international law for help, African states must look inward to decolonize Eurocentric norms that facilitate the exploitation of African natural resources.
The five sections of this article are set out as follows: Section 2 examines the nature and scope of the Directive and its proposed amendments. It argues that the Directive’s limited scope does not meaningfully address MNCs’ human rights abuses and economic exploitation in Africa. Instead, it entrenches Eurocentric norms in the global world order. Section 3 subjects the Directive to a TWAIL critique. It contends that, given the political and economic contestation involved in supply chain regulation, it is impossible for African states to rely on the EU or international law to protect the interests of Third World Peoples. Rather than relying on external intervention, Section 4 proposes developing subsidiary norms that resist Eurocentric domination and advance the views of African states in global discussions. To achieve this, it discusses the African Union (AU)’s normative role in developing policy and treaty norms that Africanize BHR. Section 5 concludes that no one is coming to save Africa; Africa must save itself from neocolonial norms that are inimical to the socio-economic interests of its people.
2. The EU Directive
Principle 2 of the UN Guiding Principles on Business and Human Rights (UNGPs) provides that states should clearly set out the expectation that businesses must respect human rights throughout their operations abroad.Footnote 14 It acknowledges that home states can enact extraterritorial legislation to regulate the activities of MNCs, provided there is a recognized jurisdiction to do so. Against this background, the EU Parliament approved the Directive on 24 May 2024 to regulate HRDD in global value and supply chains.Footnote 15 The EU hopes that the Directive will level the playing field among EU states and provide a uniform HRDD standard for European MNCs operating abroad. Although the Directive was negotiated and adopted at the EU level, the EU Commission expects that ‘[t]he Directive will steer businesses towards responsible behaviour and could become a new global standard with regard to mandatory environmental and human rights due diligence’.Footnote 16 In effect, the EU envisions that the Directive will become a global standard that other states will adopt. EU member states are expected to transpose the Directive into national law and communicate the relevant texts to the EU Commission by 26 July 2026.Footnote 17 One year later, on 26 July 2027, the rules will start to apply to companies.Footnote 18 By 26 July 2029, the rules are expected to be in full force.Footnote 19
However, in February 2025, the EU Commission proposed an Omnibus package to amend the Directive.Footnote 20 Through this amendment, the Commission aims to reduce the regulatory burden of EU corporations, enabling them to remain competitive in the global market.Footnote 21 Furthermore, the Commission seeks to delay the application date of the Directive and its transposition by Member States.Footnote 22 In the discussion that follows, I examine the scope of the Directive, along with its proposed amendment, highlighting their relevance and implications for Africa.
2.1. The scope of the Directive
The Directive applies to ‘very large’ EU companies that employ more than 1,000 people and generate a net worldwide annual turnover of EUR 450 million, regardless of their operational sector.Footnote 23 Even if a parent company does not meet the financial threshold, it may still be subject to the Directive if any subsidiaries outside Europe meet it. In other words, the Directive considers the extraterritorial ‘presence’ of parent companies abroad. The Directive applies to approximately 6,000 EU-based companies and 900 non-EU companies.Footnote 24 Less non-EU companies are exempted from the Directive, because they are not expected to meet the employee threshold.Footnote 25 In effect, the Directive excludes small and medium-scale enterprises (SMEs) and most big corporations in Europe from conducting mandatory HRDD, even if they engage in high-risk transnational business. It has been noted that the estimated number of corporations covered by the Directive is less than 1% of EU corporations,Footnote 26 and even lower for non-EU companies.
The limited scope of the Directive is contrary to expectations under the UNGPs. Principle 14 of the UNGPs provides that ‘[t]he responsibility of business enterprises to respect human rights applies to all enterprises regardless of their size, sector, operational context, ownership and structure’.Footnote 27 It, therefore, stands to reason that transnational business activities occurring between some large corporations and SMEs in Europe and Africa are not required to conduct HRDD. This is particularly so because the Directive only applies to corporations that meet the financial and employee thresholds for two consecutive financial years. This incoherence between the UNGPs and the EU Directive is a gap that most MNCs will likely continue to exploit, given that parent companies can structure their own turnover and that of their subsidiaries to evade obligations under the Directive.
The Directive requires MNCs that fall within its scope for compliance (‘companies in scope’) to undertake risk-based human rights and environmental due diligence in their downstream and upstream activities to identify and assess actual and potential adverse impacts and (as appropriate) prevent, mitigate, end, and remedy such impacts in their operations and chain of activities.Footnote 28 These obligations extend to companies in scope, their subsidiaries, and business partners. The Directive defines upstream activities as the business partners’ activities related to ‘the production of goods or the provision of services by that company, including the design, extraction, sourcing, manufacture, transport, storage and supply of raw materials, products or parts of products and the development of the product or the service’.Footnote 29 Similarly, downstream activities include the activities of business partners related to the distribution, transport, or storage of products, where undertaken for the company or on its behalf.Footnote 30 For example, an automobile company’s upstream (supply chain) activity would include raw materials used in each vehicle component and the factories and suppliers involved in production. At the same time, its downstream (value chain) activities would encompass responsible design and marketing practices, safe vehicle operation, environmental impacts, and the disposal or recycling of parts at the end of a vehicle’s life.Footnote 31 The Directive recognizes that business partnerships can be established directly (through contractual agreements) or indirectly (where an entity performs business operations related to the company’s products, services, or operations).Footnote 32
However, the EU considerably limited the scope of business relationships that fall under downstream activities. The downstream activities do not include the disposal of consumer products. Therefore, companies in scope are not obligated to ensure that their business partners conduct HRDD to safely dispose of waste, including dismantling, recycling, composting, or landfilling. This is notwithstanding that the EU is home to many giant technology companies whose activities contribute to environmental degradation arising from the unsafe waste disposal of their products. African states suffer the climate and environmental effects arising from EU technology companies’ dumping of electronic waste products, a practice that is described as ‘toxic colonialism’.Footnote 33 Electronic waste products, including refrigerators and cell phones, are frequently exported from Europe to Africa, where they are dismantled for valuable metals in informal settings, resulting in significant human exposure to toxic substances.Footnote 34 These activities also pose significant health risks to workers and residents in communities near recycling sites, including women and children.Footnote 35 The Directive places the burden on consumers and business partners in developing states to assess, monitor, prevent, and address the risk of safe waste disposal and recycling, a nearly impossible task.Footnote 36
The Directive refers to existing EU legislation, including Regulation (EU) 2021/821 and Regulation (EU) 2019/125, as those that regulate product disposal.Footnote 37 It could be argued that the EU wishes to avoid duplication in the Directive. However, the scope of the existing regulations is narrow; they do not cover all instances of waste dumping in regular business activities. For example, Regulation (EU) 2021/821 is limited to cybersecurity items (dual-use technologies) that can be used in connection with internal repression or the commission of serious human rights violations. Similarly, Regulation (EU) 2019/125 is limited to technologies exported for torture or other cruel, inhuman, or degrading treatment or punishment. These regulations do not cover supply chain activities as contemplated by the Directive. Therefore, there is no risk of regulatory overlap. The EU deliberately avoided the opportunity to implement international instruments safeguarding the right to a healthy environment and environmental impacts, including pollution, waste management, and recycling. This means that through EU companies’ downstream activities, African states continue to serve as a dumping ground for waste recycling products.
