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The reality o rights12

As the above discussionhighlights, the requirements

or a system o redress tooperate e ectively can berather demanding, and barrierscan arise at each step inthe process, with potentiallyserious consequences or theprotection and promotion o human rights. 23 The ollowing

ve case studies illustratesome o the ways in whichbarriers to redress operatein practice, drawing onevidence concerning speci cUK companies and their relationships with stakeholdersin a range o locations. Theaim is to explore the sourceso barriers to redress in eachcase, and to document someo the consequences o theseinstitutional weaknesses or the lives o a ected workersand communities.

The cut fower industry is one areao transnational business activity thatengages UK companies in ongoingrelationships with large numbers o vulnerable workers and communitiesabroad. The sector is o particular importance to the Kenyan economy,representing the nations second largestagricultural source o oreign exchange,and providing employment to an

estimated 135,000 people. Many o theseare migrant workers with low educationwho have travelled to fower growingdistricts to work on the arms, and relyheavily on employment in this sector. 24

The majority o the arms are ownedand run by Kenyan businessmen, butmany o the larger arms are operated by

oreign investors, including some rom theUK.25 Moreover, about 75% o Kenyasfower exports are eventually purchasedby UK retailers; some purchase directly

rom Kenyan arms, while others sourcethem via the Dutch fower auctions. Largesupermarkets such as Sainsburys, Waitroseand Tesco have become particularlyimportant players in this market. 26

The dominant position o UKsupermarkets enables them to exercisesigni cant power over the termso sourcing contracts with Kenyanproducers, and thus ultimately also over the working conditions and health and

sa ety o Kenyan workers. UK buyers usethis power to pass pressures within thecompetitive UK retail sector down the

supply chain to Kenyan fower producers,who in turn pass this pressure on toworkers in the orm o lower wages anddemands or employees to work longer and harder. In this way, buyers in theUK directly infuence working conditionswithin the sector. 27

Human rights standards governingthese relationships in Kenya

The conditions o work among Kenyanfower workers are regulated by severallegal instruments, including several o international labour and human rightsconventions that Kenya has rati ed. 28 In addition to core International Labour Organisation (ILO) Conventions (o which Kenya has rati ed all but one Convention 87 on Freedom o Associationand Protection o Union Rights), thethree main international human rightsinstruments that incorporate provisionsrelated to labour rights are the UniversalDeclaration o Human Rights (UDHR;especially Articles 23, 24 and 25); theInternational Covenant on Economic,Social and Cultural Rights (ICESCR); andthe International Covenant on Civil andPolitical Rights (ICCPR).

These core human rights documentsset out detailed standards relating toworkplace health and sa ety, as wellas standards such as the right to non-

discrimination and equal protection o thelaw, the right to reedom o association,the right to work, to just and avourable

Barriers to redress in

ive illustrative cases

Labour rights or fower workers

in Kenya

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Barriers to accessing remedies when business operates beyond borders 13

Kenyan fower worker harvesting fowers inside greenhouse.

Guillermo Rogel, War on Want, 2007

conditions o work, 29 equal pay or equal work, the right to orm and join

trade unions and the right to reasonablelimitation o working hours. While there isno internationally recognised human rightto a living wage, the UDHR does claimthat each individual has the right to justand avorable remuneration ensuring or himsel and his amily an existence worthyo human dignity. Similarly, the UDHRand ICESCR protect just and avorableconditions o work. ILO recommendationsand guidance relating to minimum wageshave tended to suggest that these

requirements be interpreted with re erenceto costs o living as well as the generallevel o development o the country. 30

The governing pieces o legislationregulating employment conditions

in Kenya which were recentlystrengthened by way o re orms toemployment law which came into e ect inlate 2007 also entrench a broad rangeo labour protections, providing or rights-compliant standards in most respects. 31

Alleged breaches o human rightsstandards

Despite extensive legal protections or internationally recognised labour rights,violations o such rights occur in a number o ways. Workers receive wages ranging

rom around 80p a day to 1.25 in the

highest paying rms signi cantly belowwhat workers would need to provide

or their basic needs. 32 Low wagesare a particular problem or womenin the context o widespread gender discrimination , as the lower paying jobssuch as those working in greenhousestend to be given to women, while the moreskilled and highly paid jobs carrying outspraying are given disproportionatelyto men. Sexual harassment is alsoa major problem, with many womenworkers reporting that systematic abuseby supervisors and sometimes ellow

workers is allowed to continue in theworkplace without redress. Excessiveworking hours are also a common cause

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o grievance in the sector, with workersexpected to work up to 16 hours a dayduring periods o peak demand aroundMothers Day, Valentines Day and

Christmas, in clear violation o Kenyanemployment law. 33 Violations o healthand sa ety standards are also widespreadin the industry. While a number o armshave improved their practices relating tochemical sprays in recent years, workerson many arms continue to be exposedroutinely to extremely toxic chemicals,with many reporting serious healthe ects. Workers are also at very highrisk o acquiring disabling repetitive straininjuries which can cause chronic pain

and severely restrict their ability to work. Attempts by some workers to organisecollectively to tackle these widespreadabuses are impeded by restrictions to

reedom o association . While tradeunions are ormally recognised andhave been ormed on a small minority o

arms,34 in practice workers tend to bediscouraged rom joining.

Available avenues or redress

For workers su ering rom violations o these human rights standards, severalavenues o redress are potentially available.Workers can seek redress by meanso administrative avenues, by reportinggrievances to the Labour Inspectorate or the Directorate o Occupational Healthand Sa ety, both o which are housedwithin the Ministry o Labour. The latter has the power to close down a workplacei it is ruled unsa e, and both are able toimpose sanctions on companies ound tobe in breach o legal standards.

The Labour Court provides animportant judicial avenue throughwhich alleged violations can beadjudicated and remedies imposed. It isa specialised court o law with powersto deal speci cally with all mattersrelating to labour and employment, andmay hear claims brought in relation toindividual grievances, or adjudicate onthe outcomes o inspections i theseare contested by either employers or

unions. 35 Since the 2007 labour re orms,the Labour Court has the same powers

as a High Court to en orce its rulings withnes or a prison sentence. 36

The Kenya National Commissionon Human Rights (KNCHR) is another national agency that has the potential toprovide workers whose rights have beenviolated with means o redress. Althoughthe KNCHR was not conceived to playa central role in the domain o labour rights, it is equipped with extensivepowers o investigation and adjudicationto which workers can in theory appealwhen other more specialised avenueshave been exhausted.

In addition, a broad range o non-state

mechanisms o regulation and redress areavailable. The Ethical Trading Initiative(ETI) has played a prominent role in thesector, o ering an in ormal system o investigation as well as mediation throughwhich local organisations such as theKenyan Women Workers Organisationhave been able to channel complainsthrough the NGO Women WorkingWorldwide, which is a member o theETI.37 The ETI has operated alongsidean array o corporate social responsibility

certi cation schemes and initiatives thatexist at the international and nationallevels, all o which tend to adopt anin ormal approach to complaints. 38 Thehuman rights NGO the Kenya HumanRights Commission (not to be con usedwith the KNCHR) has played a signi cantrole in supporting processes o researchand advocacy associated with many non-state processes o redress.

At the international level, the ILO playssome role in reviewing labour practicesin the sector as a whole, though its

ormal Article 26 complaints procedure enabling collective grievances inrelation to a ailure o states to protectagainst systematic violations o labour standards has not been used. Moreover,

jurisdictional barriers together with legaldi culties in establishing parent companyliability within an arms length supply chainrelation have precluded direct legal actionin the UK.

Accessibility and appropriateness o available avenues

In practice, how e ectively are workersable to access those avenues or redressthat are ormally available? Practical and

nancial access barriers o various kindscon ront workers attempting to accessthe Kenyan court system, including thehigh cost o legal ees, weak knowledgeo rights, and poor understanding o complicated legal procedures. In somecases these barriers are exacerbatedby the weakness or politicisation o trade unions. 39 Some cases have alsobeen reported in which companieshave allegedly sought to intimidate organisations working in support o labour rights in the sector. In one case, theKenyan Women Workers Organisationalleges that representatives o the fower company accused the organisation andits leader o economic sabotage, ollowingtheir submission o a report to the ETIdocumenting corporate rights abuses,and threatened to take them to court.It is also alleged that a representativeo the National Security IntelligenceO ce visited the NGOs Nairobi o ce torein orce such threats. Although thesethreats were not ollowed up a ter thesubsequent involvement o the ETI andmajor European buyers, this exampleclearly illustrates the ways in which tacticso intimidation can be used to discourageworkers making use o ormally availableavenues o redress.

