I. Introduction
John Ruggie has described the UN Guiding Principles on Business and Human Rights (UNGPs) as marking ‘the end of the beginning’ of tackling business and human rights (BHR) challenges ‘by establishing a common global platform for action, on which cumulative progress can be built’.Footnote 1 Today, the UNGPs underlie significant changes in law, corporate practice, and accountability, not least human rights due diligence (HRDD) laws.Footnote 2 Cumulative progress is evident. But as the climate-ecological crisis and the inequality-poverty crisis deepen,Footnote 3 the type of risks that businesses cause to human rights are evolving. Both crises have deep links to corporate profits,Footnote 4 and both share that they are not primarily caused by individual human rights violations, and therefore are not resolvable through accountability and remedy alone. Both crises are deeply interlinked, and both reverberate infinitely, as refugee crises, food crises, democratic crises and beyond.
This paper is motivated by a concern that BHR has not fully grappled with the nature of this challenge, and that this challenge requires a fundamental evolution of the field. Indeed, through HRDD laws, BHR appears to be becoming more fixated on accountability for individual violations, occluding focus on broader, systemic questions about the relationship between profit, people and planet.Footnote 5 To address these grand challenges, we argue that BHR must expand its traditional focal points to include a stronger emphasis on the realisation of human rights.Footnote 6 The UNGPs limit their engagement with human rights to the state duty to protect and the corporate responsibility to respect. As such, they ignore the third element of state obligations towards human rights, the realisation of rights (coming after ‘respecting rights’, meaning do no harm, and ‘protecting rights’, meaning prevent harm to human rights by third parties).Footnote 7 Realisation of rights means fulfilling access to human rights for populations. It includes a prohibition on ‘retrogression’, meaning to reduce access to human rights.Footnote 8 The principle of realisation invokes an ideology of human rights distinct from that of accountability and remedy. Rather than pinpointing specific violations, realisation takes a more structural approach, focusing on how access to rights is improving or reducing. It looks not only at specific violations of minimum wage, for example, but at broader questions of the extent to which all members of a society can afford to realise their own rights. For global and systemic challenges such as climate change, corporate influence and poverty, the realisation of rights is a crucial moral lens.
We use as our starting point the discoveries by Shell and TotalEnergies in 2023 of 11 billion barrels of light oil and 8.7 trillion cubic feet of gas in Namibia.Footnote 9 Namibia is a country with a history of violent colonialism, extreme contemporary inequality and significant climate vulnerabilities.Footnote 10 In this paper we ask what a BHR policy governing Namibia’s new wealth would include today, and we sketch a more comprehensive and inclusive version of this BHR policy, considering the need to respect and realise all human rights.
As a theoretical framework we contrast BHR’s ethical framework with Ogunranti’s use in a BHR context of the African philosophy of Ubuntu, a communitarian ethic summarised as ‘I am because you are’ and which values ‘humanness, sharing, respect for human dignity, interdependence and interconnectivity’.Footnote 11 Conversely, dominant human rights discourse, and therefore BHR, emerges from liberal-legal philosophy, prioritising individual autonomy.Footnote 12 We argue that a liberal rights framework is as permissive as it is restrictive. ‘Harm’ is circumscribed as a set of defined rights violations. Beyond this, rights theory does not constrain the corporation.Footnote 13 Although the concept of ‘adverse human rights impacts’ under the UNGPs is defined expansively,Footnote 14 the reality of liberal human rights history and theory has meant that ‘impacts’ have long been equated with ‘violations’.Footnote 15
An Ubuntu-informed perspective on BHR is transformative because it embeds the company within society and thereby creates obligations to both respect and realise rights. We then look at two practical sets of ideas that could promote the implementation of an Ubuntu-informed conception of BHR. The first is the United Nations Centre on Transnational Corporations (UNCTC), emerging from the NIEO and the period of decolonisation in the 1970s.Footnote 16 The second is a 2023 report from the UNSR on the Right to Development.Footnote 17 These were chosen because both embody a vision of how to regulate corporations to minimise harm and to contribute to development and rights realisation, while also representing different eras and perspectives.Footnote 18
From the literature we propose five key requirements to embed an Ubuntu-informed BHR perspective to realise human rights, focusing on the role of the state and international organizations as regulators. These are the prioritisation of human rights over private rights; redesigned business law and incentives to direct business to realise rights; comprehensive national and international planning to ensure an organised response to global problems; a specific focus on distribution of resources, wealth and opportunities; and finally, a normative and practical shift away from business as the key economic actor.
The purpose of our project is not primarily to theorise an African philosophy of BHR. Rather, we start from a perspective of concern that the liberal human rights method is inadequate to deal with the nature of the problem of globalisation and MNCs, the climate crisis, inequalities and power relations so generated. BHR attempts to regulate the global corporation that is free of its national confines. It has been a major success on some metrics, but its negotiated limits become more obvious as structural and systemic problems start to take precedence over relational violations. The next stage of BHR must be more comprehensive. We argue that businesses must be regulated to maximise social benefit and minimise harm, to maximise their contribution to rights realisation and to minimise their contributions to climate and economic degradation.
The paper proceeds by first situating our arguments in the context of Namibian history and the history of oil extraction on the African continent. We next turn to our theoretical framework, which problematises contemporary BHR policies by drawing from the concept of Ubuntu as elaborated in the BHR context by Ogunranti. We then discuss the UNCTC and the UNSR’s report to elaborate concrete principles by which we could enact a realisation-oriented vision of BHR. Finally, we conclude with a summary and clarification of our core argument.