The Directive also excludes the financial sector from the scope of downstream activities for at least two years, beginning from the implementation date.Footnote 38 EU financial institutions have no obligation to ensure that their business partners or investors conduct HRDD. This is notwithstanding that the finance sector is inherently prone to human rights impacts, as it carries more severe and widespread risks in its downstream value chains.Footnote 39 The World Benchmarking Report shows that European financial institutions struggle to demonstrate that they incorporate human rights considerations into their financial activities, such as investment, lending, and insurance.Footnote 40 In 2019, Human Rights Watch reported that four European development banks were complicit in the abusive practices on oil palm plantations in the Democratic Republic of the Congo since 2013.Footnote 41 Human Rights Watch found that lack of proper oversight by the banks enabled the MNCs to infringe on health and labor rights, which include exposing more than 200 employees to toxic pesticides without adequate protection, not providing employees exposed to hazardous materials with the results of medical examinations, and engaging in abusive employment practices that impoverished many workers.Footnote 42 In effect, by excluding the financial sector from downstream activities, the EU ignores the exploitative and adverse environmental impacts of the nature of the operations of European banks and MNCs in Africa.
The narrow scope of the Directives means that the EU seeks to replace global norms, as underscored in the UNGPs and the Organization for Economic Co-operation and Development Guidelines for Multinational Enterprises (the OECD Guidelines), with Eurocentric norms.Footnote 43 Principle 13 of the UNGPs requires MNCs to conduct HRDD across their entire value chain, including risks to end-users and customers.Footnote 44 Since product disposal is part of the value chain, the EU Directive sets a lower standard than the UNGPs provide. Similarly, John Ruggie, in response to the Thun Group of Banks that sought to limit the scope of HRDD for financial institutions,Footnote 45 was emphatic that financial institutions have a full responsibility to conduct HRDD in cases where they ‘cause’, ‘contribute to’, or are ‘directly linked’ to harm through their business relationship.Footnote 46 Apart from the UNGPs, sector-specific OECD Guidelines stipulate that financial institutions should conduct HRDD as institutional investors and as part of their corporate lending and asset financing activities.Footnote 47 In sum, the EU undermines and undercuts international standards, including the OECD Guidelines and UNGPs, which expect MNCs to conduct HRDD on risks and relationships throughout their full value chain, encompassing both upstream and downstream risks and impacts.Footnote 48
This conclusion is even more relevant today, as the EU discusses amending the Directive, a move that would further reduce the scope of the Directive and weaken its provisions.Footnote 49 For example, as of November 2025, the EU is considering raising the threshold of companies in scope from 1,000 employees and an annual turnover of EUR 450 million to 5,000 employees and an annual turnover of EUR 1.5 billion. This will reduce the number of companies that would fall under the scope of the Directive. Also, the amendment proposes reducing the scope of the HRDD obligation, as companies in scope are only obligated to assess the risk from direct business partners (Tier 1), leaving companies in scope to decide when it is reasonable to assess risk from indirect relationships (Tiers 2 and 3 risks).Footnote 50 Additionally, companies in scope are only obligated to request information from business partners where necessary, and it cannot be obtained by other means.Footnote 51 These provisions give companies a lot of discretion on when to conduct HRDD and are contrary to the UNGPs, which requires businesses to conduct risk assessment for both direct and indirect relationships.Footnote 52 The proposed amendment also limits stakeholder engagement to the identification and remedial stages of the HRDD. Whereas the UNGPs recommend that stakeholders must be involved throughout the business lifecycle.Footnote 53 In sum, the proposed amendment further weakens the scope of the Directive, setting a lower standard than the UNGPs.
2.2. Access to remedy
The Directive is the first mHRDD instrument with complementary administrative and civil enforcement mechanisms.Footnote 54 Member states must designate a public supervisory authority to verify compliance through their investigative powers. Supervisory authorities can investigate non-compliance on their own or as a result of substantiated concerns communicated to them.Footnote 55 They can make orders to enforce compliance, including ordering the cessation of an infringement or appropriate remediation, adopting interim measures, and imposing penalties, such as pecuniary penalties of up to 5 percent of the company’s worldwide net turnover.Footnote 56 These administrative sanctions do not preclude courts from holding companies in scope, their subsidiaries, or business partners liable in civil liability proceedings. Companies in scope can be held liable for failure to intentionally or negligently comply with the provisions of the Directive.Footnote 57
The complementary civil and administrative sanctions are laudable. However, they are not without problems. For example, it is doubtful whether EU states have the political will to enforce administrative sanctions. Although the Directive provides that the supervisory authorities shall be independent,Footnote 58 it is difficult to imagine that national authorities would sanction large MNCs that pay huge taxes, which are the proceeds of the irregularities being sanctioned.Footnote 59 Even if they do, the administrative enforcement mechanism raises practical questions of whether supervisory authorities can legitimately make orders that have an extraterritorial effect. Can supervisory authorities effectively investigate breaches outside the EU without co-operation and consultation with host states? What happens when host states impose higher obligations on corporations than the home state? Would home states consider host states’ legislation when imposing penalties and awards? These questions raise significant concerns regarding unilateral home state administrative sanctions.
