Doing Business Right Blog

Editor's note: Alexandru Rares Tofan recently graduated with an LLM in Transnational Law from King’s College London where he focused on international human rights law, transnational litigation and international law. He is currently an intern with the Doing Business Right project at the Asser Institute in The Hague. He previously worked as a research assistant at the Transnational Law Institute in London on several projects pertaining to human rights, labour law and transnational corporate conduct.

Introduction

In 2014, three Eritrean refugees commenced a representative action in British Columbia against the transnational mining company ‘Nevsun Resources’, pleading both private law torts and violations of customary international law. They alleged that they were subjected to forced labour, slavery, torture, and crimes against humanity while working at an Eritrean gold mine jointly owned by Nevsun (60%) and by the Eritrean State (40%). The representative action was brought on behalf of over a thousand people who had been drafted into the Eritrean National Service Programme (NSP) and subsequently forced to work at the Bisha Mine. The NSP is a governmental apparatus of indefinite and mandatory conscription that is fraught with allegations of forced labour and other human rights abuses. It was established under the authoritarian regime of President Isaias Afwerki who has been ruling Eritrea ever since the country gained independence from Ethiopia in 1993. As Nevsun is incorporated under the laws of British Columbia, the plaintiffs sought relief in the courts of the Canadian province. Notwithstanding the defendant’s attempts to have the proceeding stayed or dismissed, the action was allowed to go through both by the Supreme Court of British Columbia (BCSC) and the Court of Appeals (BCCA). On 14 June 2018, the Supreme Court of Canada granted Nevsun leave to appeal with a tentative hearing date set on 23 January 2019.

This proceeding raises complex issues of transnational law. The plaintiffs are seeking redress in a jurisdiction that is neither the locus delicti nor their country of nationality. Rather, the claimants argue that peremptory norms of customary international law create a private law cause of action and a right to recover damages under Canadian law. In point of fact, the plaintiffs have called attention to several delicate questions. Firstly, can claims of damages arising out of the alleged breach of jus cogens norms form the basis of a civil proceeding? And are corporations bound by these international law norms for that matter? The case is further layered by the involvement of the State of Eritrea. Since Nevsun is argued to be derivatively liable, a finding of guilt on its part would mean that the Canadian courts would be judging the acts of another state. This engages the act of state doctrine, which demands judicial abstention from adjudication of matters touching upon the conduct of foreign states.

Nevsun filed four interlocutory applications seeking to have the claim stayed, dismissed or struck out. This article traces the development of this case through the first three objections to jurisdiction raised by Nevsun and dismissed by the provincial courts: forum non conveniens, the act of state doctrine and the lack of corporate liability under customary international law. A fourth application argued that the plaintiffs’ claims are not appropriately brought as a representative action (i.e. class action). This application was granted by the Supreme Court of British Columbia and was not appealed by the plaintiffs.[1]

More...

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands and an intern with the Doing Business Right project at the Asser Institute. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

Introduction

This report compiles all relevant news, events and materials on Doing Business Right based on the coverage provided on our twitter feed @DoinBizRight and on various websites. You are invited to contribute to this compilation via the comments section below, feel free to add links to important cases, documents and articles we may have overlooked. More...

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

From 15 to 19 October 2018, the fourth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights took place in Geneva. 92 UN States participated in the session along with a range of stakeholders, including intergovernmental organisations, business organisations, special procedures of the Human Rights Council and national human rights institutions. The focus of the session was on the zero draft of the proposed binding business and human rights treaty (from herein referred to as the ‘treaty’).

This blog sets out the key views and suggestions made by those in attendance with respect to the treaty during the session.[1] Issues and areas of concern raised at the session generally aligned with the critiques raised by commentators on the first draft of the treaty (which are set out in a previous blog). More...

Introduction

The Headlines

Chevron Corporation and Texaco Petroleum Company v The Republic of Ecuador

On 30 August 2018 an international tribunal administered by the Permanent Court of Arbitration in The Hague issued an award in favour of Chevron Corporation and Texaco Petroleum Company, holding that the Republic of Ecuador had violated its obligations under international treaties, investment agreements and international law. The tribunal found that a $9.5 billion judgment handed down by Ecuador’s Supreme Court in the Lago Agrio case was procured through fraud, bribery and corruption. It also found that the Republic of Ecuador had already released the claims that formed the basis of the judgment years before. The tribunal concluded that the fraudulent Ecuadorian judgment is “not final, enforceable, or conclusive under Ecuadorian and international law” and therefore cannot be enforced within or outside of Ecuador and that it “violates international public policy and natural justice”.