E ectiveness and integrity o available grievance processes

For those workers who succeed inproceeding past the initial access stageto pursue one o the available avenues

or redress, urther barriers to achievingadequate remedies present themselves.

With only two judges sitting to hear casesin the Labour Courts, a huge bottleneck is created within the industrial courtsystem, meaning that many workers haveto wait as long as several years to havetheir grievance heard. Some workers haveattempted to take individual grievancesto the KNCHR, but the Commissionsgrievance handling processes are not

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primarily oriented towards the processingo large numbers o labour complaintso this kind, and workers pursuing thisroute are o ten directed back to the

labour dispute settlement systems o theMinistry o Labour to exhaust this routerst.40 The capacity o workers to win

remedies by way o the court system isurther weakened by the resource gap

between employers, who are able to employexperienced lawyers to represent them incourt, and workers, who can at best hope or representation by a union representative.

Resource constraints within the labour inspection regime represent a urther barrier to e ective redress. Both theLabour Inspectorate or the Directorate o Occupational Health and Sa ety lack anadequate number o inspectors, as well astransport that would enable the inspectorsto travel between arms. The 2005 AnnualReport o the Labour Department o theMinistry o Labour draws attention tothe severe unding short alls within theDepartment, pointing out that sta nglevels were 282 instead o the approvednumber o 618. According to this report,most local stations were not able to carryout planned inspections because o lacko unds and transport. Similarly, whilethe Directorate o Occupational Healthand Sa ety Services has the authorityto inspect arms and work sites, it wasreported as having only 52 inspectorsinstead o the 168 required to cover theentire country. 41 Problems o corruption are also reported by some local workersgroups to be widespread among labour inspectors, with a number o workerscomplaining that inspectors sometimesarrive at the arms only to be pocketedby management. 42

Against the backdrop o a widespreadear that large oreign investors will

re-locate to cheaper production sitesin other countries, 43 many also believe

that the e ectiveness and integrity o administrative processes o redressare undermined by the infuence o business interests over regulators and lawen orcement agencies, and their capacityto press or the subordination o humanrights protections to broader goals o employment creation and export growth.

In ormal international mechanisms such as those o ered by the ETI havemade some contribution to acilitatingredress. The ETIs involvement ininvestigating abuses in the sector during2003 has also played an important rolein the establishment o the HorticulturalEthical Business Initiative at the locallevel. 44 Such initiatives are widely viewedas having interacted constructively withe orts by local industry groups mostnotably the Kenya Flower Council tostrengthen labour standard complianceby means o promotion o sel -regulatorycodes o practice. Local NGOs such asthe Kenya Human Rights Commissionhave contributed importantly to suchprocesses. Following the reporting o various human rights violations amongfower arm workers, the Commissionconducted a research study on theworking and living conditions amongfower workers, documenting widespreadabuses o the kinds described above. 45 It also initiated a labour rights project insupport o a network o workers leadersand human rights activists engaged inadvocacy, monitoring and support or worker organisation. Moreover, it hassupported a range o workshops and

initiatives seeking to promote capacitybuilding, dialogue and normative changeamong various stakeholders involved inthe sector.

However, while such initiatives havemade some contribution to raisingworking standards in the sector as awhole, the generally in ormal grievancemechanisms o ered by such schemestend to rely heavily on the goodwill o armmanagement as a basis or achievingremediation. 46 In many cases, in ormalmechanisms can strengthen incentives

or implementation o e ective remedies,primarily as a result o their ability toimpose reputational costs o various kindson companies. However, there remainmany cases in which such incentivesprove insu cient as a basis or securinge ective remedy, in the absence o morestrongly coercive means o en orcement.

Human rights outcomes

Attempts by Kenyan workers to pursueredress by way o the range o availablemechanisms have led to some increasein the rights compliance o business

practices in the sector, although suchimprovements have tended to beconcentrated among those larger armsthat are dependent on some ethicallysensitised European buyers. Moreover,many workers have been unable toovercome initial access barriers, andothers have ound that the weakness andinconsistency o the remedies o ered bythe patchwork o available avenues allowviolations o workers rights to continuethroughout the sector.

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Overview o barriers to redress in Kenya

Alleged human rights violations and desired remedy

Rights breached Codi cation o rights Remedies sought

Breaches o right to a just andavourable remuneration

Breaches o right to reedom romgender discrimination

Breaches o right to reedom rom sexualharassment

Breaches o limits on maximum workinghours

Breaches o health and sa ety standards Breaches o right to reedom o

association

Core ILO conventions Universal Declaration o Human Rights

(especially Articles 23, 24 and 25) International Covenant on Economic,

Social and Cultural Rights International Covenant on Civil and

Political Rights Domestic labour law

Compensation Remediation at individual and

systemic levels

Avenues o redress

Avenue o redress Avenue used? I no, why not? I yes, barriers encountered to achievingsatis actory remedy

Complaints to labour/health and sa etyinspectorates

Yes Resource constraints within inspection regime Corruption Infuence o business interests

Labour Courts Yes Financial costs o accessing court and obtainingrepresentation

Lack o knowledge o rights and legal procedures Under-resourcing o the system leading to delays

Kenya National Commission on HumanRights

Occasionally Labour disputes not its primary unction;complaints tend to be re erred back to Labour Courts until legal avenue exhausted

Ethical Trading Initiative and other voluntary codes

Yes Weakness o en orcement capacity Intimidation o complainants

National Contact Point or OECDGuidelines or Multinational Enterprises

No: judged a poor investmento resources given weakness o en orcement capacity

Home country courts No: jurisdictional barriers; barriersestablishing UK company liability;cost o access; uncertainty o success

ILO Article 26 complaints procedure:No

In ormal reviews: Yes

Weakness o en orcement capacity

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The business relationships linking major UK retailers to workers and communitiesin Bangladesh are extremely important or all those involved. Classi ed as a leastdeveloped country with an estimated40% o the population living below thepoverty line, 47 Bangladesh has becomehighly dependent on the ready madegarment (RMG) sector as a source o employment and export revenue. 48

The average wages received byBangladeshs work orce are currentlyranked as the lowest in the world. Hal

o all Bangladeshs garment exportsare destined or the European market,including the UK major UK retailerssuch as Asda, Tesco and Primarkbuy tens o millions o pounds wortho clothing produced by Bangladeshiworkers each year. 49 UK retailers managethis o shore purchasing by means o arms length purchasing relationshipswith local companies and oreignmanu acturers in Bangladesh. The power wielded by these large UK buyers over

the terms o purchasing contracts is usedto impose very demanding requirements

or low prices and ast turn around timeson orders, which uels strong downwardpressure on actories within Bangladeshto achieve competitiveness, o ten at thecost o workers rights. 50

Human rights standards governingthese relationships in Bangladesh

An extensive range o protectionsare entrenched in Bangladeshi law.Bangladesh has rati ed seven out o the eight core ILO conventions, 51 as wellas the three main international humanrights instruments that incorporateprovisions related to labour rights (theUDHR, the ICESCR and the ICCPR themost relevant sections o which weresummarised in the previous case). Recentre orms to the countrys employmentlaw, introduced in 2006, have extendedprotections in several areas, includingprovision or some maternity leave.Despite major weaknesses remaining inareas such as reedom o association,

child labour, orced labour, discriminationand excessive overtime, 52 the content o the relevant legal provisions is not themajor source o demonstrated ailures o en orcement and redress within the sector.


The way in which UK companies managethe procurement and sourcing side o their business by means o supply chainsreaching into Bangladesh has directimplications or the human rights o

Bangladeshi workers, in ways that impactsigni cantly on their immediate health,sa ety and well-being, as well asa ecting their prospects o utureescape rom poverty.

