2.1 Guinea Country Profile

The target project, the alumina refinery and proposed coal-fired power plant, is located in the Boké prefecture of the Republic of Guinea. Guinea is a West African country located on the Atlantic Ocean and bordered by Sierra Leone, Senegal, Guinea-Bissau, Liberia, Côte d’Ivoire, and Mali. Boké prefecture is located in the northeastern part of the country and is home to more than 480,000 people in ten subprefectures that are composed of twenty-four distinct village communities.Footnote ⁴

The major exploitable mineral resources in Guinea include bauxite, iron, diamonds, gold, and uranium.Footnote ⁵ Guinea contains a third of all known bauxite reserves in the world and SMB is the largest producer of bauxite in the country.Footnote ⁶ Bauxite is needed to produce aluminum, and China is the world’s largest producer of aluminum, thus its access to Guinea’s mines is an economic imperative. However, the main economic activities in the region include subsistence agriculture, fishing, salt farming, livestock, and handicrafts – all of which are threatened by bauxite mining activities.Footnote ⁷ Despite Guinea’s copious natural resources and bauxite reserves, it is one of the poorest countries in the world.Footnote ⁸

The country’s current predicament reflects a complicated history. Guinea achieved its independence from French West Africa in 1958.Footnote ⁹ After gaining independence, Guinea was ruled by authoritarian leaders, Sékou Touré, Lansana Conté, and Captain Moussa Dadis Camara, for more than fifty years.Footnote ¹⁰ In 2010, for the first time since gaining its independence from France, Guinea conducted elections to choose its next ruler, President Alpha Condé.Footnote ¹¹ A new constitution was passed in 2010 and then again in 2020.Footnote ¹² These legal reforms had limited effect on the mining industry, which has been central to the country’s economy.

Condé expanded the mining sector, particularly the bauxite mining sector, during his time as president and promulgated a new mining code meant to improve mining regulations and increase profits for the government from mining.Footnote ¹³ However, the bauxite mining sector faced some initial setbacks during Condé’s first term, including resistance from companies that, as a result of the new regulations, had to pay higher taxes (the 2011 Mining Code was amended in 2013 because of this issue), the Ebola epidemic, and low global prices for bauxite.Footnote ¹⁴ The bauxite sector boomed after Condé’s first term in office after other bauxite-producing countries banned exports and Chinese demand for bauxite increased.Footnote ¹⁵

Condé ran for and won a contentious third term in 2020 and remained in power until he was overthrown by a military coup in late 2021.Footnote ¹⁶ The ruling military junta suspended the 2020 Constitution and instituted a Transitional Charter with Col. Mamady Doumbouya serving as the transitional president.Footnote ¹⁷ As of 2023, Guinea’s ruling military junta has yet to conduct elections to determine the country’s next leader. It is also worth noting that the Natural Resource Governance Institute has consistently given Guinea low scores in the category of rule of law; in 2021, Guinea received a ranking of just 15 out of 100.Footnote ¹⁸

2.2 Guinea–China Relations

In the past decade, Guinea and China have deepened their relations. In November 2016, President Condé paid a state visit to China to meet with President Xi Jinping. The two heads of state decided to establish a comprehensive strategic partnership and to take the implementation of the outcomes of the 2015 Johannesburg Summit of the Forum on China-Africa Cooperation (FOCAC) as an opportunity to deepen and expand friendly and mutually beneficial cooperation between the two countries in various fields and create a broader future for China–Guinea relations.

In September 2017, China and Guinea signed the “China-Guinea Resource and Loan Cooperation Framework Agreement” in Xiamen, China.Footnote ¹⁹ In the agreement, Guinea granted Chinese corporations exploration rights for bauxite, iron, and other mineral resources, while China agreed that Chinese financial institutions would provide the necessary loans for the extraction projects.Footnote ²⁰ The agreement notes that over the next twenty years (2017–2036) the amount of money invested in mining projects in Guinea by China would reach US$20 billion.Footnote ²¹ A list of priority projects added as an addendum to the agreement includes bauxite mining projects in Boffa and Boké.Footnote ²² Overall, this resource for infrastructure agreement seeks to accelerate China-financed extraction of mineral resources in Guinea.

