The Scope of State Responsibility for Business-Related Human Rights Abuses: The Toxic Journey of Trafigura

[Florence Shako is an advocate and academic researching business and human rights and access to justice issues. She is the Senior Partner of Mitullah, Shako and Associates Advocates as well as the Executive Director of the Center for Education Policy and Climate Justice based in Nairobi, Kenya.]

The landmark judgment in Ligue Ivoirienne Des Droits De L’homme and Others v. Republic of Côte d’Ivoire (App. No. 041/2016), handed down on 5 September 2023, revisits the scope of State responsibility for business-related human rights abuses committed within its territory.

Summary of the Facts

On 19August 2006, the cargo ship M.V. Probo Koala, chartered by the multinational company TRAFIGURA Limited, dumped toxic waste at several sites in Abidjan in Côte d’Ivoire. None of the sites had facilities for chemical waste treatment. The resultant air pollution caused the death of 17 people who died of toxic gas inhalation while hundreds of thousands of people suffered poor health symptoms such as nausea, headaches, vomiting, rashes and nosebleeds. This incident led to the arrest of executives of TRAFIGURA Limited as well as the suspension of duties of senior government officials.

On 13 February 2007, the Republic of Côte d’Ivoire and the subsidiaries of TRAFIGURA Limited entered into a Memorandum of Understanding where the multinational company undertook to pay the State 95 billion CFA francs in exchange for a waiver by the State of any present or future claims as well as the unconditional release of their executives.

The victims and their families brought several proceedings before the domestic courts in the Republic of Côte d’Ivoire because they felt that there had been a miscarriage of justice. The domestic court proceedings acquitted government officials of any wrongdoing and dismissed claims of some of the beneficiaries of the victims. Further, even though the State established a compensation programme for victims and families of the deceased, the programme excluded a large number of victims who therefore did not receive any compensation.

Ligue ivoirienne des droits de l’homme, Mouvement ivoirien des droits humains and the International Federation for Human Rights applied to the African Court on Human and Peoples’ Rights (ACHPR) on behalf of the victims alleging the violation of human rights in connection with the dumping of toxic waste in Abidjan and its suburbs. They alleged violations of the right to an effective remedy and right to seek redress for harm suffered, and right to respect for life and physical and moral integrity of the person contrary to the provisions of the African Charter on Human and Peoples’ Rights (the Charter) and the ICCPR.

They also alleged violations of the right to enjoy the best attainable state of physical and mental health protected under the Charter and the ICESCR.  They further alleged the violations of the right of peoples to a general satisfactory environment and the right to information protected under the Charter.

Findings of the African Court on Human and Peoples’ Rights

On 5 September 2023, the African Court on Human and Peoples’ Rights (the Court) found the Republic of Côte d’Ivoire culpable for the violation of human rights of the victims because of the toxic waste dumped by TRAFIGURA Limited in Abidjan and its suburbs. Specifically, the State was in violation of the right to life, the right to an effective remedy, the right to enjoy the best attainable state of physical and mental health, the right to a general satisfactory environment conducive to development and the right to receive information.

The Court observed that African States recognize the potential impact of toxic waste importation and dumping on human life (para. 130).  The preamble to the Bamako Convention (the Convention) provides that States should be “mindful of the growing threat to human health and the environment posed by the increased generation and the complexity of hazardous wastes”. Article 4 of the Convention further provides that “all parties shall take appropriate legal, administrative and other measures within the area under their jurisdiction to prohibit the import of all hazardous wastes, for any reason, into Africa from non-contracting parties.” This means that States have an obligation to prevent the importation into their territory of toxic wastes whose impact on human life they should be aware. These preventive measures are in line with the State responsibility to protect individuals from business-related human rights abuses.

The Court reiterated that international human rights law imposes a fourfold obligation on States to respect, protect, promote and implement the rights guaranteed by the conventions to which they subscribe. This obligation to protect includes the obligation to protect right-holders from violation by third parties (para. 131). In this case, the State had an obligation to protect victims from the business-related human rights abuses of the multinational company, TRAFIGURA Limited. The State also had an obligation to exercise due diligence to protect human life from harm from persons or entities whose conduct is attributable to the State (para. 133). The Court also emphasized that State parties must take appropriate measures to protect persons against deprivation of life by other States, international organizations and foreign companies operating on their territory or in other areas under their jurisdiction (para. 135). The recognition that state responsibility extends to exercising due diligence as well as taking legislative and other measures to prevent business-related human rights abuses is notable jurisprudence.

The Court noted that although the responsibility to respect the obligations of international law is incumbent on States, it is also incumbent on multinational companies.  In this regard, the Court cited the United Nations Guiding Principles on Business and Human Rights, which provide that “[t]he responsibility of enterprises in the respect for human rights is independent of the capacity or the determination of States to protect human rights.” The Court, however, noted that Republic of Côte d’Ivoire bore the ultimate responsibility for impugned violations by TRAFIGURA Limited, which hired the M.V. Probo Koala (para. 143).

