11 May 2021 – by Vaughn Rajah
“The worst victims of environmental harm tend also to be those with the least political clout, such as members of racial and ethnic minorities, the poor, or those who are geographically isolated from the locus of political power within their country”
– Caroline Dommen
The global scale at which modern multinational corporations (MNCs) operate inevitability results in widespread environmental harm.[1] This article contends that international law must be developed to hold MNCs accountable for transboundary environmental harm as well as to offer protection to those upended by such harm.
Developing the international system
Poorly regulated and substandard MNC activities have resulted in numerous accidents such as water contamination, deforestation, soil erosion, and the exploitation of natural resources by oil, mining, and forestry companies.[2] Domestic recourse is the preferred avenue for preventing environmental abuses by MNCs.[3] This, however, is a largely ineffective as it presents an orthodox view of law wherein states are the principle actors in the global order and state sovereignty is paramount.[4] This disregards the fact that MNC operations in the host country have the potential to affect that state’s environment as well as that of other countries, as was the case in Ecuador and Peru with regards to MNC water contamination.[5] Additionally, this ignores the very real influence MNCs have on governments, especially developing states and the threat this presents to domestic enforcement.[6] For example, the Nigerian state relies on oil MNCs as its major source of revenue, granting these corporations enormous influence and control.[7]
The current international legal order is, however, not well equipped to address transboundary environmental harms.[8] One solution is the development of international jurisprudence to recognise a universal substantive environmental right, under which companies can be held accountable.[9] This long-term approach should be supplemented by short term enforcement by economic superpowers such as the United States, where many MNCs are incorporated.[10]
The dual potency of a substantive environmental right
Some scholars and legal experts find universal acceptance of substantive environmental rights at the national, regional, and international levels.[11] However, most of these instruments that address environmental protection and economic development are criticised as being non-binding, soft- law agreements, many of which are worded so broadly that they provide little or no guidance to states or MNCs.[12] The current international instruments do not sufficiently combine environmental protection and human rights or establish a substantive environmental right.
If drafted, or phrased, and implemented correctly, the two main goals of a universal substantive environmental right should be: i) to prevent environmental harm; and ii) to protect those forced to leave their home region due to sudden or long-term changes to their local environment, that is environmental migrants, post-harm.
Transboundary environmental degradation, including that perpetrated by MNCs, can impact millions at a time and the current international legal architecture does not offer any substantive protection for those displaced by this degradation.
The body of international human rights law does not effectively protect against displacement and migration which result from environmental degradation because it has not evolved to keep pace with the rapid advance of economic globalisation and the privatisation of resources.[13] The current lack of a universal provision means that at best, a substantive environmental right preventing harm and protecting migrants is to be derived from other existing rights, significantly weakening the position of those advocating for the protection of climate migrants and for the regulation of MNC activity.
It is therefore paramount that a universal substantive environmental right is developed to prevent of situations of environmental change as such as to promote reduction of greenhouse gas emissions and the prohibition of transboundary damage as well as to mitigate the consequences of such harm, including especially the equal protection of all environmental migrants.
Human Rights Pulse core team member and Earth Refuge Archivist Vaughn is passionate about sustainability and human rights, his scholarship and writing focuses on international law, climate change and transitional justice.
References
[1] E Morgera Corporate Accountability in International Environmental Law (2009) 5.
[2] Morgera (note 1 above) 6 7.
[3] E. Prudence Taylor ‘From environmental to ecological human right: A new dynamic in international law?’ (1990) 10 Georgetown International Environmental Law Review 309 350.
[4] A Shinsato ‘Increasing the accountability of transnational corporations for environmental harms: The petroleum industry in Nigeria’ (2005) 4 Northwestern Journal of International Human Rights 194.
[5] Morgera (note 1 above) 6.
[6] S Ratner ‘Business’ in Hey et al (eds) Oxford Handbook of International Environmental Law (2008) 808 816 817.
[7] Shinsato (note 4 above) 195.
[8] Shinsato (note 4 above) 198 199; Ratner (note 6 above) 816 817 818 819.
[9] Shinsato (note 4 above) 201; Ratner (note 7 above) 825.
[10] Shinsato (note4 above) 204 205.
[11] U.N. ECOSOC, Comm. on Human Rights, Sub-Comm. on Prevention of Discrimination and Prot. of Minorities, Review of Further Developments in Fields with which the Sub-Commission Has Been Concerned, Human Rights and the Environment: Final Report, ¶ 240, U.N. Doc. E/CN.4/Sub.2/1994/9 (July 6, 1994).
[12] Joshua P. Eaton, The Nigerian Tragedy, Environmental Regulation of Transnational Corporations, and the Human Right to a Healthy Environment, 15 B.U. INT’L L.J. 261, 297 (1997).
[13] Dinah Shelton, Human Rights, Environmental Rights, and the Right to Environment, 28 STAN. J.INT’L L. 103, 123 (1991).
