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The “Social License to Operate” in the OHADA Zone

The Imperative of Further Substantiating an Emerging and Elusive Concept in a Post-COVID-19 Pandemic World

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The Palgrave Handbook of Social License to Operate and Energy Transitions

Part of the book series: Palgrave Studies in Energy Transitions ((PSET))

Abstract

The African continent is going through a profound period of change. For much of its recent history, its natural resources have been exploited with little consideration accorded to local communities and their environment. This situation has become intensively criticized as preventing the continent’s development and its population from benefiting fully from their natural resources. The concept of a “social license to operate” (SLO), however, has emerged, notably in the energy sector, to bridge the dire insufficiencies of the current African natural resource governance regime. Thus far, the SLO concept remains multi-sourced and englobes uncoordinated and multilayered social, environmental, and human rights concerns. The COVID-19 pandemic placed more pressure on the African natural resource governance regime. In so doing, it brought more relevancy to the SLO, a still elusive legal concept. This article examines the necessity of giving more substance to this concept in the OHADA zone, a legally dynamic and homogenous space with vast natural resources. This task is of critical relevance as the SLO may define whether the trajectory of African natural resource governance will evolve to integrate the considerations of local communities better or deepen the inadequacies of the status quo, which have been exacerbated by the pandemic.

Note that, while the terms “peoples” and “communities” differ in several respects, some of which are germane to the subject matter of this article. However, unless otherwise indicated, this article uses those terms interchangeably.

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Notes

  1. 1.

    Valentin Y. Mudimbe, The Invention of Africa: Gnosis, Philosophy, and the Order of Knowledge (Indiana University Press 1989).

  2. 2.

    Some of these narratives, as the one embodied by General Charles de Gaulle’s speech at the Brazzaville Conference towards the end of World War II in 1944 to discuss the future of France’s African colonies, still bear a grim contemporaneity. General de Gaulle declared then that: ‘We believe that the African continent should be treated as a whole so far as the development of resources and communications are concerned, but in French Africa as in all the other countries where men live under our flag, no progress will be possible if the men and women on their native soil do not benefit materially and spiritually and if they are not able to raise themselves to the point where they are capable of taking a hand in the running of their countries. It is France’s duty to see this comes about. This is our aim. We know that it is a long term program.’ Dominic Richard David Thomas, Africa and France Postcolonial Cultures, Migration, and Racism (Indiana University Press 2013) 96.

  3. 3.

    On the colonial origins of international investment law, see Miles Kahler, ‘Political Regime and Economic Actors: The Response of Firms to the End of Colonial Rule’ 33 World Pol. 383 (1981). See also, James Thuo Gathii, ‘Imperialism, Colonialism, and International Law’ 54 Buff. L. Rev. 1013 (2007); Elise Huillery, ‘History Matters: The Long-Term Impact of Colonial Public Investments in French West Africa’ 1(2) American Economic Journal: Applied Economics 176 (2009); Gareth Austin, ‘African Economic Development and Colonial Legacies’ (2010) 1 (Dossier |Africa: 50 years of independence, International Development Policy) International Development Policy | Revue internationale de politique de développement 11−32.

  4. 4.

    See eg, Makane Moïse Mbengue and Stefanie Schacherer, ‘The ‘Africanization’ of International Investment Law: The Pan-African Investment Code and the Reform of the International Investment Regime’ (2017) 18 J World Inv & Trade 414, 447.

  5. 5.

    Jason Prno and D Scott Slocombe, ‘A Systems-Based Conceptual Framework for Assessing the Determinants of a Social License to Operate in the Mining Industry’ (2014) 53 Environmental Management 672, 672. See also, Wairimu Karanja and Nduta Njenga, ‘Social Licence to Operate in the Energy Transition Era: Case Study of the East African Oil and Gas Sector’ in Victoria R Nalule (ed), Energy Transitions and the Future of the African Energy Sector: Law, Policy and Governance (Palgrave 2021) 344.

  6. 6.

    See eg, Lorenzo Cotula, ‘Land grabbing and international investment law : toward a global reconfiguration of property?’ in Andrea K Bjorklund (ed) Yearbook on International Investment Law and Policy 2014–2015 (Oxford University Press Area 2016) 177-214, 178 (“[T]he commercial exploitation of natural resources can bring into contest competing claims to land and resources, advanced by different actors involved in uneven power relations—from indigenous peoples to transnational corporations.”); CCSI and IIED, ‘COVID-19 and Land-based Investment: Changing Landscapes’ (May 2021), <available at: https://ccsi.columbia.edu/sites/default/files/content/docs/publications/Covid-19%20and%20Land-based%20Investment%20-%20Changing%20Landscapes%20-%20FINAL.pdf> (stating that under pressure, from the pandemic, governments are turning to natural resource-based economic recovery strategies).

  7. 7.

    Rasmus Hundsbæk Pedersen and Opportuna Kweka, ‘The political economy of petroleum investments and land acquisition standards in Africa: The case of Tanzania’ (2017) 52 Resource Policy 217–225, 218.

  8. 8.

    On SLO definitions in various contexts and sectors, see generally, Jędrzej Górski and Christine Trenorden, ‘Social License to Operate (SLO) in the Shale Sector: A Contextual Study of the European Union’ (2020) 18(1) 115, Appendix IV at 114–115.

  9. 9.

    Karanja and Njenga (n 6) 362.

  10. 10.

    Reuters, ‘COVID-19 Tracker/ regions/ Africa’ <https://graphics.reuters.com/world-coronavirus-tracker-and-maps/regions/africa/> last accessed 8 January 2022.

  11. 11.

    African Union, ‘Declaration on the Risk of Investor–State Dispute Settlement with Respect to COVID-19 Related Measures’ (24 November 2020) (on file with authors).

  12. 12.

    UNCTAD, World Investment Report 2021: Investment in Sustainable Recovery (United Nations 2021) UNCTAD/WIR/2021 ISBN 9789211130171, 40.

  13. 13.

    IMF, Regional Economic Outlook. Sub-Saharan Africa: Navigating a Long Pandemic (Regional Economic Outlook, UNCTAD April 2021), v.

  14. 14.

    See e.g., Ursula Kriebaum and Christoph Schreuer, ‘From Individual to Community Interest in International Investment Law’ in Ulrich Fastenrath et al (eds), From Bilateralism to Community Interest, Essays in Honour of Bruno Simma (OUP 2011) 1079–1096; Muthucumaraswamy Sornarajah, Resistance and Change in the International Law on Foreign Investment (CUP 2015).

  15. 15.

    Mihaela-Maria Barnes, ‘The ‘Social License to Operate’: An Emerging Concept in the Practice of International Investment Tribunals’, (2019) 10(2) Journal of International Dispute Settlement 328, 329.

  16. 16.

    Martin Brueckner and Marian Eabrasu, ‘Pinning down the social license to operate (SLO): The problem of normative complexity’ (2018) 59 Resource Policy 217–226, 217–18.

  17. 17.

    Barnes (n 16) 332.

  18. 18.

    Kieren Moffat, Justine Lacey, Airong Zhang and Sina Leipold, ‘The social licence to operate: a critical review’ (2016) 89 Forestry 477, 481–82.

  19. 19.

    ibid 481.

  20. 20.

    ibid.

  21. 21.

    ibid., 482.

  22. 22.

    Henry G Burnett and Louis-Alexis Bret, Arbitration of International Mining Disputes: Law and Practice (OUP 2018) 174.

  23. 23.

    ibid.

  24. 24.

    Hugh M Arnold, ‘Africa and the New International Economic Order’ (1980) 2 TQW 295.

  25. 25.

