Introduction

The European Parliament approved the text of the Corporate Sustainability Due Diligence Directive (the Directive) on 24 April 2024, paving the way for its adoption as part of European Union (EU) law. Birthed on the heels of increasing clamour by policy makers and civil society for mandatory due diligence standards, the Directive has the potential to reshape how covered companies respond to environmental and human rights concerns affected by their operations across their value chains. While the Directive is part of European law, it possesses extraterritorial potential. Generally, law is said to have extraterritorial effects if it influences the conduct of foreign actors or if compliance with its obligations addresses issues or problems occurring in third countries. The Directive’s extraterritorial potential derives from its applicability not only to European and foreign companies operating within Europe, but also on their subsidiaries and business partners within their value chains operating in non-European countries including those in Africa (Article 1). In light of this potential, this blog post offers some reflections on how the Directive may impact the right to a healthy environment in Africa.

The right to a healthy environment under African law

In Africa, the right to a healthy environment is relevant to environmental protection at both the regional and domestic levels. At the regional level, Article 24 of the African Charter on Human and Peoples’ Rights (African Charter) declares that  ‘[a]ll peoples shall have the right to a general satisfactory environment favourable to their development’. All African countries, with an exception of Morocco, have ratified the African Charter. African countries have implemented the African Charter through the development of environmental laws and standards and the wide recognition of the right to a healthy environment in domestic law. (e.g, Sections 42 and 70 of Kenya’s Constitution and Section 24 of South Africa’s Constitution, to mention a few) It is noteworthy that the right is conceived as a collective right for “all peoples” and a composite right which requires protection of the environment not be decoupled from economic, social, and cultural development in Africa.

The African Commission on Human and Peoples’ Rights (the Commission) and the African Court on Human and Peoples’ Rights (the Court) have clarified the normative content of the right to a healthy environment in two separate cases in which the environmentally destructive conduct of multinational corporations (MNCs) was in issue.

First, in the 2001 SERAC case concerning environmental degradation resulting from oil contamination in Nigeria’s Niger Delta region, the Commission stated that the right to a healthy environment imposes on the State the obligation to “take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources.” In addition to the substantive obligations, the Commission construed the right to a healthy environment expansively to include procedural elements including the duty to provide information and ensure participation in decisions on development projects that impact communities.

Second is the 2023 LIDHO judgement in which the Court reiterated the position of the African Commission in the SERAC case. The case concerned the dumping of toxic waste in the Ivory Coast by the Trafigura company, acting jointly with local officials. The Court held that the right to a satisfactory environment imposes on the State the obligation to take all measures necessary to prevent the dumping of toxic waste and to ensure full and effective decontamination of sites in which waste has been dumped.

At the domestic level, upwards of 35 African countries have included the right within domestic law. Based on the texts of domestic constitutions and statutes, jurisprudence developed by domestic courts, the right to a healthy environment creates obligations for States to, inter alia, prevent pollution,  remediate environmental damage,  provide remedies for human victims of environmental harm, promote sustainable use and management of resources,  and prevent exclusion of communities from accessing environmental resources that support livelihoods.

Corporate due diligence obligations and the right to a healthy environment

The Directive sets a framework for covered companies to address adverse human rights and environmental impacts. Adverse human rights impacts are defined as violations of the obligations and prohibitions of international human rights instruments listed in Part I of the Directive’s Annex. These include human rights of individuals, communities and children, including the rights to life, health, adequate food, land, resources and livelihood (Article 3(c)). The Directive defines adverse environmental impacts as negative impacts that arise from breach of prohibitions and obligations of multilateral environmental agreements (MEAs) listed in Part II of the Directive’s Annex and related human rights instruments (Article 3(b)). These include MEAs elaborating specific obligations for the protection of biodiversity, natural heritage sites, wetlands and marine environments, and MEAs that prohibit trade in hazardous substances and toxic wastes.

To address these impacts, covered companies are required to carry out human rights and environmental due diligence by executing 9 specified duties: integrating due diligence into company policies and risk management systems; identifying and assessing actual and potential adverse impacts; prioritising identified actual and potential adverse impacts; preventing potential adverse impact; bring actual adverse impacts to an end; remediating actual adverse impacts; conducting meaningful engagement with stakeholders; establishing notification and complaints procedures to receive legitimate concerns regarding actual or potential adverse impacts; periodically assessing their own operations and measures to ensure continued compliance and publishing annual statements on companies’ websites regarding due diligence measures taken (Articles 6-15). To ensure compliance with the stated obligations, the Directive directs Member States to make rules to facilitate the imposition of penalties for infringements of the national due diligence laws pursuant to the Directive (Article 27). Additionally, the Directive requires Member States to facilitate civil liability for failure to prevent or bring adverse human rights and environmental impacts to an end (Article 29). 

Corporate due diligence and the universalisation of European values

The Directives’ extraterritorial reach positions it as a vehicle for the continued universalization of European values as a realisation of the Brussels effect. Since compliance will be required from a large number of companies, subsidiaries and business partners in global supply chain the stage could be set for the Directive to emerge as a superordinate legislation that defines what is ‘normal’ in terms of human rights and environmental due diligence law and practice. This could perpetuate existing power imbalances reminiscent of the colonial past enabled by, among others factors, the imposition of Eurocentric values through direct and indirect transfer of European laws and values and the denigration of local values and legal systems as a result. The proliferation of environmental due diligence language and practices does not necessarily imply better outcomes for victims of, and those at risk of, harm from environmental damage. On the contrary, the Directive could also serve as a discursive tool that polishes environmental destruction and unsustainable exploitation using the language of ‘due diligence’ without disrupting the cycle of extraction, transfer and externalisation of environmental harm embedded in global supply chains that have long characterised global trade and in which European companies play a prominent role.

Editor’s note: this post is the first part of a larger post. The second part will be published tomorrow.