International, Regional and National Business and Human Rights (BHR) Developments: Simultaneously Centering and Decentering Africa’s Marginal Position in the Quest to Reduce the Transnational Corporate Accountability Gap?

Speeches/Talks (2023)

Esther Kiobel and three other widows of four Nigerian activists executed in 1995 recently announced, “not without disappointment and frustration” that after years of trying to unsuccessfully pursue ... [more ▼]

Esther Kiobel and three other widows of four Nigerian activists executed in 1995 recently announced, “not without disappointment and frustration” that after years of trying to unsuccessfully pursue justice against corporate giant, Shell, they had decided to end their battle for justice. This case epitomizes the struggles experienced by global south rights- holders to bring large Transnational Corporations (TNCs) to account for violations of human rights and the environment in the global south countries where they operate. TNCs have for a long time “enjoy[ed] substantial rights secured through numerous trade and investment agreements while their human rights and other obligations remain less clear and more difficult to enforce.” This has allowed them to externalize the negative impacts of their transnational corporate activities to vulnerable rights-holders such as local communities and indigenous groups who suffer massive violations as a result. Current efforts to reform international investment law have been critiqued for not doing enough to change this status quo. The burgeoning field of Business and Human Rights (BHR) offers some useful insights into how ongoing attempts to rein in the rogue Transnational Capitalist Class (TCC) simultaneously empower and disempower Africa in the processes of BHR law making, interpretation and implementation. This contribution will critically analyse the international process of drafting a Legally Binding Instrument (LBI) in BHR, the proposed European Corporate Sustainability Due Diligence Directive (CSDDD), and national efforts in countries such as Germany and France to enact and implement mHRDD laws. Ultimately, the contribution will argue that despite comparable developments being made in African countries, the BHR conversation seems to privilege and center European voices rather than African ones. [less ▲]

Norm Formation and Contestation in Business and Human Rights: Due Diligence Laws and North-South Relations

Speeches/Talks (2023)

Colonial Reverberations in Mandatory Human Rights Due Diligence Laws (mHRDD): Centering the West and Othering the Rest

Speeches/Talks (2023)

It is no exaggeration to observe that Europe is in the throes of a mHRDD wave. Regionally, the European Commission adopted a proposal on Corporate Sustainability Due Diligence Directive (CSDDD) in ... [more ▼]

It is no exaggeration to observe that Europe is in the throes of a mHRDD wave. Regionally, the European Commission adopted a proposal on Corporate Sustainability Due Diligence Directive (CSDDD) in February 2022. Nationally, countries such as France, Germany, and Norway, have recently enacted mHRDD laws geared towards reducing the governance gap that has allowed Transnational Corporations (TNCs) to (un)wittingly contribute to violations of human rights and the environment in primarily global south countries. These developments call for sober reflections on the intended and unintended impacts of mHRDD laws given their status as the “shiny new thing” in the global regulation of TNCs. Using a Third World Approaches to International Law (TWAIL) lens, this contribution adopts a counter-hegemonic vantage point to render visible what is currently invisibilized by the euphoria surrounding mHRDD laws. More specifically, I hypothesize that the processes surrounding the enactment and operationalization of these laws enacted, as they are, in the west, and certain substantive provisions within them; coupled with their extraterritorial impacts on global south states and peoples without adequately involving these states and peoples, replicate the dynamics of colonial power relations, reinforcing the power asymmetries that characterize the relationship between the west and the rest. Consequently, mHRDD laws should not be embraced with open arms, but rather, should be understood and critiqued within their proper, sometimes, neo-colonial context. [less ▲]

Contracts and Human Rights & Environmental Due Diligence (HREDD) Laws

Conference given outside the academic context (2023)

How are contracts typically used in HREDD? Does contracting-as-usual support effective HREDD -- why / why not? What do the new laws say about contracts and the role they should play in HREDD? Specifically ... [more ▼]

