Under BITs and through class actions

Subjecting transnational mining corporations to environmental rights in the DRC

Abstract

Transnational mining corporations have gained an abundance of power and influence that defy the institutionalisation of the international human rights regime. Their activities have resulted in dire violations of human rights, especially environmental rights. The international human rights regime has left states with the duty to enforce the respect for human rights on all persons, including legal persons such as transnational mining corporations that are within their respective jurisdictions. However, fulfilling this duty has been a herculean task for many Third World states. In these states, these corporations have been able to interfere with law enforcement and accountability through judicial process. Thus, despite violating human rights, they continue to enjoy action with impunity. In response to this, a few attempts have been made to subject these corporations to human rights accountability at an international level. This study examines these attempts and concludes that they are inadequate. Relying on Third World Approaches to International Law (TWAIL), the study progresses the discussion by proposing an international law mechanism that may subject these corporations to the international human rights regime. This is what we term ‘Under BITs and through class actions’ mechanism. This mechanism entails inserting human rights obligations in Bilateral Investment Treaties (BITs) and enforcing them with the help of class actions. To critically present this proposition, the study takes as case study of environmental rights violations by transnational corporations that are mining in the Democratic Republic of the Congo (DRC).