First, UK business practices contributeto sustaining extremely low wages amongworkers, the majority o whom receive anaverage monthly wage o less than 25(BDT 3000). 53 Such wages are ar belowwhat has been calculated to representthe costs o basic necessities in thiscountry. Workers are typically required to work 10-16 hours a day , in violation o both existing Bangladeshi law and ILOconventions. 54 Workplace health and sa ety is an additional major problem inmuch o the sector. Over the past decade,at least 30 cases o actory collapses and

res have occurred, leaving hundreds o workers dead, and thousands injured. 55

The denial to most garment workers o reedom o expression is another major

problem in the sector, constituting a directviolation o core civil and political rights,as well as contributing to the conditionsin which other violations have becomesystemic across the industry. 56 WhileWorkers Associations and ParticipationCommittees are permitted, these models o organisation are o ten acilitated by actorymanagement and subject to managementinfuence. Trade unions that enableindependent representation o workersinterests and concerns remain illegal

within the export processing zones (EPZs)and ace legal barriers outside them. 57 Acaretaker government ruled Bangladesh

rom January 2007 to December 2008during which time both industrial actionand trade union activity were punishablewith a sentence o between two and veyears imprisonment. 58

In addition to legal barriers to workersexercising their rights to reedom o expression and collective bargaining ,workers commonly ace harassment(including sexual harassment) andintimidation i they seek to de end their rights. In some cases, workers reportthat physical violence has been used to

repress organising e orts. Some workersattempting to organise claim to have beenillegally dismissed, harassed, beaten bylaw en orcement agencies or actoriesprivate security, or imprisoned on alsi edcharges. 59 Responsibility or such abusescan be properly attributed to companiesto the extent that the company is directlyinvolved as the primary agent o theabuse, or where the company can beconsidered to be complicit in abuses byother parties. 60


In the ace o these ongoing abuses o recognised human rights standards,several avenues o redress are availableat the local level or Bangladeshi workers.First, an administrative avenue o redressis available by means o direct reportingo violations to labour inspectors,coordinated by the Ministry o Labour and Employment. 61 I actories are notcompliant within a set time rame, theMinistry may take employers to oneo the countrys seven labour courts,which constitute the major judicial channel o redress. Workers, or their union representatives, may directlyseek redress by means o these courtsas a result o the 2006 re orms to theLabour Law which gave the labour courts

jurisdiction over both civil law mattersand criminal prosecutions. 62 Non-bindingmechanisms o redress are also availableat the local level, most notably by way o the Arbitration Committee , establishedin 1997 as the outcome o an agreement

Labour rights or garment workers in Bangladesh

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between the major trade associations,trade unions and the Ministry o Labour.

This body sits each month to hear, andattempt to resolve, small individual labour and industrial disputes. It operates inparallel with the labour court system. 63

The above avenues or redress areoriented almost exclusively towardsindividual grievances such as thoserelating to un air dismissals or unpaidwages. Groups o workers seekingto bring collective claims concerningsystemic problems throughout thesector nd ew legal remedies withinthe existing regime, beyond directlobbying or participation in broader

political and administrative policy makingprocesses. 64 In addition, such avenues

generally provide only or the pursuito redress rom the local actories thatdirectly employ the a ected workers. UKcompanies such as Tesco and Primarkare not the legal owners and operators o the actories that make their clothes, soworkers cannot use the above avenues asa means o seeking remedy directly romthese UK companies.

At an international level, the UK-basedEthical Trading Initiative (ETI) plays asigni cant role as a multi-stakeholder initiative involving companies, tradeunions and NGOs. Its goal is to improve

working conditions in global supplychains. UK retailers such as Tesco are

members o the ETI. This means theETI can be called on to investigate andmediate in disputes that directly involvethese UK buyers. This remit also givesit greater potential than most locallyavailable avenues to address thosestructural ailures within compliancesystems which arise rom businesspractices located in home countries.

From time to time the ILOs oversightactivities have provided an in ormal

means or pursuing worker grievancesin relation to systematic violations in thesector, though the ILOs ormal Article

Bangladeshi garment workers in Dhaka garment actory.

Laia Blanch, War on Want, 2008

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26 complaints mechanism has not beenused. While the NCP mechanism isassociated with the OECD Guidelines onMultinational Enterprises (MNEs) could be

used as a orum or bringing complaintsdirectly against UK companies, 65 it has notyet been used in this way by Bangladeshigarment workers or their representatives.In theory, civil law claims relating toharms imposed by the buying practiceso UK companies could be pursued inUK courts, although both jurisdictionalbarriers and barriers to establishing UKcompany liability represent serious legalbarriers, given the arms length nature o the relationships between UK retailers

and their Bangladeshi suppliers.


In practice then, how e ectively areworkers able to access the avenues or redress that are theoretically available?Even or those workers with su cientknowledge o relevant legal rights andprocedures, nancial barriers to accesspresent an important obstacle or some:

ees or accessing legal channelsbegin at around 12 (1500 BDT). 66 Thisrepresents close to the monthly wagereceived by some entry level workers,and hal the monthly wage o the averageworker. In addition, the act that legalcases commonly drag on or months, or years, discourages many workers romentering such processes. Potentially, localorganisations such as unions or worker-oriented NGOs could play an importantrole in helping to con ront some o thesebarriers. This means that the capacityconstraints and repressive environmentcon ronting the union movement inBangladesh seriously complicates accessbarriers or many workers. It also remainsunclear whether success ul resolution o individual legal disputes would result insigni cant change to the systemic rightsviolations across the garment industry.

E ectiveness and integrity o grievance processes

Workers who manage to overcome the initialaccess barriers then requently encounter

urther barriers due to weaknesses in judicial or administrative processes.

The severely under-resourced judicial system is a signi cant problem inBangladesh. The country has only sevenlabour courts three based in Dhaka, twoin Chittagong, one in Rajshahi and one inKhulna compared to 1300 magistratescourts. As well as creating excessive waitingtimes and overall lack o system capacity,this means that physically accessing the

courts is o ten a major problem or thosein the many major industrial towns andcities lacking a labour court. 67

Administrative systems o redressalso su er rom signi cant resourceconstraints , with recent evaluationsreporting weaknesses in numbers o inspectors, provision o training, andavailability o transport acilities andequipment. For example, a reportsubmitted to the ILO in 2006 evaluatingthe manning and operation o theBangladesh Factory Inspectorate thekey body responsible or en orcinghealth and sa ety law revealed seriousproblems o understa ng, employingonly our sa ety inspectors and threehealth inspectors, who were responsible

or 11,665 premises. 68 The small number o inspectors limits the inspectoratescapacity to monitor working conditionsthroughout the sector. It also constrainstheir capacity to press prosecutionsin court, because inspectors who lecriminal complaints relating to healthand sa ety violations are required to bepresent during the relevant trials. 69

Some also question the integrityo state-based processes o redressby pointing to the power ul networkso linkages between local garmentindustry owners and both executive and

legislative arms o government. It appearsthat pressures on various agencies o the Bangladeshi state to prioritise theinterests o the export sector over the

protection o workers rights result not onlyrom the strategic importance o this major export sector or the economy as a whole,but also rom the direct involvement o senior politicians and government o cialsin the garment business. O 300 memberso parliament elected in the countrysDecember 2008 elections, 29 directly owngarment actories, and a large number o other MPs are involved indirectly in thebusiness by means o broader personaland business relations. 70

The e ectiveness o non-bindingsystems o regulation and redress suchas those provided by way o the ETIssystems have also been questioned inrelation to perceived insu ciencies intheir investigatory powers, their powerso en orcement, and their ability toprovide appropriate remedies in cases o violations. 71 Although the ILO has playedsome supervisory role in the sector,including in relation to collective grievances,its role has generally been very limited. Thelimited sanctions at the ILOs disposal asmeans o en orcing its recommendationsremain a particular weakness.


Con ronted with systematic violations o their human rights by UK companies andtheir local business partners, Bangladeshiworkers can, in theory, pursue their grievances by means o a range o

ormal and in ormal avenues at the local

and international levels. But in practice,while some individual workers havesucceeded in accessing redress by way o a combination o these mechanisms, 72 thevast majority o workers, whose rights havebeen negatively a ected by the businesspractices o UK retailers, have been unableto access appropriate remedies.

