Centre for Enegry, Petroleum, Mineral Law and Policy

Abstract:

The concept of human rights have been if not generally but to some degree understood. How it is important for every man to have his own dignity and freedom to move however not everyone understands how closely related environmental right and human rights are related a health environment gives way to a right to live a healthy life which is one of the first and basic human right “right to life”. TNCs are due to the nature of their projects closely related to human right issues as well as environmental issues the in most cases constitute the highest number of human rights abuses by their very presence in a community.

If the handle the human rights and environmental rights issue adequately then a lot of bloodshed and pollution can be avoided but if not then a lot of harm than good may be the order of the day. This is where CSR comes in the CSR norms help TNCs to avoid disasters from occurring. But the question is, is the CSR norms enough, the companies will have to incorporate them into their policies and not just that but to also develop a strong report system that would help the company filter any form of abuse. Complicity by the company in the face of human rights abuse is also too good. This paper would highlight on cases of abuse and how it affects the local people and how the TNCs can help avoid both human and environmental abuse and NGOs fit in in all of these.

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Introduction

Human rights are fundamental principles which give any individual the right to freedom of a dignified life, freedom from fear and the freedom to express his/her beliefs.The TNCs should be careful with the effects of mining and exploration activities on the human rights of employees and surrounding communities because obtaining a strong social licence to operate in those communities depends on how much the TNCs respect the human rights of the local people. Integrating human rights rules into core business practice in the mining sector is important, it is a corporate responsibility. While the basic need to protect and promote human rights is the immediate responsibility of the national governments, TNCs also has a distinct responsibility to respect human rights as well.

Some International Companies especially those who are signed under the UN Global Compact, including mining and resource companies refer to human rights in their annual event reports and incorporate and implement human rights into their regulations and policies.Chapter two of this research looks at the human rights abuses that are commonly found in extractive industries. Chapter three looks at the environmental impacts of extractive industries and how it affects IPs. Chapter four looks at the CSR measures and how companies and directors are held accountable for their actions and the final chapter concludes and gives recommendations on how CSR can be promoted.

2. Human Rights and CSR

As provided in the OECD Guidelines for TNCs, extractive industries have to respect the human rights of those affected by their activities and practices consistent with both international and national laws of the host government. They also have to contribute to the economic, social and environmental development of the host government with a view to achieving sustainable development.

2.1. Human Rights Which Are Paramount in Extractive Industries

There are distinct human right issues peculiar to extractive industries which concerns all TNC companies. The following are some of the more reoccurring cases of human right abuse:

Labour practices with respect to human rights

Extractive companies, have a responsibility and duty to make sure that employees enjoy basic labour rights such as, a safe workplace, reasonable living wage, non-discriminatory against sex, HIV and so on collective bargaining and child-labour.

Environmental issues with respect to human rights

Environmental activities of extractive companies have the tendency to affect a variety of basic rights including the rights to life, good health and an adequate standard of living; which includes access to basic food, clothing, water, housing and sanitation. Governments should also ensure that both multinational and national enterprises provide sufficient safety and health standards for their employees. The government has a duty to ensure the welfare of its citizens.

Rights of Indigenous peoples and other community

Extractive industries need land or the rights to use it. In most cases, land is already in use by others (IPs), and other times it is part of a community’s ethnic or traditional resources. In most cases land involves the resettlement of communities. Failure to address resettlement, native title and customary land use issues or forced eviction of the IPs, will cause animosity and conflict towards a project.

Security issues with respect to human rights

Extractive companies often find themselves in conflict-prone countries. This often means that an industry will employ its own security, or rely on law enforcement of the host government to protect assets and employees. In most unfortunate cases they company’s security become involved in local violence. A mining company could be complicit in human rights abuses committed by a security provider.

2.2. The Role of NGOS

Within the NGO world, there are many different methods or techniques of dealing with TNCs: some try to draw corporations into dialogue or conference sessions where TNCs can express their views, more like a communication link, in order to persuade and convince them to accept voluntary codes of conduct, while others believe that corporations will take action only when their financial interests are ‘on the line’, and therefore take a more adverse stance toward them. The latter view is more in line with labour union strategies and approaches. Confrontational NGOs tend to employ moral stigmatization, or “naming and shaming,” as their primary tactic, while NGOs that favor engagement offer or propose dialogue and a limited form of cooperation with willing TNCs.

There are different reasons why NGOs’ are interest in the business sector, however the most common and the most important reason is the perception or belief that political and economic power has shifted away from governments and toward TNCs.