    Amadou Sy, Rabah Arezki and Thorvadur Gylfason, Beyond the Curse: Policies to Harness the Power of Natural Resources (IMF 2012); Abiodum Alao, Natural Resources and Conflict in Africa: The Tragedy of Endowment (University of Rochester Press 2007); Terry Lynn Karl, The Paradox of Plenty: Oil Booms and Petro-States (University of California Press 1997).

  26. 26.

    African Commission on Human and Peoples’ Rights (51st Session) Resolution on a Human Rights-Based Approach to Natural Resources Governance (Banjul 2012). See also, UNCHR, ‘Guiding Principles on Business and Human Rights’ (2011) UN Doc HR/PUB/11/04 [hereinafter UNGP], 30 (stating that States should provide ‘non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive State-based system for the remedy of business-related human rights abuse’).

  27. 27.

    2012 Resolution (n 27) (identifying the 2009 ECOWAS Mining Directive on the Harmonization of Guiding Principles and Policies in the Mining Sector as a reference). See also Annex (listing primary SLO-related international and regional instruments and identifying their relevant provisions).

  28. 28.

    Nduta Njenga and Victoria Nalule, ‘What is the Future of Social Licence to Operate in the Extractive Industries post the COVID-19 Pandemic in East Africa?’ (August 2020) 1(2) Global Energy Law and Sustainability 156, 165–63.

  29. 29.

    Bruno Zeller, ‘Mining Projects in OHADA: The Legal and Judicial Climate’ in Gabriel A. Moens and Philip Evans (eds) Arbitration and Dispute Resolution in the Resources Sector: An Australian Perspective (Springer 2015) 231.

  30. 30.

    Olivier Chambord and Allison Soihini, ‘OHADA (Organisation pour l’Harmonisation en Afrique du Droit des Affaires)’ in Oil & Gas in Africa: A Legal and Commercial Analysis of the Upstream Industry (Globe Business Publishing 2015) 117.

  31. 31.

    Treaty on the Harmonization in Africa of Business Law, signed in Port-Louis on 17 Oct. 1993, as revised in Quebec on 17 Oct. 2008, Preamble. Pursuant to Arts. 3 and 41, the OHADA Treaty established five institutions: the Conference of Heads of State and Government, the Council of Ministers, the Common Court of Justice and Arbitration (CCJA), the Permanent Secretariat, and the Advanced Regional Training School of Magistracy (ERSUMA), which is attached to the Permanent Secretariat.

  32. 32.

    Thierry Lauriol, ‘L’OHADA, le temps pour un Acte Uniforme Minier’ (2015) 892 Penant 281.

  33. 33.

    Paul Mitchell, ‘Top 10 business risks facing mining and metals in 2019-20’ (E&Y 30 January 2020) <https://www.ey.com/en_gl/mining-metals/10-business-risks-facing-mining-and-metals> accessed 10 June 2019 (indicating that the number one risk reported by CEOs and Board of Directors of extractive companies is the license to operate).

  34. 34.

    Rachael Ajomboh Ntongho, ‘Political Economy of the Harmonisation of Business Law in Africa’ (2012) 5 J Pol & L 58.

  35. 35.

    See also, UNGP (no. 27), 1, 17 (stating that companies of all sizes should respect human rights and that their human right diligence ‘will vary in complexity with the size of the business enterprise’).

  36. 36.

    Code Civil, art 1833 (Fr.).

  37. 37.

    Karounga Diawara and Sophie Lavallée, ‘La responsabilité sociale de l’entreprise (RSE) dans l’espace OHADA :pour une ouverture aux considérations non économiques’ (2014) 28 RIDE 43, Doumagay Donatienne Moskolaï, Victor Tspai and Jules Roger Feudjo, ‘État des lieux de la Responsabilité Sociétale des Entreprises au Cameroun’ (2016) 68(4) Revue Management Prospective 139–162, Cheikh Mbacké Diop and Angélique Ngaha Bah, ‘Peut-on parler de l’émergence d’un modèle RSE africain : la situation du Sénégal ?’ (2018) 25 Revue congolaise de gestion .67–96.

  38. 38.

    Pierre Meyer, ‘La sécurité juridique et judiciaire dans l’espace OHADA’ (2006) 116 (855) Penant 151 (discussing the notion of legal and judicial security).

  39. 39.

    For a discussion of extractive agreements in the oil and gas sector, see Keith W Blinn, Claude Duval, Honoré Le Leuch and André Pertuzio, International Petroleum Exploration and Exploitation Agreements: Legal, Economic and Policy Aspects (2nd edn, Barrows Company 2009), 57–124.

  40. 40.

    Alain Pellet, ‘The Normative Dilemma: Will and Consent in International Law-Making’ (1989) 12 Aust. YBIL 22; Matthew Lister, ‘The Legitimating Role of Consent in International Law’ (2011) 11 Chi J Int’l L 663; Ernst-Ulrich Petersmann, ‘Need for a New Philosophy of International Economic Law and Adjudication – Symposium in Honor of John H. Jackson’ (2014) 17 J Int’l Econ L 639.

  41. 41.

    Matthias Herdegen, Principles of International Economic Law (2nd edn OUP 2016) 27–54.

  42. 42.

    Ian Brownlie, ‘Legal Status of Natural Resources in International Law (Some Aspects)’ (1979) 162 RCADI 247; Rudolph Dolzer, ‘International Co-Operation in Energy Affairs’ (2014) 372 RCADI 395; Etienne Marque, L’accès aux énergies fossils en droit international économique (PUAM 2018) 21–52.

  43. 43.

    Nico Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties (CUP 1997) 306–7.

  44. 44.

    Eduardo Jiménez de Aréchaga, ‘International Law in the Past Third of a Century’ (1978) 159 RCADI 1, 297; Georges Abi-Saab, ‘La souveraineté permanente sur les ressources naturelles’ in Mohammed Bedjaoui (ed), Droit international. Bilan et perspectives (Tome II, Pedone 1999) 642; Arghyrios A. Fatouros, ‘An International Legal Framework for Energy’ (2008) 332 RCADI 355, 388.

  45. 45.

    James Crawford, ‘The Rights of Peoples: ‘Peoples’ or ‘Governments” in James Crawford (ed), The Rights of Peoples (OUP 1992) 55.

  46. 46.

    Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (CUP 2011); Antony Anghie, Imperialism, Sovereignty and the Making of International Law (CUP 2012); Kate Miles, The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital (CUP 2013); Mieke Vab Der Linden, The Acquisition of Africa (1870-1914) – The Nature of International Law (Brill 2016).

  47. 47.

    Though often overlooked, foreign chartered companies played a key role in the ensuing appropriations on the African continent. These companies are worth mentioning, given the historic presence of foreign western capital with the backing of colonial powers, which echo aspect of the present relationship between investors and local peoples. See generally, Rosa Luxembourg, ‘L’expropriation des terres et la pénétration capitaliste en Afrique’ (1952) Présence Africaine 137; Janet McLean, ‘The Transnational Corporation in History: Lessons for Today?’ (2004) 79 Ind L J 363; Carlson Anyangwe, ‘International Law and the Acquisition of Colonial Territories in Africa’ (2005) 37 Zam L J 1; Jérémie Gilbert and Valérie Couillard, ‘International Law and Land Rights in Africa: The Shift from States’ Territorial Possessions to Indigenous Peoples’ Ownership Rights’ in Essays in Africa Land Law (PULP 2011) 52–53; Walter Rodney, How Europe Underdeveloped Africa (Pahamzuka Press 2012); Benoît Henriet, ‘Colonial law in the making: Sovereignty and property in the Congo Free State (1876–1908)’ (2015) 83 The Legal History Review 202; Christina Binder, ‘Investment, development and indigenous peoples’ in International Investment Law and Development: Bridging the Gap (Edward Elgar Publishing 2016); Judith Levine, ‘The interaction of international investment arbitration and the rights of indigenous peoples’ (2017) 1 TDM 106.

