Extending human rights accountability for corporate actors in the LIDHO v Cote d’Ivoire case of the African Court

In September 2023 the African Court on Human and Peoples’ Rights (ACtHPR or African Court) handed down its first judgement for harm caused, including to the environment, due to the dumping of toxic waste. This commentary focuses on how this judgement expands the African jurisprudence on the question of corporate accountability for infringement of human rights.

In the context of the major shift in power dynamics in the world in recent times, where corporations have become economically, socially and politically more powerful and influential than states, one of the most pressing issues confronting the human rights regime is the extent to which it can hold non-state actors accountable for human rights violations. Due to the increase in the scale of infringement, curtailment and undermining of human rights by activities of corporations, particularly multinational corporations and especially in developing countries, there have been increased calls both from scholars and human rights bodies for holding corporations accountable.

Despite continuing contestation over the scope and nature of such accountability, the need for corporate accountability was universally acknowledged with the adoption in 2011 of the United Nations Guiding Principles on Business and Human Rights (UNGPs). Effort for establishing a globally binding accountability regime is however still underway through the development of a Draft Binding Instrument on Business and Human Rights, a process that faces enormous resistance from Global North countries and big business.

A defining feature of the conduct of multinational corporations in Africa is that they operate in a human rights vacuum, as established in the work of the African Commission on Human and Peoples’ Rights (ACHPR or African Commission), mainly through its Working Group on Extractive Industries, Environment and Human Rights. The finding by the African Court of a violation of human rights to life, effective remedy, health, a satisfactory environment and the right to information due to toxic waste dumping by a multinational company TRAFIGURA Limited on the coast of Côte d’Ivoire, buttresses this point. The decision of the African Court in Ligue Ivoirienne des Droits de l’Homme (LIDHO) And Others v. Republic of Côte d’Ivoire (the LIDHO case) builds on the UNGPs and reinforces the extensive work by the ACHPR on corporate accountability for human rights. 

Corporate accountability under the African human rights system before LIDHO  

The ACHPR has been at the forefront of elaborating jurisprudence and soft law standards to establish the contours of corporate accountability for human rights infringements. In the SERAC v Nigeria and IHRDA v. DRC (Kilwa) cases, while primary responsibility is placed on the State, both cases also illustrated the responsibility of corporations in the human rights violations. In the SERAC case, the state had “condoned and facilitated these violations by placing the legal and military powers of the state at the disposal of the oil companies”, and in the Kilwa case “failed not only to investigate and punish the involvement of the Anvil Mining Company but also to provide redress for the victims against the Company for the role it played in the perpetration of the violations”. Both are clear in specifying that the actions that resulted in the human and peoples’ rights violations were that of corporations. After the Kilwa case the ACHPR also sent a letter to the corporation, requiring it to take responsibility for its role in the human rights violations.

The ACHPR also through soft law elaborated the obligations of corporations under the African Charter, including in its State Reporting Guidelines on Articles 21 and 24 of the African Charter which confirm that the individual duties in the Charter also form a legal basis for corporate human rights obligations. The Commission elaborated the duty of care, in terms of which corporate actors should “ensure that their actions or operations do not result in or trigger the occurrence of harm or the curtailment or deprivation of the rights guaranteed under the African Charter” and also “ensure continuously that their acts or operations are in full compliance with internationally accepted human and peoples’ rights, labour and environmental standards to avoid any incident producing harm or curtailment of rights of people”.

Development of the law on corporate accountability in LIDHO

The Court in the LIDHO case for the first-time comments on the accountability of non-state actors, in particular corporations, for the violation of human rights. It held that “even though the responsibility […] to respect the obligations of international law is incumbent primarily on States, it is also true that this responsibility is incumbent on companies, notably, multinational companies” (emphasis added). This echoes the African Commission’s State Reporting Guidelines on Articles 21 and 24 explanatory note stating that “While States are the primary obligation bearers under the African Charter, it is also legally recognized that corporations, particularly multinational ones, have obligations towards right holders”. The African Commission traces this obligation or responsibility to “the recognition that lack of such obligations may result in the creation of a human rights vacuum in which such entities operate without observing human rights”.

