Business and Human Rights: Model LLM Exam Answer on a Mining Concession

A model answer to a problem question on a multinational mining concession in a rural Sierra Leone community.

LLM EXAMINATION ANSWER

Business & Human Rights | Fourah Bay College, University of Sierra Leone

SECTION B — PROBLEM-BASED QUESTION

THE SCENARIO: GLOBAL MINERALS LIMITED

A multinational mining company, Global Miners Limited (GML) is granted a concession by the Government of Sierra Leone to operate in a rural community. Shortly after operations begin: (1) local communities are displaced without adequate consultation; (2) water sources become contaminated, affecting livelihoods; and (3) security forces employed by the company use excessive force against protestors. The company maintains that it has complied with domestic law and denies responsibility for the actions of state security forces.

ADVISE: (1) The obligations of the State; (2) The responsibilities of GML; (3) The rights and possible remedies of affected communities.

PRELIMINARY NOTE: THE THREE-PILLAR FRAMEWORK

All analysis in this answer is grounded in the UN Guiding Principles on Business and Human Rights (UNGPs), endorsed by the UN Human Rights Council in 2011. The UNGPs rest on three interconnected pillars:

PILLAR IState Duty to

Protect

PILLAR IICorporate

Responsibility to Respect

PILLAR IIIAccess to

Remedy

GPs 1-10: States must prevent, investigate, punish & redress business-related HR abuses through policies, legislation & adjudication.

GPs 11-24: Companies must avoid causing HR harm and address adverse impacts through HRDD. Independent of domestic law compliance.

GPs 25-31: States must ensure effective judicial & non-judicial remedy. Companies must establish operational grievance mechanisms.

Applied to: Sierra Leone's failure to consult communities, regulate environment, control security forces.

Applied to: GML's lack of HRDD, water contamination, inadequate consultation, reliance on abusive security forces.

Applied to: Rights to land, water, health, bodily integrity & assembly; remedies in courts, regulatory bodies & grievance mechanisms.

It is important to note at the outset that the UNGPs are a soft law instrument — they are not a treaty and do not create new binding international legal obligations. However, as the Commentary to Guiding Principle 11 makes plain, the corporate responsibility to respect human rights 'exists independently of States' abilities and/or willingness to fulfil their own human rights obligations, and does not diminish those obligations' and 'exists over and above compliance with national laws and regulations.' GML's reliance on domestic law compliance is therefore an insufficient answer.

PART ONE: OBLIGATIONS OF THE STATE OF SIERRA LEONE

A. The Foundational Principle: The State Duty to Protect (Pillar I)

Guiding Principle 1 provides that States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires 'taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.' Sierra Leone, as the host State, bears a primary duty to protect the affected rural communities from the human rights harms arising from GML's operations.

Critically, the State duty to protect is a standard of conduct. As the Commentary to GP 1 explains, while states are not per se responsible for the abuses of private actors, they may breach their obligations 'where they fail to take appropriate steps to prevent, investigate, punish and redress private actors' abuse.' The grant of a mining concession to GML did not transfer or discharge this duty.

B. Applying Pillar I to the Facts

(i) Displacement Without Adequate Consultation

The displacement of communities without adequate consultation indicates a failure in Sierra Leone's land governance obligations. Guiding Principle 3 requires States to enforce laws that 'require business enterprises to respect human rights' and to ensure that 'other laws and policies governing the creation and ongoing operation of business enterprises do not constrain but enable business respect for human rights.' The Commentary to GP 3 specifically notes that 'greater clarity in some areas of law and policy, such as those governing access to land... is often necessary to protect both rights-holders and business enterprises.' Sierra Leone's failure to ensure adequate community consultation before displacement constitutes a breach of its duty to ensure that land acquisition processes are conducted in a manner that respects affected communities' rights, including their rights to participation, property, and housing.

(ii) Water Contamination

The contamination of water sources affecting community livelihoods points to a failure in environmental regulation and enforcement. GP 3 requires States to enforce laws with the effect of requiring business enterprises to respect human rights. The failure to monitor, regulate and prevent the contamination of the community's water supply represents an enforcement gap that the State must address. In SERAC v Nigeria (African Commission on Human and Peoples' Rights, 2001), the African Commission held that the Nigerian government's failure to protect the Ogoni people from oil pollution — allowing activities that destroyed their environment, water and food — constituted a violation of the State's duty to protect rights to health, food, housing and natural resources. This authority is directly applicable here.