In September 2021, after the military coup overthrew President Condé from office, Chinese companies remained active in Guinea. However, the Chinese government condemned the coup and urged for the immediate release of President Condé.Footnote ²³ A spokesperson for the Chinese Foreign Ministry, Mr. Wang Wenbin, stated in a press conference concerning the coup that “[w]e hope relevant parties can exercise calm and restraint, bear in mind the fundamental interests of the nation and people, resolve the relevant issue through dialogue and consultation and safeguard peace and stability in Guinea.”Footnote ²⁴

2.3 China’s Climate and Biodiversity Commitments in the Context of Chinese Laws and Policies on Outbound Direct Investments

China’s outbound direct investments regime is designed with the objective of safeguarding state-owned assets and their financial security. The environmental and social impact of offshore projects has not been a core concern of the Chinese government, and as such, there is no legislation with enforcement effect to screen the environmental and social impact of overseas investment projects. In addition, institutionally, the Ministry of Ecology and Environment, the main administrative agency in charge of environmental affairs in China, does not have the mandate to regulate overseas projects.Footnote ²⁵

Recognizing the threat that climate change poses, China has made significant commitments to reduce emissions in its international investments, particularly in developing nations. In 2021, FOCAC published the “Declaration on China-Africa Cooperation on Combating Climate Change.”Footnote ²⁶ The Declaration states that both China and African countries will advocate for and advance sustainable development and will “promote ‘green recovery’” in a post-COVID economy. Further, China commits to promoting low-emission technologies in Africa, including solar and wind-powered energy production. The Declaration also states that China “will not build new coal-fired BRI power projects abroad.” China’s National Development and Reform Commission (NDRC) has made similar commitments to sustainable development in the Belt and Road Initiative (BRI).Footnote ²⁷ Specifically, the NDRC commits China to promoting green energy in its operations abroad linked to the BRI,Footnote ²⁸ stating that “[e]nterprises shall be encouraged to promote green and environmental protection standards and best practices for infrastructure.” Additionally, the NDRC notes in their opinion that “the full implementation” of China’s and participating African countries’ commitments under international climate agreements including the Paris Agreement shall be promoted.Footnote ²⁹ The NDRC further states that “[t]he construction of overseas coal-fired power projects shall be completely stopped.”

China made similar goals for green international development in the notice by the Ministry of Commerce and the Ministry of Ecology and Environment on issuing the “Green Development Guidelines for Overseas Investment and Cooperation.”Footnote ³⁰ An enumerated goal for Chinese outbound investment stated in the guidelines is to “support outbound investment in clean energy such as solar, wind, nuclear and biomass energy, facilitate the global revolution of energy production and consumption, and build a clean, low-carbon, secure and efficient energy mix.” In September 2021, at the 76th UN General Assembly, President Xi Jinping stated, “China will vigorously support the green and low-carbon development of energy in developing countries and will no longer build new overseas coal power projects.”Footnote ³¹ Further, China reiterated the goal to not build any new coal power plants abroad in the communication to the UN Framework Convention on Climate Change (UNFCCC) on China’s Nationally Determined Contributions.Footnote ³²

2.4 Guinean Governmental Structure on Mining, Natural Resource Management, and Environmental Matters

While conducting mining operations in Guinea, SMB not only should abide by the laws and policies of China but is legally bound by the laws of the Republic of Guinea in relation to the environment and human rights. Institutionally, both the Ministère de l’Environnement et du Développement Durable/Ministry of the Environment and Sustainable Development (MEDD) through the Guinean Environmental Assessment Agency (AGEE) and the Ministry of Mines and Geology have oversight of mining projects and the Environmental and Social Impact Assessment (ESIA) process in Guinea.

