BHRRC: an expanding resource for corporate accountability4 min read . Updated: 25 Jan 2018, 12:21 AM IST
BHRRC's 'Corporate Legal Accountability Bulletin' has provided a global tracker of numerous situations involving corporate accountability
Legal accountability for businesses has for long been a fraught area. Businesses typically fight to minimize their responsibility in a range from pollution to outright political complicity; while victim-litigants, in a range from individuals to entire communities, typically fight to maximize their claim.
For some years now the Business and Human Rights Resource Centre’s (BHRRC) Corporate Legal Accountability Bulletin has provided a global tracker of numerous ongoing situations. The UK-based watchdog’s latest quarterly bulletin published in January 2018 (at business-humanrights.org) shows just how robust this mechanism has become, and just how valuable it is for practitioners and students alike in an area where information is often controlled by corporate lawyers and public relations executives.
The bulletin tracks a variety of developments with updated case studies which would certainly be of interest in an increasingly globalizing, aggressively business-minded India in policy and application. For instance, Vedanta Resources Plc has, since 2015, legally battled accusations of contaminating land and affecting livelihoods of communities near its Nchanga copper mine in Zambia. Transnational companies often try to shield the parent from any misdemeanour or illegality by a subsidiary, but last October a court of appeal in UK, where Vedanta is headquartered, permitted the claims of victims to be heard in the UK, citing “duty of care" that extended up the line from the subsidiary—Konkola Copper Mines—to parent.
Vedanta was quick to point out that the decision related merely to the “jurisdiction of the English courts to hear these claims", and that it wasn’t a “ruling or a determination on the merits of these claims." This defensive, though legally correct, statement was countered by the Resource Centre. “The ruling represents a breakthrough in ‘piercing the corporate veil,’" the Centre commented pithily, “which is widely recognized to be a key obstacle to accessing remedy" by victims, in this case 1,826 Zambian villagers.
This is significant as the conventional wisdom in the business and human rights universe is that, the judicial process in some countries can be pressured by corporate clout and the logic of economic activity. This wisdom is underscored by agencies of the United Nations besides human rights watchdogs. Indeed, in October, the United Nations working group engaged in preparing a draft binding treaty related to corporate liability for human rights violations, discussed in Geneva such liabilities and obligations of transnational businesses.
In December, Reuters reported the sensational case of French government investigators pursuing a judicial inquiry against three LafargeHolcim executives, that would probe the company’s operations in Syria. Two are former executives of the company. The third was a former head of security for the company and still employed by LafargeHolcim at the time of the Reuters article, which mentions charges of alleged “financing of a terrorist enterprise". The Centre’s bulletin records this instance, and that lawyers for the three executives denied the charges, and that the company declined to comment. This is a live case for the Centre’s accountability tracker.
Or take the example of some Canadian mineral companies, not exactly known for being paragons of human rights virtue, and Canada’s judicial system, which has been known to mirror the government stance of backing business. Nevsun Resources will need to answer in Canadian courts for allegations, as a November 2017 article in the National Post put it, “of being complicit in the use of conscripted military labour at a gold mine in Eritrea". Meanwhile Tahoe Resources, another Canadian company, can now stand trial at home for accusations of firing upon protesters at a subsidiary’s silver mine in Guatemala in 2013. The protesters were concerned about the project affecting the community’s water resources and also about inadequate consultations by mine authorities with the community.
“Historically, Canadian judges have been inclined to send such cases back to the jurisdictions where the alleged abuses occurred," the Post article maintains, “But (the) pending cases ... show that the legal landscape is shifting."
Other case trackers include allegations of discrimination in Uganda against those with HIV/AIDS by China Communication and Construction Co.; lawsuits related to the Dakota Access Pipeline in the US that has remained a cause célèbre since 2016; and even litigation against Hyderabad Industries Ltd over allegations of contamination through asbestos waste at an abandoned mine in Roro, Jharkhand—a three decade-old controversy.
BHRRC’s corporate legal accountability portal tracks all these cases and more, and, alongside, introduces new case studies, provides relevant legal news, commentary, and a growing directory of human rights lawyers and agencies around the world (including two in India). This is an expanding resource for an expanding, hugely complex area, and surely it is all to the good.
Sudeep Chakravarti’s books include Clear.Hold.Build: Hard Lessons of Business and Human Rights in India, Red Sun: Travels in Naxalite Country and Highway 39: Journeys through a Fractured Land. This column, which focuses on conflict situations and the convergence of businesses and human rights, runs on Thursdays.