(Bio)Fueling Injustice? - Europafrica

justified under international law if very strong arguments are offered, showing that the
benefits from agrofuels outweigh the negative impacts”, otherwise it could be
considered as a retrogressive measure, 512 which is generally prohibited under the
ICESCR. 513
The ETO Principles specify that both direct and indirect interferences with the
enjoyment of ESCR are prohibited. This includes refraining from any conduct which
“impairs the ability of another State or international organisation to comply with that
State’s or that international organisation’s obligations as regards economic, social and
cultural rights.” Arguably, the EU biofuel policy has pushed several African states to
not comply with their human rights obligations, sometimes to the extent where their
ability to comply was impaired.
Based on the above, it can be concluded that the EU and its Member States have
violated human rights by impairing the enjoyment of human rights in third
countries.
Obligation to protect
Human rights norms also require taking measures to ensure that enterprises or
individuals do not harm human rights. ETO Principle 24 stipulates
All States must take necessary measures to ensure that non-
State actors which they are in a position to regulate, as set out
in Principle 25, such as private individuals and organisations,
and transnational corporations and other business enterprises,
do not nullify or impair the enjoyment of economic, social and
cultural rights. These include administrative, legislative,
investigative, adjudicatory and other measures.
Principle 25 specifies the cases in which regulation measures must be taken. It
includes situations where a non-State actor has the nationality of the State concerned,
where a corporation is domiciled in the State concerned, and where there is a
reasonable link between the State concerned and the wrongful conduct. States should
also make all efforts to influence non-State actors which they regulate (Principle 26).
As was mentioned above, many EU-based companies invest in land in Africa. In many
cases, these investments do not respect any legal standard, and investors directly
abuse human rights. 514 Despite the progress shown in its November 2011
Communication, and in particular the intention to legislate to impose companies to
disclose their social and other impacts, 515 the European Union has taken a weak
position on regulation of companies by adopting the concept of “Corporate Social
Responsibility,” whereby companies are merely encouraged to prevent and mitigate
adverse impacts.
Human rights standards require more than encouraging voluntary commitments. They
require effectively regulate so as to avoid harm. As a result, the EU and EU Member
States have violated human rights by not taking the necessary measures to
protect human rights extraterritorially.
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