  48. 48.

    Ricardo Pereira and Orla Gought, ‘Permanent Sovereignty over Natural Resources in the 21st Century: Natural Resource Governance and the Right to Self-Determination of Indigenous Peoples under International Law’ (2013) 14 Melbourne J Int’l L 452; Dominique Rosenberg, ‘La renaissance du droit des peuples à l’autodétermination économique’ in L’homme dans la société internationale: Mélanges en hommage au Professeur Paul Tavernier (Bruylant 2013).

  49. 49.

    See special issue ‘Colloque sur « La problématique de l’État en Afrique Noire’ (1983) 127–128 (3–4) Présence Africaine 1–416; Jean-François Bayart, L’Etat en Afrique: La politique du ventre, Fayard, 1989, Mwayila Tshiyembe, ‘L’État post-colonial: facteur d’insécurité en Afrique’ (1990) Présence africaine: Moïse Léonard Jamfa Chiadjeu, Comment comprendre la “crise” de l’Etat postcolonial en Afrique? – un essai d’explication structurelle à partir des cas de l’Angola, du Congo-Brazzaville, du Congo-Kinshasa, du Liberia et du Rwanda, (Peter Lang 2005); Joseph Tonda, Le Souverain moderne. Le corps du pouvoir en Afrique Centrale, Congo, Gabon (Karthala, 2005).

  50. 50.

    Madjid. Benchikh, Droit international du sous-développement Nouvel ordre dans la dépendance (Berger-Levrault 1983).

  51. 51.

    Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Rep 168, para 244.

  52. 52.

    Jérémie Gilbert, Natural Resources and Human Rights: An Appraisal (OUP 2018), 12–13.

  53. 53.

    ibid 13 (‘Sovereignty over natural resources has two facets: one external, which ensures control of resources of States against external actors, and one internal, defining the governance of natural resources between the government and its citizens.’).

  54. 54.

    African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 Oct. 1986) (1982) 21 ILM 58 [hereinafter African Charter], art 21.

  55. 55.

    However, the African Charter does not define the concept of ‘peoples’; Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) / Kenya (2009), African Comm on Human and Peoples’ Rights, No 276/2003, 27th Activity Report of the ACHPR, para 151 (discussing the notion of ‘peoples’ in the African Charter) (‘The African Commission is thus aware that there is an emerging consensus on some objective features that a collective of individuals should manifest to be considered as ‘peoples’, viz: a common historical tradition, racial or ethnic identity, cultural homogeneity, linguistic unity, religious and ideological affinities, territorial connection, and a common economic life or other bonds, identities and affinities they collectively enjoy – especially rights enumerated under arts 19 to 24 of the African Charter – or suffer collectively from the deprivation of such rights. What is clear is that all attempts to define the concept of indigenous peoples recognise the linkages between peoples, their land, and culture and that such a group expresses its desire to be identified as a people or have the consciousness that they are a people.’).

  56. 56.

    African Charter (n 55) art 21.

  57. 57.

    The Social and Economic Rights Action Center and Center for Economic and Social Rights v Nigeria (2002), African Comm on Human and Peoples’ Rights, No 155/9, 15th Activity Report of the ACHPR para 56 [hereinafter Ogoni Case].

  58. 58.

    Evaristus Oshionebo, Mineral Mining in Africa – Legal and Fiscal Regimes (Routledge 2021) 5.

  59. 59.

    The nine OHADA member-States that are also ECOWAS member-States are: Benin, Burkina Faso, Ivory Coast, Guinea, Guinea-Bissau, Mali, Niger, Senegal, and Togo.

  60. 60.

    Revised Treaty of the Economic Community of West African States (adopted 24 July 1993, entered into force 23 Aug. 1995) 2373 UNTS 233, Preamble.

  61. 61.

    ECOWAS, Directive C/DIR.3/05/09, On the Harmonization of Guiding Principles and Policies in the Mining Sector, Preamble (emphasis added) [hereinafter ECOWAS Mining Directive].

  62. 62.

    2012 Resolution (n 27).

  63. 63.

    Loi n°2019‐03 du 1er février 2019 portant Code pétrolier, art 5 (emphasis added) (our translation from French to English).

  64. 64.

    Anita Rønne, ‘Public and Private Rights to Natural Resources and Differences in their Protection?’ in A McHarg, B Barton, A Bradbrook and L Godden (eds), Property and the Law in Energy and Natural Resources (OUP 2010) 65.

  65. 65.

    In this context, an illustration of a State’ sovereign rights can be observed in art 18-3 of the 2003 ECOWAS Energy Protocol A/P4/1/03, which provides that:’Each state continues to hold in particular the rights to decide the geographical areas within its Area to be made available for exploration and development of its energy resources, the optimization of their recovery and the rate at which they may be depleted or otherwise exploited, to specify and enjoy any taxes, royalties or other financial payments payable by virtue of such exploration and exploitation, and to regulate the environmental and safety aspects of such exploration, development and reclamation within its Area, and to participate in such exploration and exploitation, inter alia, through direct participation by the government or through state enterprises.’

  66. 66.

    African Union, ‘African Mining Vision’ (2009) 39–43 <http://www.africaminingvision.org/> accessed on 10 June 2019.

  67. 67.

    Henry G Burnett and Fernando Rodriguez-Cortina, ‘Arbitration of Social Disputes in Connection with Mining Projects’ in Jason Fry and Louis-Alexis Brett (eds), Global Arbitration Review: The Guide to Mining Arbitration (David Samuels 2019) 41. While the 1989 ILO Convention may be legally enforceable, the only African State to have ratified it is the Central African Republic, an OHADA member-State. For a discussion of this topic, see Dwight G Newman, ‘Africa and the United Nations Declaration on the Rights of Indigenous Peoples’ in Solomon Dersso (ed), Perspectives on the rights of minorities and indigenous peoples in Africa (PULP 2010) 141–54.

  68. 68.

    Kichwa Indigenous People of Sarayaku v Ecuador, Merits and Reparations, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 245, para 164 (27 June 2012) [hereinafter Kichwa Case].

  69. 69.

    ican Charter (n 55) art 60 (stating that the African Commission ‘shall draw inspiration from international law on human and peoples’ rights’). See also Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) / Kenya (2009), African Comm on Human and Peoples’ Rights, No 276/2003, 27th Activity Report of the ACHPR, para 298.

  70. 70.

    Kichwa Case (n 69) paras 166, 180, 201–2, 204–5 (stating that conducting environmental impact assessments constitutes a safeguard to guarantee that the constraints imposed on indigenous or tribal communities do not entail a denial of their survival as people); Saramak People v Suriname, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser C. ) No. 172, paras 129, 130, 133, 137, 147 (28 November 2007).

  71. 71.

    The recognition of collective rights to autochthonous peoples against the state came historically from common law jurisdictions, including Australia, and, more recently for the African continent, South Africa. These states both have a history of settler colonialism that enabled the implantation of European peoples and the marginalization of colonized local peoples. Western and central Africa, however, did not have the same experience of colonialism; it experienced more of an extractive one. This region has been deeply influenced by French political concepts. See Elise Huillery, ‘History Matters: The Long-Term Impact of Colonial Public Investments in French West Africa’ (2009) 1 American Economic Journal: Applied Economics 176; Elise Huillery, ‘The Impact of European Settlement within French West Africa: Did Pre-colonial Prosperous Areas Fall Behind?’ [2010] J Afr Econ 1; A. G. Hopkins, ‘The New Economic of Africa’ (2009) 50 JAH 155; Alois Mlambo, ‘African Economic History and Historiography’ in Thomas Spear et al (eds), Oxford Research Encyclopaedia of African History (OUP 2018).

