A Human Right to the Environment? Holding MNCs to account for environmental damage in the Global South
In early 2021, the people of Baracena, a town in the Brazilian Amazon, have begun litigation in the Netherlands. Their claim is that an aluminium refinery operated by Norsk Hydro, a large multinational corporation (MNC), has been causing a range of health effects in the town including birth defects in children. There is a growing trend of litigation which attempts to hold companies registered in the Global North responsible for environmental damage and human rights violations in the Global South. One recent news story which follows this pattern is the resignation of the Rio Tinto chairman after their mining activities caused the destruction of indigenous sites in Australia. Another is the continuing litigation surrounding the oil spill caused by the activities of Shell in the Niger Delta. The increasing scrutiny of MNCs for harms caused to vulnerable communities in the Global South raises some challenging questions: What is the best way to hold these corporations to account? And furthermore, as such incidents concern violations of human rights, would environmental protection in the Global South benefit from the existence of a human right to the environment?
Accountability for environmental damage caused by MNCs
In the modern world, many MNCs wield greater power and influence that transcends traditional borders. These entities typically operate across multiple jurisdictions and have complex corporate structures, making holding these entities accountable for their actions problematic. Furthermore, MNCs are incredibly wealthyl entities and wield particular power in Global South states where their wealth often exceeds that of governments, giving rise to accusations of neo-colonialism. Given the contemporary awareness of the historic harm of colonialism, there is a general consensus that MNCs should be held accountable for environmental damage and other harms in the Global South. However, this remains an incredibly complex and challenging task.
One method of holding MNCs to account for environmental damage or human rights violations is through litigation, either in the country where the harm occurs (typically in the Global South) or where the MNC is headquartered (typically in the Global North). The recent Okpabi decision in the UK courts was brought as a tort claim against Royal Dutch Shell for the actions of its subsidiary in the Niger Delta. There is a similar claim against Shell in the Netherlands, which is also the chosen jurisdiction for the Norsk Hydro litigation. The Netherlands seems like a favourable jurisdiction for such a claim, with progressive rulings on environmental matters such as in the Urgenda case. Whilst litigation in the Global North creates awareness of the environmental damage caused by MNCs, it does not seem sufficient to truly offer protection to vulnerable communities in the Global South. Access to justice issues in the Global South make it difficult to bring claims there, but it would seem a better long term solution if MNCs could be held accountable in the States in which the harmful activities occurred. Sadly, resolving this particular issue seems to be some way off.
Another method of holding MNCs to account for harms in the Global South is through political pressure. The recent phenomenon of corporate social responsibility (CSR) is the culmination of efforts to hold MNCs to higher ESG (Environmental, Social and Governance) standards. Although the law surrounding CSR remains underdeveloped, the resignation of Rio Tinto’s CEO demonstrates the power that shareholders and consumers have to shape the policies of MNCs. However, CSR has recently taken a hit. Danone’s CEO was forced to step down due falling share prices, after he had declared Danone to be a purpose-driven, ethical company. Whilst there remains hope that the Danone saga is simply a bump in the road for CSR, the fact that economic considerations still seem to rule the corporate roost ultimately means that CSR still remains relatively ineffective in holding MNCs to account over environmental harms in the Global South.
A final way of holding MNCs accountable for harms caused by their activities is the growing field of business and human rights. Typically, the main subjects of human rights law internationally are states — private companies are not bound by any significant human rights treaties throughout the globe. The OHCHR has published the United Nations Guiding Principles on Business and Human Rights (UNGPs). Whilst these principles offer guidance to businesses in how to prevent and address risks to human rights that arise through conducting their activities, they are ultimately “soft law” obligations and are not binding per se on corporate actors. There is potential for the UNGPs to be incorporated into corporate charters, supply chain contracts, and listing requirements for stock markets may create the potential for these principles to gain quasi-binding properties. Nonetheless, this is partially dependent on whether CSR continues to grow as an idea within corporate circles. There are also opportunities for the UNGPs to be integrated into national legal systems, or the potential for a hard law treaty, but these rely on the political will of states to implement such measures. Business and human rights remains a useful concept in seeking to hold MNCs to account, but its success in practice depends on the political will of states, access to justice in the Global South and the continued growth of the CSR movement.
A human right to the environment?
Whilst the question of business and human rights effectiveness remains contentious, could the continuing development of this doctrine help environmental protection in the Global South? This in part depends on the existence of a human right to the environment. Given the prevalence of indigenous populations and the importance of a healthy environment for the livelihoods of the people living there, regional human rights treaties in the Global South generally recognise a substantive human right to the environment. The Ogoniland decision in the African Commission of Human and People’s Rights held that Article 24 of the African Charter, which provides “the right to a general satisfactory environment”, placed a positive obligation on the State to protect its people from pollution and environmental damage. In Lhaka Honhat Association v Argentina, a case concerning illegal logging on indigenous lands, the Inter-American Court of Human Rights found a violation of the “right to a health environment and indigenous communal property” under Article 26 of the Convention. Thus, there is progressive recognition in the Global South of a human right to the environment, which could in turn make its way into business and human rights discourse. Combined with increasing effectiveness of business and human rights as a method of holding MNCs accountable, a human right to the environment could be a method of holding MNCs accountable for environmental damage in the Global South.
Human rights law and environmental law may on the face of things seem like different disciplines, and may in practice operate as such. Some environmentalists may claim that using human rights law to protect the environment encourages a diluted, “anthropocentric” viewpoint of the environment. Human rights lawyers may fail to see what increased environmental protection adds to their goals of holding governments to account for inappropriately interfering with the liberties of their peoples. Nonetheless, building linkages between a human rights law, which is perhaps more “central” to current international law than environmental law, and using it to increase environmental protection and hold transnational actors to account for environmental harms can only be a good thing for environmental protection. If the business and human rights movement continues to grow, human rights principles may eventually become an effective way of regulating MNCs behaviour in the Global South. Many of the poorest communities in the Global South depend on good environmental conditions for their livelihood. The protection of vulnerable communities is the basic idea behind human rights law. Both human rights and environmental standards will benefit from holding MNCs to account for their actions in the Global South. Linking the disciplines of business and human rights and the human right to the environment seems like a mutually beneficial solution to a joint problem
Concluding thoughts
Regulating transnational companies is a difficult task, and holding them to account in courts involves a lot of “forum shopping” and invoking different legal doctrines in new and creative ways to gain standing. In this way, human rights law provides a particularly important route for bringing environmental claims. A discipline that is built on the protection of vulnerable groups in capitalist systems seems to be a pertinent method of regulating environmental damage in the Global South and protecting those same communities. Whilst the legal groundings for holding MNCs to account are problematic, developing the human right to the environment would increase pressure on States to monitor the activities of MNCs and seek compliance with environmental standards. This may in turn pressure MNCs to incorporate the human right to the environment into their own operational policies.
