Trafigura’s One Million Euro Fine for Hazardous Waste
[The following is a guest-post written by Ifeoma Ajunwa, a human-rights attorney who is beginning a PhD at Columbia University in the fall. Our thanks to her for contributing — KJH]
In April of 2007, as a representative for the NGO, Human Rights Advocates (HRA), I was privileged to attend the 4th session of the United Nations Human Rights Council in Geneva, Switzerland where I presented research before the Council regarding the various ongoing cases of the illicit transfer and dumping of toxic waste in developing nations. Among the cases I presented before the Council was the 2006 dumping of chemical waste in Abidjan, Ivory Coast by the Dutch company, Trafigura. The dumped toxic waste resulted in the death of at least 15 people and the hospitalization of thousands more. This past Friday, a Dutch judge ruled that Trafigura was responsible for the dumping and should be held accountable for the deaths. The judge also issued a fine of 1 million euros against Trafigura. The verdict was based in some part on the 2009 report of U.N.’s top expert on toxic waste, Okechukwu Ibeanu. Ibeanu’s report concluded that “there seems to be strong evidence that the reported deaths and adverse health consequences are related to the dumping of the waste from the Probo Koala” ship, which was chartered by Trafigura.
Human rights groups such as Amnesty International and The National Federation of Toxic Waste Victims in Ivory Coast have rightfully hailed the ruling as a victory. The outcome of this case will have far-reaching implications in ensuring the future corporate accountability of corporations that operate in a multinational manner. For one, the Trafigura case establishes firm precedence that multinational corporations may be brought to justice, in their home countries, for acts that were committed extra-territorially.
There are extant international law instruments that affirm the human right to a healthful environment. The Stockholm Declaration, adopted on June 16, 1972 was the first to explicitly recognize the right to a healthy environment. In 1990, the United Nations General Assembly once again stressed the need to ensure a healthy environment for the well-being of all. Several multi-lateral treaties or agreements have also sought to prohibit or limit the illicit dumping of toxic waste. Among those agreements are, the Aarhus Convention, the Basel Convention, The Ban Amendment, and the Bamako Convention. However, a major limiting characteristic of these instruments is that they only bind sovereign governments and not corporations. Therefore, these agreements may only be used to hold State actors responsible and do not apply to corporate entities (unless they act in a public service capacity).
The 2007 report I presented to the United Nations Human Rights Council proposed the extra-territorial application of environmental laws. At the very least, the Trafigura case indicates a means for immediate relief for victims of the dumping of toxic waste. Those victims should now directly bring a case against corporate entities in courts in the home country of the corporation.
The report also proposed a universal and enforceable declaration of corporate responsibility. Although the corporate code of conduct proposed by the U.N.’s Human Rights Sub-Commission in August 2003 is one good example of a starting point for stronger regulation of multinational corporations, the unfortunate fact is that current codes of corporate conduct, which are voluntary, are largely ineffective at deterring abuses. Following this case, the U.N. should continue to work towards formulating a code of corporate conduct that delineates environmental restrictions for corporate entities that operate in its member states and which would be also be endowed with enforcement mechanisms such as fines, loss of corporate charter, imprisonment and more. The abuse of the environment is a human rights abuse as it impacts the human rights to food, clean water and housing. The U.N. should continue to intensify its efforts to stem the illicit dumping of toxic waste and its detrimental impact on the environment.