2.5 Guinean Environmental Laws and Decrees

The Guinean legal system is highly influenced by its history of French colonization and prescribes a civil law system. The relevant sources of Guinean law that provide the framework for regulating the mining industry include the Guinean Constitution of 2010 and 2020, as well as the Transitional Charter, the Environmental Code of Guinea 2019 and implementing regulations, and the Mining Code and implementing regulations.

The Constitution of Guinea guarantees the right to a healthy environment along with other environmental protections.Footnote ³⁴ Article 16 of the 2010 Constitution states, “[e]very person has the right to a healthy and lasting environment and the duty to defend it.”Footnote ³⁵ As mentioned, in 2020, a reformed constitution was passed by referendum.Footnote ³⁶ The 2020 Constitution contains a similar right to a clean and healthy environment in Article 22, which states in part that “[t]he right to a healthy environment is recognized throughout the territory.”Footnote ³⁷ After the 2021 coup, the ruling military junta suspended the 2020 Constitution and instituted a Transitional Charter. Because the SMB project began in 2014, all three texts (2010 Constitution, 2020 reformed Constitution, and the Transitional Charter) apply. The Transitional Charter does not contain any explicit protections for the environment.Footnote ³⁸

The Environmental Code of Guinea 2019 sets out a few basic overarching policies when it comes to environmental protection and energy generation. Generally, it promotes environmental sustainability, the consideration of climate issues, and the use of renewable energy. The Code places explicit duties on private companies operating in the extractives sector in Guinea, noting in Article 16 that “[p]rivate enterprises and public and mixed companies carrying out industrial and/or commercial activities shall be required to integrate environmental concerns into their operating, production and responsible management systems, meeting the requirements of sustainable development.”Footnote ³⁹ Article 9 of the Code notes that development projects in Guinea must take into account the importance of environmental protection and must adhere to several principles of environmental stewardship including, among others, the precautionary principle and the principle of sustainable development.Footnote ⁴⁰

Procedurally, the Environmental Code specifically requires that projects having an impact on the environment perform an ESIA.Footnote ⁴¹ Article 142 of the Mining Code also requires that mining companies complete an ESIA as a part of the application for an Authorization or Operation Permit and that the ESIAs prepared by companies abide by the Environmental Code and meet “internationally accepted standards.”Footnote ⁴²

According to Article 31 of the Environmental Code, “[w]hen the environmental and social impact study is deemed to be satisfactory, the minister in charge of the environment shall issue to the developer a certificate of environmental compliance.”Footnote ⁴³ Guinean regulations concerning ESIAs require that after the completion of the study period for the ESIA, a report (an environmental and social impact study report, known as REIES) must be submitted to the Ministry in charge of the environment for review by the CTAE.Footnote ⁴⁴ If the REIES is approved by the CTAE, the minister in charge of the environment must issue the environmental authorization or the environmental compliance certificate (certificat de conformité environnementale).Footnote ⁴⁵ Article 22 of Order A/2022/MEDD/CAB/SGG of 25 July 2022 on the administrative procedure for environmental assessment states that the environmental compliance certificate, which is granted by the minister of the environment on the recommendation of the CTAE, is valid for one year and is renewable each year.Footnote ⁴⁶

Additionally, as part of the ESIA process, companies operating in Guinea must produce an ESMP.Footnote ⁴⁷ The ESMP is a document that lays out the procedure for managing, implementing corrective or mitigation measures, monitoring, and following up on the environmental and social risks and impacts in preparation for and during the project that operating companies must adhere to.Footnote ⁴⁸ Each year, the company must submit an ESMP implementation report to the AGEE. This yearly report is a requirement for the renewal of the environmental compliance certificate.