II. Heritage of Namibia
This section briefly describes the history and legal architecture of Namibia. In 1904 the German colonial army embarked on what is now widely considered a campaign of genocide in Namibia (then German South West Africa), killing up to 100,000 people. The legacy of this lived on throughout the twenty-first century as apartheid, a half century under South African rule, discrimination and economic inequality. Today, Namibia is the second most unequal state in the world, behind its neighbour South Africa. Levine and Roberts link this inequality both to the ‘high dependence on capital-intensive mineral extraction and the racial inequality perpetuated under German and South African rule’.Footnote 19 Acosta argues that reliance on extractives ‘has led to widespread poverty, caused recurrent economic crises, and consolidated “rent-seeking” mentalities’, also weakening governance institutions and encouraging corruption.Footnote 20 In both Ghana and Nigeria, studies have shown how reliance on oil revenue has weakened democratic governance.Footnote 21 The extractive industries have had devastating environmental effects across Africa, particularly in the Niger Delta,Footnote 22 but also to a lesser extent in Namibia through uranium mining.Footnote 23
Today, Namibia’s economy is largely dependent on resource extraction, with diamonds and uranium being its two largest exports—though soon likely to be overtaken by fossil fuels.Footnote 24 It is classed as upper-middle income by GDP per capita, but its high levels of inequality mean that it ranks only 142 out of 193 countries in the Human Development Index.Footnote 25 The Namibian constitution binds the state to ensure the welfare of the people and to protect the environment.Footnote 26 Article 100 is titled ‘Sovereign Ownership of Natural Resources’ and mandates that ‘Land, water and natural resources below and above the surface of the land and in the continental shelf and within the territorial waters and the exclusive economic zone of Namibia shall belong to the State if they are not otherwise lawfully owned’.Footnote 27 Article 95(l) stipulates that the state shall actively promote and maintain the welfare of the people by adopting policies that include ‘the maintenance of ecosystems, essential ecological processes and biological diversity of Namibia…’ This creates positive obligations of the state, underlined in Article 91c, including that an Ombudsman must ‘investigate complaints concerning the over utilisation of living natural resources, the irrational exploitation of non-renewable resources, the degradation and destruction of ecosystems’. In 1992, Namibia published a Green Plan for a national common vision in the relationship between the environment and the nation. This led to the Environmental Management Act (EMA), which provides the legal foundation for environmental protection in the country, including mandating Environmental Impact Assessments (EIAs) and establishing various community rights and oversight committees.Footnote 28
The constitution in A.124 states that all communal lands became property of the state of Namibia upon independence in 1990. A 2018 court case determined that pre-existing communal land rights were legally valid.Footnote 29 This was a crucial win for indigenous populations and is of potential importance to future fossil fuel battles. The Minerals (Prospecting and Mining) Act of 1992 vests the sole power to grant mining licences with the state. The Minerals Policy obligates all mining activity to comply with national environmental policy, and the 2007 Environment Act strengthens these provisions.Footnote 30 The experience of seabed phosphate mining has been controversial, with a group of fishermen taking a mining firm to court, and winning, on the basis of a lack of environmental impact assessments.Footnote 31
The discovery of vast amounts of fossil fuel wealth will test these legal frameworks. Rystad Energy estimates that the four new discoveries could bring Namibia’s liquid fuels production to over 500,000 barrels per day by the mid-2030s, surpassing African OPEC producers Equatorial Guinea, Gabon and the Republic of Congo.Footnote 32 Shell plans to explore ‘The Orange Seamount and Canyon Complex’, which the Institute for Coastal and Marine Research defines as ‘one of few places where these threatened ecosystem types are in relatively natural/pristine condition’.Footnote 33 Namibia suffers from a lack of specific environmental protections for such areas, and this is particularly visible when contrasted to its neighbour South Africa. In 2022, Harris et al produced a detailed framework for the protection of biodiversity and sea-use guidelines for South Africa.Footnote 34 A section we have taken from their map can be seen in Figure 1. These maps show that areas which South Africa protect as ‘Critical Biodiversity Areas’ extend into Namibia, but the protections stop at the border. Figure 2 is from an application for an ‘Environmental Clearance Certificate’ (ECC)—a licence to start exploratory drilling for oil—by Shell from March 2023.Footnote 35 Shell applied for this as part of their Environmental Impact Assessment (EIA) responsibility arising from the contract signed with the Namibian Government.Footnote 36 Shell at this point had had five wells approved and was seeking approval for a further ten.Footnote 37 The company that prepared the ECC ReportFootnote 38 notes that large sections of the proposed drilling site are within critical biodiversity areas but notes further that there are no legal protections for these areas in Namibia.Footnote 39 To be clear, this site would be protected were it part of South Africa. It is only the lack of legal protection in Namibia that allows the exploration.
Critical biodiversity map from Harris et al.
Figure 1. Long description
A geographical map spanning 26 degrees South to 31 degrees South and 12 degrees East to 16 degrees East.
Coastal Features and E B S A Zones:
In the North, the Namibian Islands M P A and E B S A contain numerous seal colonies near Lüderitz, including Dolphin Head and Albatross Rock. Moving South, the Orange Cone E B S A sits at the border, followed by the Namaqua Fossil Forest E B S A and the Childs Bank and Shelf Edge E B S A in the Southeast.
Central Area of Interest:
A red-outlined polygon labeled P E L 0039 A O I is positioned between 29 and 31 degrees South. It overlaps the Orange Seamount and Canyon Complex E B S A and contains the Tripp Seamount.
Top Legend:
- Orange: Offshore M P A s R S A.
- Light Blue: E B S A Conservation Zone.
- Medium Blue: E B S A Impact Management Zone.