Regarding civil proceedings, existing jurisdictional and procedural barriers prevent access to an effective remedy.Footnote 60 Article 4 of the Brussel I Regulation provides that EU courts shall have jurisdiction over defendants domiciled in the EU.Footnote 61 However, there is no uniform legislation on EU courts’ jurisdiction over defendants not domiciled in Europe, especially in tort cases. In effect, individual EU member states determine jurisdiction over foreign defendants.Footnote 62 Most of these national rules do not grant jurisdiction over a defendant domiciled in a third state for damage that also occurred in a third state.Footnote 63 Therefore, it will be difficult for foreign plaintiffs to access justice in some EU member states, especially when they claim that a subsidiary of a company in scope caused or contributed to harm outside the EU. Olivera Boskovic concludes that ‘… as the law stands today, the rules of jurisdiction do not allow courts in the EU to hear all actions that could be brought on the basis of a breach of the duty of due diligence’.Footnote 64 Therefore, plaintiffs are still at the mercy of individual states’ jurisdictional rules.
Even where European courts assume jurisdiction over tort cases, there are still problems regarding the burden of proof. The Directive adopted a fault-based liability regime, which requires plaintiffs to prove their claim.Footnote 65 This imposes a heavy burden on plaintiffs, who must prove that a company in scope is at fault and that damage has arisen from the company’s conduct. Going by the history of transnational litigation, for many reasons, plaintiffs struggle to prove their cases despite apparent environmental and human rights abuses.Footnote 66 These reasons include the high cost of litigation and the difficulty of obtaining evidence from places outside the court’s jurisdiction.Footnote 67 In effect, foreign plaintiffs still face high barriers to accessing justice because it will be difficult to discharge the burden of proof. Altogether, the Directive still does not remove procedural barriers to access to justice as stipulated by the UNGPs.Footnote 68
More worrisome is the recent proposed amendment to the Directive, which removes the uniform civil liability provisions in Article 29.Footnote 69 Instead, the proposed amendment allows EU member states to give rightsholders access to justice in line with their international obligations. If the amendment passes, states will not be required to establish a civil liability regime to remediate harm and compensate victims. In effect, the proposed amendment maintains the status quo of transnational litigation in Europe, as litigants from Africa continue to navigate complex procedural barriers in individual member states.Footnote 70
From the foregoing, the nature of the Directive and its proposed amendment can be summarized as follows: (i) the EU seeks to unilaterally regulate the conduct of EU MNCs and non-EU companies abroad; (ii) the scope of the Directive is not wide enough to cover the range of companies operating in Africa, some of which operate in high-risk sectors; (iii) by excluding consumer waste disposal products and financial institutions from regulated downstream activities, the EU ignores the role of MNCs in these critical sectors that contributes to economic exploitation, human rights abuses, environmental, and climate harm in Africa; (iv) although the Directive provides access to remedy, practical and procedural limitations still pose high barriers for rightsholders in Africa; (v) the proposed amendment further limits the scope of Directive and removes its unform civil liability regime, erasing any advantage rightsholders may gain with the Directive. In effect, although the Directive has an extraterritorial reach, its potential to bring about corporate accountability in the Global South is considerably limited.
Notwithstanding its limitations, the next section argues that the Directive has neocolonial and imperialistic implications. Like the criticisms of mHRDD legislation in individual member states, it subjects the Directive to a TWAIL critique. This discussion shows that the EU is primarily concerned about the economic interests of its businesses operating abroad. Therefore, it is impossible for the EU to look after the interests of Third World Peoples. Even more, it is futile for Third World Peoples to place their hope in international law, because, as the discussion in the ongoing BHR treaty shows, their voices are being dominated by the Global North countries, including the EU.
3. TWAIL critique of the Directive – A need for an integrated approach or international treaty?
Sara Seck examines how unilateral home state regulation influences the creation and diffusion of global norms.Footnote 71 Using a TWAIL lens, Seck argues that unilateral home state regulation is suspect of imperialistic tendencies. She points out that TWAIL scholars are cautious of unilateral extraterritorial jurisdiction exercised by advanced capitalist states.Footnote 72 This is because unilateral home-state regulations can best be understood as a ‘continuation, consolidation and elaboration of imperialism’ that imposes economic norms favourable to Global North states on Third World states.Footnote 73 In sum, Third World states and scholars fear the risk of unilateral home state regulation becoming a tool to diffuse and entrench neo-colonial norms without consultation with Third World Peoples.
Applying this critical lens to contemporary developments in the BHR field, Lichuma criticizes the European mHRDD legislations in individual member states for their imperialistic and neocolonial tendencies.Footnote 74 She draws an analogy of the situation that the mHRDD legislation in Europe creates, using Makau Mutua’s savages-victims-saviours metaphor.Footnote 75 Mutua criticizes the language of human rights that conceptualizes African states as savages, individuals whose rights are infringed as victims, and the UN, Western governments, international non-governmental organizations, and Western charities as saviours. Transposing this metaphor into a BHR context, Lichuma describes the mHRDD legislations as the EU’s attempt to brand itself as the ‘savior’ of victims – the Third World Peoples – who need saving from the Savages – MNCs or Third World states that fail to protect their peoples.Footnote 76 Martin-Ortega and Dhebi conclude that EU dominance ‘may lead to the development of norms in which Eurocentric legal principles and interpretations take precedence over Global South principles and law, and neglect the voices of those directly affected by the negative impact of corporate practices’.Footnote 77
These criticisms, although focused on the mHRDD legislations in individual EU member states, could also be applied to the Directive. Similar to the mHRDD legislations, the voices of Third World Peoples were also excluded from the process leading to the adoption of the Directive.Footnote 78 The extraterritorial reach of the Directive means that the EU is imposing norms on developing states, without prior consultation from these states or Third World Peoples. This undermines the sovereignty of developing states to enact laws regulating the market within their own borders.Footnote 79 Furthermore, as the motive for amending the Directive clearly demonstrates, the EU is primarily concerned about the competitiveness of its corporations in the global liberal market. It seeks to ensure that its corporations continue to operate in developing states with a lesser regulatory burden, even if it means lowering existing global standards.Footnote 80 This is a capitalist stance that prioritizes economic profit over human rights protection.Footnote 81 Given this, the EU can be validly criticized for using the Directive and its proposed amendments as an imperialist tool to maintain economic dominance in the global market, particularly in developing states with weak regulatory frameworks.Footnote 82 Since capitalism and imperialism are closely connected, the Directive combines these two orientations to produce a form of colonial continuity that maintains imperial economic relations between the EU and African states.Footnote 83
Notwithstanding these criticisms, scholars have proposed avenues to protect the interests of Third World Peoples and create a legitimate global supply chain regulation. The next subsection evaluates these proposals, arguing that they are unable to save Third World Peoples from European dominance in a global liberal market order.
