Beyond voluntary corporate social responsibility: corporate human rights obligations to prevent disasters and to provide temporary emergency relief.

• Author: Telesetsky, Anastasia

ABSTRACT

Much of the focus of the emerging field of International Disaster Law is on state responsibility. Yet the source of some disasters is the failure of corporations to address known risks created by a company or located on company property. This Article queries whether there are obligations for corporations to act under international human rights law to prevent disasters where corporations have control over known hazards such as tailings dams or chemical dumps. This Article concludes that corporations have a legal duty to act in order to support and protect human rights whenever there is corporate knowledge of hazards that may precipitate a disaster. Additionally, corporations are often well-placed to provide temporary emergency relief during disaster. This Article suggests there may be a legal duty for corporations to temporarily protect the fundamental human rights of communities during a disaster until government-organized relief is available.

TABLE OF CONTENTS I. INTRODUCTION A. Definition of Disaster B. Current Business Engagement in Disaster Risk Reduction and Disaster Relief C. Corporations and Human Rights D. Corporations and Human Rights During Disasters 1. Duty to Prevent Disaster through Disaster Risk Reduction or Mitigation Efforts 2. Limited Duty for Disaster Response by Operational Businesses Located within a Disaster Zone II. Conclusion I. INTRODUCTION

In places where hazardous business operations are the source of mass disasters, companies have been held legally responsible for injuries to the neighboring communities. (1) This is the case in post-Bhopal India with the creation of a doctrine of "absolute liability" when the Supreme Court of India decided two years after Bhopal that

an enterprise that is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of the hazardous or inherently dangerous nature of the activity which it has undertaken. (2) Can this concept of businesses proactively protecting a community from harm extend beyond operational business failures to protect communities from natural disasters? Before and when disaster strikes, do businesses, particularly well-capitalized multinational corporations, owe any special legal duties to the communities where they operate based on human rights law?

In the years to come, the legal status of businesses, as potential actors in the field of international disaster law, will become increasingly important, as both the number of people affected by disaster and the cost of disasters increase. (3) While businesses may choose to engage in disaster relief efforts, as the Union Carbide Corporation did when it funded the Prime Minister's Relief fund with $2 million and provided immediate medical equipment and supplies after the Bhopal disaster, (4) the question is whether this corporate response is based on concepts of corporate social responsibility (CSR) or whether corporate involvement in disaster prevention and relief should be based instead on a human rights-based legal duty. The source of the response matters because a response based on CSR is voluntary and not enforceable by law, while a response based on protecting fundamental human rights is obligatory and may be legally enforceable. This Article argues that under existing human rights law, corporations have dual international legal duties in relation to potential or actual disasters that correlate with duties based on the protection of individual human rights. First, corporations operating within a specific community or region must proactively protect communities from corporate activities or conditions that are likely to directly or indirectly cause harm to the community, such as a Bhopal-like industrial disaster. Second, corporations operating within a specific geographically designed community must be prepared to be first responders when they have the capability, after a disaster, of responding with goods or services (e.g., logistics) to alleviate human suffering within the region where the company operates. The source of these duties resides in corporate duties to "support and respect" human rights, which includes a duty for a corporation within its "sphere of influence" to support a state in achieving its obligations to fulfill individual human rights. (5)

This Article begins with examining what the term "disaster" means in a legal context and offers a definition relevant to corporate activities. The second Part reviews corporate efforts to reduce disaster risks and respond to disasters in the context of corporate social responsibility. The third Part explores the relationship between corporations and human rights and suggests that businesses may have a subset of human rights obligations that extends beyond corporate social responsibility, to include an active duty to support and respect human rights. The final Part of the Article describes the two human rights obligations of corporations: (1) a duty to take adequate measures to prevent disasters, and (2) a limited duty to provide noncommercial relief during a disaster. In some instances, corporations have acknowledged a moral duty to both prevent and respond to disaster; this Article proposes that given the causes of disaster (e.g., the failure to sufficiently manage hazards either at the firm level or the community level), specific legal duties are emerging that, when internalized into corporate functions, will enhance both disaster prevention and relief efforts.

1. Definition of Disaster

   If corporations have some sort of legal responsibility for "disaster relief' or "disaster risk reduction," then it is essential to define "disaster" in order to know what kinds of events might trigger a duty for a corporation to respond. Defining "disaster" has not proven to be a simple task, and, as of 2014, there are a variety of similar but differentiated definitions in use by state parties, intergovernmental organizations, and international nongovernmental organizations. In a 1998 multilateral treaty, "disaster" was defined as "a serious disruption of the functioning of society, posing a significant, widespread threat to human life, health, property, or the environment, whether caused by accident, nature or human activity, and whether developing suddenly or as the result of complex, long-term processes." (6) The International Law Commission (ILC), in its Draft Articles on the Protection of Persons in the Event of a Disaster, removed the causation portion of the Tampere Convention language and defined disaster as "a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society." (7)

   The United Nations even more broadly defines disaster as "a serious disruption of the functioning of a community or a society causing widespread human, material, economic, or environmental losses which exceed the ability of the affected community or society to cope using its own resources." (8) This definition is broad enough to encompass both industrial disasters and natural disasters. The Tampere Convention definition, ILC definition, and UN International Strategy for Disaster Reduction definition all posit disaster as something that is catastrophic in terms of degree of damage because it exceeds the ability of a community to respond to protect human lives, property, and the environment.

   The International Federation of the Red Cross and Red Crescent Societies (IFRC) provides a similar definition that it summarizes with the following formula: "(Vulnerability + Hazard) / Capacity = Disaster." (9) The IFRC definition is a particularly significant operational definition because it highlights the relationship of community vulnerability and objective hazards to the creation of conditions for a disaster. Hazards will always exist, whether they are the operation of a chemical plant or a tsunami. Notably, hazards only result in disasters when there is either a failure to minimize the risks associated with a given hazard or a failure to appropriately respond to an event that injures persons, property or the environment within a given area. (10)

   For purposes of this Article, a disaster is a known hazard that has not been adequately addressed through disaster risk reduction measures and has been either triggered by a natural event or a primarily human-generated event (e.g., an industrial accident or land use decision) that leads to substantial damage that a group is unable to adequately respond to due to a lack of resources or services. There is some value in explicitly including the term "hazards" in any definition of disaster because it provides a recognition that there are risks in modern living that must be understood by human decision makers as part of their determination of what constitutes appropriate action in a given geographical or socioecological context. There is added utility in creating a definition that distinguishes between naturally triggered disasters and primarily human triggered disasters because such a definition has the potential to assist in flagging which actors might be accountable in the event of a disaster. When an earthquake happens and all buildings have been built to code in proper zones, then the resulting disaster is a great misfortune for which damaged parties might look to the state for relief because of the state's duties to protect fundamental human rights. (11) When an earthquake happens and a construction company with knowledge that the area is seismically active, or has the potential to be seismically active, failed to build structures with the potential to survive earthquake damage, then the construction company should be held...