- Light Gray: Ecological Support Area.
- Black Seal Icon: Seal colony.
Bottom Legend:
- Dark Green: Critical Biodiversity Area 1 Natural.
- Olive Green: Critical Biodiversity Area 1 Restore.
- Light Green: Critical Biodiversity Area 2 Natural.
- Tan: Critical Biodiversity Area 2 Restore.
- Pale Green: Ecological Support Area.
- Teal: Marine Protected Area.
A scale bar at the top right indicates a distance of 0 to 160 Kilometers.
Shell drilling zone according to environmental impact assessment (EIA).
Figure 2. Long description
The map displays a coastal region and its adjacent offshore waters. Port Nolloth is marked as a black dot on the Northeast coastline. The offshore area is divided into four color-coded categories.
* Protected Area: Represented by dark green rectangular blocks. One is located directly South of Port Nolloth, another in the Northwest, one in the center, and one in the Southeast near the coast.
* Critical Biodiversity Area Natural: Represented by medium green irregular patches distributed heavily in the West and Southwest sections of the map.
* Critical Biodiversity Area Restore: Represented by tan-colored patches, primarily concentrated along the Southeast coastline and in small pockets near the center.
* Ecological Support Area: Represented by yellow-gold shading that surrounds the central Protected Area and extends in a North-to-South corridor through the middle of the drilling zone.
The background of the offshore zone is light grey, indicating areas not specifically categorized by these four E I A designations.
In summation, Namibia is an export-led economy focused on extractive industries. Environmental protections exist but not necessarily adequately, and enforcement is not perfect. Economic inequality and concomitant poverty are a major issue, and lineages of colonialism and apartheid remain. Namibia scores low on the HDI. Corruption has been an issue in the past and continues to be today.Footnote 40 All of which is to say that this newly discovered fossil fuel wealth represents a turning point for Namibia. It is not impossible that another Niger Delta could be created—oil wealth creating corporate profits abroad, and corruption, conflict, environmental devastation, crime and poverty at home. But this is far from inevitable. Namibia is in many ways a stable and growing economy, with robust legal protections and effective courts. The choices that the Namibian state makes around this new wealth will determine its future.
III. What would a BHR policy for Namibia look like today?
The context outlined above suggests opportunity but also significant risk. In this section we outline briefly what a BHR policy would mandate, its benefits and what gaps it would leave, based on an understanding of what constitutes mainstream practice of BHR implementation. We then turn to the African concept of Ubuntu as a possible theoretical framework to create a more comprehensive version of BHR. While our specific case study here is Namibia, the argument is of wider relevance beyond Namibia and beyond the colonial context.
We will also take this opportunity to mention the issue of new fossil fuel wealth in the context of global climate change. The large discoveries in Namibia are bad news for climate change and should perhaps be left in the ground. But this is an idealistic policy when wealthier states are continuing to explore new fossil fuel opportunities. International egalitarianism is a fair prerequisite to asking Namibia to leave its resources in the ground. In this paper we leave this option aside in favour of exploring the issue conceptually from an economic opportunity, and risk, perspective.
Key inclusions of a BHR policy by the Namibian government would include HRDD, impact assessments, access to remedy, transparency, stakeholder engagement and developing a National Action Plan on BHR (NAP).Footnote 41 Abe notes the major BHR risks in Namibia ‘include gender-based violence, child labour, discrimination and violence based on sexual orientation, harassment and political intimidation, and corruption’.Footnote 42 These would need to be specifically targeted in the NAP and other policies.
The Kenyan NAP provides a template for the Namibian government. It highlights similar key issues as to those Abe notes in Namibia, including gender and labour, and also includes land and mining as delineated topics.Footnote 43 The Kenyan NAP is progressive in its calls for mandatory HRDD and non-financial reporting, and a review of ‘current trade and investment promotion agreements [to] bring them into compliance with the Constitution and international human rights standards’.Footnote 44 Under the Kenyan NAP, the corporate responsibility to respect human rights requires ‘businesses to adopt human rights policies, including taking measures to ensure their operations respect human rights, including by providing access to a remedy for human rights violations’.Footnote 45
The Kenyan NAP advocates for enhanced legal protections for victims, from the HRDD and policy stage through to judicial and non-judicial grievance mechanisms.Footnote 46 It, like all NAPs and wider BHR policy initiatives, leans heavily into the prevention and remedy of human rights violations at the intra-project level. The Kenyan NAP, if fully implemented, would provide stronger protections for workers, against discrimination and the environment. This focus on preventing and remedying harm, on intra-project violations, is central to BHR, and is valuable.
In this paper, however, we want to highlight the limits of, and roads not taken by, current BHR approaches. The African Union’s Agenda 2063, for example, includes ‘seven core aspirations’ for the continent.Footnote 47 These include ‘A prosperous Africa based on inclusive growth and sustainable development – aimed at increasing standards of living, quality of life and wellbeing’; ‘A peaceful and secure Africa’; and ‘An Africa of good governance, democracy, respect for human rights, justice and rule of law’.Footnote 48 The relationship between African governments and business is integral to each of these aspirations. Evidence from the Niger Delta, above, proves that poorly regulated mining projects are disastrous for inclusive growth, peace and good governance. Each of these is innately tied to human rights, with poverty, conflict and corruption, key barriers to the respect and realisation of rights. Yet it is not clear that the Kenyan NAP, nor NAPs generally, seek to address these root causes and structural harms.
To realise these core aspirations requires not only addressing individual violations but also incorporating a much wider view of rights and of business harms.Footnote 49 More critically, exclusive focus on violations serves the purpose of excluding more structural questions from the debate, and creating a world in which a corporation can claim to respect human rights while extracting enormous wealth from a community and causing serious externalities.Footnote 50 This is a limit of BHR that needs to be overcome.
