" EU’s human rights and environment directive could do more to protect Africa’s mining affected communities" 14 June 2024

On 24 May, the European Union passed the Corporate Sustainability Due Diligence Directive (CSDDD) law, requiring big businesses to identify and address negative human rights and environmental impacts in supply chains regardless of whether the harm occurs in or outside the EU. It will apply to businesses with more than 1,000 employees on average and a net worldwide turnover of more than €450 million.

This follows a compromise led by the French government that effectively narrowed the scope of the directive when states such as Germany and Italy expressed reservations about the effect the directive would have on the EU investment climate. [...] In the absence of binding international regulation of supply chains, the CSDDD marks a significant advance in the regulation of human and environmental impacts of business. More so, in implementing such a standard in the world’s biggest single market, the EU has a sizable control of supply chains, including mining supply chains.

The implication is that South African companies will be indirectly affected by the implementation of the directive. This is an important moment for corporate accountability and human rights in a much contested arena between self-regulation and binding mechanisms for companies, especially those who operate transnationally. But, from a Global South perspective, inclusive of many producer countries in the supply chain who are privy to the direct effects of mining on people and the environment, there are some crucial elements which the CSDDD does not adequately address. 

While the directive has managed to achieve a wide consensus for its adoption, several compromises had to be made, significantly watering it down. The CSDDD exempts financial institutions, arms manufacturers and companies producing other products subject to export controls such as surveillance technology. The exclusion of financial institutions leaves a gap in the regulation of supply chains especially from an African perspective. [...]

In addition, finance for fossil fuel projects takes away from much needed scaling up of renewable energy technology. For African countries however, the long-term risk is a “fossil fuel lock-in” infrastructural path. In addition, supplying gas to Europe could reinforce export-led economies and also lead to the stranding of assets in light of Europe’s climate neutrality goals for 2040 that would drive down the demand for gas.  

South Africa is no exception for the dash for gas. A Shell oil and gas seismic survey in the Wild Coast was halted in 2022 and remains upheld by the Supreme Court of Appeal following the judgment earlier this month.

In 2022, the Makhanda High Court held that Shell’s due diligence process was substantially flawed, failing to take into account the livelihoods of subsistence and small scale fishers — an important element that should be considered for many current offshore gas projects across the continent including the Nigeria-Morrocco gas pipeline built primarily to export gas to Europe. In addition, the environmental impacts of oil and gas seismic surveys has been subject to much environmental contestation with more research indicating that they threaten long-term loss of marine mammal biodiversity.

Furthermore, as an instrument that has been developed without broader consultation with Global South states but one that will affect these states albeit indirectly on some crucial issues, the CSDDD has implications for the ability of these communities to achieve remedy for harm caused by EU-based companies. The issue of attaining EU courts is one such an example. For the purposes of accessing justice, allowing victims to choose a court can have a significant effect on the outcomes of the case. 

In 2011, Leigh Day filed more than 2,000 claims against Anglo American South Africa, as a subsidiary of Anglo American Group and where the central administration is based in the United Kingdom. The court first had to grapple with the question of whether the UK High Court was the appropriate court to hear the case.