Financial compensation for business-related human rights violations in the mining sector: Challenges and ways forward

Abstract

The UN Guiding Principles on Business and Human Rights envisage an adjudication regime for victims to seek remedial relief for the violation of their human rights resulting from mining activities. The non-binding nature of the UN Guiding Principles and the legal and jurisdictional challenges that restrict domestic courts from hearing claims by affected local communities call into question the legal duty of a state to ensure access to adjudication processes through which victims can pursue financial compensation. The effectiveness of judicial and non-judicial mechanism through which financial compensation can be sought is discussed here with a view to identify the challenges inhibiting local communities from successfully seeking remedies from mining corporations. Local African communities who have been constrained to pursue adjudication through non-judicial mechanisms have often not succeeded in their claims. This is despite the UN Guiding Principles requiring corporations to set up internal dispute resolution structures. Since not much focus has been directed towards exploring which of the two forums; judicial or non-judicial mechanisms are effective in the context of seeking financial compensation by local African communities, this chapter takes the initial step.