Draft Optional Protocol to Business and Human Rights Treaty

On 4 September 2018 the Permanent Mission of Ecuador to the UN and other International Organizations in Geneva presented the ‘Draft Optional Protocol To The Legally Binding Instrument To Regulate, In International Human Rights Law, The Activities Of Transnational Corporations And Other Business Enterprises’ (Optional Protocol). The Optional Protocol focuses on ensuring State Parties to the Optional Protocol establish mechanisms that provide access to remedy for victims of human rights violations in the context of business activities of a transnational character. It also provides individuals and group with the ability to make communications to the Committee of experts. More...

Editor's note: Before joining the Asser Institute as an intern, Alexandru Tofan pursued an LLM in Transnational Law at King’s College London where he focused on international human rights law, transnational litigation and international law. He also worked simultaneously as a research assistant at the Transnational Law Institute in London on several projects pertaining to human rights, labour law and transnational corporate conduct.

The recent indictment of the French multinational company ‘Lafarge’ for complicity in crimes against humanity marks a historic step in the fight against the impunity of corporations. It represents the first time that a company has been indicted on this ground and, importantly, the first time that a French parent company has been charged for the acts undertaken by one of its subsidiaries abroad. Notably, the Lafarge case fuels an important debate on corporate criminal liability for human rights violations and may be a game changer in this respect. This article analyses this case and seeks to provide a comprehensive account of its background and current procedural stage. More...

Since the release of the first draft of the BHR Treaty (from herein referred to as the ‘treaty’), a range of views have been exchanged by commentators in the field in relation to the content of the treaty (a number of them are available on a dedicated page of the Business and Human Rights Resource Centre’s website). While many have stated that the treaty is a step in the right direction to imposing liability on businesses for human rights violations, there are a number of critiques of the first draft, which commentators hope will be rectified in the next version.

This second blog of a series of articles dedicated to the proposed BHR Treaty provides a review of the key critiques of the treaty. It will be followed by a final blog outlining some recommendations for the working group’s upcoming negotiations between 15 to 19 October 2018 in Geneva. More...

By resolution, on 26 June 2014 the UN Human Rights Council adopted Ecuador’s proposal to establish an inter-governmental working group mandated ‘to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’. The proposal was adopted by 20 to 14 votes, with 13 abstentions, and four years later, in July this year, the working group published the first draft of the treaty (from herein referred to as the ‘treaty’). Shortly after, the draft Optional Protocol to the draft treaty was released. The Optional Protocol focuses on access to remedy for victims of human rights abuses by businesses.

This first blog of a series of articles dedicated to the proposed BHR Treaty provides an overview of the main elements of the draft. It will be followed by a review of the reactions to the Draft, and a final piece outlining some recommendations for the upcoming negotiations. More...

Editor’s note: Benjamin Thompson is a PhD candidate in business and human rights at Tilburg Law School in the Netherlands. His PhD research deals with the effects of the UN Guiding Principles on Business and Human Rights' endorsement of operational level, non-judicial grievance mechanisms and their role in improving access to remedy. He recently published an article for Utrecht Law Review’s Special Issue on Accountability of Multinational Corporations for Human Rights Abuses which discussed the roles the new Dutch multistakeholder initiative with the Dutch banking sector might play in improving banks’ performance with respect to human rights.

In November of last year the Asser Institute offered me the opportunity to take part in a roundtable on the Dutch Banking Sector Agreement (DBA), as part of their Doing Business Right Project. Signed in December 2017, the DBA is a collaboration between the banking sector, the government, trade unions and civil society organisations (CSOs), all based within the Netherlands: the first of its kind. It focuses on banks’ responsibility to respect human rights, as stipulated in the UN Guiding Principles on Business and Human Rights (UNGPs) and OECD Guidelines for Multinational Enterprises (OECD Guidelines), within their corporate lending and project finance activities. The DBA has been something of a hot topic in business and human rights circles. However, it has not yet published a public monitoring report, making any evaluation of its performance at this stage difficult. During the roundtable, we discussed the role of the DBA as a potential means to improve the practices of Dutch banks with respect to human rights. A key challenge identified from this discussion, as reported here, was the various ‘interpretive ambiguities inherent in the UNGPs’. A key conclusion was that ‘further dialogue is required... to ascertain what conduct on the part of the banks is consistent with international obligations’.