IV. From do no harm to human rights realisation
To begin this project, we briefly sketch and critique the key human rights principles informing BHR. Two liberal norms central to BHR are the harm principle—that individuals should be free to act as they please as long as they do not harm others,Footnote 51 and the claim rights relational framework that defines ‘harm’ as a relational wrongdoing committed by a duty-bearer that is concordant with judicial remedy. ‘Harm’ in this framework includes only direct forms of harm such as those done deliberately or negligently by one individual to another. It therefore excludes what we may term ‘structural’ forms of harm, such as value extraction contributing to poverty. BHR adheres to this framework. The corporation that respects human rights is one that is not causing, contributing to or linked to relational human rights abuses. The corporation can meet this standard and therefore be ‘respecting human rights’ while extracting value and exploiting land, nature, workers and society in numerous ways. Corporations can profit from limiting access to housing, healthcare and food, and can cause significant environmental harm and harm to workforces without necessarily breaching doctrinal human rights rules.Footnote 52
There are ethical gaps within this liberal framework within which profit from harm is permitted. These gaps exist because human rights exist both as a set of minimalistic, universal red lines that no party should ever cross, and, particularly in the IHRL version, a more comprehensive set of ethical rules. The issue of realisation is key to this divide. No liberal constitution includes significant realisation-based obligations, yet in IHRL realisation is equal to the obligations to respect and to protect. As BHR grows in importance and transforms into binding law, the underlying ethics of the movement, the version of human rights thought underlying BHR, becomes a critical question.
BHR (currently, in practice) adopts the liberal individualism of rights, centring the individual rightsholder with the specific legal/legalistic rights claim.Footnote 53 One does not generate such a claim merely by being in poverty, no matter how severe. One generates such a claim when a specified actor has committed a violation against that individual. Failure to pay minimum wage to a worker counts, but the exploitation of resources such that the local population do not benefit, including tax cheating,Footnote 54 transfer mispricing, poverty wages and all the rest, do not count. Kennedy argues that, ‘[h]owever useful saying “that’s my right” is in extracting things from the state, it is not good for extracting things from the economy, unless you are a property holder’.Footnote 55 Human rights reports fail to address true root causes because they fail to ‘ask about the socio-economic conditions within which those ideas were able to develop and gain influence’.Footnote 56 In Namibia, a state with high levels of poverty, failing to translate resource wealth into human wealth will mean continued rights deprivation for millions. Yet the form of BHR as business regulation discourages focus on this question.
HRDD laws are particularly aligned with this minimalist rightsholder perspective. For Deva, ‘HRDD under the UNGPs provides businesses a tool to make some changes to their business models but only so much to sustain the current economic order by masking its structural and systemic problems’.Footnote 57 The fundamental question for companies is: are any rightsholders having their rights violated within your value chains and business relationships? No amount of value extraction and poverty creates a legal claim of rights violation. While HRDD laws have their uses, current versions reify this divide between the prohibited rights violation and the permitted, and perhaps legitimised, value extraction and externalities that cause generations of poverty and global harm.
This framework sets the moral limits of the corporation. What we seek for Namibia today, and BHR generally, is a more comprehensive approach that both addresses structural harms and enforces positive actions upon corporations. There is always the rebuttal that these types of arguments are not the real territory of human rights, that this is economics, not rights. But economics will determine rights outcomes. Given that the economic decisions of Shell in the Niger Delta and numerous other mining companies across Africa have caused serious rights impacts from environmental destruction to death and poverty, BHR should be addressing these issues.
a. Ubuntu: another perspective from African philosophy
In this section we contrast the liberal origins of BHR with Ogunranti’s use in a BHR context of the African philosophy of Ubuntu, a communitarian ethic summarised as ‘I am because you are’ and which values ‘humanness, sharing, respect for human dignity, interdependence, and interconnectivity’.Footnote 58 Ndeunyema shows that Ubuntu is used to justify a constitutional interpretation of the human right to water in Namibia.Footnote 59 Ogunranti uses Ubuntu to localise the corporate responsibility to respect human rights to the African context. It is a more communitarian and more comprehensive ethic than the individualistic, autonomous liberal ethic emphasised by human rights. Interpreting ‘respect’ through Ubuntu leads Ogunranti to quite radical conclusions:
First, Ubuntu speaks to human dignity as worthy of recognition towards individuals. Also, it abhors the economic deprivation and exploitation of individuals and communities. Similarly, it encourages cooperation to enhance mutual benefit in the utilization of economic resources of land and labour.Footnote 60
Fundamentally, the embeddedness of an Ubuntu framework necessitates positive obligations alongside negative obligations: the respect and realisation of human rights. ‘An Ubuntu-inspired [responsibility to respect] norm’ would include both that MNCs must avoid business practices that promote slavery and that they must ‘promote socio-economic conditions that protect people from vulnerability to slavery’.Footnote 61 It would include that MNC profits benefit local communities, would prohibit exploitation and prevent capital flight.Footnote 62 All of this is because the MNC is part of the community, with reciprocal obligations to all members of that community. Thus, while under western liberal conceptualisations, corporations must avoid specific forms of harm that are labelled ‘adverse human rights impacts’ (leading to debates over the scope of that definition),Footnote 63 under an Ubuntu-informed conceptualization, the corporation must work together with the community, as part of the community, bearing positive and negative obligations both in its everyday actions and strategic plans.