The traditional roles NGOs normal play in cases of human right abuses is to gather information, analysis and dissemination of human rights concerns, the help in advocating for better HRs observance and accountability. The also develop and lobby for human rights laws and standards. They give legal aid and humanitarian relief to victims of human right abuses. They punish TNCs by moral shaming and praise.

NGOs promote CSR by research, reporting and media exposure, by dialogue with TNCs, by holding TNCs socially responsible and accountable for their actions.

“In the 1 9 8 0s the corporate social responsibility (CSR) agenda was significantly broadened when, in the wake of Bhopal, Exxon Valdez, and other highly publicized environmental disasters, the NGO environmental movement pressed home the idea that TNCs must also protect the environment, thus further expanding the notion that corporations have social responsibilities. From the early 1990s on, human rights NGOs and other voices within civil society have been calling upon corporations to accept responsibility for promoting labor rights, human rights, environmental quality, and sustainable development. The contemporary CSR movement aims to persuade MNCs to adopt voluntary codes of conduct and implement business practices that incorporate commitments to respect and protect labor rights and human rights as well as the environment.

The voluntary CSR approach is not the only NGO strategy. Another influential school of thought within the NGO world views MNCs as constitutionally unredeemable and incapable of voluntarily acting in a socially responsible fashion; companies can only be made to be socially and environmentally accountable by means of economic coercion or through binding legal obligations. Those who take this view look toward the development of a mass social movement that will compel governments to enact enforceable international legal standards that will make TNCs legally accountable to global society. Private voluntary CSR initiatives are viewed as exercises in corporate public relations and as poor substitutes for strict legal regulation. Of ten allied philosophically and strategically with unions, NGO activists who take this view m ay seek to support traditional union organizing efforts to win rights and fair compensation for workers worldwide through collective bargaining agreements with free labour unions.”

2.3. The Role of the Government

It is the responsibility of the government to protect as well as ensure that the rights of the members of the community are not abused. Recommendations for measures to be taken by the government to avoid further human rights violations in mining communities:

1. Ensure that IPs that get their livelihood from the land receive adequate compensation and access to alternative land for farming and if possible fishing according to Section 74 of the Minerals and Mining Act of 2006; for example the Ghanaian government ensures that the support the Regulation on Compensation for IPs according to the Act as provided as a matter of urgency.

2. Establish and strengthen the mandate and the capacity of a Governmental Environmental body so that it can effectively prevent the contamination and destruction of water sources.

3. Enable and establish laws and courts for the Human Rights cases national and locally to play a decisive role in investigating alleged human rights violations in mining communities, in revising legislation and to educate the people of their human rights

4. to look into cases of alleged human rights violations committed by military and police in this context

5. Ensure that local police is able and trained to act independent of the interests of multinational mining companies.

3. Enviromental Impact of Extractive Industries

Corporate environmental and social responsibility has been seen in recent times to overlap each other. It is a known fact that some business activities have negative environmental implications. Mining, oil drilling, chemical production and waste disposal projects all have possibilities of disrupting or harm ecosystems and the environment, such activities and practices may also compromise the rights of people who are affected. Certain groups may be geographically more vulnerable to environmental pollution because of their way of life, the nature of their economy and socio-economic status. Although international human rights laws contain few clean-cut provisions relating to the environment rights, many fundamental human rights – to life, to health, to privacy, non-discrimination and self-determination, for example – can have significant environmental dimensions.

“In 1972, an international meeting formulated, for the first time, the issue of environmental protection specifically in terms of a “right to environment” commencing the process of explicitly linking environmental law with human rights. Since then, there has been an increasing recognition international, that “human rights, an economically sound environment, sustainable development and peace are interdependent and indivisible.” In April 2001, the UN Commission on Human Rights, for the first time concluded that everyone has the right to live in a world free from toxic pollution and environmental degradation”.

3.1. Relationship between Human and Enviromental Rights

The right to a safe environment has been emphasized as a vital component of fundamental human rights. In most cases, environmental deterioration leads to human rights iniquities and quite often, human rights abuse involves serious ecological interruptions.

In the United States, for example, the transformation and fusion of civil rights and environmental justice movements have been especially instrumental in dealing with the problems of inequitable distribution of environmental pollution and associated health effects caused by the activities of powerful corporations and the host government. Strong environmental movements and effective legislative responses to hazardous waste disposal have drastically increased the costs of hazardous waste management, making exporting of industrial wastes quite attractive.