(iii) Excessive Force by Security Forces

The use of excessive force against protestors raises the most acute State-duty concerns. Guiding Principle 7 specifically addresses the heightened risk of gross human rights abuses in conflict-affected or high-risk areas, requiring States to 'help ensure that business enterprises operating in those contexts are not involved with such abuses.' The Commentary notes that States should 'explore civil, administrative or criminal liability for enterprises domiciled or operating in their territory and/or jurisdiction that commit or contribute to gross human rights abuses.' More fundamentally, where state security forces are the agents of violence, Sierra Leone bears direct responsibility under international human rights law. The failure to control the conduct of state agents and to protect the right of peaceful assembly and protest constitutes a serious breach of the State's duty to protect.

(iv) Inadequate State Business Nexus Oversight (GP 4-6)

Guiding Principle 5 further provides that 'States do not relinquish their international human rights law obligations when they privatize the delivery of services' or — by extension — when they contract with business enterprises for the extraction of national resources. The granting of the concession must be accompanied by substantive and enforceable safeguards, including requirements for environmental impact assessments, community consultation protocols, and accountability mechanisms for security arrangements.

C. The Accountability Gap and Required State Response

Sierra Leone likely failed its Pillar I obligations in the following specific ways:

• Land and consultation governance: failure to require and enforce meaningful community consultation prior to the concession operation.
• Environmental regulation: failure to monitor, enforce or remedy the contamination of community water sources.
• Security force oversight: failure to control the conduct of state security forces and protect the right to protest.
• Access to remedy: as discussed under Pillar III, the State must provide effective remedial mechanisms — the absence of functional avenues for redress compounds these failures.

Sierra Leone must now investigate, punish and redress these abuses. The mere fact that GML was granted a concession and complied with domestic law does not discharge the State's duty — Sierra Leone must ensure that the underlying legislative and policy framework provides genuine protection, not just procedural compliance.

PART TWO: RESPONSIBILITIES OF GLOBAL MINERALS LIMITED

A. The Corporate Responsibility to Respect (Pillar II)

Guiding Principle 11 establishes that business enterprises 'should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.' This responsibility 'exists over and above compliance with national laws and regulations protecting human rights.' GML's defence — that it complied with domestic law — is therefore insufficient as a matter of UNGP standards.

Guiding Principle 12 further provides that the responsibility of business enterprises to respect human rights 'refers to internationally recognised human rights — understood, at a minimum, as those expressed in the International Bill of Human Rights and the principles concerning fundamental rights set out in the ILO's Declaration on Fundamental Principles and Rights at Work.' GML's obligations include respecting the rights to life, health, water, adequate standard of living, freedom from arbitrary displacement, and freedom of peaceful assembly.

B. Human Rights Due Diligence (HRDD) Obligations (GPs 17-21)

Guiding Principle 17 requires that business enterprises carry out human rights due diligence. This process must: (i) include assessing actual and potential human rights impacts; (ii) integrate and act upon the findings; (iii) track responses; and (iv) communicate how impacts are addressed. HRDD must be ongoing and must cover adverse impacts the company may cause or contribute to 'through its own activities, or which may be directly linked to its operations, products or services by its business relationships.' Applying these requirements to the facts:

• Inadequate consultation (GP 18): GP 18 requires that impact assessments involve 'meaningful consultation with potentially affected groups and other relevant stakeholders.' GML's failure to consult adequately before displacing communities indicates a fundamental failure at the assessment stage — the most foundational step of HRDD.
• Water contamination (GPs 19, 24): GP 19 requires GML to integrate impact assessment findings and take appropriate action to prevent and mitigate harm. The contamination of water sources is an actual and foreseeable adverse impact of mining operations. GML's failure to prevent this outcome indicates a failure to identify, assess, prevent and mitigate this impact. GP 24 further provides that GML must prioritise prevention of 'those that are most severe or where delayed response would make them irremediable' — water contamination is precisely such a severe and potentially irremediable harm.
• Security forces and excessive force (GPs 13, 23): GP 13 provides that business enterprises must 'seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships.' The use of state security forces to protect GML's operations creates a direct business relationship with that security apparatus. The Commentary to GP 23 is emphatic: where security forces are present, business enterprises must 'treat the risk of causing or contributing to gross human rights abuses as a legal compliance issue' and 'ensure that they do not exacerbate the situation.' GML cannot simply deny responsibility if it requested, directed, relied upon or benefited from the security forces while failing to use its leverage to prevent abuse.