Ogunranti focuses on corporate responsibilities, as well as citing African human rights law and policy.Footnote 64 We take inspiration from Ogunranti’s use of Ubuntu, but we focus on the role of the state and on areas of law beyond human rights law to try to embed Ubuntu within BHR and business regulation more broadly. The reasons for this are pragmatic. We have minimal faith that MNCs will do much beyond legal compliance, and, while human rights treaties can play a role, other areas of law, such as corporate law and investment law, are more directly able to shape business activity. Our starting point is that the state sets the framework in which business operates, including the ethical framework and incentives. For business to become embedded in society requires state design in the first instance.
We argue, therefore, that the first step for a realisation-oriented vision of BHR is for the state to consider corporate regulation from the perspective of the corporation embedded in society, part of society and with deep obligations to all parts of that society.Footnote 65 Law must structure the corporation to behave like this, in the same way that today the law structures corporations to prioritise shareholders over stakeholders and dividends over productive investment.Footnote 66 Through this legal structure BHR can move from a ‘do no harm’ mentality to gradually embed a transformative human rights realisation framework into business operations.
What might an Ubuntu-inspired approach to business regulation—centred on the role of the state—look like? To explore this transformative vision, we turn to two illustrative cases where similar aspirations have been tested: one historical and one contemporary. First, we examine the UNCTC, formed under the auspices of NIEO in the vibrant postcolonial context of the 1970s. Second, we examine a 2023 report by the UNSR on the Right to Development that we believe shares some normative similarities with both Ubuntu and the UNCTC, but is focused on contemporary issues, such as the climate crisis and economic inequality. The aim of this is to excavate gaps within current BHR norms and potential paths towards a more comprehensive form of BHR, one that may be particularly relevant to emerging economies, and particularly to Namibia in the context of recent resource discoveries.
V. Learning from NIEO
The UNCTC was an ambitious plan led by G-77 states supportive of the New International Economic Order (NIEO) to formalise the legal relationship between states and corporations,Footnote 67 with the central aim of controlling corporations in postcolonial contexts,Footnote 68 including by avoiding corporate coercion, unfair contracts and the dominance of corporate legal rights over sovereign authority.Footnote 69 The UNCTC never became law, and not only did its principles fail to embed, but the normative ideals underpinning it have been almost completely reversed on the altar of free market globalisation, corporate rights and, today, BHR.Footnote 70
The UNCTC was statist, or arguably communitarian, in its orientation. The fear of postcolonial states was that corporations would use their wealth, power and the law to coopt resources, abuse people and impoverish nations.Footnote 71 This was exemplified by Justice Padilla Nervo in the seminal Barcelona Traction case in 1970:
It is not the shareholders in those huge corporations who are in need of diplomatic protection; it is rather the poorer or weaker States, where the investments take place, who need to be protected against encroachment by powerful financial groups.Footnote 72
G-77 states wanted international law to reify the primacy of the state over business. Paragraph nine states: ‘Transnational corporations shall/should carry on their activities in conformity with the development policies, objectives and priorities set out by [Government]… with a view to contributing to the development process’.Footnote 73 Aside from the strict hierarchy placing the state above the corporation, there is an evident link to what we could term the realisation of human rights, as corporations are asked, or commanded, to make a positive contribution to development. Equally, we can link this view to the Ubuntu perspective of the corporation embedded in society and with obligations to society, rather than the liberal view of the corporation as an atomised and self-interested actor.
BHR adopts the opposite approach to corporate regulation and in so doing demonstrates the transformed ethic of the current era. Starting from the risk of ‘governance gaps’ in which states may be unable or unwilling to protect rightsholders,Footnote 74 BHR places the responsibility, and therefore the authority, for respecting rights, onto the corporation itself.Footnote 75 The corporation should ensure, to some extent regardless of state policies,Footnote 76 that basic human rights are respected within its operations and business relationships. HRDD requires that corporations take global oversight of their value chains and partnerships, thereby taking on a state-like role.Footnote 77 The UNCTC included that ‘[t]ransnational corporations should/shall make every effort to allocate their decision-making powers among their entities as to enable them to contribute to [development]’.Footnote 78 Today, the big advance of parent company direct duty of care is founded upon parent company control of subsidiaries. This, along with HRDD, establishes that a (western, usually) parent company takes responsibility for its subsidiaries and suppliers in developing countries, with Vedanta-KCM one case in point.Footnote 79 Where the UNCTC envisioned that the postcolonial state be empowered to take control of its own affairs, today, western governments and courts take the position that their lead companies must manage affairs in postcolonial states.
Another rights-based distinction between the two eras is the rights of investors. Investor-state dispute settlement (ISDS) allows corporations to challenge state decisions where they are alleged to cause economic loss.Footnote 80 This is based on the property rights of corporations as legal persons and has evolved to diminish state authority and promote investor rights.Footnote 81 The UNCTC envisioned an Article codifying the legitimacy of nationalisation and expropriation: ‘A State has the right to nationalise or expropriate the assets of transnational corporations in its territory against compensation’.Footnote 82 The UNCTC had further articles relating to ‘adherence to socio-cultural objectives and values’,Footnote 83 and to prohibit tax planning and transfer mispricing among corporate groups.Footnote 84 There was a strong socio-economic element to the UNCTC, evidencing its less liberal origins, as contrasted to BHR, and, again, cohering it more to an Ubuntu perspective than to liberal BHR.Footnote 85
So, what can BHR learn from UNCTC? The UNCTC was about giving states authority over corporations, to limit and to direct corporations, and to permit or prohibit corporations, as they saw fit, for the purpose of national development. This top-down system contains certain risks that global society is more attuned to today. Investor rights may be too well protected vis-à-vis states today, but a volte-face may encourage authoritarianism, corruption and divestment from areas that need it the most.Footnote 86
A human rights realisation framework may allow for a socially acceptable form of state-directed and sometimes state-circumscribed business activity. As an initial sketch, this would start from the perspective, elaborated in the CESCR’s General Comment 24, that states hold the obligation to realise rights and that this includes regulating businesses so that they contribute to rights realisation, insofar as businesses are relevant to rights realisation within a given state.Footnote 87 In BHR terms, this would draw from the UNCTC that the state obligation to realise rights necessitates that states have the authority to regulate businesses so as to realise rights. In the Namibian context, this means an absolute obligation to ensure that resource wealth leads to development, economic growth and improved rights outcomes, while not causing undue harm to the environment, in line with the Namibian Constitution.