Toxic waste dumping represents one of several activities that involve serious human rights abuse, ecological disruptions, and environmental injustice. Other activities such as natural resource exploitation by the state and Multinational Corporations (MNCs), land acquisition, and large-scale economic development projects are also involved with human rights abuse.

Over the past years, the world has witnessed a high number of cases which had involved and is still involving ecological and human rights abuses ranging from the military government extermination of indigenous population in Irian Jaya, Indonesia, to ecological assaults and human rights violations in Africa and other developing countries and the all suggest the need to include environmental rights as a significant component of human rights issues. Most recently, increased global awareness of environmental and human rights problems has broadened the civil, political, and socioeconomic rights to encompass environmental dimension.

3.2. Who Are the Major Stakeholders

There are several stakeholders in the CSR effort. These include: government, mining Companies, institutions especially the UNO and its agencies like ILO, the local community, consumers of mineral products, non-governmental organisations (NGOs) suppliers, managers, under-represented stakeholders;

The State (Government):

Many mineral-rich developing countries generate enormous revenues from mining. Unfortunately, many of them do not have in place, policies that can ensure effective management of such revenues for the well-being of their citizens. The state has a very important role to play in ensuring responsible behaviour by all the other stakeholders, especially the MNCs that operate within their jurisdiction. Indeed, some analysts are of the opinion that governments are the only stakeholders that can have the most impact in creating incentives and disincentives for responsible action. The government can use both regulatory and economic instruments to enhance CSR in the operations of MNCs.

The Mining Companies

Suffice to emphasise that private investment in mining, as in other commercial undertakings is for the purpose of making profit. In this regard, it is necessary to appreciate the limits of what MNCs can do and what the government can ask them to do. This legitimate aspiration, however, should be without prejudice to the fact that MNCs should pay attention to their conduct as it affects other stakeholders especially with regards to upholding human rights norms.

Investors

Investors can be warned or informed of potential environmental risks and liabilities and to the benefits for them, from good practice in mining.

Non-Governmental Organisations (NGOs)

Increased national and international NGO activity and assistance have improved people’s awareness of their rights, bringing with such awareness a greater articulation of their demands and grievances. Their cases have also been brought forward to the international forum thereby bringing pressure to bear on both states and mining companies for a rectification of some of the worst practices. The role of some NGOs lack transparency and accountability.

Development Assistance Agencies/multinational institutions

Development assistance institutions such as the World Bank are increasingly coming under pressure to implement environmental and human rights standards within their lending and assistance programmes. There is, however, a lot more to do in the area of implementation of human as well as environmental rights initiatives. The World Trade Organisation with its strong judicial system can go a long way in helping to incorporate human and environmental rights in TNCs policies, simply by demanding for it before have any form of dealings with the said company or host government. Others may include the UN Global contact and ILO.

3.3. Particular Impact on IPs

Some of the recent cases of environmental injustice and human rights violations are: the murder of Francisco Mendes and Wilson Pinheiro in the Amazon rain forest, the public hanging of Ken Saro-Wiwa and eight other members of the Movement for the Survival of the Ogoni People (MOSOP) in Nigeria and the massacre of Father Nery Lito Satur and several others in the Philippines,. There have been several other cases of government agents especially in other developing countries, where the host government does nothing to stop human right abuse against members of minority groups and local communities so as to take over their lands and natural resources. The oppression of indigenous minority groups extends to ecological and environmental degradation.

Exploitation and pollution of natural resources, including energy production, timber harvesting, mineral extraction, oil exploration and other industrial projects by MNCs, has caused significant damages. These damages include dislocation and displacement of numerous indigenous and local communities and their entire ways of life. In many developing countries, indigenous peoples, minority groups and other vulnerable and impoverished communities, including subsistence peasants, fishing communities and hunters in some cases traders are generally the victims of environmental pollution mostly caused by resource extractive operations of MNCs in the name of global development.

“Over the past years, there have been about documented cases of hazardous wastes dumping in Eastern Europe, in Asia, in Latin America, and in Africa. Specific cases include dioxin-laden industrial wastes exported from Philadelphia to Guinea and Haiti in 1987; radioactive milk exported to Jamaica by EC in 1978; and other toxic elements exported by Italian firms to the town of Koko in Nigeria; and several other similar cases involving a systematic dumping of hazardous wastes to these regions. Within the past decade, several Third World nations including Argentina, Bangladesh, Brazil, Colombia, Guinea, Haiti, Lebanon, Mexico, Nigeria, Sierra Leone, Somalia, Syria, Venezuela, and Zimbabwe have been targeted for toxic waste dumping. Increased toxic waste dumping and CO2 emissions are directly related to poor quality of life and adverse health conditions in these countries”.