  72. 72.

    ECOWAS Mining Directive (n 62) art 16. Greenspan (n 56) 10. See also, Lorenzo Cotula, Human Rights, Natural Resource and Investment Law in a Globalised World: Shades of grey in the shadow of the law (Routledge 2012) (stating that distinguishing between indigenous and non-indigenous peoples in the African context tends to be associated with significant practical and political difficulties).

  73. 73.

    ECOWAS Mining Directive (n 62) art 16.

  74. 74.

    Greenspan (n 56) 10.

  75. 75.

    ibid.

  76. 76.

    See e.g., Democratic Republic of Congo (DRC) Law N°18/001 dated 9 Mar. 2018 modifying and completing Law N° 007/2002 of 11 July 11 2002 establishing a Mining Code, art 1.19 (discussing ESIA): Cameroon Law N°2019-008 dated 25 Apr. 2019 establishing a Petroleum Code, art 2–19.

  77. 77.

    ibid.

  78. 78.

    ibid.

  79. 79.

    2012 Resolution (no. 27).

  80. 80.

    Damilola S Olawuyi, ‘The Increasing Relevance of Rights-Based Approaches to Resource Governance in Africa: Shifting from Regional Aspiration to Local Realization’ (2015) 11 McGill Int’l J Sust Dev L & Pol’y 293, 300.

  81. 81.

    Sara Bice and Kieren Moffat, ‘Social licence to operate and impact assessment’ (2014) 32 Impact Assessment and Project Appraisal 257, 257–62.

  82. 82.

    Hans Morten Haugen, ‘The Right to Veto – Or Emphasising Adequate Decision – Making Processes? Clarifying the Scope of the Free, Prior and Informed (FPIC) Requirement’ (2016) 34 NHQR 272–73.

  83. 83.

    Patrick H. Glenn, Legal Traditions of the World: Sustainable Diversity Law (OUP 2014) 69.

  84. 84.

    Robert Home, “Culturally Unsuited to Property Rights?’: Colonial Land Laws and African Societies’ (2013) 40 Journal of Law and Society 403, 405.

  85. 85.

    ibid 419; Salvatore Mancuso, ‘African Law in Action’ (2014) 58 J Afr L 1; Mieke Van Der Linden, ‘The Neglected Colonial Root of the Fundamental Right to Property: African Natives’ Property Rights in the Age of New Imperialism and in Times Thereafter’ (2015) 75 ZaÖRV 791.

  86. 86.

    Evaristus Oshionebo, Mineral Mining in Africa – Legal and Fiscal Regimes (Routledge 2021), 3.

  87. 87.

    Katrina Cuskelly, ‘Customs and Constitutions: State recognition of customary law around the world’ (IUCN 2011), 6–11, <http://www.burmalibrary.org/docs21/Cuskelly-2011-red.pdf> last accessed on 10 June 2019.

  88. 88.

    Loi n°2018-005 du 14 juin 2018 portant Code foncier et domanial, art 8 (our unofficial translation).

  89. 89.

    Karanja and Njenga (n 6) 358.

  90. 90.

    Chambord and Soihini (n 31).

  91. 91.

    Extractive Industries Transparency Initiative (EITI), ‘EITI and opportunities for increasing local content transparency’ (EITI International Secretariat March 2018), 3 <https://eiti.org/files/documents/brief_on_eiti_and_local_content_transparency_-_formatted.pdf>.

  92. 92.

    Damilola S Olawuyi, Extractives Industry Law in Africa (Springer 2018).

  93. 93.

    Mohamadou Fallou Mbodji, ‘Les obligations dites de « local content » dans les législations minières et pétrolières des Etats membres de l’OHADA’ (2019) 908 Penant 348.

  94. 94.

    Loi n°2019-04 du 1 février 2019 relative au contenu local dans le secteur des hydrocarbures ; Décret n°2021-248 du 22 février 2021 fixant les modalités d’alimentation et de fonctionnement du FADCL; Décret n°2020-2065 du 28 octobre 2020 fixant les modalités de participation des investisseurs sénégalais dans les entreprises intervenant dans les activités pétrolières et gazières et classement des activités de l’amont pétrolier et gazier dans les régimes exclusif, mixte et non exclusif; Décret n°2021-249 du 22 février 2021 modifiant le décret n° 2020-2065 du 28 octobre 2020 fixant les modalités de participation des investisseurs sénégalais dans les entreprises intervenant dans les activités pétrolières et gazières et classement des activités de l’amont pétrolier et gazier dans les régimes exclusif, mixte et non exclusif; Décret n°2020-2047 du 21 octobre 2020 portant organisation et fonctionnement du Comité national de suivi du Contenu local.

  95. 95.

    Loi n°2021-01 du 22 février 2021 relative aux contrats de Partenariat Public-Privé, art 32 (our translation from French to English).

  96. 96.

    Agreement Establishing the African Continental Free Trade Area, arts 4, 5, 20, 21 (Mar. 2018) 58 I.L.M. 102 (entered into force 30 May 2019).

  97. 97.

    The Intergovernmental Forum on Mining, Minerals, Metals and Sustainable Development reports that the enforcement of a mining project ESIA must lead to the development of an Environmental Social Management Plan (ESMP) which: “should include at least: (i) the mitigation, compensation and enhancement implementation plan; (ii) the environmental and social monitoring program; (iii) the Stakeholder Capacity Building Plan; (iv) the ESMP’s budget; and (v) the process by which the ESMP will be integrated into the project.” See H Suzy Nikièma et al., ‘Legal Framework of Environmental and Social Impact Assessment in the Mining Sector’ (International Institute for Sustainable Development/ IISD, January 2019) 5 (describing ESMP).

  98. 98.

    See e.g., Neil Craik, The International Law of Environmental Impact Assessment: Process, Substance and Integration (CUP 2008).

  99. 99.

    Rabel J Burdge, ‘The practice of social impact assessment background’ (2003) 21 Impact Assessment and Project Appraisal 84.

  100. 100.

    See Nikièma (n 98) 5 (defining ESMP). See DRC Mining Law and Cameroon Law (nos 105, 106) (discussing ESIAs).

  101. 101.

    Barnes (n 16) 338.

  102. 102.

    In referring to accountability mechanisms, we echo Stewart’s understanding of the term accountability as “institutionalized mechanisms, under which an identified account holder has the right to obtain an accounting from an identified account or for his conduct, evaluate that conduct, and impose a sanction or obtain another appropriate remedy for deficient performance”. See Richard B Stewart, ‘Accountability and the Discontents of Globalization: US and EU Models for Regulatory Governance’ (September 2006) (discussion draft), 2 <https://www.iilj.org/wp-content/uploads/2016/11/Stewart-Accountability-and-the-Discontents-of-Globalization-2006.pdf> accessed 10 June 2019.

  103. 103.

    See generally, UNGP (n 27); Rae Lindsay and Anna Kirkpatrick, ‘Human Rights and International Mining Disputes’ in Jason Fry and Louis-Alexis Brett (eds), Global Arbitration Review: The Guide to Mining Arbitration (David Samuels 2019) 109–129, 116–17 (stating that the UNGP identifies three categories of mechanisms available for the resolution of business-related human rights disputes: state-based judicial mechanisms, state-based non-judicial mechanisms, and non-state based mechanisms).

  104. 104.

    DRC Decret N°18/19 Portant Création, Organisation et Fonctionnement de l’Autorité de Régulation de la Sous-Traitance dans le Secteur Privé (24 May 2018), established by Law N°17/001 (8 Feb. 2017). Art 5-4 of the Decree states that the mission of this authority is to settle disputes conventionally through arbitration or as amiable compositor.

