The African System as a “Norm Leader”
As Obiora Okafor and Godwin Dzah wrote, the African human rights system is rarely imagined as “an originator, agent and purveyor” of norms. By examining three norms – the right to self-determination, the right to development, and the right to environment – Okafor and Dzah argue that the African system is a “trailblazer” and “norm leader” in the global human rights theory and practice. Despite its “critical (and even radical) contribution,” the African system “continues to attract relatively marginal and less-than-generous attention,” according to the authors.
In this piece, I contend that business and human rights is another area where the African system demonstrates norm leadership. The African system’s norm leadership in business and human rights is epitomized by the recent repurposing of the language of “duties” by the African Commission on Human and Peoples’ Rights (the African Commission) to develop direct corporate accountability for human rights. The Commission is a quasi-judicial body mandated with the promotion and protection of human and peoples’ rights as well as the interpretation of the African Charter on Human and Peoples’ Rights. Established by Article 30 of the African Charter, the Commission became operational in 1987. Later, the African Court on Human and Peoples’ Rights was set up via a protocol to the Charter, which entered into force in 2004. The Court complements and reinforces the protection mandate of the Commission.
From “Duties” to Direct Corporate Accountability
The African system has some unique features as stipulated in its key instruments. The main instrument of the African system is the African Charter on Human and Peoples’ Rights, also known as the Banjul Charter. The Charter was adopted on 27 June 1981 and entered into force on 21 October 1986. One unique feature is that the Charter, as its title shows, stipulates both individual rights and collective rights. The Charter also emphasizes the interdependence and justiciability of both civil and political rights, and of economic, social, and cultural rights. Yet another critical feature of the African Charter is that it stipulates not only the rights but also the duties of individuals.
It is this last feature – the provision on the duties of the individuals – that the African Commission recently interpreted to argue that the African Charter already embodies the notion of direct corporate responsibility. In a 2019 advisory note addressed to the African group in Geneva for the ongoing negotiation of a UN legally binding instrument on business and human rights, the Commission interpreted the duties clause of the Charter as a “moral and legal basis for attributing [direct] obligations to corporations and companies.”
The African Charter dedicates three provisions, Articles 27-29, to defining “duties” of the individual. The first sub-provision of Article 27 states: “Every individual shall have duties towards his family and society, the State and other legally recognized communities and the international community.” The second sub-provision of Article 27 states: “The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.”
The Charter refers only to “the individual” in the relevant provisions on duties. It does not mention “businesses” or “peoples” or other non-State actors. Yet the African Commission, in its advisory note – developed through its Working Group on Extractive Industries, Environment and Human Rights in Africa – argued that Article 27 applies to business entities too, stating:
“Under the African Charter, obligations of business enterprises towards rights holders have a clear legislative basis. Article 27 of the African Charter provides for the duties of individuals and its sub-provision 2 lays down the obligation to exercise rights ‘with due regard to the rights of others.’ Clearly, if this obligation can be imposed on individuals, there is an even stronger moral and legal basis for attributing these obligations to corporations and companies.”
The African Commission’s advisory note cites and builds on the 2018 “State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter relating to Extractive Industries, Human Rights and the Environment.” Article 21 provides for the right of all peoples to free disposal of their wealth and natural resources. Article 21 (5) requires States parties “to eliminate all forms of foreign economic exploitation, particularly that practiced by international monopolies, so as to enable their peoples to fully benefit from the advantages derived from their national resources.” Article 24 is about the right of all peoples to “a general satisfactory environment favourable to their development.” The Commission focused on the two provisions because of their direct relevance to extractive companies.
In the State Reporting Guidelines, the Commission already uses the term “obligations of companies.” It explains in detail the multifaceted nature of these obligations in paragraphs 56-65 of the Explanatory Note annexed to the Guidelines. For comparison, the UN Guiding Principles on Business and Human Rights (2011) use the term “responsibilities” for businesses to indicate the indirect and non-binding nature of corporate accountability. By interpreting and applying the “duties of the individual” to companies, the African Commission affirms that not only States but also companies have their own respective obligations. The set of obligations of companies, according to the Commission, includes:
- Direct negative obligations based on the principle of ‘do no harm,’ or in its positive formulation, the principle of due care (paragraph 57)
- Indirect negative obligations, e.g., for the actions of those who act on their behalf, such as private security companies (paragraph 62)
- Positive obligations, e.g., relating to the various fiscal and transparency requirements (paragraph 63) or relating to socio-economic and environmental impact assessments (paragraph 64)
- Obligations to contribute to the development needs of the host communities (paragraph 65)
This menu of obligations shows that the Commission conceptualizes the nature of obligations of companies in a comprehensive manner – incorporating both direct and indirect as well as negative and positive obligations. Negative obligations apply not only for the behavior of companies themselves (thus direct negative obligations) but also for those other entities acting “on behalf” or “to the benefit” of companies (thus indirect negative obligations).