This is not a unique conclusion to arise from multistakeholder discussions on banks and human rights; the discussion often focuses on what financial institutions are required to do to meet their responsibility to respect human rights under the UNGPs. So much so that questions concerning implementation or evaluation are often left by the wayside. As a result, when presenting my research on the DBA for the Utrecht Centre of Accountability and Liability Law’s Conference on ‘Accountability and International Business Operations’, published here, I decided to focus on how the DBA had responded to those key points of friction where there is the greatest disagreement between how different stakeholders conceive banks’ human rights responsibilities. This blog post seeks to build on this previous entry, hopefully without too much repetition. More...

Editor’s note: Abdurrahman is currently working for Doing Business Right project at the Asser Institute as an intern. He received his LL.M. International and European Law from Tilburg University and currently he is a Research Master student at the same university.

Introduction

The 2011 update of the OECD Guidelines for Multinational Enterprises (hereinafter ‘Guidelines’-for some introductory information, see here) introduced various changes to the 2000 text of the Guidelines, including a whole new chapter on human rights in line with the UN Guiding Principles on Business and Human Rights. National Contact Points (NCPs) - non-binding, state-based, non-judicial grievance mechanisms established by the adhering states - have since then concluded approximately 60 cases submitted under the newly-introduced human rights chapter.

If an NCP believes that the issues raised in a submission merit further consideration, it accepts the complaint, prepares an initial assessment report and offers its good offices to the parties of the complaint.[1] Parties may reject the offer, accept the offer but fail to reach an agreement in the mediation or, if everything goes well, reach an agreement. In any of these scenarios, the NCP concludes the specific instance with a final assessment report.[2] Between the initial and final assessment reports, however, NCPs are not required to communicate details of the ongoing mediations to the public. Nor do they have to provide any specific details about the agreement of the parties, if at all, along with or after the final report.^{^[3]}

NCPs aim to promote the effectiveness of the Guidelines, to handle enquiries and to use a complaint procedure (so-called specific instance procedure) to facilitate settlements of disputes that may arise in case of non-compliance with the Guidelines by enterprises. Although to provide effective remedies to victims of business-related human rights abuses is not explicitly included among their aims, NCPs have the potential to serve as a forum to which victims can turn to obtain effective remedies.[4] They can receive complaints alleging the violation of internationally recognized human rights and offer mediation to the parties of the complaint to find a solution on which both parties agree upon.

In more than 20 out of these approximately 60 cases concluded, parties to the dispute reached a settlement through a mediation procedure facilitated by the NCP. These cases are considered ‘successful’ or ‘positive’ by the OECD.[5] But can these really be considered as such? Do the NCPs function as an effective grievance mechanism which provides access to remedies to victims of business-related human rights abuses in the cases they have settled? Or were these cases found successful only because the NCPs dealing with them claim so, regardless of the actual remedies provided? In this blog, I will elaborate on the concept of ‘success’ as used by the OECD and how the cloudy nature of the procedure raises questions about the successful conclusion of the cases and of the role of NCPs in this regard.More...

We are looking for a new business and human rights intern starting early September 2018 for a period of at least three months, preferably full-time. The Internship will be based at the Asser Institute in The Hague.

Main tasks:

Contribute and develop research outputs within the Asser research project ‘Doing Business Right’, especially for the blog;
Assistance in day-to-day maintenance of social media accounts linked to the ‘Doing Business Right’ project;
Assistance in organizing upcoming events (workshops, lectures);
Assist in legal research and analysis in the frame of academic publications.

Interested candidates should have:

Demonstrated interest in legal issues lying at the intersection of transnational business, human rights, private international law, and global value chains regulation. An interest in transnational law and private regulations are an advantage;
Solid academic and non-academic writing skills, research and analytical skills;
A master degree in EU law, private or public international law or international relations;
Excellent command of written and spoken English, preferably at a native speaker level;
Experience with managing websites and social media communication is of an advantage.

What we offer:

A stipend, based on the level of education completed;
Exposure to the academic activities of the research strand ‘Advancing public interests in international and European law’, and the T.M.C Asser Instituut, a leading research centre in International and European law;
An inspiring, dynamic and multicultural working environment.

