Tuesday, July 26, 2011

From the International Commission of Jurists: "Access to Justice: Human Rights Abuses Involving Corporations, India"

The International Commission of Jurists (ICJ), with headquarters in Geneva, describes itself as "a non-governmental organisation devoted to promoting the understanding and observance of the rule of law and the legal protection of human rights throughout the world." The ICJ is well placed within the emerging matrix of supra-national organizations and is an influential contributor to norm production.  It enjoys consultative status in the United Nations Economic and Social Council, UNESCO, the Council of Europe and the African Union. The ICJ maintains cooperative relations with various bodies of the Organization of American States.  The ICJ's website provides useful information about its history,  its organization implemented through a Commission and Secretariat, which produces a number of programs and publications.



The ICJ has recently published a study of business and human rights in India that is well worth a careful read--Access to Justice: Human Rights Abuses Involving Corporations, India," (Geneva: ICJ, 2011)(ISBN 978-92-9037-153-6). 

 


The study was researched and drafted by Prof Surya Deva, School of Law, City University of Hong Kong. 

In addition, Ms Usha Ramanathan provided a draft. Mr Vimal Deepak Sadhwani, Mr Calvin Chun-ngai Ho and Ms Pooja Ahluwalia provided research assistance. Alec Milne contributed useful comments. Megan Chapman did the editorial review and Wilder Tayler did the final review at the International Commission of Jurists (ICJ). This study is part of a larger ICJ project directed by Carlos Lopez on Access to Justice and Legal Remedies in human rights abuse cases involving companies. Antonietta Elia assisted in the production. Priyamvada Yarnell coordinated its production.

The Report (with bibliography) runs about 104 pages.  Set out below is the introduction (Acess to Justice, supra, 1-3):

This report aims to critically examine legal remedies, both judicial and non-judicial, available under Indian law to victims of human rights abuses by companies. There are three main objectives of this examination: (i) to assess the efficacy of the existing regulatory framework; (ii) to identify major obstacles that victims experience in holding companies accountable for breaching their human rights obligations; and (iii) to outline recommendations that should help in overcoming these obstacles.

Access to justice and availability of effective legal remedies are crucial to the general protection of human rights and also in addressing violations by businesses. They are also essential to the work of judges and lawyers who promote the rule of law and human rights. Nevertheless, access to justice is hindered by a number of obstacles unique to corporate human rights abuses. The study of state practice in India reveals the obstacles but also the potential of the existing legal framework to ensure these rights. Scrutiny of state practices in this area will, moreover, help the international community discover new ways of addressing the challenge of corporate human rights abuse.

To contribute to understanding of the problem and to assist in formulation of a new agenda to strengthen access to legal remedies for business abuses, the International Commission of Jurists (ICJ) has undertaken a project on Access to Justice for victims of corporate human rights abuse. This project has produced a series of country studies on Brazil, Colombia, People’s Republic of China, Democratic Republic of the Congo, India, The Netherlands, Nigeria, the Philippines, Poland and South Africa, along with surveys from additional countries. The present study is the latest of these country studies.

As in many other developing countries, there are numerous instances of all types of companies – from Indian to Indian subsidiaries of foreign companies and joint venture enterprises – abridging the human rights of Indian people. In fact, one may trace early instances of corporate human rights abuses to illegal business activities such as the slave trade or opium trafficking by the British East Indian Company.1 More recent examples include the gas leakage at Union Carbide’s chemical plant at Bhopal,2 Enron’s Dabhol power project in Maharashtra,3 Tata’s proposed car plant in Singur, West Bengal,4 and Vedanta’s mining operations in tribal areas of Orissa.5

There are, however, crucial differences between the abuses committed by the British East India Company during the 17th and 18th century and the modern corporate human rights violations of the 20th and 21st century. Whereas the British East India Company did business as an agent of a colonial power, some companies now exert so much power and influence that many states willingly act as their agents and serve business interests, sometimes at the cost of the rights of poor populace. Moreover, states nowadays might not be willing to cancel the operating license of a company that infringed on human rights. In contrast, the British government in 1858 could, and eventually did, revoke the trading charter issued to the British East India Company. Such distinctions point to a change that has taken place in the relationship of companies and states.

It is also appropriate at this stage to note two key events that have significantly impacted the general landscape and legal regime for corporate human rights abuses. First was the Bhopal gas disaster of December 1984, mentioned above, which has to date killed more than 20,000 people6 and caused other ongoing medical problems and environmental degradation. Bhopal not only exposed limitations of legal norms in holding a multinational company accountable for a number of human rights violations but also triggered the amendment of laws and evolution of new legal principles through the judiciary. The second event was the adoption of the New Economic Policy by the Indian government in the early 1990s.7 The resulting environment of liberalisation, privatisation and disinvestment gave companies more opportunities not only to do business but also to exploit people and natural resources for economic gains. The government enacted special pro-business laws. On the flip side, these policies also led to organisation and institutionalisation of people’s resistance through civil society networks as well as the evolution of a more activist judiciary that seeks to strike a balance between development policies and human rights. Both these events will be discussed in detail at certain points in this report.