2.6 International Treaties and Standards

Both China and Guinea are signatories of the UNFCCC. Article 3 of the UNFCCC states in part that “[t]he Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects.”Footnote ⁴⁹ Additionally, the Guinean ESIA regulations note that companies should adhere to national standards when conducting ESIAs, but when national standards are absent, companies should follow international best practices, specifically mentioning the International Finance Corporation (IFC) standards.Footnote ⁵⁰ The IFC standards aim to guide corporations on best practices to ensure that environmental and social rights of affected communities are respected and preserved.

IFC Performance Standard 3 concerns “Resource Efficiency and Pollution Prevention.”Footnote ⁵¹ A key objective of IFC Performance Standard 3 is “[t]o reduce project-related GHG [greenhouse gas] emissions.”Footnote ⁵² In relation to GHG emissions, IFC Performance Standard 3 instructs companies to consider less polluting alternatives to energy generation stating, “the client will consider alternatives and implement technically and financially feasible and cost-effective options to reduce project-related GHG emissions during the design and operation of the project.”Footnote ⁵³ The standard goes on to note that a reasonable project alternative may include “adoption of renewable or low carbon energy sources.”

Further, the IFC Performance Standards make reference to the World Bank Group Environmental, Health and Safety Guidelines (EHS Guidelines) and note that the EHS Guidelines are “technical reference documents with general and industry-specific examples of good international industry practice.”Footnote ⁵⁴ The IFC Performance Standards note that when the standards of a host country differ from standards presented in the EHS Guidelines, the company should abide by whichever standards are more stringent.Footnote ⁵⁵

3.1 SMB’s Environmental and Social Record in Boké, Guinea

In 2022, a Pan-African environmental NGO, Natural Justice, completed a Community Audit of the Boké area to determine the on-the-ground effects of SMB’s mining activities on local communities and their livelihoods. The Community Audit Report notes that the local economic activities impacted by SMB’s bauxite mining include agriculture (rice and mahogany), fishing, salt farming, livestock, trade, and handicrafts, and that these forms of subsistence are under threat due to the bauxite mining activities.Footnote ⁵⁸ Generally, the report notes the extreme degradation of the natural environment in Boké.Footnote ⁵⁹ Additionally, according to a report by Human Rights Watch, the required ESIA was not finished and approved before SMB began constructing mining infrastructure such as mining roads and ports.Footnote ⁶⁰ The same pattern of starting the operation before the ESIA was approved can be found at SMB’s investors’ Simandou iron mine-related infrastructure project, a violation of the Guinean Environmental Code.Footnote ⁶¹

One of the main concerns of local communities noted during the community audit is access to safe drinking water. SMB discharges wastewater directly into fields and local waterways, thereby polluting local water sources and making them unsuitable for human domestic use.Footnote ⁶² Uncontrolled and untreated runoff after periods of rain also contributes to pollution of local waterways, turning streams and rivers the deep red color of bauxite.Footnote ⁶³ Additionally, local communities complain that many of the boreholes and wells drilled by SMB to compensate for the pollution of streams and rivers are not functional. Of the thirty-one boreholes surveyed for the community audit report, only seven were found to be operational at the time of the audit.Footnote ⁶⁴

Another key environmental complaint of local communities is the copious amounts of dust generated from heavy machinery used for mining operations, including large trucks that travel through communities and on mining roads (Figure 6.1.1). Individuals from Katougouma complain that passing trucks kick up dust that deteriorates the air quality.Footnote ⁶⁵ Communities also complain that the dust coats their farms and food and has caused respiratory disease among locals.Footnote ⁶⁶ The Community Audit Report also notes that dust kicked up by trucks coats roadside fruit trees and discusses the need for a dust mitigation program.Footnote ⁶⁷ Additionally, community members have complained that their land rights have been violated by SMB. Specifically, in Boké, individuals complain that their customary land rights have been ignored and they have not been provided with adequate compensation.Footnote ⁶⁸

3.2 Civil Society Actions

Despite Xi Jinping’s pledge that China will no longer build coal plants overseas, many Chinese companies have continued with their plans to construct coal-fired power plants.Footnote ⁶⁹ Thus, bottom-up work led by civil society is necessary to ensure companies comply with both the Chinese government’s and the host country’s laws. A group of Guinean, regional, and international NGOs have been working together to design advocacy strategies to halt the construction of the coal plant in Boké. These NGOs include the Guinean human rights legal nonprofit Les Mêmes Droits pour Tous (MDT), the Association pour le Développement Rural et l’Entraide Mutuelle de Guinée, the US-based environmental legal nonprofit Center for Transnational Environmental Accountability (CTEA, Figure 6.1.2), Natural Justice, and the Ghana-based Advocates for Community Alternatives.