Interested candidates should apply by email, sending a motivation letter and CV in English, a sample of academic writing (master’s thesis or paper from a course relevant to the topics of the research project ‘Doing Business Right’) to both A.Duval@asser.nl and E.Partiti@asser.nl.

Deadline for application is 10 August 2018, 12.00 PM CET.

Please note: We cannot offer assistance in obtaining residence and work permits for the duration of the internship.

Editor's note: Sara Martinetto is a research intern at the T.M.C. Asser Institute. She has recently completed her LLM in Public International Law at the University of Amsterdam. She holds interests in Migration Law, Criminal Law, Human Rights and European Law, with a special focus on their transnational dimension.

More than 11000 deaths and 25000 hospitalisations: the numbers divulged by the prosecution expert report assessing the human consequence of the operation of Ilva industries in the Italian city of Taranto are staggering. The environmental disaster caused by the plant brought the whole area to its knees and, in spite of all the efforts made, is still on-going. This is the story of a never-ending conflict. A conflict between different rights, which need to be balanced; between public authorities, who bear responsibility for ensuring and protecting those rights; between different normative levels and powers, given the numerous infringement proceedings opened by the EU Commission and the most recent claims lodged to the European Court of Human Rights (ECtHR). In the following sections I will try to shed some light on the main legal aspects of this tragic saga. For clarity, this article is divided in two posts: the first deals with the national level, while the second focuses on the supranational dimension of the case.

Factual and Legal Background

Ilva steel production has always been one of the cornerstones of Italy’s economy. The Taranto factory is the biggest steel plant in Europe and, in 2010, it counted more than 12.000 employees. It was a state-owned enterprise until 1995, when it was privatised and bought by the Riva family. It also acquired its liabilities: the negative impact of the plant on the environment had been, at the time, already acknowledged by the Italian Government. Indeed, the government had already conducted several investigations showing the existence of extensive air and water pollution, which required intervention on the sewage treatment plants. In particular, the high concentration of Dioxin was deemed to be worrisome, and extremely harmful for human health. In 1990, the Council of Ministers issued a Declaration pursuant to law 349 of 8 July 1986, stating that the Taranto area was “at risk of an environmental crisis”. Theoretically, this would have led to the drafting of a depollution plan; however, no authority meaningfully acted upon it, and the declaration was renewed in 1997. These documents have been incorporated in 1998 in a Presidential Decree which established the allocation of public and private funding for the clean-up for the plant.

In the meantime, an increasing environmental awareness led to the adoption – from the 90s onwards – of several legal instruments at the international, European and national level. Among others, one can recall the Rio Declaration on Environment and Development of 1992, Kyoto Protocol of 1997, the Aarhus Protocol and the Aarhus Convention of 1998. Particularly, the latter triggered a proliferation of European legislative action. Among the EU measures Council Directive 96/61/EC is particularly important.^{^[1]} Also known as the Integrated Pollution Prevention and Control (IPPC) Directive, it obliged public authorities to issue an authorisation for all the activities presenting an environmental risk. The release of such a permit is conditional on whether BATs (Best Available Techniques) are applied. In Italy, the Directive has been implemented only in 2005, by mean of a legislative decree; the permit released by the government pursuant to this act is known as AIA (‘integrated environmental authorization’).

The drafting of this new body of legislation resulted in several reforms in Italian law, such as the adoption of the Environmental Code in 2006. However, the domestic implementation of such instruments is lagging, and characterised by delays and misinterpretations. The inadequacy of the legal framework in place will appear clearly in the ensuing sections, which give an account of the many extraordinary measures taken in this case. It will be shown how a flawed normative framework, coupled with the Italian government’s resolution to keep the plant open and its consequent undermining of the measures taken by the judiciary, have allowed the situation to deteriorate for decades without ever coming close to a solution.

The Regional Authorities

The public authorities of the Puglia Region have played a prominent role in the Ilva case. In particular, at the end of the 90s – beginning of 2000s, the Puglia regional authorities were invested by the government with special powers to tackle the environmental crisis. Thereby, they concluded several Memoranda of Understandings with the company, aimed at giving it the means to depollute the area and to start a clean production. These agreements do not have per se legal value, but they provide for a set of programmatic guidelines aimed at reducing polluting emissions. Notwithstanding the multiple rehabilitation plans drafted, the deadlines and prescriptions included in these instruments have not been respected, making these guidelines nothing more than dead letter.