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Overview o barriers to redress in Bangladesh



Breaches o right to a just andavourable remuneration

Breaches o limits on maximum workinghours

Breaches o health and sa ety standards Breaches o right to reedom o

association Breaches o right to reedom rom sexual

harassment Breaches o right to reedom rom

physical violence

Core ILO conventions Universal Declaration o Human Rights

(especially Articles 23, 24 and 25) International Covenant on Economic,

Social and Cultural Rights International Covenant on Civil and

Political Rights Domestic labour law

Compensation Remediation at individual and

systemic levels

Avenues o redress


Complaints to Factory Inspectorate Yes Resource and capacity constraints withininspectorate

Subject to infuence rom garment sector industryinterests

Labour Courts Yes Waiting times Court availability only in some geographical

regions Financial costs Capacity constraints acing local organisations

Arbitration committee Yes No requirement or rms to submit to arbitration Weak en orcement o remedies

Ethical Trading Initiative Yes (in ormally) Weakness o en orcement capacity


No: judged a poor investmento resources given weakness o en orcement capacity

Home country courts No: jurisdictional barriers; barriersto establishing liability o UK rmswithin an arms length supplychain relation; cost o access;uncertainty o success

ILO Article 26 complaints procedure:No

In ormal reviews: Yes

Weakness o en orcement capacity

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Since Shell rst discovered oil in theNiger Delta in 1956, the importance o this resource to both the company andthe Nigerian economy has grown rapidly.Nigeria is now the largest producer o crudepetroleum in A rica, the th largest producer within the Organisation o PetroleumExporting Countries, and the eighth largestexporter o crude oil in the world. As oneo the poorest countries in the world, witharound 70% o the population alling belowthe international poverty line o roughlyUS$1 a day, 73 Nigerias dependence on theoil industry is striking: it earns over 95%o its export revenue rom the oil and gassector, which accounts or over 20% o gross domestic product and around 65%o the countrys budgetary revenues. 74

More gas is fared in Nigeria than almostanywhere else in the world this countryhaving recently been displaced rom its

rst place status by Russia. 75 Gas faringis a practice that oil companies undertakewhen oil deposits are mixed with gas and itis judged more pro table simply to burn o

the associated gas rather than capturing itor utilisation or re-injection. 76 The practice

continues to be highly controversial dueto its detrimental environmental impactsamong local communities, and its emissiono high levels o greenhouse gases. Inrecognition o these damaging e ects,Nigerian legislation controlling gas faringwas passed in 1979. Legislation generallyprohibiting it was passed in 1984. However,companies have still been permitted tofare gas in a particular eld or elds i a

ministerial certi cate is law ully issued to thate ect. Almost all the faring is carried outby local subsidiaries o ve multinational oilcompanies, operating in joint ventures withthe Nigerian National Petroleum Corporation(NNPC), which is a statutorily established,state-owned corporation. Shell makes agreater contribution to this total than anyother individual company. 77

Human rights standards governingthese relationships

A broad range o relevant human rightsprotections are entrenched in Nigerian

law. Human rights provisions have beenincluded in the Nigerian Constitution sinceits independence in 1960, though thesewere suspended under various militarygovernments. 78 In addition, Nigeria hasrati ed nine out o the 13 core internationalhuman rights treaties currently in orce,and has rati ed the A rican Charter onHuman and Peoples Rights (the A ricanCharter) and incorporated this intodomestic law. Both the A rican Charter and the Nigerian Constitution containarticles that courts have interpreted asapplying to incidents o environmentalpollution, particularly those relatingto the rights to li e, and dignity o thehuman person. 79 These provisions arecomplemented by a broad legislative

ramework or environmental regulation. 80 The existence o a right to a decent or healthy environment as a reestandinghuman right is still controversial at theinternational level, but in many speci ccircumstances it is widely accepted thatenvironmental rights are part o well-established human rights such as theright to li e, right to health, and rights o indigenous or minority groups to non-discrimination, as protected in a range o international human rights instruments. 81


Despite the range o legal protections or rights associated with Shells gas faringactivities, the faring activities have so ar been permitted to continue, resulting in

alleged harms to the health, environmentand livelihoods o communities livingnear to the faring sites. Flares contain acocktail o substances such as benzeneand particulates, which harm health and the environment and contribute to acidrain, corroding villagers buildings. 82 It hasbeen reported that local people exposedto gas faring su er rom respiratoryproblems such as asthma and bronchitis,along with other ailments such as cancer,leading to premature death. Pollution

rom the faring is also widely claimedto damage the crop production o localcommunities, thereby adversely a ecting

their ood security .83 The burning o gasand associated venting practices alsocontribute to climate change by way o emissions o methane and CO2. 84 Theglobal climate change to which gasfaring in the Niger Delta contributes islikely to produce particularly detrimentalimpacts in Nigeria, given the Niger Deltasvulnerability to damage o multiple kindsassociated with rising sea levels. 85


In theory, members o the communities

adversely a ected by Shells gas faringhave access to a number o potentialavenues o redress.

Legal remedies are available under traditional common law provisions in tort (mainly nuisance and negligence). Suchmechanisms have been used extensivelyin recent years by communities seekingcompensation or damage inficted by oilcompanies as a result o incidents suchas oil spills. 86 It would also be possible, intheory, or those a ected by Shells faringactivities to attempt to bring a civil claim ina home country jurisdiction in relation toharms su ered.

Legal remedies are also available under the Constitution , whereby it is possibleto argue that gas faring constitutes abreach o certain undamental reedoms

particularly the rights to li e and todignity. These constitutional rights arerein orced by Articles 4, 16 and 24 o the

A rican Charter .87

Another avenue o address that istheoretically available, according toNigerian law, is pursuit o judicial review o the administrative decisions leading to theissuance o both ministerial certi cates topermit gas faring in certain elds, as wellas administrative approval o the requiredEnvironmental Impact Assessments (EIA). 88


Members o a ected communities wishingto seek redress in this case there ore had

theoretically a range o legal avenues

Gas faring in Nigeria: human rights o local communities

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or redress, but the practical prospectso accessing these avenues and usingthem to achieve the desired remedyo an ordered end to the faring varied

signi cantly. Each option con ronted adistinct cluster o barriers.

Practical and nancial barriersThe rst point to emphasise is that giventhe legal character o all signi cantavailable avenues the vast majority o those a ected by Shells activities wereunable to access redress o any kinddue to a range o practical and nancialaccess barriers. Financial barriers and a lack o knowledge o and trust in

legal rights and processes are widelyacknowledged as serious barriers inNigeria. Factors such as geographicaldistance to courts and intimidation bypublic bodies or potential parties toproposed legal action also play a role indiscouraging the use o ormally availablemechanisms. 89 Delays in the disposal o cases are also a generalised problemwithin the Nigerian legal system, althoughthis barrier is less signi cant in relation tothe speci c procedure or pursuing claims

in Nigeria based on constitutional rights.This is much aster than other Nigerianlitigation procedures. 90 Access barriers o these nancial and practical kinds wouldprobably be even greater in the case o any attempts by communities to pursuelegal action within the UK (or other homecountry jurisdiction).

Barriers con ronting the potential torttrackEven or those able to overcome

generalised access barriers, thetort-based legal track is particularlyunattractive. Some previous gas faringcases attempted to use this avenue butmet with signi cant di culties. First,bringing a success ul claim in relationto alleged harms such as environmentaldamage requires strict proo o causal connection , which o ten demands thepresentation o precise and overwhelmingexpert evidence. 91 While such evidentialrequirements operate to protect important

values o just process in their own right,many plainti s con ront signi cantbarriers in attempting to produce su cient

A man stands outside in a local neighbourhood with gas faring in the background.

Friends o the Earth, 2004

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evidence o causation to meet withevidentiary requirements. Producing suchevidence o ten requires the capacity toaccess expert scienti c advisors and to

advance complex technical arguments.Such requirements tend to have thepractical e ect o making it di cult or complainants to gather the requisiteevidence to build a success ul case, inthe absence o support being providedto complainants or this purpose. 92 Therequirement under Nigerian company law

or oreign corporations to reincorporateas a Nigerian company be ore they canoperate in Nigeria urther assists parentcompanies o subsidiaries in Nigeria to

deny liability or adverse consequenceso their operations. 93 Even moreimportantly, the tort-based legal avenueis generally unable to o er appropriateremedies to potential plainti s in gasfaring cases who are seeking cessationo the faring activities, and not merelymonetary damages (compensation)

or individual victims. Any attempt tobring such a claim in a home country

jurisdiction would con ront a similar set o barriers, compounded urther by potential

jurisdictional challenges.

Barriers con ronting a potential patho judicial reviewIn theory the judicial power o reviewcould be invoked to challenge theissuance o both the ministerialcerti cates that provide permission or gas faring in speci c instances, andthe EIA approvals. The integrity o theadministrative processes through whichthese are issued has been questioned on

a number o grounds. Serious questionshave also been raised in relation tothe conficts o interest that a fict theadministrative processes through whichEIAs are carried out, according to whichthe Federal Environmental Protection

Agency works in conjunction with theMinistry o Petroleum Resources incarrying out EIAs. 94 The integrity o administrative processes is undermined

urther by widespread charges o corruption among individual government

o cials,95 and as a result o the enormous political infuence o the oil companies,given the importance o oil production in

providing the governments main sourceo revenue.