Figure 6.1.2 CTEA Executive Director, Jingjing Zhang, meeting with the Wawayiré village in the Boké prefecture

Even though both the validation of the ESIA of the refinery with the coal plant and the environmental compliance certificate were issued to SMB for the planned refinery and coal plant before Chinese President Xi Jinping announced in September 2021 that China would no longer build coal-fired power plants abroad, nonetheless, SMB failed to change its plan of building a captive coal plant to power the alumina refinery to align the project with China’s policy direction. The consortium of NGOs decided to take action to stop its plan. The main strategies identified include the following: first, applying pressure to SMB to comply with Chinese and Guinean climate policies and commitments, including by writing letters to the Guinean government and the Chinese Embassy in Conakry, media exposure, and participation in UN human rights mechanisms; and second, taking legal action, including access to information requests, Compulsoire,Footnote ⁷⁰ and administrative litigation,Footnote ⁷¹ in Guinea to challenge the approval process for the coal plant.

According to the news on China’s Ministry of Commerce website, other Chinese companies in the Boké and Boffa region, including the State Power Investment Corporation (SPIC), plan to build refineries with captive coal or heavy fuel oil burning plants despite Xi Jinping’s policy prohibiting coal plants.Footnote ⁷² The NGO consortium is currently working to expand its advocacy efforts to include all planned coal and heavy fuel oil burning plants.

On 13 June 2022, MDT submitted letters to the Ministry of Environment and Ministry of Geology and Mines urging them to cancel the plan to build a coal-fired power plant and replace it with a cleaner source of energy. Additionally, on 14 June 2022, one of the authors brought the MDT letters, two ESIAs (SMB and SPIC), and a letter calling for stopping the coal plants to the Chinese Embassy in Conakry (the capital of Guinea). These letters were meant to capitalize on China’s recent pledge not to build new coal-fired power plants abroad while simultaneously setting up potential administrative litigation if the Guinean government refuses to compel SMB to find a cleaner source of energy for the refinery project. In July 2022, both ministries responded favorably to the letters submitted by MDT with the Ministry of Environment stating that the department “will take all necessary steps to examine the concerns of the communities in the SMB mining area.”

In early 2023, MDT and CTEA submitted follow-up letters to both ministries and the Chinese Embassy in Conakry calling for the Guinean government to revoke the environmental compliance certificate and cancel the coal-fired power plant. Additionally, in April 2023, MDT submitted a request to the AGEE asking for a copy of the most recent environmental compliance certificate for SMB’s refinery and coal plant project. MDT met with officials from the AGEE and was told that no environmental compliance certificate had been issued to SMB, which was an excuse to avoid disclosing it. If informal processes to obtain the certificate continue to prove unsuccessful, MDT will submit a Compulsoire or formal information request seeking the certificate.

Crucially, the Compulsoire can be addressed to both the Ministry and the company. The environmental compliance certificate (as discussed in Article 31 of the Guinean Environmental Code) must be renewed each year. The environmental compliance certificate for the SMB’s refinery and coal plant ESIA are set to be renewed in May each year. If the certificate is renewed despite obvious deficiencies with the ESIA, as pointed out in MDT’s letters to the ministries, then the NGO consortium would bring administrative litigation to challenge the decision to renew in the Guinean courts.