In 2008, the Puglia Council adopted Regional Law 44, also called Anti-Dioxin Law, in an attempt to implement Council Decision 2004/259/EC.^{^[2]} However, the Government strongly opposed the timeframe indicated in the Law for depollution, and it ultimately managed to extend the deadline to 2010.^{^[3]} On 24 July 2012, the Region adopted a new Law to patch the situation in the Taranto area.^{^[4]} However, the tensions between branches of the State were already simmering. The judiciary wanted to stop production in order to prevent the continuation of a suspected environmental crime. While, the government was instead deeply concerned with the detrimental effects on the economy and on employment resulting from shutting down the plant.

The Italian court cases

The main legal proceeding on the Ilva case started in 2010, and was dubbed by the media as “Ambiente svenduto”[5] to stress the continuous subordination of environmental considerations in favour of business goals. The peculiar aspect of this case lies both on the number of indicted persons, and on the charges pressed against them. Albeit some initial suspects have benefitted from expedite proceedings, the indictment still includes 44 persons (one legal person and 43 natural persons). The charges do not only cover environmental crimes and crimes against public safety, but the Prosecution made its case based on the existence of an extensive network of corruption and abuses for the benefits of the indicted companies. Indicted individuals range from lawyers, to experts, to public officials, who have allegedly worked to keep the plant operational, thereby putting their profits over the health of the local population.

Moreover, Italian judicial authorities have initiated a series of other (smaller) proceedings involving the managing board of Ilva, both prior and after the initiation of this trial. For example, in 2005, Emilio Riva (the main owner of the plant) and Luigi Capogrosso (managing director) were condemned for the emission of dangerous substances.^{^[6]} This wrongdoing, provided for in art. 674 Italian Penal Code, is considered a misdemeanour.

'Ambiente svenduto'

In 2010, the Taranto Prosecutor’s Office opened an investigation on the alleged environmental damages caused by Ilva. The pre-trial phase saw the submission as evidence of two extensive expert reports (available here and here), documenting the high level of harmful emissions coming from the plant, and their correlation with the health hazards experienced by the local population. In particular, the reports show the appalling incidence of cancers, cardiovascular and respiratory diseases among Taranto citizens.

On 25^th July 2012, Taranto’s GIP (judge for preliminary investigations) issued a provisory order requesting the seizure of six sectors of the plant, due to the suspected environmental damage discovered. The seizure was taken as a precautionary measure and had the effect of suspending the activities carried out in those sectors. The measure was then confirmed by the Tribunale del Riesame (Review Tribunal for Precautionary Measures), which held that the installations could be used only for the purpose of facilitating the clean-up (see excerpts here). A few months later, the judge issued a new seizure on some goods produced by Ilva, since they were considered the result of illicit activity of the company. These judicial orders gave rise to conflicted opinions in the public, the company, and other political institutions. Indeed, the company was not the only actor to strongly oppose the measures: workers have been deeply torn by the issue, faced with the evidence of extensive pollution on one hand, and the fear of losing their jobs on the other. For its part, the Government took a set of measures, which will be discussed below, basically aimed at limiting the effects of such judicial acts, and at keeping the plant open. These seizure orders became a core element of contention, and made their way up to the Constitutional Court. Other seizures were upheld by lower courts, but subsequently overruled by the Corte di Cassazione (highest Italian court).^{^[7]} Thus, the Ilva plant stayed up and running, notwithstanding the damning evidence before the judges.

Beside the controversies connected to precautionary measures, the “Ambiente svenduto” proceeding encountered several other hindrances. After the closure of the pre-trial phase, the file was passed on to the GUP (preliminary hearing judge). The Corte di Cassazione was seized again, and rejected the request to transfer the proceeding to another city, due to the intense pressure experienced in Taranto. Moreover, once the trial phase had started, the case was referred back to the GUP, due a procedural error. The trial phase has at the time of writing finally started. Nonetheless, the road to justice remains extremely lengthy and narrow. Victims have been waiting for a final judgement – and just in first instance – for seven years now.

