The Limitations of Voluntarism in Human Rights Due Diligence Frameworks: The Shell Case

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On 28 December 2021 the Grahamstown High Court in Makhanda ordered Shell to immediately cease its seismic blasting along South Africa’s Wild Coast. When granting the interdict sought by the communities affected by the blasting, Judge Gerald Bloem said that Shell was under a duty to meaningfully consult with the communities and individuals who would be impacted by the seismic survey — but they had not.

The Shell case illustrates that corporations, which are supposed to respect human rights and the environment, often don’t, particularly in developing countries. They are bound by voluntary human rights due diligence, an ongoing risk management process that reasonable companies need to follow in order to identify, prevent, mitigate and account for how they address their adverse human rights impacts. 

The topic was addressed in depth by a panel of experts in a webinar hosted by the Rosa Luxemburg Stiftung in partnership with the Mail & Guardian. Webinar moderator Athandiwe Saba, Deputy Editor, Mail & Guardian, said that many companies come to Africa and leave with their resources and profits, without empowering communities or doing due diligence.

Johan Lorenzen of Richard Spoor Inc Attorneys outlined the details of the Shell case. 

He said: “When voluntary standards are established that companies can choose to abide by, but some don’t comply with them because there are no consequences, you set up a race to the bottom, and you penalise the companies that do comply, as it costs them more to comply. If it’s worth having these standards, it’s worth enforcing them — in other words, they should not be voluntary.”

Sikho Luthango, Programme Manager at Rosa Luxemburg Stiftung, agreed; she said that institutionalised voluntarism is a compromise that falls short of full international legal liability. This presents challenges as corporations don’t always comply. Because there are no legally binding duties, the implication is incoherence in their adoption and implementation. “Voluntarism has limitations; it is essentially self-regulation.” 

The United Nations Guiding Principles (UNGPs) are based on three pillars of “protect, respect and remedy” — the state’s duty to protect against human rights abuses by businesses; corporate responsibility to protect human rights, and the need for greater access by victims to effective remedy. Shell has endorsed the UNGPs, but its stakeholder analysis was deeply flawed because it did not consider the livelihoods that would be affected by its seismic blasting: not just the subsistence farmers, but also the fishing and holiday industries on the Wild Coast. There was also insufficient and flawed consultation; for instance, notices given out were only in English and Afrikaans, not in isiXhosa and isiPondo, which are the dominant languages on the Wild Coast, and this goes against Shell’s community feedback mechanism, which is based on the UNGPs. 

Shell’s due diligence process did not promote public access nor transparency to effectively and meaningfully engage the community about the impacts of the seismic survey on livelihoods, cultural identity and environmental impacts. It only consulted traditional leaders, not, for example, those directly impacted, such as the fishing communities. Human rights due diligence as a process is rooted in transnational social norms, not in international legal norms. “Where governance gaps persist, combined with gaps in the international regulatory human rights framework, it leads to non-compliance,” Luthango emphasised. 

Dr Melanie Mueller, German Institute for International and Security Affairs, said: “For successful transnational implementation, more transparency is required in supply chains, and clarity on how to deal with identified human rights violations.”

She said that in the EU there is a shift in how businesses are viewing human rights, and consumers are also demanding goods that are sustainable and don’t involve human rights violations. German companies must know what the track records are of their partners when they import, and this includes both direct and indirect suppliers. The European Commission is looking to enforce stricter laws concerning human rights and environmental impacts, in line with the Paris declaration, but the Ukraine war is delaying the whole process.

An audience member who identified himself  as “David from Rustenburg” said that lack of consultation is not just happening on the Wild Coast. “The chiefs [traditional leaders] are not the owners of the land; they are just the custodians. Mining companies and the government cannot just consult with chiefs, they must consult at grassroots level with communities. 

“What is happening in Europe is not what is happening in Africa. Ninety percent of African governments don’t comply with legislation, and the ‘process of consultation’ takes place between governments and companies. Politicians are often shareholders in, for example, mining companies, so they are pushing their own agenda. The politicians are not protecting the people, they are protecting themselves and their families.”

Another audience member said: “We are tired of fighting the same battles. Even when legal agreements are reached, companies do not adhere to them.” This was echoed by another member of the audience, who said that mining companies simply don’t do what they promise. 

Luthango said that communities with grievances should go, when local measures have been exhausted, straight to the parent company’s home state. “There is better enforcement of legislation in some jurisdictions, and in some cases, non-judicial institutions that can help communities and NGOs to access and enforce remedies.” Mueller said that as European companies start re-examining human rights and environmental obligations more in supply chains, it will create a different business environment here in Africa too. 

Lorenzen concluded by saying: “There is no substitute for mobilisation. The Xolebeni community [and other Transkei communities] stood up, and that created new legislation. If we are not standing with communities that are defending land, that threatens our own survival too, so we must all stand with such communities.”