The Turn to Linking Rights and Duties
As shown above, the African Commission is convinced that there is a stronger reason to extend the “duties of the individual” clause in the African Charter to companies. This conviction aligns with the growing realization of the limits of the duality of State obligations vis-à-vis individual rights in international law and human rights theory beyond the African system. The field of business and human rights emerged as a response to the limitations of the existing human rights framework that allocates obligations to States and rights to individuals. There are two pertinent trends aligned with the African Commission’s interpretation.
The first trend concerns the growing interest in rethinking individuals in international law. International law continues to evolve to include individuals as both rights-holders and duty-bearers. The term “individuals” in international law has several connotations. In its narrow definition, the term “individuals” refers only to singular human beings. Others use the term to refer to groups of natural persons as well. Still others use the term in its broadest sense to include “all entities that are not States or State-like.” The broadest definition of “individuals” thus includes corporate entities. Although the African Commission’s interpretation of the duties of individuals to construe obligations of companies does not directly rely on a rethinking of the individual, it can still be considered aligned with such a trend.
The second trend pertains to the turn to duties alongside rights in broader human rights theory. In the global discourse of human rights, the notion of individual duties was part of earlier instruments but was not included in subsequent binding instruments. The Universal Declaration of Human Rights (UDHR), in Article 29 (1), provides: “Everyone has duties to the community in which alone the free and full development of his personality is possible.” Binding covenants that follow the UDHR do not include the language of duties.
Likewise, in the Inter-American system, the 1948 American Declaration of the Rights and Duties of Man, as the title tells, has a detailed catalogue of individual duties. The American Declaration is the first generic international human rights instrument worldwide after the Second World War, as it was adopted a few months before the UDHR. The American Declaration was adopted on 2 May 1948, and the UDHR on 10 December 1948. Like the UDHR, the American Declaration is not legally binding. The main binding convention – the American Convention on Human Rights of 1969 – does not use the same formulation of “duties” as its predecessor. The American Convention’s Article 32, which has the “relationship between duties and rights” as its title, employs the term “responsibilities” instead in the substantive part of the relevant provision. Article 32 (1) provides: “Every person has responsibilities to his family, his community, and mankind.” In human rights law, the terms “duties” and “responsibilities” do not carry the same legal weight; the latter does not necessarily imply legal obligations in the strict sense.
The African system’s approach of incorporating both rights and duties has been at times criticized and, in general, remained unexplored. The skepticism toward the language of duties in the African Charter, in part, points toward the potential for abuse by States. However, Makau Mutua offers an alternative perspective, arguing: “A valid criticism of the language of duties should rather focus on the precise meaning, content, conditions of compliance, and application of those duties. More work should be done to clarify the status of the duties in the Charter, and define their moral and legal dimensions and implications for enforcement.”
Similarly, Mumba Malila calls for a nuanced understanding of the concept of individual duties in the African Charter, with some duties carrying legal effect and others having only moral appeal. Although the manner of inclusion of duties in the Charter can be considered somewhat problematic, it also “can be regarded as an opportunity for the African continent and, by extension, for the global human rights framework to redefine itself,” according to Malila.
Beyond the scholarship on the African system, there is renewed interest in looking into the potential of duties, at least in their soft form as responsibilities, to tackle complex challenges of our time. In a 2020 book, “The Hidden Face of Rights: Toward a Politics of Responsibilities,” Kathryn Sikkink, for example, argues: “we cannot truly implement human rights unless we also recognize and practice the corresponding human responsibilities.” Taking up issues such as climate change, Sikkink observes that the existing language of human rights articulates the responsibilities of only States but not of other potential actors such as corporations, institutions, and individuals. Sikkink argues for a broad concept of “responsibilities,” from ethical and political perspectives, and not strictly from a legal perspective.
Looking forward
This piece focused on the African Commission’s interpretation of the Charter’s individual duties to construe both indirect and direct obligations of companies. The work of the African Commission is emblematic of what can be considered an African approach to business and human rights. An array of unique features of the regional system, together with other instruments and institutions not discussed in this piece, support this claim. Among others, the Charter’s framing of both the individual and collective dimensions of rights and duties in the African system, provisions pertaining to the right to development, and the justicability of economic, social and cultural rights set the ground for “Africa’s own normative foundation” and serve as “a robust legal and moral compass for responsible and equitable business conduct across the continent.”
I conclude with these two points. Firstly, the Commission’s interpretation, although based on pre-existing provisions of the Charter, is relatively recent and has yet to be tested in the further adoption and implementation of business and human rights standards, including in contentious cases: for example, through the individual complaints mechanism of the Commission itself or in the caselaw of the African Court. Secondly, in light of the scholarship emphasizing the need to turn to the link between rights and duties, as well as the interdependence between individual and collective aspects of rights, the African approach needs to be taken seriously for its potential contribution to global norm-making in business and human rights.