Furthermore, the easibility o judicialchallenge to the law ul basis o suchadministrative decisions is seriouslyimpeded by the almost complete lack o transparency surrounding either theoutcomes o administrative decisionsregarding the issuance or non-issuanceo ministerial certi cates such decisionsnot being made public 96 or thereasoning underlying such administrativedecisions. 97 Until such time as theministerial certi cates are disclosed,along with, the in ormation on whichtheir issuance was based, members o the public have little basis on which tochallenge the legality o the processesthrough which certi cates are issued. 98

Relative merits o the constitutionalrouteBarriers o various kinds also con rontattempts to seek legal redress on thebasis o claims that gas faring violates

undamental constitutional rights. Oneaccess barrier that has not yet been ullysurmounted is the possibility o a courtruling that, in environmental pollutioncases a ecting many people, individualsmust come one-by-one to the court toprove their personal case, thus preventinghuman rights cases rom being brought inrespect o a community. Court rulings insuch cases have so ar been mixed. 99

Although the applicability o constitutional rights to environmentalpollution cases had not been acceptedby the Nigerian courts prior to the gas

faring litigation discussed below, thisavenue was attractive because o theability o claims made or the en orcemento undamental rights to be pursued byway o a special, quicker procedure thatenables disposal o the case via a davit(sworn written) evidence. In view o thisadvantage, together with this pathwayspotential to achieve a court order or the cessation o gas faring, a number o individuals and communities in theNiger Delta judged this route to be more

attractive than alternatives. Initiatinglegal action in 2005 in the Federal HighCourt o Nigeria, they argued that Shells

oil exploration and production activitiesin their locality, which entailed incessantgas faring, violated their rights to li e andthe dignity o the human person under

sections 33(1) and 34(1) o the NigerianConstitution and Articles 4, 16 and 24 o the A rican Charter guaranteeing their rights to li e, integrity o the person, healthand a satis actory environment. 100

E ectiveness and integrity o theselected grievance process

How then have those claiming to bea ected by Shells gas faring andattempting to pursue redress via thisavenue ared? The rst o these cases,heard by the Federal High Court o Nigeria in Benin City, was brought byJonah Gbemre on behal o himsel and the Iwhereken community in DeltaState, in the Niger Delta area o Nigeria,against Shell Petroleum DevelopmentCompany (Shell Nigeria), the NNPC andthe Attorney General o the Federation.In November 2005, the court heldthat the faring o gas by Shell Nigeriaconstituted a gross violation o theconstitutionally-guaranteed rights to li eand dignity o Mr Jonah Gbemre and theIwherekan community in Delta State. 101 This judgment represented the rst timea Nigerian court had applied the rightsto li e and dignity in an environmentalcase. Shell Nigeria was ordered to stopfaring in the community immediately. Thecourt also held that the legislation rom1984 and 1985 permitting faring o gasin Nigeria with ministerial permission wasinconsistent with the Nigerian Constitutionand there ore unconstitutional, null andvoid. It ordered the Attorney Generalto meet with President Obasanjo andassociates to set in motion the necessaryprocesses or new gas faring legislationthat is consistent with the Constitution.

Another o these gas faring caseswas brought later by our individuals andcommunities against Shell, Chevron,

Agip and Total, and heard by a judge inthe Federal High Court o Nigeria in PortHarcourt. The nal judgment in this case

was given in September 2006. The judgedeclined to ollow the judgment o theFederal High Court at Benin City in the

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above case, and dismissed the action. 102 This is currently being appealed.

Although the nal outcome o this judicial process there ore remainsundetermined, the e ectiveness andintegrity o the process through whichthe grievance has advanced has su eredas a result o what some observers haveperceived as political and corporateinter erence in the judicial process, andan abuse o due process by Shell.

While it is very di cult to presentsmoking-gun evidence o political inter erence in the judicial process withrespect to speci c decisions, the evidence

surrounding the development o theGbemre case raises serious concerns inrelation to principles o judicial integrityand independence. 103 When Mr Gbemreslegal representative attended theBenin City court on 30th April 2007, hediscovered that not only had Shell ailedto submit the detailed scheme or thecessation o faring activities as previouslyordered, but that Justice Nwokorie hadbeen removed rom the case, havingbeen trans erred to another court district

in the ar-northern State o Katsina. Itis urther alleged by some involved inthe case that the court le or the casehad mysteriously gone missing, andno representatives o the company or government had turned up. 104

Moreover, during the Gbemre case, thecompany engaged in an elaborate series

o procedural manoeuvres through whichit apparently attempted rst to avoid thecase being brought to court, and thento delay and adjourn initial hearings o

the case over nine di erent occasionswithin a period o ve months. In the nal judgment, the judge accused the lawyers

or Shell and NNPC o acting in bad aithand called their repeated motions or staysan abuse o the process o this Court. 105

Shell subsequently resisted compliancewith the November 2005 order o theFederal High Court, leading to the lingo contempt o court proceedings inDecember 2005. The court then so tenedits original order somewhat, granting aconditional stay o execution in whichthe company was given an additionalyear until April 2007 to stop faring, onseveral conditions. While the Court o

Appeal e ectively removed one o theseconditions, the remaining conditions o thecourt order still have not been met almosttwo years later (at the time o writing), andthe faring continues.


Beyond the court order o November 2005, and the extra boost that ShellNigerias non-compliance has given toan enhanced international campaign,the courts ruling has thus ar had littlepractical e ect the oil companies are yetto comply and are appealing the order.

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Overview o barriers to redress in Nigeria



Harm to public health Environmental harm

Harm to ood security

A rican Charter on Human and PeoplesRights (especially Articles 4, 16 and 24)

Nigerian Constitution Universal Declaration o Human Rights International Covenant on Economic,

Social and Cultural Rights Domestic environmental law

Cessation o gas faring activities

Avenues o redress


Common law provisions in tor t No: Inappropriate remedy o ered;barriers to acquiring necessaryevidence

Constitutional challenge to faringpermits

Yes Practical and nancial barriers Lack o trust in court system Ambiguity regarding legal entitlement o

communities a ected by environmental pollutionto bring a case collectively

Possible political inter erence in judicial process Corporate delaying and evasion tactics Corporate ailure to comply with court order

Judicial review o administrativedecisions

No: lack o transparencysurrounding administrativedecisions

Home country courts No: inappropriate remedy; jurisdictional constraints


No: judged a poor investmento resources given weakness o en orcement capacity and other weaknesses

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The involvement o UK companies inthe Indian mining sector ollows a longtradition, and or companies such as theUK-listed company Vedanta, 106 miningactivities in the Indian State o Orissacontinue to comprise an extremelyimportant ocus o their business. Indiacontains one-eighth o the worldsuntapped bauxite reserves, 107 mucho which lies just beneath the groundin the highly impoverished and highlyindebted State o Orissa. 108 In this context,mining has become one o the Stategovernments primary intended means o raising desperately needed revenues.

Over the past ew years, Vedantahas been ramping up its bauxite miningoperations across India. 109 While thiscompany is involved in mining activitiesin a number o Indian regions, thepresent discussion ocuses on its recentconstruction o an integrated aluminiumcomplex in Orissa. This involves the

proposed extraction o bauxite roma mine in the Niyamgiri Hills, theconstruction o an alumina re nery inLanjigarh at the oot o the NiyamgiriHills and a smelter at Brundamal in theJharsaguda district some 350km rom there nery. 110 From the outset, the projecthas been surrounded by controversy andaccusations o human rights violationsamong the communities living in thesurrounding area. O particular concernhas been the location o the mining site

on 660 hectares o protected orest whichorms part o the hill regarded as a living

god by the last 8,000 remaining Kondhtribal people.

Human rights standards governingthese relationships

In addition to Indias rati cation o coreinternational human rights conventions(ICESCR and ICCPR), a broad range o protections are available under Indianlaw or those whose human rights maybe a ected by proposed mining activities.

According to the provisions o the Indian

Recognition o Forest Rights Act o 2006,the rights o scheduled tribes and other traditional orest dwellers over their habitatare ormally recognised. 111 Moreover, theSupreme Court o India has repeatedlyheld that the right to a clean environmentand to water are components o theright to li e contained in Article 21 o theIndian Constitution. The right to religiouspractices and belie s is also protected by

Article 25 o the Indian Constitution.


Although the mining o bauxite has notyet begun, the companys operations inestablishing the mining site and re neryhave already given rise to verbal claims o environmental and human rights abusesby the tribal people living in a ected areas.Concerns have ocused, in particular, onalleged damage to local livelihoods, health,environment and ways o li e.

