Trafigura’s One Million Euro Fine for Hazardous Waste

by Kevin Jon Heller

[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.

http://opiniojuris.org/2010/07/29/trafiguras-one-million-euro-fine-for-hazardous-waste/

9 Responses

  1. Dear Ms. Ajunwa and Mr. Heller,
    there was an out of court settlement regarding the claims of the Trafigura victims under tort law earlier this year, so it seems that your article does not relate to a civil law proceeding. Could you please tell us if the procceding you speak about was an administrative or criminal law proceeding, and which rules of law the court applied?
    Kind regards.

  2. Here is an AP report of the ruling on the case: http://news.yahoo.com/s/ap/20100723/ap_on_bi_ge/eu_netherlands_toxic_waste_1

    The ruling was criminal (one Trafigura employee was also convicted of wrongdoing but was granted a suspended sentence).  You are correct that Trafigura had previously reached a settlement with victims of the dumped toxic waste in a civil proceeding brought by a British law firm. 

    The law that was applied by the court was The European Ordination of Waste Product Transportation (the EVOA treaty).

  3. Dear Ms. Ajunwa,

    Does this jive with corp liability (civil or criminal) under int’l law?  I know individuals of course can have such liability (since at least Nuremberg) but there is the issue of corporate liability – there are scholars who take both sides of the issue.  What impact if any does this ruling have on the issue?

    Thanks

  4. I would argue that this ruling should usher in a new era of greater corporate accountability, a particularly important issue for corporations that operate multi-nationally.   I think most scholars would agree, that a corporation which is obligated to abide by the laws (environmental and otherwise) of the State it is incorporated in, should not be able to flout those same laws, merely because it is operating in another country.  This argument is compelling when you keep in mind that environmental abuses have far-reaching down-stream repercussions.

    This ruling sets the precedent for greater extra-territorial application of environmental laws.

  5. Thanks, Ms. Ajunwa, for the clarifications. (If there’s a link to the text of the judgment, it would be great if you could post it… There is – strangely – no information available online on the EVOA Treaty.)

    There should be huge implications for corporate liability under the law of tort, because negligence/intent is, at criminal law, much more difficult to prove than at the law of tort. The Dutch law of tort may contain a rule holding a company liable for damage caused due to its management not safeguarding its activities and organising its business properly. The issue of whether these rules are applicable would need to be solved on the level of conflict-of-laws rules (I disagree with the statement that “corporations incorporated in a state should not be able to flout those same laws, merely because it is operating in another country.” This statement is by far too broad. The general rule is the principle of territorial effects of the laws of a state.) Art. 16 and 17 of the new Rome II Regulation would be interesting to look into.

    The much debated question raised by JohnnieWalkerBlue of whether a TNC can be liable under international law is interesting – and I think much speaks for it – but may not be so important when establishing liability under domestic law.

    However, for the Trafigura case this question is obsolete, as LeighDay has already reached a settlement…

  6. I would commend to our readers the CNN program entitled “Toxic Towns” and the whole domestic US NGO effort to thwart environmental racism/class warfare in which companies are zoned/located in areas where there are minority and poor populations who are made sick by the toxic chemicals produced by the plants getting into the air and ground.  The case of Mossville, Louisiana is powerful – all the levers of power from the state and federal level and the companies are essentially completely indifferent to the health and the lives of these poor and mostly black people who are having enormously high levels of cancers and dying from the pollution.  Not only in Abidjan but in Louisiana and other places too.  And the foot dragging and the decades old corporate memos determining not to inform the locals of the problem (a la Erin Brockovich) are there for all to see.
    Best,
    Ben

  7. Robert,

    Precisely.  The question is whether under int’l law a corp can have liability.   I know some of the Nuremberg tribunals found some of the German industrialists liable for aiding and abetting via profitable business endeavors (i.e., slave labor) but again that is individual liability as opposed to the corp itself.  I think there is an absence of (at least to my knowledge) of rulings under int’l law holding a corp liable.

    I am not saying a corp should not have liability only that there is a dearth of authority holding same.  My initial post was generated by my curisoity whether the ruling referenced by the post could/would shed light on the question.

  8. John,
    if, as Ifeoma suggests, the rule that the court applied was from a European treaty, then that would indeed speak in quite a spectacular way for a liability of corporations under international law. However, we would really need to look into the text of the judgment. The court might have instead applied Dutch criminal law, and only within the Dutch criminal law have drawn on the treaty to specify some rather vague terms of the Dutch penal code (e.g. what does “toxic” mean).
    Like you, I am also not aware of a court decision recognising corporations as dutybearer under international law (although corporations can be rightholders under int. law). However, many scholars like Andrew Clapham and Danwood Chirwa are much in favour of the idea.
    Could you imagine, however, that a corporation is held responsible under domestic laws of tort/delict, and within that domestic law, international law is utilised to help define and specify the prerequisites of a claim? Radu Mares has just published an article on this very issue in the current Transnational Legal Theory, I think it is a viable approach.

  9. Thanks for your insight.  I will check the Mares article on westlaw later this evening.

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