3.1. Proposal I – An integrated approach: An inclusive regional co-operation
Dehbi and Martin-Ortega propose an integrated approach to home state regulation that acknowledges the interconnection between human rights and the environment.Footnote 84 Through this approach, Global North and Third World states are expected to co-operatively develop norms sensitive to rightsholders. This process is inclusive because it allows for rightsholders in Third World states to be consulted on matters directly affecting them. Dehbi and Martin-Ortega contend that co-operation between home and host states is enough to make home-state supply chain legislation legitimate. However, they do not describe what a consultative framework would look like to guarantee this outcome. Seck acknowledges that ‘[i]t is difficult to conceptualize how subaltern voices can participate in the customary international law process …’.Footnote 85 Although Lichuma agrees with inclusive consultation, she calls the proposal ‘simplistic’ and ‘too challenging to implement’.Footnote 86 Indeed, the proposal raises some practical questions. For example, how would the EU determine which states to consult and which selection criteria to use? What fraction of the populace would qualify as Third World Peoples, and how would they be represented, considering the legitimacy concerns regarding local representation?Footnote 87 Does consultation not undermine the sovereignty of the Third World state – an admission that the Third World looks up to the EU as ‘saviour’? These are some of the questions that make an inclusive framework difficult in practice.
The proposal for an inclusive governance framework overlooks the political context within which value and supply chain governance legislation, such as the Directive, is developed.Footnote 88 As a regional body, the EU’s priority is the interests of its constituent states. The EU’s priorities include ‘promoting European interests and values on the global stage’ and ‘developing a strong and vibrant economic base’.Footnote 89 In effect, the EU does not have the motivation, capacity, or jurisdiction to create a legitimate global consultation forum that accommodates and promotes the interests of other states or regions. Given its priorities and mandate, it will be difficult to criticize the EU for limited consultation or excluding subaltern voices. Even Ruggie’s global consultation attempt in the process leading to the adoption of the UNGPs was criticized as inadequate for not incorporating the voices of rightsholders and local communities.Footnote 90 Therefore, it is onerous to place a global consultative burden on regional bodies like the EU.
This proposal is more problematic in view of the alignment of interests between the corporate class and European states. Most EU states, led by France and Germany, ‘played the games of big businesses’ and industry association groups, including BusinessEurope, Eurochambres, the French Movement of the Enterprises of France (MEDEF), and the Association Française des Entreprises Privées.Footnote 91 Corporate lobbyists directly influenced state negotiation, causing Germany, at some point, to take a step back during the negotiation, which presented an opportunity for France to propose another set of weak provisions that further weakened the Directive.Footnote 92 The corporate class argued against a comprehensive HRDD for both small and large businesses, rejected home state access to remedy for victims of human rights abuses outside Europe, and lobbied for excluding certain downstream sectors from the scope of the Directive.Footnote 93 In the end, the European states acted in the interests of their business groups to produce a ‘business-friendly’ or ‘business-centric’Footnote 94 Directive, and in the process, neglected their international obligations to protect human rights.Footnote 95 Considering the corporate capture of the process leading to the adoption of the Directive, EU states could be validly accused of using supply chain regulations to promote their international economic goals under the mask of protecting human rights and the environment. This view is further reinforced by the motive behind the proposed amendment of the Directive, which is to ensure that EU companies remain competitive in the market. In these circumstances, it is clear that the EU is looking after its corporations’ economic interests, as it is mandated to do. Therefore, it is doubtful whether any consultation with Third World states would have an impact, as they are not Europe’s primary constituents.
3.2. Proposal II – International treaty
Scholars have argued that international law is the best and most effective way to regulate MNCs’ supply chains.Footnote 96 This is because international law ‘offers a protective shield, however fragile, to the less powerful states in the international system’.Footnote 97 This proposal comes against the backdrop of the ongoing BHR treaty negotiations. In 2014, Third World states, led by Ecuador and South Africa, proposed a multilateral treaty – Legally Binding Treaty to regulate, in International Human Rights Law, the Activities of Transnational Corporations and other Business Enterprises (draft LBI treaty).Footnote 98 The draft LBI treaty is currently being discussed at the UN open-ended intergovernmental working group sessions on transnational corporations and other business enterprises with respect to human rights (OEIGWG). The OEIGWG facilitates a consultative forum that allows stakeholders, including state representatives, civil society groups, industry stakeholders, and rights holders, to contribute to the final draft of the treaty.Footnote 99 The OEIGWG has produced four revised versions of the treaty so far.Footnote 100 This is a laudable project that may have influenced this proposal to protect Third World Peoples through international law.
However, these scholars overlook the history of international law as a tool for entrenching the neoliberal and capitalist agenda.Footnote 101 For example, international investment law (IIL) emerged in the nineteenth century from the alignment between European states and MNCs that facilitated Europe’s political and economic interests.Footnote 102 Major European trading companies, including the British East India Company, the French East India Company, and the Dutch East India Company, played an active role in the development of international legal doctrine favourable to their needs.Footnote 103 Although commercial interests initially drove these companies, they later became imperialist and political tools to acquire colonial territories in the Global South.Footnote 104 They were expected to defend the political interests of their home states against competing interests from other developed states.Footnote 105 With the help of influential business actors, including Hermann Josef Abs, Eberhard Reinhardt, Hartley Shawcross, and George Washington Haight, investment rules that reflect the closely aligned interests of capital-exporting states and MNCs became international law rules.Footnote 106 In sum, international law’s capitalist history ensures the voices of the Global North and influential business actors remain dominant in shaping the contours and narratives surrounding international law.
Similar to the development of international law in the nineteenth century, one could argue that the EU seeks to utilize the Directive to protect its economic interests and influence international law rules through the activities of MNCs.Footnote 107 This is because the Directive makes companies in scope agents of norm diffusion and quasi-regulators of EU norms outside Europe.Footnote 108 Companies in scope are expected to enforce Eurocentric HRDD norms through contracts and codes of conduct negotiated with business partners and subsidiaries outside Europe.Footnote 109 Compliance with these contracts, thus, becomes a precondition for doing business with EU entities. The Directive would also have a ripple effect in Third World states as they seek to level the playing field between companies that follow EU law and companies that only operate domestically.Footnote 110 Through continued practice of these norms in and outside Europe, the EU will likely argue that they should attain the status of customary international law.