One o the principal alleged humanrights abuses at issue has been thedisplacement o tribal amilies to makeway or the re nery, which is claimed tohave violated the cultural rights o theseindigenous communities. The Kondhtribal people have claimed that their spiritual, cultural and economic wellbeingis intrinsically linked to Niyamgiri, whichthey worship as a living god. They havesuggested that i the mining project goesahead it will undermine their collectiveidentity and way o li e, destroying whatis le t o their tribe. It is also claimedthat communities economic rights arebeing violated, particularly their rights toproperty and livelihoods. To make way or the construction o the Lanjigarh re nery,villages have already been razed andover 100 tribal amilies moved rom their land, in many cases to a crowdedcement-house rehabilitation colony,which lacks land or arming and grazing.

Petitioners to the Supreme Court o India in 2005 alleged incidents o orcibleremoval and collaboration by company

o cials and local police against thoseresisting the evictions. 112

Moreover, there has been widespreadconcern over alleged harms to publichealth, livelihoods and the environment associated with the mining project.Particular concerns have ocused onVedantas toxic waste management at theLanjigarh re nery, which produces up tothree million tons o caustic soda wasteeach year. 113 People have complained o

breathing di culties and skin problems, aswell as damage to crop yields and livestock.


In addition to the use o straight orward political channels o redress involvingpublic protest and lobbying o politicians,two key avenues are available tocommunities a ected by the proposedmine. First, an administrative appeal process is available, enabling clearancesgiven by the Ministry o Environmentand Forestry to be challenged, by wayo appeal to the National Environment

Appellate Authority (NEAA).

Second, a ected individuals or communities can pursue an alternative

judicial channel by ling complaintsdirectly to the Supreme Court o India.This judicial channel can also be utilisedby those ailing in the administrativeappeal process. Tort-based actionsare another avenue o legal redress

potentially available in this case.

In addition to these two major avenues,the Indian government has establisheda National Human Rights Commission (NHRC), which is empowered toreceive complaints rom individuals or toenquire on its own initiative into humanrights violations. 114 In addition, ourteenIndian States have set up human rightscommissions to deal with violations at thestate level.

At an international level, a ectedcommunities could, in theory, attempt tobring a civil claim in the UK, as the home

Human rights o communities a ected by bauxite miningand aluminium production in India

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country jurisdiction, in relation to harmssu ered. They could also make use o

the UKs NCP or the OECD Guidelinesor MNEs.


Barriers to using political channelsTribal amilies a ected by the re nery andproposed mine have attempted repeatedlyto make use o political channels o redress, such as public protest and directlobbying o political representatives. At

each stage, serious obstacles have beencon ronted. Petitioners to the SupremeCourt allege that at the local level,

communities approached the DistrictCollector (the head government o cial in

the district), but ound him to be closelyaligned with those promoting the project

in act working actively to pressurevillagers to accept compensation romthe company to relocate. 115 Strategieso political protest were also reportedlyimpeded by local police, who were alsoclaimed to be working predominantlyin support o company o cials. It isalleged that in some cases local policere used to register human rights abuseswhen individual victims approached

them. In other cases police and localadministration were alleged to be working

together with corporate hired gangs tointimidate local communities. 116

Together with thousands o environmentalists and human rightsadvocates, communities then appealeddirectly to the Indian Prime Minister, and tomembers o the Orissa State parliament.However, such e orts in turn met withlittle success, in ace o the close linksbetween corporate executives andinvestors and senior gures within theOrissa State government. 117 The Orissagovernment at the time o this confictwas headed by Naveen Patnaik, whowas openly committed to a new wave o industrialisation that depended importantly

The Vedanta re nery in Lanjigarh, Orissa

Sanjit Das/ActionAid

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on striking deals with numerous miningcompanies, based on the premise thatexploiting the states rich mineral reserveswould trans orm Orissa rom poor to

rich and pay o its debts. In the Orissa Assembly on 4th December 2004, Patnaikdeclared: No-one I repeat no-one willbe allowed to stand in the way o Orissasindustrial development and the peoplesprogress. 118 Recent announcementssuggest the State government will bene tdirectly rom the prospective exploitationo the bauxite deposits, by means o aplanned Special Purposes Vehicle in whichSterlite/Vedanta is likely to hold 40% o the shares, the Orissa State government

26%, and its state-owned mining company(Orissa Mining Corporation) the remainingshare. 119 There have also been widespreadclaims both by leading Orissa newspapersand by the opposition party in the Orissa

Assembly that consent or the projectwas also acilitated by the provision o kickbacks to a number o members o Congress within the State government. 120 Within this political climate, it is perhapsnot surprising that political channels o redress have so ar proved unsuccess ul.

Barriers to using the National HumanRights Commission (NHRC)The relatively weak legal power vested inthe NHRC has been an important actor explaining the disinclination o a ectedcommunities to pursue this route or redress.While the NHRC has extensive powerso enquiry and recommendation, itsrecommendations are not legally bindingand it is powerless i the governmentdeclines to accept its recommendations. 121

Barriers to administrative appealEnvironmental clearances are required tobe issued by the Ministry o Environmentand Forestry or each distinct componento the project (the re nery, the smelter plant at Jharsuguda and the miningitsel ). At each stage, issuance o such clearances can be challenged onadministrative appeal to the NEAA.

In the case o the re nery, a strongsubstantive basis or such an appealexisted, given what the Supreme CourtsCentral Empowered Committee later

criticised as a ailure on the part o the Ministry to interpret correctly andapply both its own guidelines and itsconstitutional obligations when evaluating

the proposed mines environmentalclearance request, and its ailure toacilitate the public hearings that it is

obliged to organise prior to issuingenvironmental clearance or such aproject. 122 The integrity o the projectsadministrative approval process was

urther undermined by Vedantasestablishment o the Lanjigarh re nerybe ore receiving permission rom theenvironmental ministry, as well as bythe companys provision o misleading

in ormation about its intentions to mineprotected orest on Niyamgiri. 123 However,in practice, a ected communities werenot able to take advantage o the availableappeal process, or two main reasons.First, the NEAA requires that an appealbe led within a period o 30 days romissuance o the clearance, which providedinsu cient time or a ected groups toorganise and initiate an appeal. Second,the NEAAs jurisdiction is limited todirectly a ected persons or associations

working in the eld o the environment inthe local area, which posed a signi cantpractical barrier to access or the localcommunity given the nascent state o local environmental organisations at thattime. An appeal was launched at theNEAA against the grant o environmentalclearance to the smelter plant, but thiswas dismissed on the ground that theappellant was not an aggrieved personand thus not competent to le the appeal.

An appeal has been led in the Delhi High

Court against this decision.

Barriers to using internationalavenues

As in the Nigerian case, pursuit o a civillaw claim in the UK against Vedanta (theparent company listed and registered inthe UK) would probably ail to o er thedesired remedy o preventing theproposed mining activities rom goingahead. In addition, such a claim would belikely to ace jurisdictional barriers that

could delay, i not derail, the attemptedaction, as well as di culties inestablishing Vedantas direct liability or

damage inficted, given its legalseparation rom its Indian subsidiary.

A complaint at the international level couldpotentially be brought with greater ease by

way o the UKs NCP, but the non-bindingnature o any resulting recommendationswould be likely to weaken signi cantly itsability to o er a meaning ul remedy or a ected communities.

The relative merits o pursuing a judicial avenue o redress by way o the Supreme CourtSigni cant barriers to accessing

judicial channels con ront many withina ected communities, as a result o

the high nancial costs o accessingthe Indian courts, an ine ective legalaid system, and extensive time delaysthroughout the legal process. Low levelso literacy and high levels o isolation

rom mainstream society among tribalcommunities compound such barriers, asdo the remote location o the community,language barriers, and other barriersto accessing requisite in ormation andknowledge o legal rights and processes.

Nevertheless, having con rontedbarriers and ailures in relation toalternative avenues o redress, somewithin a ected communities have turnedto available judicial channels, giving riseto a drawn-out legal process centredon the Supreme Court o India (thehighest court in the country). Threeseparate complaints were led againstVedanta in the Supreme Court o Indiaby Indian environmental and humanrights organisations, with all the petitionsalleging environmental violations on arange o counts. 124

E ectiveness and integrity o the judicial grievance process

Following these petitions, a subcommitteeo the Supreme Court the CentralEmpowered Committee (CEC) setout to investigate Vedantas allegedviolations. 125 In the hands o the courtprocess, the ate o the local communitieshas swung back and orth as the case

has been passed between multiple orao review. Throughout this process,communities have struggled both to

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nd the requisite resources to persistwith the claim in the ace o long delaysand to gather adequate documentaryevidence o human rights violations.