The role of the Italian government before Opinion 85/2013

As mentioned above, the Italian government disagreed with the precautionary measures of the GIP, claiming that the judiciary was intervening in the definition of Italian industrial policy. Therefore, the Ministers of Environment, of Infrastructure, of Economic Development, together with the Heads of the Region, Province and the Mayor of Taranto signed a Memorandum of Understanding the day after the first order was issued. The idea was to find a compromise to proceed with the remediation of the site while safeguarding its employment level. Moreover, a couple of weeks later, the Government issued a Decree law, devolving funds for clean-up operations of the area.^{^[8]} Furthermore, on 26^th October, the Ministry of Environment approved the new AIA, which would have practically allowed the Ilva to resume production.

The tension with the judiciary got further inflamed when the government issued the infamous “Rescuing Ilva” Decree, which was then converted into law 231/2012. Among other contentions raised by this act,^{^[9]} the content of the decree appeared to be openly against the seizure disposed by the Court. Its art. 1 provides that the plant could stay open and productive for 36 months, abiding to the prescriptions of the AIA, and in spite of the measures ordered by the courts. It thus circumvented the prohibition to use the installations, and assigned the management of the plant back to its owner. Albeit a seizure order does not hold the value of res judicata, the Decree Law possibly jeopardised legal certainty, which is of the upmost importance when criminal law measures are involved.^{^[10]} This led the Taranto Office of the Prosecutor, the GIP, and the Tribunale del Riesame to file a complaint to the Constitutional Court, which ruled on the matter in Opinion 85/2013.

The Italian Constitutional Court and the Ilva case: Opinion 85/2013

The Constitutional Court was seized to rule on two separate issues: on one side, the Prosecutor alleged a conflict of attribution between State branches, on the other, the courts challenged the conformity of the Decree Law (and of the law which converted it) with the Italian Constitution. Though it declared inadmissible the Prosecutor’s claims, the Court did rule on constitutionality. The claims brought by the lower courts are complex and intertwined.^{^[11]} For sake of clarity, they can be summarized in two main questions: did the government strike a reasonable balance between the right to health and safe environment and the right to work? Moreover, did the government act within its constitutional powers or did it unduly interfere with the competence of the judiciary?^{^[12]}

In Opinion 85/2013, the Constitutional Court held that the Decree was in compliance with the Constitution, and that the balance it struck between different rights was not manifestly unreasonable. In particular, the Court stated that no right in the Constitution can automatically prevail on all others, and the same holds true for the right to a healthy environment (art. 32 Italian Constitution). The power to balance different rights is attributed to the legislative and administrative powers (§9). Thus, the AIA should be presumed reasonable,^{^[13]} since it adopts measures with regard to a specific situation, within the margin of discretion constitutionally given to the administrative power (§10.3). The Decree merely recalls the AIA and requires its compliance, even in situations already covered by on-going judicial proceedings.

In practice, the consequences of this ruling by the Constitutional Court were twofold. The government has, since then, continuously issued decrees in order to tackle the Ilva problem; Ilva was able to remain open and to continue production.

The role of the Italian government after Opinion 85/2013

After the Constitutional Court ruling, the government both renewed the AIA several times, and issued another series of Decree Law, aimed at saving and rehabilitating the plant. Among others, two interventions are worth mentioning. First, Decree Law 1/2015, which placed Ilva in temporary receivership. Its art. 2(6) provided, inter alia, functional immunity from criminal proceedings of the receiver in charge, since his duty is to implement the BAT prescribed in the new AIA. Secondly, Decree Law 92/2015 followed a new seizure decree by the GIP issued in the aftermath of a fatal incident in the plant. Promptly, its art. 3 extended the authorization to continue production “even if seizure measures have been issued with regard to industrial accidents”, subject to the creation of a depollution plan within 30 days. This norm applies also to on-going seizures and, hence, to Ilva.^{^[14]} Notwithstanding these efforts – and in spite of the 2015 reform of the penal code, instituting environmental crimes – there is extensive evidence that Ilva has not stopped polluting, and that the AIAs were not always respected.

All in all, the analysis shows the inability of the Italian State to significantly impact on the situation. First of all, the government was not capable of delivering long-standing solutions which would have allowed retaining employment in the area without putting the population at risk. Secondly, the conflict between judicial and legislative powers, which emerged with the issuing of precautionary measures, prevented them to jointly work toward the same goal. Thirdly, all this factors concurred in lengthening both the administrative and judicial proceedings, hindering the efforts for quick and effective results. As a result, no justice has been delivered, and Taranto remains deeply at risk. In addition to the employment challenges Ilva workers have to face, and the health threats affecting the population, the environmental damages caused by Ilva had extremely negative effects on other economic sectors, such as agriculture, fisheries and tourism.[15] The second part of this post will turn to the (positive?) role of supranational actors in the Ilva case, assessing whether they could contribute to a solution out of reach for the Italian institutions.