Starting from the legal obligation of states to realise rights opens important new avenues for BHR. Here, we are not contemplating a corporate responsibility to realise rights, an idea which meets important jurisdictional hurdles. Rather, we are using the long-held state obligation and focusing on the role of business regulation as part of rights realisation. The realisation of rights has long been marginalised within human rights thought, partly because it veers away from the claimant-duty bearer dyad. Even within this marginalised area, the role of business regulation has long been neglected in favour of state provision.
We are missing an important tool if we do not ensure that business is forced by law to contribute to global development. The era of MNCs striking deals that harm people and planet must end.Footnote 88 Such a view may have support from diverse human rights bodies, particularly in Africa. Salomon documents several land cases under the African Charter on Human and Peoples’ Rights that point to a different view of property than is commonly assumed under liberal governance.Footnote 89 Salomon argues that ‘the right to property is interpreted as a right to common use and ownership of indigenous lands, territories and resources unsettling prevailing models of ownership and the (neo)liberal commitment to private property in land for its exchange value’.Footnote 90 In two cases against Kenya, one brought by the Ogiek indigenous people, and one by the Endorois community, it was found that the Ogiek ‘have the right to occupy their ancestral lands, as well as use and enjoy the said lands’,Footnote 91 and that the Endorois community had its Article 14 rights ‘to freely dispose of their wealth and resources’ violated ‘through the pursuit of economic exploitation and displacement’.Footnote 92
A focus on realising rights does not necessarily say anything too concrete about the volume of corporate activity, or the private/public balance. While some forms of privatisation seem to bring few benefits, large mining MNCs are one example of an industry sector with significant niche expertise. It also allows a potentially broad range of options in the debate, but at every turn the key element of the decision should be based on what will realise rights most effectively, following well-developing norms of universality, non-discrimination and interdependency.Footnote 93 We next turn to the 2023 report by the UNSR on the Right to Development to situate this ethical and political framework towards practical application to contemporary problems.
VI. Learning from the UNSR on development
In this section we add lessons from a recent UN report to the above. Professor Surya Deva was appointed as UNSR on the Right to Development in 2023. Deva’s first report to the General Assembly focused on the role of business in realising the right to development. From a BHR perspective, the right to development is interesting for the ambition that the lens casts. The right to development is defined as the right ‘to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised’.Footnote 94 More so than most human rights, the right to development has an innately realisation-oriented perspective, and it incorporates the realisation of all human rights.Footnote 95 A report on business and the right to development necessitates questioning the connection between business and realisation of rights. This framing opens space for a more critical and ambitious form of BHR.
The report explores the economic, social, cultural and political contours of the right to development in relation to business.Footnote 96 It highlights international best practices and guidelines such as the Principles on Responsible Investment (PRI) which should guide a rules-based international business order, and examples of good practices by businesses,Footnote 97 and the key role of the state in reforming company law, investment law and incentives.Footnote 98 Deva argues that ‘a fundamental shift… must take place about the role of business in society’ in order for business to contribute positively to the right to development.Footnote 99 He highlights the role of business models, reorienting the purpose of business and businesses going beyond the ‘do no harm’ approach. Each opens space for a more structural and radical view of BHR.
We highlight five themes that we draw from the report, informed by the spirit of Ubuntu and the UNCTC. First, the question of conflicts of rights, particularly between human rights and property rights. One of the longest-standing critiques of rights comes from Karl Marx, that ‘between equal rights, force decides’.Footnote 100 In our rules-based order, rights matter a great deal. Few would disagree that people require subsistence, education and some level of healthcare. Yet these are not rights that act as trumps. The rights that act as trumps are the rights of property and contract, that allow a single contract signed with a tyrant to establish ownership of resources and land in perpetuity.Footnote 101 Deva notes that investment agreements that create private rights of action ‘pose a threat to the right to development if not structured properly’,Footnote 102 creating a chilling effect around progressive state policies.Footnote 103 Further rights include the right of shareholders that companies be run in their interests,Footnote 104 and of companies to maximise profits even through poverty pay and environmental degradation.Footnote 105
Liberal legality has established that these private rights trump human rights.Footnote 106 Following BS Chimni, these are the rights that the transnational capitalist class require to embed the ‘new imperial social formation’ of globalised capitalism.Footnote 107 Anghie juxtaposes ‘[t]he rights of the corporation and the rights of the migrant worker’, as the poles of the rights-based commercial world.Footnote 108 The corporation is the ‘“sovereign alien”, an entity that acquires extraordinary rights precisely because it lacks the benefit of sovereign protection’, contrasted to the ‘helpless, abject alien’—the alien as migrant worker, refugee, stateless person.Footnote 109 HRDD laws may suggest a slight counter-movement against this norm, as do some climate cases and parent company duty of care, but the structural hierarchies remain in place.Footnote 110 A more drastic push to elevate human rights over property rights is needed.