Even if the prospect of customary international law is long-term and may not ultimately materialize, the EU is pursuing a treaty that mirrors the Directive at the OEIGWG sessions. The draft LBI treaty, which started as an initiative of Third World states to promote strong accountability measures, is now being hijacked by the EU. At the Ninth session of the OEIGWG, Germany noted that the Directive could be a ‘source of inspiration’ to the draft LBI treaty.Footnote 111 Similarly, the EU submitted that ‘… the adoption of the Corporate Sustainability Due Diligence Directive could provide a basis for the EU’s future engagement in the negotiations, especially with respect to human rights due diligence and related provisions’.Footnote 112 The EU is attempting to steer negotiations toward multilateralizing the Directive. Although the EU has no mandate in the negotiations and can only submit opinions as an observer,Footnote 113 this proposal cannot be lightly dismissed, as it is now seeking a mandate to formally negotiate the treaty.Footnote 114 European Business Interests Associations support this request. In a joint statement, a group of the EU Business Interest Association contends that
[w]e deeply regret that the EU still lacks a mandate for actively and formally engaging in the negotiations. As the European Commission, the Council and the European Parliament have already formulated their respective positions on the Corporate Sustainability Due Diligence Directive and coincide in many key aspects, the EU would have been in a position to develop such mandate and to engage instead of just commenting from the sidelines.Footnote 115
The aligned interests of European Business Interest Associations and states make them a potential treaty spoiler if their demands are not met. As seen during the process leading to the adoption of the Directive, there is a closely aligned economic interest between EU states and big businesses.Footnote 116 Norms embodying the conflated state and corporate interests will likely be promoted as global norms during the draft LBI treaty negotiations. Therefore, it is important to question whether international law can protect Third World states from European domination and corporate power.Footnote 117 This is more so as big businesses have consultative status at the OEIGWG sessions, allowing them to make statements and lobby state governments.Footnote 118 Given the history of norm standard initiatives in the BHR field, it will be difficult for the draft LBI treaty to succeed without the support of the Global North states and big Business Interest Associations. The United States of America already pointed out at the Eighth OEIGWG session that for the mandate to succeed, ‘it must incorporate the viewpoints of a diverse group of States, including States that domicile significant numbers of transnational corporations, civil society, and businesses’.Footnote 119
However, it is doubtful whether the same attention is being given to Third World states and their civil society organizations (CSOs). Serious concerns remain about excluding and marginalizing African voices in the OEIGWG sessions. At the Ninth session, the African Civil Society Group, representing affected local communities, expressed frustration about the undemocratic nature of the latest draft LBI treaty. It accused the Chair-Rapporteur of excluding many African states and CSOs’ recommendations from this draft.Footnote 120 Many provisions supported by the African states and the Civil Society Group in the third revised draft were omitted in the latest draft of the treaty. For example, the latest draft excluded provisions on the ‘forum non-conveniens’ doctrine and several environmental rights provisions proposed by African states.Footnote 121 The African Civil Society Group concluded that ‘… we feel that our contributions have not been adequately incorporated in the new updated draft in a manner that will allow this process to move in a democratic, transparent and progressive manner …’.Footnote 122
The discussion above shows that the EU is pursuing its economic interests both domestically, through the Directive, and internationally, through the LBI treaty. Therefore, it is unrealistic for the EU to promote the interests of Third World Peoples through an inclusive home state regulation. Also, given the history of international law as a tool for global capitalism and the increasing EU dominance at the OEIGWG sessions, African states cannot rely on international law to create an inclusive system that better accommodates their interest. The point is that no external intervention, either through the Directive or the LBI treaty, can promote Third World states’ interests.
4. Promoting an Africanization agenda – The quest to decolonize BHR norms
The discussion below answers the question of how African states should respond to the Directive and the marginalization of their views in the OEIGWG discussions. It argues that they must create subsidiary norms. In doing so, it examines the role of an African regional body – the African Union (AU) – in developing subsidiary norms to Africanize the emerging normative regime, thereby reflecting and promoting its interests. The AU is a regional body of 55 African states that aims to ‘promote and defend African common positions on issues of interest to the continent and its peoples’.Footnote 123 Two AU instruments that can create subsidiary norms are discussed – the Draft Policy Framework on Business and Human Rights and the African Regional Legally Binding Instrument. It argues that, similar to its creation of subsidiary norms in other international law fields, including investment law and criminal law, the AU must recreate this model in the BHR field, more so as BHR norms continue to evolve at regional levels.
Norm subsidiarity is ‘a default preference for locating governance at the lowest possible level –that is, the level which is closest to the individuals affected by the decisions of the governing body’.Footnote 124 Regional and sub-regional organizations develop subsidiary norms to ‘preserve their autonomy from dominance, neglect, violation, or abuse by a more powerful central actor’.Footnote 125 They also develop subsidiary norms to challenge their exclusion and marginalization from global norm-making processes.Footnote 126 Furthermore, local actors create subsidiary norms as a response to great power hypocrisy. Hypocrisy occurs when powerful actors, especially in the Global North, violate global norms without adverse consequences or sanctions.Footnote 127 The selective application of international law rules and norms necessitates the development of subsidiary norms to preserve Third World states’ autonomy and sovereignty. In sum, subsidiary norms provide an avenue for (sub-)regional governments to reject a powerful central actor’s dominance in a field.Footnote 128
African states have developed subsidiary norms to counter the imperialistic rules prescribed by the Global North to promote and protect their interests in the name of institutionalizing universal norms of international law for all nations.Footnote 129 For example, African states have openly spoken against the neocolonial nature of Bilateral Investment Treaties and the Investor-State Dispute Settlement system.Footnote 130 Although some states have terminated agreements with Global North states and replaced Investor-State Dispute Settlement with domestic courts and state-state arbitration,Footnote 131 there is an ongoing, co-ordinated AU regional effort to create subsidiary norms that Africanize international investment law.Footnote 132 This involves developing new international investment agreements that are no longer based on the North American or European models, but on Africa’s economic development and social needs.Footnote 133 The AU developed regional guidance instruments and model templates that correct the historical imbalance in international investment law between host states and MNCs. Recent guidelines and instruments include the 2019 Pan-African Investment Code and Protocol to the Agreement Establishing the African Continental Free Trade Area on Investment (Investment Protocol).Footnote 134 These instruments create subsidiary norms by reformulating the Global North’s treaty standards, including Fair and Equitable Treatment. They also impose human rights, climate, and environmental obligations on MNCs, which can be enforced through states’ counterclaims.Footnote 135 These provisions have been described as ‘highly innovative’, ‘unprecedented’, a ‘reference point for regulation of investor obligations in future investment treaties’, a ‘potential game changer’, and a ‘new era’ for African investment.Footnote 136
The international investment law template serves to enable the AU to co-ordinate its Africanization of BHR norms. Considering African states’ reluctance or inability to enforce corporate obligations individually,Footnote 137 regional bodies like the AU must lead a subsidiarity project that promotes African value-based norms in response to the EU multilateralization agenda.Footnote 138 This charge is based on Article 21 (5) of the Charter on Human and Peoples’ Rights (the Charter), which provides that African states shall ‘undertake to eliminate all forms of foreign economic exploitation particularly that practised by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources’.Footnote 139 The AU must resist the EU’s attempt to impose its Directive on African states, which allows EU corporations to continue exploiting the African market with little or no accountability toward human rights and the environment.
