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Opinion

1 Jul 2015

Author:
Sara L Seck, Faculty of Law, Western University (Canada)

Business & Human Rights Treaty Debate: Lessons from the International Law Commission

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From July 6-10, 2015 in Geneva, an open-ended intergovernmental working group (OEIWG) is set to begin its work ‘to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’. As this process begins, it is important that participants reflect upon existing work considering the regulation of industrial activities under international law. Importantly, the International Law Commission (ILC), the United Nations body tasked since 1948 with the progressive development and codification of international law, has considered analogous issues that deserve serious attention and reflection.

As is well known, in the 1950s, the ILC began work on the codification of the international law of state responsibility – which resulted in 2001 in draft Articles on the Responsibility of States for Internationally Wrongful Acts. These Articles have been well received by the UN General Assembly and the International Court of Justice. Scholars frequently cite Article 8 for the proposition that the conduct of non-state actors including businesses cannot be directly attributed to the state unless the business was acting under the “instructions of, or under the direction and control of” that state (the effective control test). Contested interpretations of this and related Articles have received much attention in the business and human rights literature.

What has received far less attention is the parallel work undertaken by the ILC on International Liability for Injurious Consequences arising out of Acts not Prohibited by International Law. Begun in the 1970s, this plan of work was specifically designed to address secondary rules of responsibility for acts such as industrial activities that were not in themselves wrongful under international law, but which could cause international harms such as transboundary pollution impacting the territory of another state.

In 1997, the ILC’s work on international liability was subdivided into two separate streams, one on the Prevention of Transboundary Damage from Hazardous Activities which resulted in 2001 in draft Articles (Prevention Articles); while the other resulted in 2006 in draft Principles on the Allocation of Loss in the case of Transboundary Harm arising out of Hazardous Activities (Loss Allocation Principles). These two bodies of work are now often considered a contribution to the codification of primary rules of international environmental law designed to address transboundary environmental problems. However, relegating the relevance of this body of work to the environmental arena would be a grave mistake, although an easy one to make in light of the problem of fragmentation in international law.

Notably, a 2014 Report by Amnesty International entitled Injustice Incorporated: Corporate Abuses and the Human Rights to Remedy,identifies four case studies that it considers “emblematic”. All of these are cases involving the violation of human rights arising from environmental harms associated with hazardous industrial activities, whether as a by-product of the industrial activities themselves (such as the riverine dumping of tailings waste at the Ok Tedi Mine in Papua New Guinea), or a hazardous industrial accident (such as the Bhopal gas plant disaster in India, or the mine tailings dam break at the Omai Mine in Guyana), or even the dumping of untreated hazardous industrial waste (contracted by Trafigura to be dumped in Abidjan, Côte D’Ivoire). All cases identify concerns over a lack of access to information and the lack of remediation of polluted sites among the identified remedy failures, issues that the ILC work attempts to address by identifying roles and responsibilities for states of origin and operators of hazardous activities.

In a 2011 article in Trade, Law and Development entitled “Transnational Business and Environmental Harm: A TWAIL Analysis of Home State Obligations”, I classify the kinds of cases discussed in the Amnesty Report as involving “transnational harm”, as distinct from the “transboundary” harms that were the focus of the work of the ILC in its Prevention Articles and Loss Allocation Principles, and as distinct from the concept of “global commons” harms. Yet, the Commentaries to the Loss Allocation Principles are in fact replete with reference to Bhopal, and, as Shinya Murase noted in a 1995 contribution to the Hague Academy of International Law, the initial intention of the ILC was to include within its scope transnational foreign investment in hazardous activities. However, due to opposition from states, these issues ultimately dropped out of focus.

For those who would be inclined to suggest that this ILC work can have no relevance to the treaty debate due to its focus on environmental harm rather than human rights, the Amnesty report should give reason to pause. So too should the leading role played by Ecuador in pushing the treaty debate forward, a state perhaps best known for its experience with the never-ending Chevron-Ecuador litigation that is indisputably about environmental harm. Beyond this, as I have argued elsewhere, even paradigmatic human rights cases such as Kiobel may be said to have arisen out of local concerns over environmental contamination associated with oil operations in Nigeria. Sadly, the persecution of environmental human rights defenders is an increasingly worrisome reality. Moreover, as the human rights impacts of climate change become increasingly impossible to ignore, the claim that human rights and environment are not inextricably intertwined is simply no longer credible. 

While the Prevention Articles and especially the Loss Allocation Principles have been the subject of critique, they are a good place to start, and should feature in any discussion of a “binding” treaty. So too should the related but distinct approach of the International Law Association’s Committee on the Transnational Enforcement of Environmental Law. Ultimately, it would be wise to remember that the negotiation of a text – whether a progressive codification of customary international law or a newly agreed treaty text – is only the first step in the hard work of international law making. This is a lesson that the ILC knows only too well. It is also a lesson well known by international environmental lawyers who have actively pushed for the negotiation of civil liability treaties in various contexts, only to be confronted by the reluctance of states to ratify and implement what has been agreed.

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Sara L Seck is Associate Professor at the Faculty of Law of Western University, Canada. She is a member of the editorial board of the new Business and Human Rights Journal, and a Senior Fellow with the International Law Research Program, Centre for International Governance Innovation (CIGI).

This blog post reflects remarks that made as a participant in a Workshop on the Business and Human Rights Treaty at the Universidad Autónoma de Madrid in June.