Enabling soft law initiatives to regulate the environmental and social impacts of mining investments in Sub-Sahara:a case study of Nigeria and South African Africa :

Abstract

This research explores the rise and proliferation of transnational soft law initiatives as regulatory tools in managing the environmental and social consequences of mining in SubSaharan Africa. The rise of such initiatives can be attributed to a governance gap within the management of mineral resource development in Sub-Saharan Africa, where hard law mining codes are weak or fail to be stringently enforced by Sub-Saharan African (SSA) countries. The continued development of soft law initiatives within the mineral resource and mining sectors such as the Global Compact, the Extractive Industries Transparency Initiative, the IFC Performance Standards, and the Equator Principles, has seen literature refer to them as a new regime which may regulate the negative consequences attributed to mineral resource exploitation in SSA and thus fill any governance gap. The thesis argues that while transnational soft law initiatives can to an extent regulate the environmental and social impacts caused by mining companies in SSA, they are more likely to be effective where they are provided with an enabling environment by SSA countries, taking into account they are voluntary initiatives. The thesis substantiates this argument by analysing the concept of an enabling environment and demonstrating that transnational soft law initiatives applied within the mining industry are more likely to be effective in terms of compliance in regions where they are provided with an enabling environment. Using Nigeria and South Africa as case studies the research also establishes whether there is indeed a governance gap within the mining sector in SSA which needs to be filled by soft law. The research asserts that while the governance gap within the mining sector in South Africa is limited, there is indeed a governance gap in Nigeria which can be filled by transnational soft law initiatives. However, for such governance gaps to be filled by soft law in SSA mining there is a need for SSA countries to provide soft law with an enabling environment. The study found South Africa provides an enabling environment for soft law initiatives whereas Nigeria struggles in providing one. The study therefore concluded transnational soft law initiatives may not be the ideal regulatory tool that may fill the governance gap in SSA mining taking into account not all countries in SSA are as advanced and experienced in mining as South Africa. This was aptly demonstrated by Nigeria’s struggle to enable soft law initiatives. The findings of this research will contribute to the relevant literature as there has been limited research on how an enabling environment in particular can enhance the likelihood of compliance where soft law initiatives are concerned.