The Court also held that the essence of the right to an effective remedy is that individuals must have access to domestic mechanisms to remedy an alleged human rights violation. The remedy must be available, effective and satisfactory (para. 153). In the particular context of damage caused by the dumping of hazardous toxic waste, the obligation is stated in Article 4 (a) of the Convention, which provides ‘[t]he parties undertake to enforce the obligations of this Convention and to prosecute violators in accordance with their national legislation and/or international law.’ (para. 154). In this case, the Court found that the Republic of Côte d’Ivoire violated this right by entering into a settlement with TRAFIGURA Limited executives and failing to ensure that they were brought to justice.

Implications on the Scope of State Responsibility for Business-Related Human Rights Abuses

The United Nations Guiding Principles for Business and Human Rights are grounded in recognition of international human rights law obligations, which require that States respect, protect and fulfil the human rights obligations within their territories, including the duty to protect against human rights abuse by third parties, including business enterprises. States might breach their international human rights obligations where the business-related abuse can be attributed to them or where the State fails to take appropriate steps to prevent, investigate, punish and redress the abuse by private actors.

This case is significant and a step forward in recognition of State responsibility towards ensuring multinational companies that operate within their territories respect human rights. Multinational companies also have a distinct responsibility to respect human rights and victims have the right to access judicial and non-judicial remedies in cases of any breach, which I have discussed in previous work.

This case is also a step forward in recognizing business and human rights obligations in environmental human rights litigation. In Okpabi v Royal Dutch Shell plc and another (2021), the UK Supreme Court stated that the promulgation by a parent company of group-wide policies could give rise to a duty of care and that no limiting principle exists. This extends to holding multinational companies liable for human rights violations committed in Africa. The case of Nevsun Resources Ltd v Araya (2020) is also instructive in this regard. Here, the Supreme Court of Canada, held that a private corporation may be liable under Canadian law for breaches of customary international law committed in other countries. The present case is significant in advancing the business and human rights jurisprudence in African courts. This jurisprudence goes beyond duty of care to recognizing the specific duty of corporations to respect human rights. Where this duty is breached, the need to ensure that remedies are available for the victims is endorsed.

In this case, the Republic of Cote d’Ivoire was aware that the cargo ship, M.V. Probo Koala, was transporting industrial chemical waste but it authorised TRAFIGURA Limited to unload its cargo on condition that it found a company that would treat the waste. This was a breach of the obligation not to infringe the prohibition on the import of hazardous waste laid down in the Convention. The State had an obligation to prevent the dumping of toxic waste but failed to do so (para. 138).

There are four key situations in which third-party acts such as the acts of businesses can be attributed to the State, and for which the State will incur international responsibility where there is a breach of such an obligation under a human rights treaty. These include: where the third party was empowered by law to exercise elements of governmental activity; where the third party was acting under the instructions or direction or control of the State; where the State adopts or acknowledges the third-party act as its own; where the State is complicit in the activity of the third party or fails to exercise due diligence to prevent the effects of the non-State actions.

In this case, the Republic of Côte d’Ivoire was held liable for the actions of TRAFIGURA Limited within its territory because the State was complicit in its activities and failed to exercise due diligence to prevent the dumping of toxic waste. By granting a licence to a company that did not have the know-how or capacity to handle waste such as was transported by the M.V. Probo Koala, the State was in breach of human rights violations.

Further, the Republic of Côte d’Ivoire failed the due diligence test. State responsibility is incurred where the State fails to exercise due diligence to ensure that private actors do not commit the violations. Due diligence requires positive steps on the part of the State to prevent the violations, control and regulate private actors, investigate and, where applicable, prosecute and punish occurrences of violations, and provide effective remedies to victims.

In the landmark case Velásquez Rodríguez v Honduras, the Inter-American Court of Human Rights (IACHR) held that a State can be held responsible for violations occurring in the private sphere only where it can be shown that it failed to exercise due diligence to prevent and respond to the violations.

In the 2011 Statement on the Obligation of State Parties regarding the Corporate Sector, the Committee on the ICESCR stated that the duty to protect requires States to prevent and remedy corporate-related human rights abuses. Regarding the State obligation to provide remedy, the 2011 Statement particularly emphasized that:

It is of the utmost importance that States Parties ensure access to effective remedies to victims of corporate abuse of economic, social and cultural rights, through judicial, administrative, legislative or other appropriate means.

In this case, while the victims did access the domestic courts, the State did not produce a complete list of victims and did not sufficiently carry out remediation operations to decontaminate the sites concerned. The State also undertook to guarantee the entities and individuals involved immunity from prosecution, which was a failure to ensure the right to effective remedy in relation to the prosecution and punishment of those liable for the toxic waste dumping.

The State duty to protect is a reinforcement of the doctrine of State responsibility under international law. States have an obligation to respect, protect and fulfil the human rights obligations within their territories. This landmark decision highlights that this responsibility extends not only to preventative measures to deter infringement of rights by business enterprises but also to exercise due diligence to protect individuals from business-related human rights abuses. States must take adequate legislative or other measures to ensure that any activities taking place in all or part of their territories is compatible with human rights.