C. The Policy Commitment Requirement (GP 16)

GP 16 requires that GML have a publicly available, board-approved policy commitment that 'stipulates the enterprise's human rights expectations of personnel, business partners and other parties directly linked to its operations, products or services' — explicitly including state security forces. The Commentary to GP 16 notes that 'the statement of commitment should be... communicated actively to... others directly linked to its operations, which may include State security forces.' GML's response to the protests and its handling of the concession suggest the absence of a genuine, operationalised human rights policy commitment.

D. The Remediation Obligation (GP 22)

Guiding Principle 22 provides that 'where business enterprises identify that they have caused or contributed to adverse impacts, they should provide for or cooperate in their remediation through legitimate processes.' GML is not entitled to simply deny responsibility and rely on domestic law. It must actively engage in remediation, including by cooperating with any investigation and providing effective remedy to affected communities.

E. GML Cannot Shelter Behind Domestic Law Compliance

The Commentary to GP 11 is unequivocal: 'The responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate.' And as GP 23 Commentary states, 'where the domestic context renders it impossible to meet this responsibility fully, business enterprises are expected to respect the principles of internationally recognised human rights to the greatest extent possible in the circumstances.' Weak domestic law is not an excuse — it creates an even stronger obligation on GML to respect international standards.

PART THREE: RIGHTS AND POSSIBLE REMEDIES OF AFFECTED COMMUNITIES

A. Rights Implicated

The affected communities hold the following rights, all of which are violated or threatened on the facts:

• Right to property and land: arbitrary displacement without adequate consultation violates land and property rights.
• Right to an adequate standard of living and livelihood: water contamination and displacement directly undermine economic and subsistence rights.
• Right to health: contamination of water sources creates direct health hazards.
• Right to clean water: now recognised as a standalone right under international human rights law.
• Right to bodily integrity and life: excessive force by security forces threatens the right to life and physical integrity of protestors.
• Right to peaceful assembly and association: the suppression of protests by security forces violates freedom of peaceful assembly.
• Right to an effective remedy: Pillar III (GP 25) establishes that all persons affected by business-related human rights abuses are entitled to an effective remedy.

B. Available Remedy Pathways (Pillar III: GPs 25-31)

(i) State-Based Judicial Mechanisms (GP 26)

GP 26 requires States to 'take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing business-related human rights abuses.' Available judicial pathways include: civil litigation against GML for damages arising from displacement, water contamination and livelihood loss; constitutional claims for violations of fundamental rights; and criminal investigations and prosecutions for excessive force by security personnel.

(ii) State-Based Non-Judicial Mechanisms (GP 27)

GP 27 provides for non-judicial grievance mechanisms alongside judicial mechanisms. These include: environmental regulatory complaints to Sierra Leone's Environmental Protection Agency; complaints to the National Human Rights Commission (if established and functional); and administrative remedies through mineral resources governance bodies.

(iii) Company Operational Grievance Mechanisms (GP 29)

GP 29 requires GML to 'establish or participate in effective operational-level grievance mechanisms for individuals and communities who may be adversely impacted.' These mechanisms must meet the effectiveness criteria in GP 31 — they must be legitimate, accessible, predictable, equitable, transparent, rights-compatible, and a source of continuous learning. On the present facts, GML appears not to have established or maintained an effective grievance mechanism, further compounding its UNGP failures.

(iv) Regional Human Rights Bodies

The affected communities may file complaints with the African Commission on Human and Peoples' Rights (ACHPR) for violations of the African Charter on Human and Peoples' Rights, including rights to health, property, and a clean environment. As in SERAC v Nigeria, the Commission has jurisdiction to hold the State responsible for permitting business-related violations of Charter rights.