How are contracts typically used in HREDD? Does contracting-as-usual support effective HREDD -- why / why not? What do the new laws say about contracts and the role they should play in HREDD? Specifically, what do the new laws say about contracts and HREDD-related liability? Against this backdrop, what would you advise in-scope companies to include in their contracts to meet the new legal requirements? Article 12 of the EU’s proposed Corporate Sustainability Due Diligence Directive indicates that the European Commission will develop guidance on model contractual clauses that companies can use to inform their own contracting practices. What are some key principles of due diligence-aligned contracting that you would like to see reflected in this guidance? More generally, what improvements are needed for contracts to better support HREDD regimes that effectively prevent and remedy adverse impacts? [less ▲]

One Step Forward, Two Steps Backward: Progress Towards the EU’s Proposed Corporate Sustainability Due Diligence Directive and Provisions for Global South Participation in Due Diligence Processes

Article for general public (2022)

Between universalism and cultural relativism The dilemma of consent to female genital mutilation in the Tatu Kamau case

in Kabarak Journal of Law and Ethics (2022), 6(1), 67-98

To date, almost 74 years since the adoption of the Universal Declaration of Human Rights (the UDHR), the tensions between universalism and cultur-al relativism in the field of human rights, whose ... [more ▼]

To date, almost 74 years since the adoption of the Universal Declaration of Human Rights (the UDHR), the tensions between universalism and cultur-al relativism in the field of human rights, whose provenance can be traced back to the debates surrounding the drafting and adoption of the UDHR, still linger on, playing out on the national stage in countries such as Kenya. At its core, universalism argues that all human rights inhere in all individ-uals without distinction, and that they must stand even when in when in opposition to established cultural practices. In contrast, cultural relativism holds that no particular culture is superior to another, and centers on the need for forbearance and respect towards each culture to avoid imperialist tendencies of imposing beliefs. This paper argues that these binary ideolog-ical viewpoints are magnified in the context of female genital mutilation. Through an analysis of the case of Tatu Kamau v Attorney General & 2 others; Equality Now & 9 others (Interested Parties);Katiba Institute & another (amicus curiae) [2021] eKLR, it is proposed that a cultural ap-proach is needed in addition to legal measures in place to combat the practice. [less ▲]

Some TWAIL Reflections on the Unilateral Regulation of the GVCs of TNCs Using Domestic Legislation

Speeches/Talks (2022)

TWAILing the Minimum Core Concept: Rethinking the Minimum Core of Economic and Social Rights in the Third World

in Nigerian Yearbook of International Law (2021), 2

The deployment of the minimum core concept in the sphere of Economic and Social Rights (hereinafter ESRs) can be attributed to the treaty body charged with the implementation of the International Covenant ... [more ▼]

The deployment of the minimum core concept in the sphere of Economic and Social Rights (hereinafter ESRs) can be attributed to the treaty body charged with the implementation of the International Covenant on Economic and Social Rights (hereinafter ICESCR). This treaty body, the Committee on Economic, Social and Cultural Rights (hereinafter CESCR) first adopted the minimum core concept in 1990 in its General Comment No. 3 on the Nature of State Obligations [UNCESCR, General Comment No. 3: The Nature of State Parties’ Obligations (Art. 2, Para. 1 of the Covenant), 14 December 1990, E/1991/23 (Hereinafter General Comment No. 3)]. The Committee averred that a failure on their part to introduce such a minimum core obligation would have amounted to depriving the ICESCR of its raison d’être. Since the inception of this concept however, numerous criticisms have been levelled against its normative and conceptual foundations as well as its implementation in practice. This article intends to contribute to this critical reflection on the prospects and challenges of the minimum core concept by utilizing a Third World Approaches to International Law (Hereinafter TWAIL) lens to critique the application of the concept to the Third World. The Article is divided into five sections. Sections 1 and 2 briefly sketch the contours of TWAIL as a critical school of thought, and focus on highlighting its application particularly in the area of international human rights law. Section 3 thereafter takes up the task of tracing the origins and utilization of the minimum core concept by the CESCR in its assessment of compliance with the ICESCR. The penultimate Sect. 4 undertakes an ambitious critical analysis of the minimum core concept from a TWAIL perspective. The paper concludes with Sect. 5 which offers a reconceptualized application of the minimum core concept potentially capable of alleviating the TWAIL concerns raised in earlier sections of the paper. [less ▲]