What a subsidiary BHR norm looks like in Africa remains to be mapped out, as well as instruments that can have a subsidiary effect. As discussed next, in my opinion, two AU instruments – the Policy Framework on Business and Human Rights and the African Regional Legally Binding Instrument – hold the potential to generate and exert these impacts and effects.
4.1. The Draft Policy Framework on Business and Human Rights – A preliminary assessment
The AU started the process of drafting the Policy Framework in 2016.Footnote 140 The Draft Policy Framework seeks to foster a culture of corporate human rights to respect and serve as a tool for states to develop national action plans on business and human rights in Africa.Footnote 141 Through the Policy Framework, the AU aims to implement the UNGPs, paying attention to the realities of business operations and conduct in Africa.Footnote 142 The policy document has undergone four stakeholder meetings since 2016, bringing together over 50 participants comprising representatives of AU member states, regional economic communities (RECs), national human rights commissions, businesses, the media, and civil society.Footnote 143 The Policy Draft Framework is divided into three sections.Footnote 144 Its introduction sets out the Framework’s objective and rationale. Like the UNGPs, the second section contains the foundational pillars: state duty to protect, business responsibility to respect, and access to remedies. The third section discusses resource mobilization issues, highlighting relevant actors and mechanisms regarding implementation.
Although stakeholders raised the issue of contextualizing the UNGPs to respond to African socio-economic and political realities, the latest version of the Draft Policy Framework is not radically different from the UNGPs, adopting it with its troubled wording. For example, during the consultation meeting in Addis Ababa, a debate arose over whether the Policy Framework should retain the UNGPs’ language of ‘responsibility’ or introduce the stronger norm of ‘duty’ to respect human rights.Footnote 145 Considering the criticism that the ‘responsibility to respect’ terminology carries no legal obligation for MNCs,Footnote 146 stakeholders had the opportunity to adopt the ‘duty’ terminology, which has stronger legal implications for non-compliance. However, they decided to keep the UNGPs’ wording for two reasons:
First, to ensure consistency with the Guiding Principles and for coherence in advocacy efforts when the policy framework is to be implemented. [second], this was a policy document and, as such, the aim was to advance guidance in the furtherance of business and human rights.Footnote 147
The stakeholders wish to adopt the UNGPs without critically interrogating its Western philosophical orientation to determine whether it responds to African reality. I have argued elsewhere that there is an incongruence between Pillar II and African social values.Footnote 148 In Africa, Pillar II must not be interpreted as a matter of corporate discretion, but as an obligation with legal consequences. Against this background, the stakeholders’ position on the Policy Framework denies African states the agency to influence stronger corporate accountability norms to prevent the continuous exploitation of African natural resources and the transfer of wealth from the continent to Global North states. The current version of the Draft Policy Framework ‘… offer[s] transplanted and pre-packaged solutions from other jurisdictions that do not fundamentally consider the prevailing legal, social, political and economic contexts in Africa that exacerbate corporate impunity and human rights violations’.Footnote 149
Additionally, by labeling the Policy Framework as merely a policy document that does not need to radically change global BHR norms, stakeholders did not appreciate the normative significance of the Framework. Although the Framework does not have the force of law, it sets a tone for subsequent BHR initiatives and legislation in Africa. Like the Pan-African Investment Code, which became the foundation for the African Continental Free Trade Area Investment Protocol, the Policy Framework is ‘a regional roadmap on business and human rights’Footnote 150 that could become a subsidiarity norm and a tool to amplify subaltern voices in global standard-setting processes, including the Draft LBI treaty. In effect, the AU’s mandate to protect African Peoples from economic exploitation should not be sacrificed for the sake of policy coherence.
The position of African stakeholders can be contrasted with the EU’s. The EU was not constrained by the UNGPs when it excluded most MNCs from the scope of its Directive. The EU also ignored policy coherence with global standards when it excluded financial institutions from the Directive. By this, the EU prioritized its economic interests over global policy coherence in deserving cases. In contrast, although the economic reality in Africa requires a strong norm to prevent MNC exploitation, stakeholders in Africa are being constrained by the perceived need for global policy coherence.Footnote 151 If the EU is not concerned about coherence with UNGPs, why should African states be concerned, especially when they are at the receiving end of corporate human rights abuses? The point is that regional fragmentation of BHR norms is not necessarily negative, so far as they respond to the socio-economic needs of each region.
The Draft Policy Framework is normatively precatory, and its potential juridical persuasiveness is more tentative than binding. However, the force of this normative starting point is that like binding rules of international law, it is positioned to develop by normative accretion to full mandatory stature.
In comparison, the next instrument is conceived and created from its origin as a legally binding instrument. This way, it holds the potential to germinate a regional regime upon which Africa could found its regulatory rules and procedures for enforcing MNCs’ duties to observe BHR requirements in their investment and resource exploitation operations on the continent.
