CHAPTER 17 APPROACHING AND ENABLING ACCESS TO REMEDY IN THE EXTRACTIVE SECTOR

• Jurisdiction: United States

Human Rights Law and the Extractive Industries
(Feb 2016)
CHAPTER 17
APPROACHING AND ENABLING ACCESS TO REMEDY IN THE EXTRACTIVE SECTOR
Arvind Ganesan ¹
Sarah McGrath ²
Cindy Woods ³
Legal and Policy Coordinator
Remedy Programs
International Corporate Accountability Roundtable (ICAR)
Washington, DC

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SARAH MCGRATH is Legal & Policy Coordinator, Remedy Programs, for the International Corporate Accountability Roundtable (ICAR) in Washington, DC. Sarah is an international human rights lawyer admitted to practice in Australia. She currently serves as the Legal and Policy Coordinator of the Remedy Programs at the International Corporate Accountability Roundtable (ICAR), leading a range of research, policy, and advocacy initiatives aimed at strengthening access to remedy for victims of business-related human rights violations. Prior to joining ICAR, Sarah served as the Adviser to the President at the Australian Human Rights Commission and led the development and implementation of the Commission's Business and Human Rights Program. Previously, Sarah worked in the Commission's International Programs Unit providing secretariat and research support to the Commonwealth Forum of National Human Rights Institutions (CFNHRI), an informal and inclusive body of Commonwealth national institutions for the promotion and protection of human rights. Sarah also has experience with a range of international human rights organizations including Amnesty International USA, the International Service for Human Rights, and the International Council of Women's Health Issues (ICOWHI). Sarah is a law graduate from the University of Technology Sydney, and holds a Masters in Global Law and a Bachelor of Arts from the University of Sydney. She is currently undertaking a PhD at the University of New South Wales. Her research is examining the role of corporations in transitioning countries.

ARVIND GANESAN is the director of Human Rights Watch's Business and Human Rights Division. He leads the organization's work to expose human rights abuses linked to business and other economic activity, hold institutions accountable, and develop standards to prevent future abuses. This work has included research and advocacy on a wide range of issues including the extractive industries; public and private security providers; international financial institutions; freedom of expression and information through the internet; labor rights; supply chain monitoring and due diligence regimes; corruption; sanctions; and predatory practices against the poor. Ganesan's work has covered countries such as Angola, Azerbaijan, Burma, China, Colombia, the Democratic Republic of Congo, Equatorial Guinea, India, Indonesia, the United States, and Nigeria. His recent research has focused on predatory lending practices and governance issues on Native American reservations in the United States. He has written numerous reports, op-eds, and other articles and is widely cited by the media. Ganesan has also worked to develop industry standards to ensure companies and other institutions respect human rights. He is a founder of the Voluntary Principles on Security and Human Rights for the oil, gas, and mining industries and is a founding member of the Global Network Initiative (GNI) for the internet and telecommunications industries, where he also serves on the board. Ganesan has helped to develop standards for international financial institutions such as the World Bank, and regularly engages governments in an effort to develop mandatory rules or strengthen existing standards such as the Kimberley Process. He serves on the board of EGJustice, a nongovernmental organization that promotes good governance in Equatorial Guinea, and is a member of the International Corporate Accountability Roundtable (ICAR)'s steering committee. Before joining Human Rights Watch, Ganesan worked as a medical researcher. He attended the University of Oklahoma.

I. INTRODUCTION

II. HISTORY OF BUSINESS AND HUMAN RIGHTS AND THE EXTRACTIVE SECTOR

III. THE GUIDING PRINCIPLES, ACCESS TO REMEDY AND THE EXTRACTIVE SECTOR: THE CURRENT LANDSCAPE

A. Multi-Stakeholder Initiatives (MSIs)

B. Litigation

1. Lack of Adequate Statutory Causes of Action

2. Jurisdictional Barriers

C. Non-Judicial Grievance Mechanisms

D. Operational grievance mechanisms

IV. EXPANDING AND STRENGTHENING ACCESS TO REMEDY: BUILDING ON LESSONS LEARNED

V. CONCLUSIONS

I. Introduction

The operations of companies in the extractive industries lie at the heart of the inception of the modern business and human rights field, largely because of four key issues: security, the misuse of extractive revenues, the social and environmental impacts on local communities, and the lack of legal accountability for companies in these regards.