Of Dark Clouds and Their Silver Linings: Crisis as Opportunity in the Economic and Social Rights Jurisprudence of the European Court of Human Rights

in Goettingen Journal of International Law (2021), 12(1), 1-35

We live in a world in crisis. These crises are experienced globally, regionally, by individual States and mostly by individuals themselves. Despite our differences, we are all united by crisis. However ... [more ▼]

We live in a world in crisis. These crises are experienced globally, regionally, by individual States and mostly by individuals themselves. Despite our differences, we are all united by crisis. However, adopting a regional outlook, this paper focuses on Europe, which,like much of the rest of the world, has in recent times been buffeted by multiple crises ranging from the financial and economic crisis that begun in 2008, to the climate change crisis, to the migrant and refugee crisis, to the Brexit crisis, to the COVID-19 pandemic that has rocked the entire globe. In times of crisis, it is commonplace to turn to legal and institutional frameworks in the hopes of finding some reprieve. Within Europe, one such institution is the European Court of Human Rights (ECtHR). This Court, also known as the Strasbourg court, was established in 1959 under Article 19 of the European Convention on Human Rights (ECHR). Despite its primarily Civil and Political Rights (CPRs) mandate, the ECtHR has in numerous cases proven to be fertile ground for planting the seeds of Economic and Social Rights (ESRs) protection,1 which is/was inevitable, given the widely accepted indivisible, interdependent and interrelated nature of all human rights, whether CPRs or ESRs. The ECtHR explicates that “the Convention is a living instrument which […] must be interpreted in the light of present-day conditions.” In the present day conditions of numerous crises that have only exacerbated the already precarious conditions of numerous vulnerable rightsholders in the family of European States, the question then becomes what jurisprudential trends, prospects and pitfalls exist for the ECtHR in its dynamic interpretation of the ECHR to include ESRs. In seeking answers to this question, this paper analyzes the ESRs jurisprudence of the ECtHR with the intention of illuminating how the Court has, and ought to utilize its institutional role as an enforcer of human rights in general and ESRs in particular in the quest to mitigate the effects on rightsholders, of the crises being experienced within Europe. At the heart of this inquiry lies the assertion that in line with the ECtHR’s ESRs jurisprudence thus far, which evinces a willingness on the part of the Court to vindicate ESRs in order to bring these rights to life for the vulnerable rightsholders who need them the most, the myriad crises currently plaguing Europe continue to create opportunities for the ECtHR to craft a principled and consistent ESRs jurisprudence while simultaneously respecting the margin of appreciation enjoyed by the respective European States. This paper does not analyze State responses under Article 15 of the ECHR, which specifically allows the High Contracting Parties to derogate from their obligations under the Convention in times of war or other public emergency threatening the life of the nation. Rather, the analysis will be restricted to the ESRs jurisprudence of the ECtHR in times of the specific crises outlined below and where the States in question have not made an Article 15 derogation. The paper will proceed in three parts. Part A will give a brief overview of how the ECtHR has vindicated ESRs through its interpretation of the primarily CPRs found in the ECHR. Part B will thereafter briefly analyze three specific crises that have shaped the more recent ESRs jurisprudence of the Court: the financial and economic crisis, the migrant and refugee crisis and the COVID-19 pandemic. Finally, Part C will offer some tentative recommendations on the way forward, arguing that while some progress has been made by the ECtHR in centering ESRs as a very necessary part of its response to contemporary European and global crises, the battle is far from won. [less ▲]

Thinking Outside the (Methodological) Box: Teaching New Dogs Old Tricks

Article for general public (2020)