  105. 105.

    Cameroon Law N°2019/008 (25 April 2019), establishing a Petroleum Code, section 90; Senegal Law on Local Content in the Hydrocarbons Sector, established by Law N°2019-04 (24 January 2019), arts 5–7.

  106. 106.

    Michael W Hansen, Lars Buur, Anne Mette Kjaer, and Ole Therkildsen, ‘The Economics and Politics of Local Content in African Extractives: Lessons from Tanzania, Uganda and Mozambique’ (2016) 43 Forum for Development Studies 201, 208.

  107. 107.

    Samantha Besson, ‘Subsidiarity in International Human Rights Law—What is Subsidiary about Human Rights’ (2016) 61 Am. J of Juris. 69, 78–20 (discussion inter alia the notion of procedural subsidiarity); Cesare PR Romano, ‘The Rule of Prior Exhaustion of Domestic Remedies: Theory and Practice in International Human Rights Procedures’ in Nerina Boschiero et al (eds), International Courts and the Development of International Law (TMC Asser Press 2013) 563–64 (‘The subsidiarity of international courts to domestic ones is not only a structural matter, made inevitable by the nature of the international legal system, but also a matter of logical and practical convenience. Logically, it ensures that claims are always first addressed at the lowest possible level of complexity. Without the domestic remedies rule an essentially domestic matter would become prematurely internationalized. Practically, domestic courts are generally better placed to determine the facts of, and the law applicable to, any given case, and, where necessary, to enforce an appropriate remedy.’).

  108. 108.

    African Charter (n 55) arts 50, 56; Rules of Court of the African Court on Human and Peoples’ Rights, arts 34, 40 (stating that application to the African Court shall be filed after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged).

  109. 109.

    While the African Charter regrettably does not expressly provide for the right to an effective remedy, the African Commission in Jawara v The Gambia set forth three elements that would constitute a remedy: availability, effectiveness, and sufficiency. See Godfrey M Musila, ‘The right to an effective remedy under the African Charter on Human and Peoples’ Rights’ (2006) AHRLJ 441, 446 (citing Jawara v The Gambia (2000) AHRLR 107, para 31).

  110. 110.

    Frans Viljoen, ‘Admissibility under the African Charter’ in Malcom D Evans and Rachel Murray (eds), African Charter on Human and Peoples’ Rights: The System in Practise, 1986-2000 (CUP 2002) 81–91.

  111. 111.

    African Commission on Human and Peoples’ Rights (60th Session) Resolution on the Granting of Affiliate Status to National Human Rights Institutions and specialized human rights institutions in Africa (Niamey 2017).

  112. 112.

    ibid. For a discussion of NHRIs, see Bonolo R Dinokopila, ‘Beyond paper-based affiliate status: National human rights institutions and the African Commission on Human and Peoples’ Rights’ (2010) 10 AHRLJ 26. Seven out of the seventeen OHADA member-States have established NHRIs with affiliate status with the African Commission: Mali (Commission nationale des droits de l’homme du Mali); Cameroon (National Commission for Human Rights and Liberties of Cameroon & National Commission on Human Rights and Freedoms); DRC (L’Observatoire National des Droits de l’Homme de la Republique Démocratique du Congo); Burkina Faso (Commission Nationale des Droits Humains du Burkina Faso); Togo (Commission Nationale des Droit de l’Homme du Togo); Chad (Commission Nationale des Droits de l’Homme du Tchad); Senegal (Comité Sénégalais des Droits de l’Homme); Niger (Commission Nationale des Droits de l’Homme et des Libertés Fondamentales). See African Commission, National Human Rights Institutions <http://www.achpr.org/network/nhri/> accessed 10 June 2019.

  113. 113.

    African Commission on Human and Peoples’ Rights (60th Session) Resolution on the Granting of Affiliate Status to National Human Rights Institutions and specialized human rights institutions in Africa (Niamey 2017). Indeed, the African Commission determined in 2000 that complainants that had only approached the Commission on Human Rights and Administrative Justice of Ghana, an organization that obtained affiliate status before the African Commissions in 2015, did not meet the local remedies requirements. See Musila (n 0) 446 (citing Cudjoe v Ghana (2000) AHRLR 127 (ACHPR 1999) para 13).

  114. 114.

    Musila (2006) 450.

  115. 115.

    ibid. Musila contends, however, that this ‘insistence on judicial remedies is unduly narrow and injudicious as it does not contemplate all possible deployable measures as disclosed by state practice.’ ibid 451.

  116. 116.

    Serges Djoyou Kamga,‘An assessment of the possibilities for impact litigation in Francophone African countries’ (2014) 14 HRLJ 449, 473; Magnus Killander and Horace Adjolohoun, ‘International law and domestic human rights litigation in Africa: An introduction’ in Magnus Killander (ed), International law and domestic human rights litigation in Africa (PULP 2010) 3–4.

  117. 117.

    Kamga (n 117) 470.

  118. 118.

    ibid.

  119. 119.

    ECOWAS, Supplementary Protocol A/SP1/01/05 Amending the Protocol (A/P1/7/91) Relating to the Community Court of Justice (Jan. 2005). Art 10(d) of the protocol of the ECCJ states that: Access to the ECCJ is open to individuals on application for relief for violation of their human rights. For a discussion of the ECCJ’s human rights mandate, see Solomon T. Ebobrah, ‘Critical Issues in the Human Rights Mandate of the ECOWAS Court of Justice’ (2010) 54(1) J Afr L 1.

  120. 120.

    Amos O Enabulele, ‘Sailing Against the Tide: Exhaustion of Domestic Remedies and the ECOWAS Community Court of Justice’ (2012) 56 J Afr L 268, 270 n.7 (citing Etim Moses Essien v The Republic of the Gambia and the University of Gambia (unreported) suit no ECW/CCJ/APP/05/05 delivered 14 March 2007, at para 27; and Hadijatou Mani Koraou v The Republic of Niger judgment no ECW/CCJ/JUD/06/08 of October 2008).

  121. 121.

    African Charter (n 55) art 30.

  122. 122.

    ibid.

  123. 123.

    ECOWAS, Supplementary Protocol A/SP1/01/05 to Protocol on the Community Court of Justice, adopted in 2005.

  124. 124.

    Registered Trustees of the Socio-Economic Rights & Accountability Project (SERAP) v Nigeria (2009) AHRLR 331 (ECOWAS 2009), para 19 (stating that it is well established that the rights guaranteed by the African Charter are justiciable before this court).

    Unfortunately, the regional courts in other RECs with OHADA member-States are however presently not viable accountability mechanisms. For example, the Community of Sahel-Saharan States (CEN-SAD), which includes twelve OHADA member-States (Benin, Burkina Faso, CAR, Chad, Comoros, Ivory Coast, Guinea Bissau, Guinea, Mali, Niger, Senegal, and Togo) has not established a communal court of justice. Likewise, the Economic Community of Central African States (ECCAS), which includes seven OHADA member-States (Cameroon, CAR, Chad, Congo, DRC, Equatorial Guinea, and Gabon) has called for, but not established a communal court of justice. See Treaty Establishing the Economic Community of Central African States (adopted on 18 Oct. 1983, entered into force on 18 Dec. 1984) art 16. For its part, the Southern African Development Community’s (SADC), which includes two OHADA member-States (DRC and Comoros), suspended its Tribunal in 2008 following its ruling in Mike Campbell (Pvt) Limited v. Zimbabwe [2008] SADCT 2. See International Justice Resource Center, ‘Southern African Development Community Tribunal’ <https://ijrcenter.org/regional-communities/southern-african-development-community-tribunal/> accessed on 10 June 2019. And the Court of Justice for the Common Market for Eastern and Southern Africa’s (COMESA), which includes two OHADA member-States (DRC and Comoros), does not have jurisdiction to hear individual complaints of alleged human rights violations. See International Justice Resource Center, ‘Common Market for Eastern and Southern Africa Court of Justice’ <https://ijrcenter.org/regional-communities/common-market-for-eastern-and-southern-africa-court-of-justice/> accessed on 10 June 2019.