As civil society began to bring these issues into sharper focus, the customary response to address human rights challenges within the industry was to establish multi-stakeholder initiatives (MSIs) designed to address discreet sectorial challenges through government, corporate, and civil society collaboration. However, the proliferation of MSIs in extractive industries was spurred mainly by government action, reflecting the prevailing conception at the time that respect for human rights was within the sole purview of States.

Over the last three decades the business and human rights landscape has changed considerably. With the promulgation of the United Nations Guiding Principles on Business and Human Rights (the Guiding Principles) in 2011, the international community has openly acknowledged what international law has implicitly proscribed--that corporate actors have a responsibility to respect human rights, that States have the duty to ensure that this obligation is upheld, and that when it is not, remedy for victims of corporate human rights abuse must be accessible. Arguably, the third pillar - access to remedy - is the least understood and the most poorly implemented. Individuals and communities whose human rights are violated as a result of extractives practices often find themselves with little or no course of action to address these harms.

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This paper will explore current avenues for accessing remedy for violations of extractive sector corporate human rights abuse. Section II will outline the rise of the business and human rights movement within the extractive sector as a basis of understanding the historical context, underlying assumptions, and current state of play. Section III will consider a range of judicial and non-judicial remedial avenues available to affected communities analyzing both their utility and limitations in providing access for remedy, including MSIs, state-based judicial and non-judicial grievance mechanisms, and company-based operational grievance mechanisms. Section IV will share reflections and lessons learned in regards to the different avenues and consider opportunities to enhance access to remedy within the extractive sector. Section V concludes that an enhanced focus on access to remedy is needed to expand the range of avenues available to individuals and communities.

II. History of Business and Human Rights and the Extractive Sector

The 1990s was a foundational period for the business and human rights movement. Starting in 1993, a number of events occurred that defined the beginning of the current approach to business and human rights in the extractive industries. In that year, the first lawsuit against a corporation for human rights abuse was filed against Texaco (now Chevron) for environmental damage from the Lago Agrio oil field in Ecuador.⁴ On November 10, 1995, the government of Nigeria executed Ken Saro-Wiwa for his campaigning against environmental damage in the Niger Delta, principally attributed to Royal Dutch/Shell.⁵ Saro-Wiwa's arrest and execution brought international attention to human rights and environmental problems in the Niger Delta and global scrutiny on the role of Shell and other companies operating in the region. Then in 1996, U.S.-based non-government organization (NGO) EarthRights International filed a seminal lawsuit against petroleum company Unocal under the Alien Torts Statute (ATS) in the United States for its alleged complicity in security-related human rights violations in Burma under a brutal military regime.⁶

Between 1997 and 1999, several concurrent advocacy campaigns solidified attention to the human rights issues affected by the extractive industries. During this time, the press and Human Rights Watch (HRW) documented how British Petroleum and Occidental Petroleum faced international condemnation for their multimillion-dollar security contracts with the Colombian military and police.⁷ Human Rights Watch also detailed how Enron Corporation received widespread criticism for its contracts with Indian police who subsequently arrested and detained individuals opposing the company's power plant; and the organization did a detailed analysis of the security arrangements of oil companies operating in the Niger Delta and human rights abuses committed by contracted security forces.⁸ These reports and the subsequent attention from those

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activities on the ground would be the catalyst for the development of the Voluntary Principles on Security and Human Rights (VPs), launched in 2000.⁹

Simultaneously, a global coalition of civil society led by Global Witness and Oxfam were highlighting the destructive role of the diamond trade in the brutal Angola, Sierra Leone, and Liberia civil wars.¹⁰ This work would draw international attention to the role of "Blood Diamonds" in conflict and pave the way for the launch of the Kimberley Process in 2000.¹¹ During this time, Global Witness and HRW also began reporting on how billions of dollars in oil revenue was being misused and mismanaged by the government of Angola.¹² While more specifically, in 1998, scrutiny over the proposed Chad-Cameroon pipeline project...