4. CSR Measures

CSR measures vary depending on varying factors and geographical location of the TNC. The Australian Parliamentary Joint Committee on Corporations and Financial Services in 2006 in its report: Corporate Responsibility: Managing Risk and Creating Value, stated: That the committee strongly supports further successful involvement in the voluntary CSR measures and wide adoption of corporate responsibility. The committee has formed the view that obligatory methods to regulating director’s actions and to sustainability reporting are not suitable. However some people argue that the government should be more in CSR related issues. They argue that the host government needs both to improve civil and market regulation of corporations, and also to strengthen corporate law. They agree that the threat of litigation against TNCs is more effective.

“Kolk and van Tulder (2002) critically examine the effectiveness of voluntary corporate codes of conduct by a study of child labour codes developed by six international garment companies. Overall, the research shows that corporate codes are important, though not the only, instruments for addressing child labour. Sandra Polaski reports on an innovative policy experiment in Cambodia that links improvement of workers’ rights with increased orders and market access for the products of the country’s garment factories. The policy originated with the US-Cambodia Textile Agreement, which awarded Cambodia higher garment export quotas into the US market in return for improved working conditions and labor regulations. She concludes that the agreement’s effectiveness has depended on a regulatory role for the ILO, ‘acting as a compliance monitor and government intervention, preventing some apparel producers from free riding on others’”.

4.1. Responsibility of Corporate Director

While some people are of the view that the sole responsibility of the directors are to the shareholders and other financial issues as has been stated in common law others are of the view that directors have the duty to incorporate human rights into the company policies and rules, inform the stakeholders as well as the shareholders any potential human and environmental abuses that may occur in the life of the operation. The should take into account the labour issues, while setting employing rules and any environmental pollution that is inevitable and best to compensate the people involved.

4.2. Corporate Accountability

Corporate accountability is all about the TNCs being held accountable for the actions the take especial subsidiaries of International companies abroad in developing countries. For example, KAIROS is concerned about the growing pattern of Canadian extractive companies, whose international activities are having a negative impact on the environment and human rights, including the rights of Indigenous peoples. KAIROS advocates for binding legislation to hold corporations accountable in Canada for abuses committed internationally.

5. Recommendation and Conclusion

TNCs should, within the framework of both national and international laws, in the communities in which they operate, take a proper account of the need to protect the environment and public health and generally to carry out their practices in a manner contributing to sustainable development. Most importantly, enterprises should:

1. Inaugurate and maintain a system or a scheme of environmental administrative body appropriate to the company.
2. Determine, the foreseeable environmental, health, and safety-related impacts related with the projects of the company over their full life cycle. Where these proposed activities and practices could have noticeable environmental, health, or safety impacts, the company should prepare a proper environmental impact assessment.
3. Support plans for preventing and mitigating environmental and health problems from their operations and to maintain systems for immediate reporting to the competent authorities.
4. To incorporate human right into the company policy and have a strong system for reporting abuses.
5. The company should not take part in local violence and neither should they keep silent when such violence occurs in their area of operation or because of their operation.
6. The company should contribute to the development of environmentally meaningful and economically efficient public policy.

Bibliography

Books

1. Boeger, N., Perspectives on Corporate Social Responsibility(Edward Elgar Publishing Limited, United Kingdom, 2008).
2. Mullerat, R., International Corporate Social Responsibility: The Role of Corporations in the Economic Order of the 21st Century (Kluwer Law International, BV, the Netherlands, 2010).
3. Sullivan, R., Business and Human Rights: Delimmas and Solutions (Greenleaf Publishing Limited, United Kingdom, 2003).

Articles

1. Adeola,O.F., Environmental Injustice and Human Rights Abuse: The State MNCs and Repression of Amnesty Groups in the World System. Human Ecology Review, Vol.8, No.1, 2009.
2. International Council on Human Rights Policy, Beyond Voluntarism Human Rights and the Developing International Legal Obligations of Concern (February 2002)
3. Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy-International Labour Organisation. November 2000

Others

1. Australian Human Rights Commission, Good Practice, Good Business 2009, at http://www.human rights .gov.au/human_rights/corporate_social_responsibility (last visited on July 9, 2011)
2. Corporate accountability news, at http://www.kairoscanada.org/en/sustainability/corporate-accountability/
3. OECD Guidelines for Multinational Enterprises 2008, at http://www.oecd.org/publishing /corrigenda (last visited on July 9, 2011).

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