Prioritizing human rights over private rights in Namibia means avoiding granting corporations rights of action such as those currently created under international investment law and creating limits on what private owners of resources can do. It means enforcing environmental laws, respecting indigenous land rights, and taking seriously the constitutional obligation to ensure the welfare of the people by ensuring distribution of resource wealth. It is precisely the prioritising of private rights that created the current situation in the Niger Delta, and this goes against ethics of community solidarity such as expressed in Ubuntu and the policy ideas of the UNCTC. MNCs will naturally seek to maximise profits, in part through minimising redistribution and minimising environmental protection, and will attempt to assert property rights to do so. The Namibian state must ensure that the human rights of workers and affected communities take precedence over the property rights of MNCs. Codifying these rights and firmly elaborating the concomitant obligations on corporations, including aspects of both respect and realisation, is an essential first step. The Namibian constitution, cited in section II, already lays the groundwork for such rules, stipulating that ‘the state shall actively promote and maintain the welfare of the people’, including by adopting policies that include ‘the maintenance of ecosystems’.Footnote 111 A corporation embedded in society following Ubuntu principles would facilitate the ethical framework required to put human rights ahead of private rights within state, corporate and community thinking.
Our second theme is business incentives and regulations that promote short-termism and wastefulness.Footnote 112 Short-termism in business often focuses on the incentives of company directors who direct all their energies towards ensuring quarterly share price increases in exchange for vast compensation packages, pushing ‘many companies to take decisions that harm people or the planet’.Footnote 113 This is the short-termism of share buybacks and dividends, low pay, reduced investment and innovation and other well-known ills of contemporary capitalism.Footnote 114 Another form of short-termism in business is wasteful production. Deva notes that ‘[t]ransition to a green economy would require companies to refrain from externalizing risks to people or the planet’.Footnote 115 It is rational for the individual business to produce more consumer goods, as cheaply as possible, to generate profits and use planned obsolescence, toxic materials and everything else profitable and legally permitted. It is highly irrational as a structure for long-term global prosperity, as it pollutes, wastes resources and does not significantly contribute to global development or happiness. Deva also notes that ‘[i]n line with the commitments made under the Addis Ababa Action Agenda, States should offer incentives to businesses contributing to realizing the right to development.’Footnote 116
While ‘wastefulness’ does not capture the full gamut of harm that fossil fuel discoveries have caused in Africa, the extreme pollution of frequent oil spills and the lost human capacity due to value extraction by oil companies causing prolonged poverty are two prongs of a very capitalist form of wastefulness. One option that fits the current moment well would be for Namibia to borrow from recent company law arguments. Many countries have expanded directors’ duties to include environmental obligations such as mandatory climate reporting.Footnote 117 The advantage of this is that a named individual carries the legal obligation, rather than the corporation. The corporation can only ever be fined, whereas director’s that breach their duties can be removed and barred from serving as directors again. Namibia could borrow from this idea, creating specific duties upon directors of relevant companies toward the environment, ecology and people. These could draw from Ubuntu conceptions of business as being embedded within society and take specific inspiration from UNCTC ideas on taxation and redistribution. The director of the company that is an embedded part of society must be legally obligated to ensure that the company gives back to that society. Directors must be obligated to ensure that their company produces community benefits, alongside doing no harm. Again, Namibia’s positive constitutional obligations could ground such changes.
Short-termism and wastefulness lead to the third theme, the need for some degree of overarching planning in the economy, in contrast to undirected corporate freedom to maximise profits. The UNSR makes frequent reference to international principles and guidelines, as well as to irresponsible business, pointing toward the need for a more rules-based business order. We go a little further than ‘rules’ to highlight ‘planning’. Planning, or the ability or even right to plan, is central to the UNCTC.Footnote 118 Planning requires the power and authority to plan, as well as the normative desire to plan. Extensive corporate and shareholder rights, often rooted in rights of property and contract, are a significant barrier to planning. The contemporary liberal urge to privatise, outsource, incentivise and partner is a normative barrier to planning, and in such an environment it is difficult to support communal development. Corporations dedicated to maximising shareholder value are structurally incapable of planning for development, of choosing what to leave in the ground and to stop making. Only a well-motivated government or IGO can do this. Planning entails global agreements on transfer mispricing and tax, placing development above corporate property rights. A prerequisite to planning is establishing that the population owns resource wealth and should have a contractual right to a fair share of that wealth, whoever extracts it. Africa has a long and continuing history of cooperation, from pan-African philosophies such as communitarian Ubuntu to the African Union’s Agenda 2063. One useful option could be a shared framework for resource wealth and the relationship with extractive MNCs on the continent. Naturally, this is a larger conversation than can be had here, but a large, organised bloc constitutes a better power structure than individual states.
The fourth theme is that of distribution. Realisation of rights requires adequate and equitable distribution of resources. Liberal economic norms are fundamentally opposed to such a distribution. Deva notes that ‘the compensation package of chief executive officers grew by 1,460 per cent from 1978 to 2021, compensation of the typical worker grew by just 18.1 per cent during the same period’.Footnote 119 This theme is particularly important to Africa in the context of climate change. It is anathema to current norms to suggest that, for example, Shell should (should be compelled to) distribute the US$3.5 billion that it committed to a share buyback programme in three months from November 2023 to the populations of the Niger Delta and other regions that it has devastated with its oil production.Footnote 120 Or indeed that the US$4 trillion that the 500 largest US companies committed to share buybacks and to dividends in a nine-year period, worth 91 per cent of their total earnings, could be much better spent.Footnote 121 But, as climate change threatens land, homes and livelihoods around the world, at an enormous cost, these are the kind of embedded business norms that may have to be rethought if we are to avoid a human catastrophe of deaths, refugees and chaos. Distribution is also highly relevant to Namibian governance. As one of the most unequal societies in the world, to ensure access to rights and national development the state must ensure that income from these resources is shared. Again, grounding an approach to management of fossil fuels in an Ubuntu-informed communitarian ethic is one way to overcome the profit-first mentality of global extractive companies. Although beyond the scope of this paper, this sharing should go beyond national borders.Footnote 122 Namibia must ensure equitable distributions to reduce poverty and inequality, and to use this wealth to generate broad-based economic development. It is inequality, and to an extent concomitant poverty, that most blights Namibia’s economy. There is enough wealth in the ground to overcome this problem.