Building on the ‘responsibility of corporations to respect human rights’ enunciated in the UNGPs, the Court held that “Such a responsibility requires enterprises to commit themselves to public policies in prevention and reparation, due diligence in continuous identification of the consequences of their activities and lastly, setting up procedures aimed at solving problems caused by their action”. The court did not go further to articulate what ‘this responsibility incumbent on companies, notably, multinational ones’ entails in the event of failure to live up to this responsibility generally and in the instant case in particular. In its conclusion, it thus adopted the default position of the dominant indirect obligation model and concludes that “the main responsibility for human rights violations resulting from the dumping of the toxic waste in Abidjan is, ultimately, borne by the Respondent state”.

Despite the major jurisprudential advancement by the Court in LIDHO recognizing the responsibility of corporations for human rights, echoing the ACHPR and drawing on the UNGPs, it has not gone as far as holding them directly accountable for violations attributable to actions or inactions associated with their operations. The most the Court did was requiring the State to initiate an investigation to establish criminal and individual liability of the perpetrators (state officials and corporate actors), to issue legislative and regulatory reforms to enforce the prohibition of the import and dumping of hazardous waste, and “to amend its laws […] to ensure the responsibility of corporate entities in respect of acts relating to environment and the handling of toxic waste” as steps to ensure that TRAFIGURA specifically and corporations more generally will be held liable for human rights violations.

A dissenting opinion that rightly identifies why the Court should have established direct obligation of corporations

The case was decided by a majority of 10 judges, with a dissenting opinion from Justice Blaise Tchikaya. The dissenting opinion proposes that “[t]he Court should horizontally extend the positive obligations contained in the African Charter to the powerful multinational companies that mastermind massive human rights violations on the continent”. This highlights that the Court missed the opportunity to hold corporate actors directly responsible for blatant human rights violations. This would have been a good case to do so, as the corporate action was a positive action that the corporate actor could clearly foresee would result in serious human rights violations, and therefore provides a strong test case for direct accountability.

In this regard the Court could also have relied on the soft law developments by the ACHPR in its State Reporting Guidelines on Articles 21 and 24, which link corporate responsibilities with the individual duties under Article 27 of the African Charter, thereby recognising the higher standards of corporate accountability in the African human rights system based on binding individual duties, as compared with the UNGPs, which set non-binding standards.

Also in relation to the responsibility of the state to hold the corporation accountable, could the Court have done more to elaborate on state obligations to protect. The Court could have relied on Article 18 of the Algiers Convention which provides for an obligation on states to “take all appropriate measures to prevent, mitigate and eliminate to the maximum extent possible, detrimental effects on the environment, in particular from radioactive, toxic, and other hazardous substances and wastes”, which places a very high obligation on states, also for preventing pollution by non-state actors and holding them accountable. The Court could have made use of the strong provisions of this article and Article 16 on procedural human rights to strengthen the conclusions on both state and corporate accountability for the violations committed.

Possible future direction and implications of LIDHO for further development on corporate accountability under the African human rights system 

The majority judgement in LIDHO, although it did not go far enough, has opened the door for holding corporations accountable for their actions that curtail or infringe human rights. The majority established an indirect responsibility, whose enforcement depends on the establishment of legislative and institutional arrangements by the state for ensuring compliance by businesses to certain standards as elaborated in the reparations order. The dissenting opinion signifies the direction that the development and expansion of this jurisprudence could take particularly in establishing direct obligation and hence direct accountability of corporations, particularly multinational ones. This of necessity requires that the Court draws more from the soft law instruments of the African Commission, which offer a useful foundation for establishing direct obligations of corporations without disregarding the obligations of the state. Th African Court’s jurisprudence in LIDHO also serves as further inspiration for taking forward the task entrusted to the Working Group on Extractive Industries by the African Commission through Resolution 550 (LXXIV) 2023 for a draft African regional legally binding instrument on business and human rights.