Beyond State Responsibility: The Trafigura Case and Corporate Accountability in Africa

by | Feb 27, 2024

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About Sfiso Nxumalo

Sfiso Benard Nxumalo is reading for a Doctor of Philosophy (DPhil) in Law at the Faculty of Law at Oxford University. He holds a Bachelor of Civil Laws (BCL) from the University of Oxford and a Bachelor of Laws from the University of the Witwatersrand. His research for the DPhil concerns the philosophical purviews of the African Charter on Human and People's Rights and African Legal Theory.

Over the last few decades, there has been global recognition that corporations yield considerable social, economic and political power. This recognition has been accompanied by the question of how to hold corporations accountable for human rights violations. This requires a paradigm shift from understanding human rights as constraining state power and state action. Limiting human rights to merely constraining state power means corporations, especially multinational corporations, exist in a human rights vacuum. This position is untenable and undesirable, considering the power and role of multinational corporations in several countries, particularly so-called developing countries.

The African Court on Human and Peoples’ Rights in La LIDHO, LE MIDH, LA FIDH & others v Republic of Cote d’Ivoire (the Trafigura case) acknowledged that the African Charter on Human and Peoples’ Rights may have a horizontal effect on corporations. That is lawyer’s parlance for stating that the African Charter may bind corporations. The majority held that the African Charter has an indirect horizontal application, whereas the sole dissent by Justice Blaise Tchikaya pushed the needle further, holding that the African Charter has a direct horizontal effect.

The facts of the case stem from a well-known environmental disaster. In 2006, MV Probo Koala, a vessel chartered by the multinational company Trafigura, discharged and dumped highly toxic waste at several sites in Abidjan, Côte d’Ivoire. There were no chemical waste treatment facilities at these sites. This led to 17 people dying of toxic gas inhalation. Over 100,000 people were affected and left ill. The applicants, three NGOs, alleged that the respondent State – Côte d’Ivoire – violated the following rights of the African Charter: the right to life, the right to physical and mental health, the right to a healthy environment, and the right to information of the affected communities. The African Court unanimously held that each of these rights had been violated. While the case is interesting for several reasons, this piece will focus on the question of corporate accountability.

To contextualise the impact of the judgment, it is necessary to consider the accountability of corporations before this judgment. The African Commission on Human and Peoples’ Rights held that the primary obligations to protect, respect, and fulfil human rights fell within the province of States. This is because Article 1 of the African Charter places this responsibility on States. But there is more: States generally have a somewhat supervisory role in how these corporations operate by giving them licences and permission to operate and sometimes providing the state’s legal and military power to the corporations, as seen in SERI v Nigeria. Notwithstanding this, the Commission recognised that there are also indirect responsibilities on corporations who cause these violations. For instance, in Institute for Human Rights and Development and Others v DRC, the Commission dispatched a letter to the Anvil Mining Company to take responsibility for its role in alleged human rights violations in that case.

The Commission, in the form of soft law, has also enumerated the obligations of corporations under the African Charter. Consider its State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter relating to Extractive Industries, Human Rights and the Environment: there, the Commission unequivocally finds that Article 27 of the Charter provides a ‘clear legislative basis’ that multinational corporations have obligations towards entities. This includes negative obligations as well as, to an extent, positive obligations.

This brings us to the Trafigura case. The majority of the African Court held that it is ‘incumbent’ on companies, particularly multinational companies, to respect international law obligations. The fact that this obligation primarily rests with States does not mean it ends there. The majority takes heed of the United Nations Guiding Principles on Business and Human Rights and held ‘[s]uch a responsibility requires enterprises to commit themselves to public policies in prevention and reparation, due diligence in continuous identification of the consequences of their activities and lastly, setting up procedures aimed at solving problems caused by their action.’ However, the majority ultimately finds that the primary obligation lay with the Respondent State, recognising only indirect responsibilities to the multinational corporation, Trafigura.

The minority judgment held that ‘Trafigura became fully liable the moment it loaded toxic and hazardous waste that was dangerous to human life and the ecosystem onto a vessel.’  To this end, ‘[t]he Court should horizontally extend the positive obligations contained in the African Charter to the powerful multinational companies that mastermind massive human rights violations on the continent’. The horizontal application of human rights applies to environmental law and is not just a theoretical conjuncture.  The minority decision relies on the Guiding Principles to establish that liability may exist beyond that of the State, recognising human rights’ horizontal effect. Justice Tchikaya recognises that this approach would not diminish the State’s obligation as a public authority.

This decision is significant for several reasons. First, while the majority found the Ivorian state responsible for human rights violations, the dissenting judgment by Judge Tchikaya went further. He argued for extending accountability to powerful multinational companies involved in such abuses. This highlights a critical discussion on corporate accountability in Africa. Second, the dissent emphasises the missed opportunity to directly hold the corporation responsible, especially given the foreseeable consequences of their actions. Third, both judgments point to more robust accountability standards under the African Charter. This pushes for stricter corporate responsibility within the African human rights system. Fourth, the dissent highlights the relevance of soft law developments like the ACHPR’s State Reporting Guidelines, which link corporate and individual duties. This strengthens the argument for considering non-binding standards alongside binding treaties.

While the Court did not directly hold the corporation liable, this case paves the way for future litigation and strengthens the call for direct corporate accountability in Africa. The dissenting judgment is a compelling reminder of the human cost of corporate actions and the need for stricter legal frameworks to hold them responsible.

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