The final theme we frame as from ‘business’ to ‘economic activity’. BHR perhaps risks falling into the trap of focusing too much on ‘good business’, and not enough on ‘less business’. Good business practices do exist and should be applauded, but corporate governance rules and incentives are not aligned with these practices.Footnote 123 Bonuses are often based on maximising shareholder value and shareholders can remove directors who fail to maximise shareholder value adequately.Footnote 124 In conjunction with revised business rules and incentives, the state should take a more direct role in economic provision. The UNCTC was deeply informed by state control of corporate activity and natural resources. Deva notes that there are several projects ongoing around a ‘rights-based economy’, including The Surge Initiative at the UN,Footnote 125 as well as at the Centre for Economic and Social Rights.Footnote 126 ‘States must reverse the current trend of commercialization and commodification of human rights’.Footnote 127 Deva highlights examples of pharmaceutical companies and companies with monopolies over public services.Footnote 128 In the latter case at least, states are obligated to ensure universal access to these services, whether by regulating the private companies or providing services directly and removing or reducing business involvement therein. Removing some economic activity from the private sector may well make environmental targets easier to achieve. Moreover, following an Ubuntu perspective, better sharing of the wealth with the population allows oil-dependent states to develop faster and remain oil-dependent for a shorter time. It will also reduce the extraction of wealth by European MNCs from the region, a key reason why today many African states remain less well developed than other oil-rich areas.
VII. Conclusion: realising rights through BHR
The world is dangerously overheated. Regions are becoming unliveable, and famines, droughts, floods and other catastrophes are becoming ever more commonplace. Climate change is predicted to cause 250,000 additional deaths per year between 2030 and 2050, fuelling global conflicts and mass migration.Footnote 129 We argue that this necessitates a rupture with the old ways of thinking, in business and in BHR. For business, the freedoms, rights and empowerments that have characterised the era of turbo-charged globalisation and led to rampant resource use, pollution and economic inequality need to change. There is nothing too controversial in saying this to a BHR audience. But BHR must reckon with its own limitations as well. While the current focus on harm, accountability and remedy is vital, it is necessary but woefully insufficient. We need a more muscular version of BHR to ensure access to human rights.
A central problem with BHR is that it is vested in a liberal ‘do no harm’ approach that permits and legitimises corporate freedom outside of specified limits. This approach is ill-suited to human rights problems that stem from structural issues such as notably climate breakdown and economic exploitation. We have considered how a realisation-oriented vision of BHR could transform the field. Ogunranti’s description of Ubuntu inspired us to think of the corporation less as a danger and more as, potentially, a member of society that ‘feels’ as though it owes obligations to all of society. Creating this embedded corporation, to borrow from John Ruggie,Footnote 130 is a worthwhile normative aim, as opposed to policing a self-interested corporation seeking to evade the rules at every turn.
To see how law can be different, we looked to the UNCTC, which contained several examples of state control over corporations for the purposes of national development. We argued, following the CESCR in General Comment 24, that a state that directed this authority to the explicit aim of regulating business to realise rights would be on a useful track. Finally, we turned this thinking into five specific principles, building on the work of the UNSR on the Right to Development. First, the prioritisation of human rights over private rights. Second, redesigned business law and incentives to direct business to realise rights. Third, comprehensive national and international planning to ensure an organised response to global problems. Fourth, a specific focus on distribution of resources, wealth and opportunities. And finally, a normative and practical shift away from business as the only, or key, economic actor.
The focus on realisation of rights brings to the fore a gap within BHR. States hold obligations to respect, protect and realise human rights. BHR ignores the latter element of this tripartite scheme. This gap does not only represent an incomplete version of human rights; it also denies the deepest benefit that economic activity can bring to rights. BHR has made great strides in accountability for business-related human rights violations. But this is only one slice of the problematique underlying BHR. If projects also generate local wealth, opportunity and development to realise rights, those projects will create deeper virtuous cycles. That BHR has ignored this element of business may be understandable from a principled pragmatism perspective, but we will only move past the end of the beginning when we reckon with the comprehensiveness of rights and with the full potential of economic activity to realise rights. The approach herein aligns with visions of a rights-based economy and the CESCR’s views.Footnote 131 States hold obligations to fulfil human rights and this mandates that they regulate businesses with this aim.Footnote 132 For too long this has been ignored, not just in Africa, but also in the housing markets of major world cities, in privatised healthcare and at work.Footnote 133
BHR needs to reckon with two issues. The first is the depth of the triple planetary crisis, its impact on rightsholders and the causative role of business therein. The second is the moral limits of extant BHR philosophy. In this article we have articulated one way to move BHR beyond its current limits and to address contemporary problems in the African context. More research is needed on the specifics of Ubuntu and its connections to human rights, as is more research concretely localizing such ideas and research articulating specific policy ideas. We hope that this article can start conversations both on the positioning of BHR in Africa and on the ethics of the BHR movement more generally.
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