C. Limitations on Remedies

What distinguishes a sophisticated analysis is the acknowledgment of practical limitations. These include:

• Weak courts and institutions: Sierra Leone's judicial system may lack the resources, independence or expertise to manage complex environmental or human rights litigation effectively.
• Cost and access: rural community members may lack financial resources and legal representation to pursue domestic litigation. GP 26 expressly identifies cost as a barrier to access to remedy.
• Fear of retaliation: community members may fear economic or physical reprisals for pursuing formal complaints, particularly where security forces are implicated.
• Evidentiary challenges: establishing causation between GML's operations and water contamination or security force abuses may require expert evidence that communities cannot afford.
• Ineffective grievance mechanisms: where GML's operational grievance mechanism is inaccessible or biased, this pathway provides no genuine relief.
• Delay: the long duration of court proceedings may render any eventual remedy inadequate, especially for irremediable harms such as health damage from contamination.

CONCLUSION

Both Sierra Leone and GML fall substantially short of the standards established by the UN Guiding Principles on Business and Human Rights. The State failed to discharge its Pillar I duty to protect by not ensuring adequate pre-operation consultation protocols, environmental safeguards, or control of security forces. GML failed to meet its Pillar II corporate responsibility to respect by not conducting meaningful HRDD, not preventing foreseeable harms, and by attempting to shelter behind domestic law compliance — a defence that the UNGPs expressly reject. The affected communities hold multiple internationally recognised rights that have been violated or are at serious risk, and while multiple remedy pathways exist under Pillar III, practical and structural barriers significantly constrain their effectiveness. The most urgent imperatives are: immediate cessation of the harmful activities, independent investigation of the security force conduct, community-centred remediation for water contamination and displacement, and structural reform of both the State's regulatory framework and GML's operational approach in line with UNGPs.

PART FOUR: EXAM SUMMARY — ISSUES AT A GLANCE

Use this table to quickly recall the key issues, applicable pillars, identified breaches and authorities:

ISSUE PILLAR BREACH KEY AUTHORITY

Displacement without consultation

Pillar I (GP 1) & Pillar II (GP 17-18)

State failed land governance; GML failed HRDD & stakeholder engagement

GP 1, GP 18; SERAC v Nigeria

Water contamination affecting livelihoods

Pillar I (GP 3) & Pillar II (GP 13, 19)

State failed environmental regulation; GML failed to prevent/mitigate environmental harm

GP 13, GP 19; SERAC v Nigeria

Excessive force by security forces against protesters

Pillar I (GP 7) & Pillar II (GP 13, 23)

State failed to control agents; GML cannot deny responsibility where it directed/benefited from security forces GP 7, GP 23; Vedanta v Lungowe GML's claim of domestic law compliance as full defence Pillar II (GP 11, 23) GP 11: Corporate responsibility exists independently of local law; domestic compliance is a floor, not a ceiling GP Commentary; GP 23 Commentary Communities' access to remedy Pillar III (GPs 25-31)

State must provide effective judicial & non-judicial mechanisms; GML must establish operational grievance mechanisms GP 25, GP 29, GP PART FIVE: HOW TO ANSWER THIS TYPE OF QUESTION (STEP-BY-STEP MEMORY GUIDE)

This guide applies to any UNGP problem-based scenario question. Follow these steps in sequence:

STEP 1: IDENTIFY THE STRUCTURE OF THE QUESTION

Most UNGP scenario questions will ask you to advise on three things, corresponding to the three pillars. Mentally map each question to its pillar:

• "Obligations of the State" → PILLAR I (Duty to Protect)
• "Responsibilities of [Company]" → PILLAR II (Corporate Responsibility to Respect)
• "Rights and Remedies of Communities" → PILLAR III (Access to Remedy)

STEP 2: APPLY THE IRAQ FORMULA TO EACH PILLAR

Use the IRAQ formula for each section of your answer:

• I — ISSUE: State the precise human rights issue disclosed by the facts (e.g. displacement without consultation; water contamination; excessive force).
• R — RULE: Identify the specific Guiding Principle(s) that govern this issue. Quote the GP number and its core requirement.
• A — APPLICATION: Apply the GP to the specific facts. Do not merely state the law — apply it. Identify what was done or not done that violates the GP.
• A — ANSWER: Conclude whether there is a breach and what should follow (cessation, investigation, remedy).

