“The intervention of multinational corporations may be a potentially positive force for development if the State and the people concerned are ever mindful of the common good and the sacred rights of individuals and communities.” ACHPR in the SERAC case, para 69.
While the United Nations Guiding Principles on Business and Human Rights (Ruggie Principles) set important standards in relation to the duty of corporations to refrain from impacting adversely on human rights, and additionally impose a duty on corporations to pay compensation and make reparations for instances where violations do take place, the Principles stop short of imposing the full range of human rights responsibilities – to protect and fulfil human rights, in addition to respecting them – on non-state actors.
Through the work of various theorists, including that of South African scholars, David Bilchitz and Sandra Liebenberg, a moral and theoretical basis has been established for imposing more onerous obligations on corporations than merely not infringing human rights. The South African Constitution (1996) also provides for strong horizontal application of human rights. This paper further draws on the recent developments at the African regional level, particularly by the African Commission on Human and Peoples’ Rights (ACHPR), which contribute to strengthening the legal and conceptual foundations for positive duties on private mining companies in fulfilling socio-economic rights in Africa.
The paper argues that because of the public impacts of power privately exercised, given the strong ties of dependency between mining companies and affected communities, and by placing rights holders at the centre of human rights realisation, corporate obligations should extend to the fulfilment of socio-economic rights. A number of factors which have crystallised through case law and academic thought on the extent of corporate socio-economic duties are contextualised for situations of mining in Africa.
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