4.2. The African legally binding instrument
In March 2023, the African Commission on Human and Peoples’ Rights (ACHPR) passed a resolution calling for a regional BHR treaty in Africa – the African Regional Legally Binding Instrument to Regulate the Activities of Transnational Corporations and Other Business Enterprises.Footnote 152 The treaty is expected to ensure ‘accountability and access to remedy for business-related human rights violations in Africa, with particular focus on marginalized and vulnerable populations’.Footnote 153 Although the AU has not begun drafting the treaty, there is optimism that it will provide localized justice for victims of corporate abuse.Footnote 154
As the AU finalizes the Policy Framework and considers drafting an African LBI, it is poignant to consider how these instruments can create subsidiary norms, especially regarding HRDD and access to effective remedy in global value and supply chains. I argue that the Policy Framework and African LBI can be mutually reinforcing – while the Policy Framework sets out African-based value norms, the African LBI must create expansive mechanisms to enforce them.
4.3. Creating subsidiary norms through the Policy Framework and African LBI treaty
The AU must incorporate African norms that impose legal obligations on MNCs in the Policy Framework and the African LBI treaty. The Charter justifies this position. Article 27 of the Charter provides that ‘every individual shall have duties’ towards society and local communities. This has been interpreted to include corporations.Footnote 155 Since corporations are legal persons with duties toward their host communities, failure to perform HRDD should have legal consequences in Africa. Therefore, instead of a corporate ‘responsibility’ to respect, African legislation should read ‘corporate duty’ to respect, with correlative provisions on how corporations must discharge this obligation. Given that Pillar II of the UNGPs provides that corporations should respect human rights through HRDD, the issue is what an African HRDD exercise must look like.
Like Pillar II of the UNGPs, Article 27 (2) of the Charter has been interpreted to found HRDD practice in Africa.Footnote 156 It provides that ‘[t]he rights and freedoms of each individual shall be exercised with due regard to the rights of others….’. When Corporations have due regard for others’ rights, they must proactively assess their activities, prevent infringing the rights of individuals and groups, and remedy harm whenever the rights are violated. Unlike the EU Directive, the combined interpretation of Article 27 (1) and (2) of the Charter means that every corporation, including financial institutions and SMEs, is expected to conduct HRDD. In effect, Article 27 of the Charter should be interpreted as Africa’s Pillar II, which creates a broad HRDD framework. Against this background, stakeholders must work out the details of HRDD requirements within the Policy Framework, like UNGPs and the EU Directive.
One way to shape the normative scope and content of HRDD in Africa is to incorporate African social norms, such as Ubuntu, into the Policy Framework. Ubuntu is a pan-African philosophy that emphasizes being human through other people, relationally.Footnote 157 It is aptly reflected in the phrase, ‘I am because of who we all are’, or ‘I am human because I belong, I participate, I share’.Footnote 158 Ubuntu is founded on core values such as humanness, caring for human beings, sharing, respect for human dignity and life, compassion, hospitality, interdependence, interconnectivity, and communalism.Footnote 159 These values reflect themes that include respect for persons, community, personhood, and morality.Footnote 160
I have argued elsewhere that interpreting Pillar II through an Ubuntu lens refocuses the objective of the HRDD exercise from ‘do no harm’ (negative responsibility) to ‘do good’ (positive obligation).Footnote 161 This is because Ubuntu requires MNCs to undertake positive obligations, such as providing basic amenities in communities where they operate. Contrary to the Western philosophy of individualism, which underpins the UNGPs, I argue that the interpretation of Pillar II in Africa should reflect the African social norms of communalism. The Policy Framework is going in the right direction because it contains some elements of Ubuntu. It provides that local communities should benefit from the proceeds of MNCs’ business activities through fair and equitable sharing.Footnote 162
However, given that Ubuntu is an African equity, it has another dimension – good faith dealings in private relations.Footnote 163 Courts and scholars utilize Ubuntu as a tool for contractual interpretation to promote good faith, justice, and fairness in private transactions.Footnote 164 Similar to how good faith developed in Roman law, Ubuntu, as an African concept of equity, has an inherent element of good faith that can inform the scope of HRDD legislation in Africa. Although an earlier version of the EU Directive imposed a duty of good faith on MNCs during the HRDD exercise,Footnote 165 the final version excluded this provision.Footnote 166 Through Ubuntu, African states can promote an HRDD good-faith duty that prevents MNCs from using HRDD to whitewash their projects, as Ubuntu infuses a sense of solidarity, trust, and communalism, which must underlie any meaningful implementation and observation of HRDD exercises and duties. By introducing good faith into value and supply chain contracts, the policy framework addresses a requirement that the EU had overlooked.
I acknowledge that it is impossible to exhaust the discussion of the influence of African social norms on the development of measurable duties regarding HRDD as the AU completes the Policy Framework and begins drafting the African LBI treaty. But other areas worth examining include the issue of remedy in an African context, especially in post-conflict regions. Concepts and practices such as restorative justice are rooted in African social norms, including Ubuntu.Footnote 167 Decolonized African alternative justice systems, such as those in Kenya, which apply customary law, should be encouraged.Footnote 168 Although alternative justice systems lack states’ enforcement powers and, if not carefully constructed, may be subject to patriarchy criticisms,Footnote 169 they provide non-judicial remedies, including apologies and restitutions, which may be meaningful to victims of corporate abuse beyond monetary compensation. Even more, the Policy Framework can encourage MNCs to incorporate cultural dispute settlement methods as part of their company-level grievance mechanisms before seeking judicial remedies.Footnote 170 This will facilitate their social licence to operate in Africa. In sum, the Policy Framework must promote localized approaches to remedy as part of the company-level grievance mechanism and state judicial and non-judicial remedy.
To enforce African norms, especially those relating to HRDD, the African LBI treaty must look beyond African national courts and to regional courts. There is a debate about whether African regional courts, including the ECOWAS Community Court of Justice (ECCJ) and the ACHPR, have jurisdiction to hear individual complaints against MNCs. The converging view is that although these courts’ decisions have horizontal compliance effects on MNCs, they are not directly bound.Footnote 171 This is because MNCs are not parties to international and regional treaties that the court is called upon to enforce. However, Olufemi Amao argues that ‘the African regional system is a treaty-based arrangement which is not necessarily constrained by international law principles’.Footnote 172 Therefore, Adaeze Okoye proposes expanding the jurisdiction of African (sub-)regional courts to include legal actions against MNCs.Footnote 173 She contends that this ‘can create African norms for international law application and enhance the ability to create novel Indigenous solutions’.Footnote 174 In effect, Okoye proposes creating subsidiary norms through an African regional court.