STEP 3: PILLAR I CHECKLIST (STATE OBLIGATIONS)

When analysing the State, ask:

• Did the State prevent business HR abuse? (GP 1)
• Did the State require HRDD of the company? (GP 4)
• Did the State enforce environmental, land and labour laws? (GP 3)
• Did the State control its security forces? (GP 7)
• Did the State provide access to effective remedy? (GP 25-26)
• Is domestic law compliance of the company alone enough for the State? [No — GP 3 Commentary]

STEP 4: PILLAR II CHECKLIST (COMPANY OBLIGATIONS)

When analysing the company, ask:

• Did it have a board-approved HR policy commitment? (GP 16)
• Did it conduct pre-operation HRDD (impact assessment, consultation)? (GP 17-18)
• Did it integrate findings and prevent/mitigate harm? (GP 19)
• Did it track and communicate how it addressed impacts? (GP 20-21)
• Did it cooperate in remediation of actual harms? (GP 22)
• Did it treat security force risks as a legal compliance issue? (GP 23)
• KEY RULE: Can it rely on domestic law compliance as a complete defence? [NO — GP 11 Commentary]

STEP 5: PILLAR III CHECKLIST (RIGHTS & REMEDIES)

When analysing communities, ask:

• What rights are at stake? (Life, health, water, property, assembly, livelihood, remedy)
• What judicial remedies exist? (Civil claims, constitutional rights, criminal prosecution)
• What non-judicial remedies exist? (Regulatory bodies, NHRIs, national contact points)
• What company-based remedies exist? (Operational grievance mechanism under GP 29)
• What regional/international remedies exist? (ACHPR, UN Treaty Bodies)
• CRITICALLY: What are the LIMITATIONS? (Cost, weak courts, delay, fear of retaliation, evidentiary barriers)

STEP 6: KEY AUTHORITIES TO CITE

• SERAC v Nigeria (ACHPR, 2001): State duty to prevent corporate pollution; state complicity through inaction; rights to health, environment, food and housing.
• Vedanta Resources v Lungowe UKSC 20: Parent company can owe a duty of care where it exercises material control over subsidiary; group-wide policies and oversight are relevant.
• Okpabi v Royal Dutch Shell UKSC 3: Arguable duty of care claims must not be dismissed prematurely; oversight structures may establish duty.
• Nevsun Resources v Araya (Canada SC, 2020): Claims based on customary international law and domestic torts can be brought against mining companies in home courts.
• UNGPs themselves: Always cite specific GP numbers and their Commentary — this is your primary authority.

STEP 7: CRITICAL ANALYSIS — THE MARK-SCORING MOVE

At LLM level, description is not enough. To score highly, always:

• Acknowledge GML's argument (domestic law compliance) — then dismantle it with GP 11 and GP 23.
• Acknowledge limitations of the UNGP framework (soft law, no enforcement mechanism, voluntary compliance).
• Acknowledge practical limits on remedies — do not just list pathways; explain why each may fail.
• Reference the 'tick-box' critique of HRDD — process compliance without substantive outcomes.
• Connect the facts to the broader governance failure narrative — weak States enable corporate impunity.

STEP 8: STRUCTURE YOUR ANSWER CLEARLY

Use this outline for any UNGP scenario:

INTRODUCTION: Brief overview of facts, identify the three pillars to be applied, state your thesis.

PILLAR I — STATE OBLIGATIONS: Apply GP 1, 3, 7, 25-26 to the specific state failures on the facts.

PILLAR II — CORPORATE RESPONSIBILITIES: Apply GP 11, 13, 16-22, 23 to the specific corporate failures. Dismantle the domestic law defence.

PILLAR III — RIGHTS AND REMEDIES: Identify rights breached; identify all remedy pathways; critically assess each pathway's limitations.

CONCLUSION: Both State and company fall short of UNGP standards; victims face real barriers to remedy; structural reform needed.

THE GOLDEN RULE

"Domestic law compliance is a floor, not a ceiling. The corporate responsibility to respect human rights under the UNGPs exists independently of what local law requires or what the State enforces. A company that hides behind a weak regulatory environment is not meeting its responsibility — it is exploiting a governance gap, which is precisely the kind of abuse the UNGPs were designed to address."

— The Core Argument to Make in Every UNGP Scenario Question 1.

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