Under bits and through class actions: Subjecting transnational mining corporations to environmental rights in the DRC

Abstract

In recent times, transnational mining corporations have gained an abundance of powers that few could have foreseen at 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 impose the respect of 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 in many Third World states, in which these corporations have been able to interfere with judicial accountability. Thus, despite violating human rights, they continue to enjoy immunity. In response to this, a few attempts have been made to subject these corporations to human rights 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 it has coined the ‘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 the class actions. To critically present this proposition, the study takes as case study environmental rights violations by transnational corporations that are mining in the Democratic Republic of the Congo (DRC).