On the international stage, CTEA and Natural Justice coauthored and submitted a shadow report to the UN Committee for Economic, Social, and Cultural Rights during its periodic review of China and highlighted Chinese companies’ plans to construct captive coal-fired power plants and made recommendations to the Committee that China has the obligation to oversee Chinese companies operating abroad regarding their human rights impact. As a result of this engagement, the Committee made the following recommendation to China in their concluding observations: “Suspend permissions to construct coal-fired power plants as well as pause ongoing financing construction hereof, including in the State party and abroad,” and “[e]nsure that business entities operating in the State party or those domiciled under the State party’s jurisdiction and those acting abroad, including their sub-suppliers, as well as institutions that provide financing, are held accountable for economic, social and cultural rights violations, paying particular attention to indigenous and peasants’ land rights, environmental impact.”Footnote ⁷³

Because of pressures built by the actions above, in July 2023, an SMB manager had orally promised to abandon its plans to build a coal-fired power plant. It was a victory for communities and civil society organizations. However, SMB is now looking to build a heavy fuel oil plant, which comes with more serious health impacts for the local community, and the legal battle and campaign to stop the fossil fuels power plants will be carried on to a new stage.

5.1 For Law School Audiences

Guinea is a country that has had a tumultuous political history and recently experienced a military coup in 2021. The military junta has yet to hold democratic elections to institute a new leader. Additionally, Guinea has suffered from a weak “rule of law.” The rule of law is defined by the UN as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.”

While Guinea has several environmental statutes by which international corporations are required to adhere, Guinean institutions have failed to enforce these laws and the Guinean judiciary has proven difficult to access by impacted community members and the organizations representing community concerns. What actions do you propose such organizations take to ensure accountability in a country with a weak rule of law? Do you think mobilizing litigation, including administrative litigation or tort litigation, would be more successful in Guinea? Why or why not? What other legal tools are available? And who are the potential defendants? If formal institutions prove inadequate, what extralegal means may be more effective?

The SMB case may shed light on the disconnect, found elsewhere in China’s Belt and Road Initiative, between political rhetoric and the actual conduct of Chinese corporations. What legal avenues are available for affected parties to challenge environmental and human rights violations perpetuated by foreign companies or multinationals? What are SMB’s Chinese investors’ or its parent company’s legal liabilities? Can lawsuits similar to the US’s Alien Tort Claims Act be filed in China? What differentiates the legal liabilities of the parent company and its subsidiaries? Will using the corporation’s or financiers’ grievance mechanisms in China be possible? Are there any climate and biodiversity commitments strong enough to hold Chinese parties accountable to the host country’s laws and international law sources? Are current international environmental laws or international human rights laws adequate to provide legal bases and avenues to redress multinationals’ wrongdoings on the environment and communities?

5.2 For Policy School Audiences

As discussed in the case study above, SMB began construction of major mining infrastructure before completing the ESIA. The ESIA process is a crucial first step in any development project. Rushed or incomplete ESIA processes can undermine the entire purpose of evaluating the environmental and social impacts of a project. Additionally, SMB’s ESIA contained several deficiencies, including lacking a climate assessment, reasonable alternatives, and baseline air quality studies. An Environmental Impact Assessment (EIA) is a planning tool meant to assess environmental risks of a given project so that decision makers can make fully informed decisions regarding the project.Footnote ⁷⁴ If project developers begin construction before completing the ESIA, then decisions are made without critical environmental and social information that is crucial to ensuring responsible and sustainable development.

Based on the facts in this case study, what policy tools do you think would be the most effective in ensuring that Chinese companies adhere to their ESIA requirements? Additionally, what are some of the dangers to communities when companies begin construction of large development projects without properly conducting environmental assessments?

Under Guinean law, it is the company proposing the project that is required to conduct ESIAs for proposed projects. However, in other countries, such as the United States, it is the government that is required to conduct such studies.Footnote ⁷⁵ What are some of the benefits and/or risks of an EIA law that requires the company to conduct ESIAs? Do you think the purpose of environmental assessment laws would be better served if a company or the government conducted the studies?