The AU must take this proposal seriously as it considers drafting the African LBI treaty. This is more so because it pursued a similar project in international criminal law. In 2014, African states adopted the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol).Footnote 175 The Malabo Protocol conferred jurisdiction on the African Court of Justice and Human and Peoples’ Rights (ACJHPR) to hear criminal cases,Footnote 176 including corporate crimes, making it. The ACJHPR is the first-ever permanent regional court with international criminal jurisdiction over corporations.Footnote 177 Article 28(a) of the Malabo Protocol grants the ACJHPR expansive jurisdiction over recognized core international crimes and those of particular concern to Africans, including genocide, crimes against humanity, war crimes, the crime of unconstitutional change of government, piracy, terrorism, mercenarism, corruption, money laundering, trafficking in persons, drug trafficking, illicit exploitation of natural resources, and the crime of aggression.
African states adopted the Malabo Protocol due to the reach of the International Criminal Court (ICC) and the extraterritorial jurisdiction of European courts, which extends into African states through the international law principle of universal jurisdiction.Footnote 178 This principle gives national courts jurisdiction over crimes against international law, notwithstanding that the crime was not committed on the prosecuting state’s territory, and the victims and perpetrators are not nationals of that state.Footnote 179 Based on this principle, states like Belgium and France issued arrest warrants for African leaders and prosecuted them for war crimes and crimes against humanity.Footnote 180 These developments contributed to the fear that African heads of state were unfairly and selectively subjected to prosecution by European and international courts. African leaders openly criticized this double standard, and the AU accused the ICC of ‘hunting Africans’.Footnote 181 In sum, the hypocrisy of Global North states and the need to reclaim African states’ sovereignty contributed to the adoption of the Protocol.
Article 46(c) of the Malabo Protocol contains the corporate criminal liability doctrine. The ACJHPR has jurisdiction over corporations, marking a notable departure from international law and the ICC’s jurisdiction. Under the Protocol, corporations can be criminally liable for crimes, including those connected to the illicit exploitation of African natural resources.Footnote 182 This is a novel provision that responds to the historical exploitation of African natural resources by MNCs.Footnote 183 The unique nature and scope of the crimes covered in the Malabo Protocol and the expanded jurisdiction of the ACJHPR have earned praise from scholars who describe the Protocol as an ‘Africanization’ of international criminal law.Footnote 184 Although the Protocol is not spared criticism, and though it has not yet come into force since adoption in 2014,Footnote 185 it is important to recognize the AU’s agency in creating its subsidiary norms to influence the enforcement regime of the international criminal legal order.Footnote 186
The historical EU dominance in the fields of international criminal law and BHR requires the AU to create subsidiary norms that Africanize BHR norms. It must create a civil court that gives Africans access to effective remedy and prevents the abusive exploitation of African natural resources. This is because a mutually reinforcing criminal and civil corporate accountability regime in Africa protects people and the planet.Footnote 187 The BHR court must be designed to apply international human rights and African norms, allowing rightsholders access to localized justice.Footnote 188 This will prevent or reduce the need for rightsholders in Africa to resort to courts in the Global North for civil redress.Footnote 189 To empower the court, the AU must co-ordinate with other sub-regional bodies to establish mechanisms that enforce its decisions. This way, the AU will avoid the compliance problems that have bedeviled African (sub-)regional courts.
The AU must Africanize BHR, just like it did with international investment and criminal law. This project should have three interconnected goals: resisting Western dominance by protecting African states’ sovereignty; protecting against MNCs’ destructive exploitation of Africa’s natural resources; and providing localized justice in cases of corporate abuse of rights. Achieving these goals depends on the political will of African states. Amidst coups in Africa and the withdrawal of Burkina Faso, Mali, and Niger from ECOWAS, the AU faces a herculean task of unifying African states.Footnote 190 Also, given the slow ratification of the Malabo Protocol, the African BHR treaty faces political challenges. Furthermore, even if the AU creates an African court, it may face problems of non-compliance. However, problems of non-compliance are not unique to African regional courts; they also bedevil the Inter-American Court of Human Rights (IACHR) and the European Court of Human Rights (ECtHR).Footnote 191 While the solutions to problems of non-compliance are beyond the scope of this article, this problem cannot be an excuse for Africa’s inaction in the face of the EU domination. If anything, a BHR court can make jurisprudential and normative contributions to the development of global BHR norms.Footnote 192
In sum, while the above challenges are by no means trivial, they are not insurmountable, considering that the alternative is worse – continued exploitation of African natural resources. Indeed, amidst the political instability in some states, the AU is making progress in implementing the AfCFTA, with 54 out of 55 states having signed and 47 ratifying the Agreement.Footnote 193 The point is that Africa must rise above these challenges to save itself, because no external entity, nor any global juridical regime – not the EU nor international law – will come to save rights holders in Africa. At a critical time when global geo-political tension is rising, and developed states are seeking new trade and economic partners, the AU must seize the moment to rally support among African states to develop subsidiary norms by which MNCs must operate in Africa. Otherwise, African states may continue to be norm receivers instead of norm entrepreneurs.
5. Conclusion
This article examined the EU’s quest to extraterritorially regulate global supply chains through the Corporate Sustainability Due Diligence Directive and its proposed amendment. The EU seeks to impose the Directive on other parts of the world by requiring corporations within and outside the EU to comply with its HRDD standards. With a focus on Africa and using a TWAIL analysis, this article discussed various concerns surrounding the nature, scope, and process leading to the adoption of the Directive. It argued that the EU is primarily concerned with protecting its economic interests at both regional and international levels. Given the imperialistic and neocolonial nature of the Directive, this article asks how African states should respond to the Directive and its proposed amendments. It argued that they cannot look up to Europe or international law to produce norms that respond to the socio-economic needs of African states. Therefore, there is a need to create subsidiary norms that reject Eurocentric dominance, while promoting an Africanization agenda. In doing so, this article acknowledged the normative agency of the African Union in its previous Africanization efforts in the field of international law, including investment and criminal law. Following this template, it called for the Africanization of BHR norms, through which African states can protect their sovereignty, protect Africans against MNCs’ exploitation of natural resources, and provide localized justice in cases of corporate abuse. This is because no one is coming to save Africa.
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