  125. 125.

    African Charter (n 55) arts 47, 55. Morten Peschardt Pedersen, ‘Standing and the African Commission on Human and People’s Rights’ (2006) 6 Afr Human Rts L J 407, 408 (stating that arts 47 and 55 of the Charter respectively provide for a complaint mechanism between States and a complaint mechanism between individuals and States).

  126. 126.

    African Charter (n 55) arts 21 and 22. See e.g., Ogoni Case (n 60); Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council)/Kenya (2009), African Comm on Human and Peoples' Rights, No 276/2003, 27th Activity Report of the ACHPR.

  127. 127.

    Greenspan (n 56) 11. See also, Manisuli Ssenyonjo, ‘Assessing the Role of the African Commission and Court on Human and Peoples’ Rights (1987–2018)’ (2018) 7 Int’l Human Rts L Rev 10–11 (stating that though the legal status of the Commission’s recommendations is debatable, the Commission considers them legally binding).

  128. 128.

    Ogoni Case (n 58) para 58.

  129. 129.

    id.

  130. 130.

    Fons Coomans, ‘The Ogoni Case before the African Commission on Human and Peoples’ Rights’ (2003) 52 Int’l & Comp L Q 749, 749 (stating that it was the first time the Commission was able to deal in a substantive way with alleged violations of economic, social, and cultural rights).

  131. 131.

    ibid 759–60 (stating that the Commission was not competent to give its views about the conduct of the private oil companies).

  132. 132.

    Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council)/Kenya (2009), African Comm on Human and Peoples' Rights, No 276/2003, 27th Activity Report of the ACHPR).

  133. 133.

    ibid., paras 120, 123.

  134. 134.

    ibid., para 253.

  135. 135.

    ibid., paras 2, 20, 130–32, 135.

  136. 136.

    ibid., paras 267–68, 298.

  137. 137.

    ibid., para 298.

  138. 138.

    ibid., para 267.

  139. 139.

    ibid., paras 297–98.

  140. 140.

    African Commission on Human and Peoples’ Rights (54th Session) Resolution Calling on the Republic of Kenya to Implement the Endorois Decision (Banjul 2013). See also, Lucy Claridge, ‘The approach to UNDRIP within the African Regional Human Rights System’ (2019) 23 Int’l J Human Rts 267, 277. Though the African Commission may refer cases of noncompliance to the African Court, it has never invoked this discretion. See Ssenyonjo (n 128) 37–40 (discussing the African Commission’s discretion to refer cases of state non-compliance to the African Court).

  141. 141.

    Minority Rights Group International, ‘Two years on, Kenya has yet to implement judgment in Ogiek case – MRG Statement’ (5 June 2019) <https://minorityrights.org/2019/06/05/two-years-on-kenya-has-yet-to-implement-judgment-in-ogiek-case-mrg-statement/> (stating that Kenya has yet to implement a 2017 judgment from the African Court finding that Kenya had violated the African Charter).

  142. 142.

    Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights, art 5(1). Abdi Jibril Ali, ‘The Admissibility of Subregional Courts’ Decisions Before the African Commission or African Court’ (2012) 6 Mizan L Rev 241, 261.

  143. 143.

    Ali (n 143) 261.

  144. 144.

    The International Justice Resource Center, ‘Benin and Côte d’Ivoire to Withdraw Individual Access to African Court’ (6 May 2020) <https://ijrcenter.org/2020/05/06/benin-and-cote-divoire-to-withdraw-individual-access-to-african-court/>

  145. 145.

    Daniel Abebe, ‘Does International Human Rights Law in African Courts Make a Difference?’ (2017) 56 Va J Int’l L 527, 557.

  146. 146.

    ECOWAS Mining Directive (n 62) art 17. On this point, see Ali (n 143) (explaining that decisions by sub-regional courts are final and that trying a respondent State before two international institutions would contradict the principle of res judicata).

  147. 147.

    Abebe (n 146) 557.

  148. 148.

    ibid (quoting Karen J. Alter, Laurence R. Helfer and Jacqueline R. McAllister, ‘A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice’ (2013) 107 Am J Int’l L 737).

  149. 149.

    Enyinna S. Nwauche, ‘The ECOWAS Community Court of Justice and the horizontal application of human rights’ (2013) 13 AHRLJ 30, 33–34 (explaining that the ECOWAS Community Court of Justice has ruled on three separate occasions that only ECOWAS member-States and community institutions may be defendants sued before it).

  150. 150.

    ibid.

  151. 151.

    Benjamin M Saper, ‘The International Finance Corporation’s Compliance Advisor/Ombudsman (CAO): An Examination of Accountability and Effectiveness from a Global Administrative Law Perspective’ (2012) 44 NYU J Int’l L & Pol 1279, 1281.

  152. 152.

    ibid., 1291, 1307–8.

  153. 153.

    Adam McBeth, ‘A Right by Any Other Name: The Evasive Engagement of International Financial Institution with Human Rights’ (2009) 40 Geo Wash Int’l L Rev 1101, 1103.

  154. 154.

    ibid 1151 (cautioning that this “flexibility also can understate the importance of human rights as entitlements that cannot simply be bartered away”).

  155. 155.

    ibid.

  156. 156.

    Saper (n 152) 1292 (stating that CAO deals “with private-sector projects where the government is no longer a contractual party to the transaction”).

  157. 157.

    African Development Bank, ‘Activities’ <https://www.afdb.org/en/topics-and-sectors/sectors/private-sector/activities> accessed 10 June 2019 (indicating that with respect to the ADB’s private lending activities, it considers projects in the extractive sector).

  158. 158.

    Compare IFC’s CAO Operational Guidelines (2013), <http://www.cao-ombudsman.org/documents/CAOOperationalGuidelines_2013.pdf> accessed 10 June 2019 (indicating that IFC’s CAO performs a dispute resolution role, a compliance role, and an advisory roles); with ADB’s IRM, Operating Rules and Procedures (2015), <https://www.afdb.org/fileadmin/uploads/afdb/Documents/Compliance-Review/Revised_IRM_Operating_Rules_and_Procedures_2015.pdf> accessed on 10 June 2019 (indicating that ADB’s IRM performs a problem solving, compliance review, and an advisory function).

  159. 159.

    Saper (n 152) 1281.

  160. 160.

    ibid 1280.

  161. 161.

    Macbeth (n 154) 1136–37; Saper (n 152) 1136–37, 1296.

  162. 162.

    They notably include Social and Environmental Assessment and Management Systems (Performance Standard 1) and Indigenous Peoples (Performance Standard 7). See Macbeth (n 154) 1139–44.

  163. 163.

    Saper (n 152) 1285.

  164. 164.

    McBeth (n 154) 1144.

  165. 165.

    ibid.

  166. 166.

    ibid., 1143.

  167. 167.

    Saper (no. 152), 1286.

  168. 168.

    ibid., 1288.

  169. 169.

    ibid., 1299.

  170. 170.

    See also, Lindsay and Kirkpatrick (n 104) 117–18 (discussing operational level grievance mechanisms established by private companies to address local peoples’ complaints).

  171. 171.

    Saper (n 152) 1326 (adding that the ombudsman role ‘would not fit well with a fault-finding compliance review function because the IFC and the project company would be unwilling to participate in the problem-solving (Ombudsman) phase if information from that phase were likely to be used to find fault in future Compliance proceedings’).