The study utilizes the definitions and methodology adopted by the broader ICJ Access to Justice and Legal Remedies Project. It makes use of relevant legislation, judicial decisions, case studies, media reports and scholarly writings to support its findings. The study draws from the researchers’ consultations and meetings with communities and their representatives, lawyers and judges across India, in particular in Calcutta, Bombay, Chennai and Bangalore between late 2009 and early 2010. For obvious reasons, the primary focus will be on situations where violations take place within the territorial boundaries of India. Nevertheless, the extraterritorial dimension of the regulatory framework will be considered in appropriate cases. Such an extraterritorial inquiry into the potential of regulatory framework has become inevitable in light of increasingly global operations of Indian companies.

Part 1 of the report outlines the Indian legal framework relevant to the protection of human rights and the delineation of responsibilities of companies. It will analyse relevant provisions of the Constitution, criminal law, environmental laws, workers’ welfare laws, tort law, and development-related land acquisition laws to ascertain the circumstances under which they may be invoked. Part 2 then offers a critical account of the legal remedies available to victims of corporate human rights abuses in India. Special attention will be paid to judicial innovations in this area. Part 3 elaborates various obstacles and limitations that victims face in their quest to secure justice. It is argued that despite a robust legal framework, victims’ ability to seek justice is seriously undermined by these identified obstacles. The final section draws several general conclusions and outlines India-specific recommendations that should assist victims and the legal community to overcome obstacles to holding corporations accountable for human rights abuses.

Indian numbers used in this text should be understood as follows: One lakh (1,00,000) is equivalent to a hundred thousand (100,000), and one crore (1,00,00,000) is equivalent to ten million (10,000,000).

The law is stated as of February 2011.

 NOTES:

1. See Donald C Dowling, “The Multinational’s Manifesto on Sweatshops, Trade/Labour Linkage, and Codes of Conduct”, in Tulsa Journal of Comparative and International Law, Volume 8, 2000, p. 528; Mike Marqusee, “Whitewashing the Past”, in Guardian, 24 May 2002, http://www.guardian.co.uk/education/2002/may/24/artsandhumanities.highereducation, accessed 2 February 2011.
2. Amnesty International, Clouds of Injustice: Bhopal Disaster 20 Years On, Amnesty International, London, 2004 (hereinafter Amnesty International, Clouds of Injustice).
3. Human Rights Watch, “The Enron Corporation: Corporate Complicity in Human Rights Violation”, 23 January 2002, http://www.hrw.org/reports/1999/enron/, accessed 2 February 2011.
4. See Gargi Gupta, “Singur farmers: Why they oppose Tata plant”, 9 December 2006, http://www.rediff.com/money/2006/dec/09tata.htm, accessed 2 February 2011; Kolkata, “How Tata got Singur cheap”, in The Hindustan Times, 11 September 2008, http://www.hindustantimes.com/How-Tata-got-Singur-cheap/Article1-337064.aspx, accessed 2 February 2011.
5. “Environment Ministry stalls Vedanta’s Niyamgiri project in Orissa”, in The Economic Times, 24 August 2010, http://economictimes.indiatimes.com/news/news-by-industry/indl-goods-/-svs/metals--mining/Environment-Ministry-stalls-Vedantas-Niyamgiri-project-in-Orissa/articleshow/6425059.cms, accessed 2 February 2011.
6. Amnesty International, Clouds of Injustice, op. cit., note 4, p. 12.
7. See Surya Deva, “Human Rights Realisation in an Era of Globalisation: The Indian Experience”, in Buffalo Human Rights Law Review, Volume 12, 2006, pp. 116-118.


The Report focuses its conclusions on what is now becoming a consensus position on reform: better implementation of domestic law and judicial decisions (Access to Justice, Supra, 79-80); moving toward a stakeholder maximization model of corporate governance (id., 80); improving access to justice generally, especially for portions of the population economically or otherwise unable to take advantage of rights accorded by the domestic legal order (id., 80-81); strengthening governmental institutions (id., 82); focusing on anti-corruption efforts (id., 82-83); and encouraging transparency, participation and values oriented approaches to development in which the corporation has a stake (id., 83). Some of these recommendations, especially those dealing with strengthening state capacity and governmental infrastructure are crucial.  Changing the corporate law's basic foundation in institutional or shareholder welfare maximization is likely to be a much more difficult goal to attain.  See, Larry Catá Backer, Using Corporate Law to Encourage Respect for Human Rights in Economic Transactions: Considering the November 2009 Summary Report on Corporate Law and Human Rights Under the UN SRSG Mandate,  Law at the End of the Day, Jan. 14, 2010.   

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