These are common problems con rontingmarginalised communities that attempt toaccess the Indian court system. 126

Initially, in September 2005 theCEC rejected the mining o Niyamgiri,demanding that Vedanta also answer

or illegally constructing the re nery.However, in early 2006 the SupremeCourt side-stepped the verdict o itsown subcommittee, re erring the matter to a government advisory group whichthen approved diversion o orest land

or the mining project, subject to certainconditions. In November 2007, IndiasSupreme Court made an interim rulingwhich re used permission or Vedanta to

mine bauxite rom Niyamgiri, but statedthat it was not opposed to the project inprinciple, and allowed Sterlite Industries(one o Vedantas Indian subsidiaries) to

reapply or permission through a SpecialVehicle. In August 2008, Sterlite wasgiven clearance by the Indian SupremeCourt to acquire orest land in theNiyamgiri hills by means o a SpecialVehicle joint venture with the Orissa Stategovernment and its state-owned miningcompany. Although the mining project hasnot yet received environmental clearance(at time o writing), and domestic avenues

or challenging the project are not yetcompletely exhausted, it seems probable

that the ull mining project will ultimatelygo ahead, ul lling local communitiesworst ears.


To date, despite attempts by localcommunities ghting against Vedantasmining activities in the Niyamgiri Hillsto pursue their grievance via a broadrange o political and legal channels atthe national level, it appears increasinglylikely that the company will soon bepermitted to initiate ull-scale miningactivities on the site. With availableremedies at the national level close tobeing exhausted, and an absence o appropriate and e ective mechanismsat the international level, many ear thatthe human rights abuses associated withVedantas operations in this communityare likely to intensi y.

Overview o barriers to redress in India



Alleged displacement o tribal amiliesviolating property rights

Alleged physical violence associatedwith orced displacement

Harm to collective identity and way o li eo tribal communities

Harm to public health and environment Harm to livelihoods

Indian Constitution (especially Section18, protecting tribal land rights;

Article 21 protecting the right to cleanenvironment and water as componentso the right to li e; and Article 25protecting the right to religious practiceand belie s)

Universal Declaration o Human Rights International Covenant on Economic,

Social and Cultural Rights Domestic environmental law

Indian Recognition o Forest Rights Act

Denial o permission or miningproject

Compensation

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Avenues o redress


Political channels Yes Support among political authorities at local andState level or the mining project

Common law provisions in tor t No: Inappropriate remedy o ered;barriers to acquiring necessaryevidence

Administrative appeal to the NationalEnvironment Appellate Authority

No, in the case o the re nerysenvironmental clearance: Only directly a ected

communities can initiate anappeal, and communitiesa ected lacked su cientorganisation and resources;

Constraining limitation periodrequiring complaints to be ledwithin 30 days

Yes, in the case o theenvironmental clearance or thesmelter plant

Ambiguity surrounding standing o appellant Lack o independence o members o the

National Environment Appellate Authority

Appeal to Indian Supreme Court Yes Financial and socio-economic barriers Delays

Indian National Human RightsCommission

No: evidential barriers; weaknesso en orcement capabilities

Home country courts No: inappropriate remedy; jurisdictional barriers; di cultiesestablishing parent companyliability


No: judged a poor investmento resources given weakness o en orcement capacity and other

procedural weaknesses

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The 1,770-km long Baku-Tbilisi-Ceyhan(BTC) pipeline was constructed over a

our year period rom 2002-2006, withthe aim o transporting up to one millionbarrels per day o crude oil rom anexpanded Sangachal terminal near Bakuin Azerbaijan, through Georgia, to a newmarine terminal at Ceyhan in Turkey onthe Mediterranean coast.

A number o power ul corporate andgovernmental actors have been involved

in this massive in rastructure project.Corporate interests led by BritishPetroleum (BP) were organised by theBTC Corporation 127 (BTC Co.), while theGovernment o Georgia was representedby the Georgian International OilCorporation. The project has been nancedby major international unders, in particular the World Bank and the European Banko Reconstruction and Development(EBRD), and has also received exportcredit guarantees rom the UK. 128

The pipeline was to be buried alongits entire route, which passed throughhundreds o communities situated acrossthe three a ected countries. Constructiono the pipeline there ore required thetemporary acquisition (typically or aperiod o three years) o land under whichthe pipeline was to be buried. In total,450 communities (about 750,000 people)including some 100,000 landowners wereregistered to be a ected by the pipelinewithin the three countries through whichit passes. 129 Some also criticized theenvironmental impacts o the pipelineschosen route, which cut through theBorjomi-Kharagauli National Park area,near to the Borjomi mineral water plant.From the time the project was rst mooted,its potential implications or communitiesliving along a vast stretch o territory havebeen the subject o controversy.

Human rights standards governingbusiness relationships with localcommunities

Some o the terms o the HostGovernmental Agreements (HGAs), which

orm an important element o the legalramework or the project as a whole, 130

were widely criticised or containingprovisions that could potentially operateto weaken the Georgian Governmentscommitment to current and uture

international human rights obligations.131

Generally speaking, however, legalprotections o human rights a ected bythe construction o the pipeline withinGeorgia are extensive. The companiesparticipating in the pipeline constructionare committed under the projectsPrevailing Legal Regime 132 to respectingthe highest applicable international humanrights standards, as laid out in amongother documents the UDHR, the OECDGuidelines or MNEs, the European

Convention on Human Rights and themulti-stakeholder Voluntary Principles onSecurity and Human Rights. 133


Claims o human rights violationsassociated with construction o thepipeline have centered on severalmain issues, encompassing economic,social and political categories o rights.Disputes surrounding the process o land acquisition along the route o thepipeline have been a recurring sourceo grievances, with large numberso a ected communities allegingthat construction had begun be orecompensation had been provided,violating rights to property, 134 and thatlevels o compensation were inadequate.Many also reported su ering signi cantdamage to livelihood resources , includingloss or degradation o land due to theconstruction, damage to irrigation or drinking water supply pipes, lack o access to land plots due to the pipeline,

and loss o economic activities due, or example, to eradication o colonies o bees or loss o agricultural income. Manyclaims also ocused on reported ancillarydamage to houses and local in rastructureas a result o blasting and other construction activities. In addition, therewere widespread reports o intimidationand violence directed at villagers whoattempted to protest against constructiono the pipeline. BTC Co. employees arealleged to have responded to talk o demonstrations with threats o physicalviolence and claims that engaging inprotest would damage villagers chanceso compensation. 135


In addition to in ormal political channelsor grievances, the most important ormal

avenue or redress has been the CommonCourt system o Georgia, which handlescivil, administrative and criminal disputes.

The Common Court system encompassesDistrict and City Courts; the Court o

Appeal; and the Court o Cassation(Supreme Court), the latter having beenestablished in 2005 to serve as the courto the highest, and nal, instance or

justice administration in the country.

In theory, some grievances could havebeen pursued extra-territorially in thecourts o home states where companiesinvolved in the BTC project are listedand headquartered, though the nancial,

jurisdictional and practical obstacles tosuch actions would have been out o proportion to the relatively small scale o most o the claims. 136

More in ormal channels o redresswere also available at the internationallevel in several orms. First, BTC Co.was required by both the World Bankand the EBRD, as a condition o theprojects nancing, to establish its ownindependent mechanism or settlement

o disputes arising in relation to theproject in each participating country,to operate throughout the period in

Human rights o Georgian communities along theBaku-Tbilisi-Ceyhan pipeline

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which construction was taking place. 137 Operating in parallel to this mechanism

were two international grievancemechanisms provided directly bymultilateral unders o the project: theInternational Finance Corporation-Compliance Advisor Ombudsman(IFC-CAO) and the EBRD IndependentRecourse Mechanism. 138 The NCPmechanism enabling grievances tobe brought in relation to the OECDGuidelines or MNEs was also availablewithin a number o countries whosecompanies were involved in the project.

An additional avenue o redress thatcould potentially have been pursued at

the local level is the countrys nationalhuman rights institution the o ceo the Public De ender o Georgia .139 In theory, the Public De ender is akind o ombudsperson responsible or supervising the protection o humanrights and undamental reedoms in theterritory o Georgia, eliciting the acts o violation o human rights and assistingin redress where rights have beenin ringed. However, in practice, none o the grievances arising as a result o the

pipeline project were reviewed by thisombudsperson.