  172. 172.

    Zachary Douglas, The International Law of Investment Claims (CUP 2009) 135 (stating that IIAs operate on the basis of a quid pro quo with potential third-party beneficiaries).

  173. 173.

    Yasmine Lahlou, Rainbow Willard, and Meredith Craven, ‘The Rise of Environmental Counterclaim in Mining Arbitration’ in Jason Fry and Louis-Alexis Brett (eds), Global Arbitration Review: The Guide to Mining Arbitration (David Samuels 2019) 51–67; Lindsay and Kirkpatrick (n 104) 125–29.

  174. 174.

    Bruno Simma, ‘Foreign Investment Arbitration: A Place for Human Rights’ (2011) 60 ICLQ 573, 576.

  175. 175.

    ibid; Paula F Henin, ‘The Jurisdiction of Investment Treaty Tribunals over Investors’ Human Rights Claims: The Case against Roussalis v. Romania’ (2012) 51 Colum J Transnat’l L 224, 224.

  176. 176.

    Eric de Brabendere, ‘Human Rights and International Investment Law’ in Markus Krajewski and Rhea Hoffmann (eds), Research Handbook on Foreign Direct Investment (Edward Elgar 2018) 1; Clara Reiner and Christoph Schreuer, ‘Human Rights and International Investment Arbitration’ in Pierre-Marie Dupuy, Francesco Francioni, and Ernst-Ulrich Petermann (eds), Human Rights in International Investment Law and Arbitration (OUP 2009) 132.

  177. 177.

    Brabendere (n 177) 8 (citing inter alia Biloune and Marine Drive Complex Ltd v Ghana Investments Centre and the Government of Ghana (UNCITRAL), Award on Jurisdiction and Liability, 27 October 1989, (1994) 95 International Law Reports 184).

  178. 178.

    Barnes (n 16), 359.

  179. 179.

    Odysseas G Repousis, ‘Multilateral Investment Treaties in Africa and the Antagonistic Narratives of Bilateralism and Regionalism’ (2017) 52 Tex Int’l L J 361; Makane Moïse Mbengue and Stefanie Schacherer, ‘The ‘Africanization’ of International Investment Law: The Pan-African Investment Code and the Reform of the International Investment Regime’ (2017) 18 J World Inv & Trade 446; and Mohamed Salahudine Abdel Wahab, ‘Glocalizing Africa in a Globalized Worlds: Trade, Investment and the Changing Landscape of International Arbitration: A Promise to Fulfill?’ in International Arbitration and the Rule of Law : Contribution and Conformity (Kluwer Law International 2017), 912; Alec. R Johnson, ‘Rethinking Bilateral Investment Treaty in Sub-Saharan African’ (2010) 59 Emory L J 966.

  180. 180.

    United Nations, Economic and Social Council and the African Union, ‘Draft Pan-African Investment Code’ E/ECA/COE/35/18, AU/STC/FMEPI/EXP/18(II) (26 March 2016).

  181. 181.

    Makane Moise Mbengue and Stephanie Schacherer, ‘The Africanisation of International Investment Law: The Pan-African Investment Code and the Reform of the International Investment Regime’ (2017) 18 J World Inv & Trade 414, 446.

  182. 182.

    Pan-African Investment Code (n 186) arts 4(1), 7, 9, 23.

  183. 183.

    ibid., art 17.

  184. 184.

    See Mbengue and Schacherer (n 187).

  185. 185.

    Despite these promising developments, the same problematic remains for local peoples and communities: compelling an investor to comply with its investment obligations still depends on how a State perceives its interests, when it weighs the benefits and downsides of filing a counterclaim. A State’s decision to sue an investor will likely remain remote, given that such a decision may discourage future investments. Yet sub-Saharan African States, are increasingly raising social and environmental defenses to investors’ claims in the context of energy-related disputes. While there is no consensus, the jurisprudence suggests that, depending on the treaty and whether the alleged violation of the host-State’s legislation occurred pre-establishment of the investment or during the investment project, it may result in the violation being assessed in terms of admissibility or jurisdiction or in terms of contributary fault, which would affect the quantum of the award. At last, while most IIAs in the regions are silent regarding counterclaims and very few of them succeed as they are rejected on jurisdictional or admissibility grounds. Yet, there is a trend suggesting that the orthodoxy regarding an international law-based responsibility for corporations may be unfolding. See Peter Muchlinski,‘Caveat Investor’? The Relevance of the Conduct of the Investor under the Fair and Equitable Treatment Standard’ (2006) 55 The International and Comparative Law Quarterly 527; Philippe Hameau, Janice Feigher, Marc Robert and Chloé Deydier, ‘Mining Arbitration in Africa’ in Jason Fry and Louis-Alexis Brett (eds), Global Arbitration Review: The Guide to Mining Arbitration (David Samuels 2019) 153–55; Brabendere (n 182) 14 (explaining that certain tribunals have read a legality requirement into IIAs even in the absence of such clause); Arif Ali, Erica Franzetti, Jose Manuel Garcia Represa, and Eduardo Silva Romeo, ‘Mining Arbitration in Latin America: Social and Environmental Issues in Investment Arbitration Cases’ in Jason Fry and Louis-Alexis Brett (eds) Global Arbitration Review: The Guide to Mining Arbitration (David Samuels 2019) 191–94; Yasmine Lahlou, Rainbow Willard, and Meredith Craven, ‘The Rise of Environmental Counterclaim in Mining Arbitration’ in Jason Fry and Louis-Alexis Brett (eds), Global Arbitration Review: The Guide to Mining Arbitration (David Samuels 2019) 52. See also, Tomoko Ishikawa, ‘Counterclaims and the Rule of Law in Investment Arbitration’ (2019) 113 AJIL Unbound 33, 37 (stating that ‘[e]ven when jurisdiction over counterclaims is established, counterclaims have rarely succeeded on their merits, with the important exceptions of Burlington v Ecuador and Perenco v. Ecuador,’ where the claimant investors actually consented to jurisdiction over the counterclaim).

  186. 186.

    Enyinna S Nwauche, ‘Enforcing ECOWAS Law in West African National Courts’ (2011) 55 J Afr L 181, 186 (stating that it is the ‘constitutional measures, applicable for incorporation in each member state, that will determine the direct applicability and effect of” ECOWAS treaties); Jerrry Ukaigwe, ECOWAS Law (Springer 2016) 211–14 (discussing the principle of direct applicability and direct of effect as it relates to ECOWAS law and cautioning that ECOWAS texts ‘cannot be directly applicable in all jurisdictions because of the restrictive effect of sovereignty. These legal restrictions play out in the kind of language used in the constitutions of some of the Member States’).

  187. 187.

    Diane Desierto, ‘Why Arbitrate Business and Human Rights Disputes? Public Consultation Period Open for the Draft Hague Rules on Business and Human Rights Arbitration’ (EJIL:Talk, 12 July 2019) <https://www.ejiltalk.org/public-consultation-period-until-august-25-for-the-draft-hague-rules-on-business-and-human-rights-arbitration/> (stating that consent is the cornerstone of arbitration and discussing the release of the Draft Hague Rules on Business and Human Rights Arbitration).

  188. 188.

    Barnes (n 16)344.

  189. 189.

    Karanja and Njenga (n 6) 366.