[1] The content was later codified in Directive 2008/1/EC of 15 January 2008, and it has now been included in Directive 2010/75/EU of 24 November 2010.

[2] The Decision implemented the Aarhus Protocol in EU law

[3] G. Caforio, L’Ilva Di Taranto Tra Interessi Industriali E Politiche Ambientali, Thesis, University of Perugia, 2012, 65

[4] It established a new depollution plan and coordinated several Government agencies for the appraisal of the epidemiological effects of the emissions.

[5] Namely, “Sold-off environment”

[6] Cass. Pen., sez. 3, n. 38936/2005

[7] Cass. Sez. III, 27427 of 20 June 2013; Cass., sez. VI, 3635 of 21 January 2014

[8] A Decree law is an act issued by the Government, which has the same legal stand as a law approved by Parliament. Pursuant to art. 77 of the Italian Constitution, the Government exercises this power just in case of extreme need and urgency. The act needs to then be converted by the Parliament into an ordinary law. In spite of the requirements of extreme need and urgency, it is common practice of Governments to make use of Decree laws, some of which have been into force for decades.

[9] As its nature of “Specific legislative act”; see, among others, Italian Constitutional Court 143/1989, 346/1991, 492/1995, 267/2007, 241/2008 e 137/2009 and CJEU, Joined Cases C‑128/09 to C‑131/09, C‑134/09 and C‑135/09, Boxus et al., 18 October 2011

[10] G. Arcorzo, Note critiche sul “decreto legge ad Ilvam”, tra legislazione provvedimentale, riserva di funzione giurisdizionale e dovere di repressione e prevenzione dei reati, 20 December 2012; A. Sperti, Alcune riflessioni sui profili costituzionali del decreto Ilva, 17 December 2012

[11] The nature of the claims raised is extremely convoluted, as they range from the actual division of competence between different branches of Government to the nature of preventive precautionary measures. On this point see D. Pulitanò, Fra Giustizia Penale E Gestione Amministrativa: Riflessioni A Margine Del Caso Ilva, 22 February 2013

[12] A. Morelli, Il decreto Ilva: un drammatico bilanciamento tra principi costituzionali, 12 December 2012

[13]As recalled by the Court (§12.6) the problem of attribution of powers in the judgement at hand lies in the problematic aspect of preventive precautionary measures. When issuing a precautionary measure, the judge is called on providing a preventive balance to stop the effects of the crime to take place. However, the discretion of the legislative power to strike a new balance remains unchanged. R. Bin, Giurisdizione o amministrazione, chi deve prevenire i reati ambientali? Nota alla sentenza "Ilva", 2013; V. Onida, Un Conflitto Fra Poteri Sotto La Veste Di Questione Di Costituzionalità: Amministrazione E Giurisdizione Per La Tutela Dell’ambiente. Nota A Corte Costituzionale, Sentenza N. 85 Del 2013, 2013

[14] It is controversial whether the arguments of Opinion 85/2013 would hold here, since accidents in the workplace are regulated by parliamentary laws, and not by administrative acts. Indeed a new complaint has been lodged to the Constitutional Court by the GIP. See S. Zirulia, In Vigore Un Nuovo Decreto 'Salva Ilva' (E Anche Fincantieri), 2015

[15] European Parliament, The Ilva Industrial Site in Taranto, Envi Committee, 7

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The Proposed Binding Business and Human Rights Treaty: Reactions to the Draft - By Shamistha Selvaratnam

The Proposed Binding Business and Human Rights Treaty: Introducing the Draft - By Shamistha Selvaratnam

The Dutch Banking Sector Agreement on Human Rights: Changing the Paradigm from ‘Opportunity to Affect’ to ‘Responsibility to Respect’ – By Benjamin Thompson

Transparency vs. Confidentiality: Why There Is a Need for More Transparent OECD National Contact Points - By Abdurrahman Erol

Business and Human Rights Internship - Asser Institute - Deadline for Application 10 August

Doing Business Right Blog

The Ilva Case - Part 1: The Italian Chronicle of a Disaster Foretold - By Sara Martinetto

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