During the our years over which theconstruction o the pipeline occurred,a ected individuals and communitiesattempted to make use o a range o bothpolitical and judicial channels o redress.

Barriers to the use o politicalchannelsBe ore pursuing judicial channels o redress, the vast majority o a ectedcommunities attempted to use political

channelsto register their grievances

directly. Letters o complaint were sent tothe BTC Co. and local sel -government

Construction o pipeline in Borjomi National Park.

Friends o the Earth, 2004

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units, as well as to representatives o both executive and legislative brancheso Government, including both thePrime Ministers o ce and individual

parliamentary representatives. Manywithin a ected communities also engagedin direct orms o public protest , in somecases organising strikes, or resortingto measures such as blocking o construction sites and major roads. Intotal, approximately 300 direct actionsand rallies were organised by a ectedcommunities, some o which allegedly ledto violent reprisals rom police. 140 Protestswere also registered by some groupsin relation to the environmental impacts

o the pipelines chosen route, as theproposed route cut through the Borjomi-Kharagauli National Park area, near to theBorjomi mineral water plant.

While politicians and their o cials couldhave responded by re using planningpermission or the proposed route, or demanding more extensive concessions

or a ected communities, concerns havebeen raised by some Georgian NGOs andlocal media regarding the alleged exertiono countervailing political pressure insupport o the project by BTC Co. and itspower ul oreign supporters, at the highestlevels o the Georgian Government.One instance o such pressure beingapplied is believed to have occurredearly in the development o the project,during the process o approval or theproposed route or the pipeline, which wasbeing contested, in particular, by thoseconcerned about its route through theBorjomi National Park. On 26 November 2002, then Georgian Environment Minister Nino Chkhobadze initially re used to agreeto BPs choice o route or the pipelinethrough the Borjomi National Park, statingthat BP representatives are requestingthe Georgian Government to violate our own environmental legislation. 141 Intensepressure was then allegedly placeddirectly on then President Shevardnadzeby both BP representatives and a specialenvoy sent by the US government,inducing Shevardnadze, in turn, topressurise Chkhobadze until she nallysigned the permit at 3a.m. on the nightbe ore BPs deadline. 142

Barriers to use o the Public De ender mechanismDespite being one o the most trustedinstitutions in Georgia, 143 recommendations

o the Public De ender lack any bindingpowers. Those occupying the post o Public De ender that have adopted anactivist stance critical o the Governmenthave aced signi cant resistance romthe Georgian Parliament, which has onseveral occasions declined to approvethe De enders reports. The power o thePublic De ender to act in de ence o humanrights in the ace o contrary objectiveswithin the Georgian Government isthere ore very limited, undermining the

use ulness o this mechanism or thoseseeking binding remedies.

Partial access to redress by way o the Georgian judicial system

As in so many other cases, nancial barriers associated with access to the

judicial system have created seriousobstacles or many within a ectedcommunities, particularly since thepipeline passes largely through ruralareas characterised by widespread

poverty. Court ees were raisedsigni cantly in July 2006, increasing thesebarriers urther. 144 Moreover, Georgias

judicial institutions are some o the leasttrusted institutions in the country, andthis lack o trust presents an additionaldisincentive or victims to undertake costlyand time-consuming orms o litigation. 145

Nevertheless, a number o casespertaining to the pipeline project weresubmitted to the Common Courts, themajority o these actions being initiatedby villagers and local NGOs acting ontheir behal . Some involved claims or compensation against BTC Co., whileothers sought to appeal the administrativedecisions through which environmentalpermission or the project had been grantedby Georgias Ministry o Environment. Inone case, BTC Co. itsel brought a suitagainst the landowners with whom itcould not reach an agreement about landacquisition, demanding necessary right o way on their land parcels. Many o thesecases ended in the Supreme Court, andsome have still not been nally resolved.

Use o in ormal grievancemechanisms established by project

nancers A number o cases have been taken

through BTC Co.s internal grievancemechanism, as well as the World Bankand EBRD mechanisms, and the NCP or the OECD Guidelines. Between 2002 and2006, the BTC Co.s mechanism receivedaround 2500 grievance complaints,involving 600 contractor companies. 146 While 31 cases were taken through theWorld Banks IFC-CAO, only three wereregistered with the EBRD, due to thelate establishment o the mechanism (itcame into orce only in late 2004, when

the construction phase o the projectwas already underway) and the weakdissemination o in ormation about themechanism among a ected communities.

E ectiveness and integrity o the judicial grievance process

Barriers con ronted by those attemptingto access justice through the Georgiancourt system are multi- aceted. As in somany other countries, problems o under-resourcing refected in an over-burdenedcase load and long waiting lists areendemic. Even in cases where the courtsinitial decision has been avourable or local communities, attempts to pursueen orcement o court orders can drag on,sometimes or years. 147

Moreover, the Georgian judiciaryis generally considered to su er romserious de cits o independence andintegrity. 148 The exercise o political infuence over the judiciary can be a

particular problem in cases such asthese, where senior gures within thegovernment are committed to acilitatingthe smooth operation o the project, andare willing to override the human rightso a ected communities in order to doso. In some cases the exercise o suchinfuence is direct, taking the orm o whatmany re er to as phone justice. Duringone case in Akhaltsikhe, the lawyer representing the a ected communitiesreported being approached by the judge

overseeing the case, mistaking him or the representative o BTC Co. Everythingwill be OK, the judge is reported to have

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assured the lawyer, since I have receiveda call rom the National Security Councilo Georgia.

In other cases, the channels throughwhich political pressure appears to havebeen exercised over the judiciary havebeen more subtle. The environment o underlying political pressure and lacko independence in which the judiciaryoperates is such that o ten it is su cient

or lawyers to make arguments invokingstate interests, and judges will take suchconsiderations into account in makingtheir decisions without the need or suchdirect orms o political intervention. Inone case, in which BPs alleged abuse o the environmental obligations placed onthe project were being challenged, thelawyers representing the Governmentand BTC Co. were said to have spentmore time making speeches aboutthe importance o the BTC pipeline or Georgia than in addressing the particularso the case being considered by the court.In private talks with one o the local NGOsinvolved with the case, a representativeo the environmental ministry is said tohave acknowledged that the claimantswere right on the merits o their case, butasserted that in this country in this periodit is impossible to win a case against BTCand the Government.

Weak en orcement provided byprivate and voluntary systems o redress

While BTC Co.s internal grievancemechanism provided a orum within whichsome small complaints were able to beresolved, many attempting to use thismechanism were highly critical o theprocess, suggesting that the companytook advantage o the absence o bindingremedies to avoid payment o , what wouldotherwise be considered, reasonablelevels o compensation. 149 Likewise, whilethe IFC-CAO mechanism provided ause ul orum or negotiation over somesmall claims, 150 acilitating the provisiono remedy even in the absence o ormalpowers o en orcement, critics complainedthat as soon as signi cant sums o money were at stake, the mechanismsleverage over the companies decreasedenormously. 151 In a number o cases thecompany simply re used to submit to theIFC-CAO process. 152

Although the EBRDs grievance systemwas not so widely used in this case,similar evaluations have been made o

this mechanism. It has also been claimedthat BTC Co., their subcontractors andthe Georgian Government have soughtto avoid responsibility by re erringcomplainants to one another via themultiple, parallel mechanisms o redress. 153

The OECD Guidelines mechanism wasalso used in this case, with complaintsbeing led in April 2003 simultaneously

be ore UK, Italian, French, German andUS NCPs, accusing BP o seeking taxand legal exemptions in contraventiono OECD guidelines, as well as unduly

infuencing the governments in theconstruction o the pipeline in Georgiaand Turkey. 154 The case received itsmost extensive consideration rom theUK NCP, which undertook a eld visit toGeorgia in September 2005 to collect

urther details regarding the case at thelocal level. A ter a drawn out process, theUK NCP reached a decision to exoneratethe company, a decision that was stronglycriticized or relying heavily on anundisclosed report presented by BP. The

transparency and impartiality o the NCPmechanism have been widely criticised,as have the procedural barriers arising

rom the ling o the case in multiple jurisdictions, leading a number o NCPs toattempt to shi t responsibilities rom oneto the other. 155 Five and a hal years later,the case has still not been ully resolved. 156


While some individual claimants havesucceeded in winning small victoriesvia the range o legal and quasi-legalchannels through which they havepursued their grievances, many a ectedindividuals and communities haveremained uncompensated or alleged lossand damage o property, in rastructureand local environments associated withthe construction o the pipeline.

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