Abbreviations

ADB’s IRM:

African Development Bank’s Independent Review Mechanism

ADR:

Alternative dispute resolution

AfCFTA:

African Continental Free Trade Area

AU:

African Union

CCJA:

Common Court of Justice and Arbitration

ECCJ:

ECOWAS Community Court of Justice

ECOWAS:

Economic Community of West African States

ESIAs:

Economic and Social Impact Assessments

FPIC:

Free, prior, and informed consent

IACHR:

Inter-American Court of Human Rights

ICJ:

International Court of Justice ECOWAS

IFC:

International Finance Corporation

IFC’s CAO:

IFC’s Compliance Advisor Ombudsman

IIAs:

International investment agreements

ILO:

International Labour Organization

IMF:

International Monetary Fund

LCRs:

Local content requirements

MDBs:

Multilateral development banks

MFNT:

Most-favored nation treatment

MIGA:

Multilateral Investment Guarantee Agency

NHRIs:

National Human Rights Institutions

NIEO:

New International Economic Order

NT:

National treatment

OHADA:

Organisation for the Harmonisation of Business Law in Africa

PAIC:

Pan-African Investment Code

PSNR:

Permanent sovereignty over natural resources

SAI:

ECOWAS Supplementary Act on Investment

SLO:

Social license to operate

Author information

Authors and Affiliations

  1. DLA Piper, Paris, France

    John Belinga

  2. Université Paris Nanterre, Paris, France

    Etienne Marque

Authors
  1. John Belinga
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  2. Etienne Marque
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Editor information

Editors and Affiliations

  1. Lecturer in Energy and Environmental Law, School of Law, University of Stirling, Stirling, UK

    Geoffrey Wood

  2. Dept. of Asian and International Studies, City University of Hong Kong, Kowloon, Hong Kong, China

    Jędrzej Górski

  3. Research Fellow, SEI Headquarters – Energy & Industry Transition Team, Linnégatan, Stockholms Län, Sweden

    Gokce Mete

Annex

Annex

International and regional norms

Primary SLO-related provisions

International Covenant on Economic, Social and Cultural Rights, 1966

All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. (Art. 1.2)

African Charter on Human and Peoples’ Rights, 1981

1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it

2. In case of spoliation, the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation

3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law

4. State Parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African Unity and solidarity

5. State Parties to the present Charter shall undertake to eliminate all forms of foreign exploitation particularly that practised by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources (Art. 21)

International Labor Organization Convention concerning Indigenous and Tribal Peoples in Independent Countries (no.169), 1989 (only applicable in the CAR)

1. In applying the provisions of this Convention, governments shall:

(a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly

(b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them

(c) establish means for the full development of these peoples’ own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose

2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures (Art. 6)

United Nations Economic and Social Council, Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples (New York, 17–19 January 2005), E/C.19/2005/3

Free should imply no coercion, intimidation or manipulation

Prior should imply that consent has been sought sufficiently in advance of any authorisation or commencement of activities and that respect is shown for time requirements of indigenous consultation/consensus processes

Informed should imply that information is provided that covers (at least) the following aspects:

a. The nature, size, pace, reversibility and scope of any proposed project or activity

b. The reason(s) for or purpose(s) of the project and/or activity

c. The duration of the above

d. The locality of areas that will be affected

e. A preliminary assessment of the likely economic, social, cultural and environmental impact, including potential risks and fair and equitable benefit-sharing in a context that respects the precautionary principle

f. Personnel likely to be involved in the execution of the proposed project (including indigenous peoples, private sector staff, research institutions, government employees and others)

g. Procedures that the project may entail

United Nations Declaration on the Rights of Indigenous Peoples, 2007

1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources

2. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities

Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonisation and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests (Art. 15)

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired

3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned (Art. 26)

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilisation or exploitation of mineral, water or other resources

3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact (Art. 32)

Supplementary Act A/SA 3/12/08 Adopting Community Rules on Investment and the Modalities for their Implementation with ECOWAS, 2009

(1) Investors and Investments shall conduct an environmental and social impact assessment of the potential investment. Investors or the investments shall comply with environmental assessment screening criteria and assessment processes applicable to their proposed investments prior to their establishment, as required by the laws of the host Member State for such an investment or the laws of the home State for such an investment. The investor shall comply with the minimum standards on environmental and socio-cultural impact assessment and screening that the Member States shall adopt at the first meeting of the Parties, to the extent that these are applicable to the investment in question

(2) Investors or the investments shall make the environmental and social impact assessments accessible in the local community and to affected interests in the host State where the investment is intended to be made prior to the completion of the host State measures prescribing the formalities for establishing such investment

(3) Investors, their investments and host State authorities shall apply the precautionary principle to their environmental and social impact assessment. The application of the precautionary principle by investors and investments shall be described in the environmental and social impact assessment they undertake (Art. 12: Pre-Establishment Impact Assessment)

ECOWAS Directive on the Harmonisation of Guiding Principles and Policies in the Mining Sector, 2009

The mineral is vested in the State to be held and managed in trust for the people of the Member States (Art. 3.3)

Qualifications for acquiring a mining right in Member States must meet international best practices in the mining industry and shall include but not limited to respect for the environment; the rights of mining communities, a plan approved by the competent authority for the mining company to utilise local goods, services and manpower (Art. 5.3)

Member States shall ensure that Corporate Social Responsibility (CSR) and Alternative Livelihoods Programmes (ALP) to be submitted under this article shall be part of the conditions for granting a mining right. Such CSR and ALP shall enhance the livelihoods of the mining communities and shall be drawn up with the active participation and agreement with the local communities (Art. 11.2)

A Holder of a mining right shall in all phases of its operations give preference in employment to citizens of Member States especially affected communities to the maximum extent possible and consistent with safety, efficiency and economy (Art. 11.4)

Member States and Holders of mining rights shall ensure that the rights of the local communities are respected at all times. Where such Human Rights legislations do not exist, Member States shall enact appropriate legislation to ensure respect for human rights (Art. 15.2)

1. Mining Rights holders in Member States shall conduct their mining activities in a manner that respects the right to development in which peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural, and political development in a sustainable manner

2. Mining Rights holders in Member States shall respect the rights of local communities. They shall particularly respect the rights of local people and similar communities to own, occupy, develop, control, protect, and use their lands, other natural resources, and cultural and intellectual property

3. Companies shall obtain free, prior, and informed consent of local communities before exploration begins and prior to each subsequent phase of mining and post-mining operations

4. Companies shall maintain consultations and negotiations on important decisions affecting local communities throughout the mining cycle (Art. 16)

Resolution on a Human Rights-Based Approach to Natural Resources Governance, 2012

Mindful of the disproportionate impact of human rights abuses upon the rural communities in Africa that continue to struggle to assert their customary rights of access and control of various resources, including land, minerals, forestry and fishing

Reaffirm that, in accordance with the Rio Declaration and African Charter principle of State sovereignty over natural resources, the State has the main responsibility for ensuring natural resources stewardship with, and for the interest of, the population and must fulfill its mission in conformity with international human rights law and standards

Confirm that all necessary measures must be taken by the State to ensure participation, including the free, prior and informed consent of communities, in decision making related to natural resources governance (Preamble)

Draft Pan-African Investment Code, 2016

1. Investors shall not exploit or use local natural resources to the detriment of the rights and interests of the host State

2. Investors shall respect rights of local populations, and avoid land grabbing practices vis-à-vis local communities (Art. 23: Obligations as to the use of Natural Resources)

1. Member States may develop national policies to guide investors in develo** human capacity of the labor force. Such policies may include incentives to encourage employers to invest in training, capacity building and knowledge transfer

2. Member States should develop national policies that pay particular attention to the special needs for youth, women and other vulnerable groups (Art. 36: Human Resources Development)

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Belinga, J., Marque, E. (2022). The “Social License to Operate” in the OHADA Zone. In: Wood, G., Górski, J., Mete, G. (eds) The Palgrave Handbook of Social License to Operate and Energy Transitions. Palgrave Studies in Energy Transitions. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-74725-1_11-1

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