Doing Business Right Blog

T.M.C. Asser Instituut

New Event! Kiobel in The Hague - Holding Shell Accountable in the Dutch courts - 16 October 2020 - 4-5 Pm (CET)

13. October 2020 Antoine Duval (0)

On Friday, 16 October, from 16.00-17.00, we will organise an online discussion about the Kiobel v. Shell case, currently before Dutch courts in the Hague. The discussion will retrace the trajectory followed by the case in reaching The Hague, explain the arguments raised by both parties in the proceedings, and assess the potential relevance of the future ruling for the wider debate on corporate accountability/liability for human rights violations. 


Background

In 1995, nine local activists from the Ogoniland region of Nigeria (the Ogoni nine) were executed by the Nigerian authorities, then under the military dictatorship of General Sani Abacha. They were protesting against the widespread pollution stemming from the exploitation of local oil resources by a Nigerian subsidiary of Royal Dutch Shell when they were arrested and found guilty of murder in a sham trial. Their deaths led first to a series of complaints against Royal Dutch Shell in the United States on the basis of the alien tort statute (ATS). One of them, lodged by Esther Kiobel, the wife of one of those killed (Dr Barinem Kiobel), reached the US Supreme Court. Famously, the Court decided to curtail the application of the ATS in situations that do not sufficiently 'touch and concern' the territory of the United States.

This ruling put an end to Esther Kiobel's US lawsuit, but it did not stop her, together with three other widows (Victoria Bera, Blessing Eawo and Charity Levula), from seeking to hold the multinational company accountable for its alleged involvement in the deaths of their husbands. Instead, in 2017, they decided to continue their quest for justice on Royal Dutch Shell’s home turf, before Dutch courts in The Hague. 25 years after the death of the Ogoni nine, the court in The Hague just finished hearing the pleas of the parties and will render its much-awaited decision in the coming months.


Confirmed speakers

  • Tom de Boer (Human rights lawyer representing the claimants, Prakken d'Oliveira)  
  • Lucas Roorda (Utrecht University)
  • Tara van Ho (Essex University) 
  • Antoine Duval, Senior researcher at the T.M.C Asser Instituut, will moderate the discussion 


 Register here to join the discussion on Friday.

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Doing Business Right Blog | Doing Business Right – Monthly Report – December 2018 & January 2019 - By Shamistha Selvaratnam

Doing Business Right Blog

T.M.C. Asser Instituut

Doing Business Right – Monthly Report – December 2018 & January 2019 - By Shamistha Selvaratnam

13. February 2019 Antoine Duval (0)

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 a contributor to the Doing Business Right project of 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.

 

The Headlines

German court rejects KiK lawsuit

On 10 January 2019, a regional court in Dortmund, Germany rejected a lawsuit brought by four affected Pakistanis that related to the death of 262 people and injury of 32 people at a Pakistani textile factory in 2012. The factory was a key supplier to German clothing company, KiK. The case was rejected on the basis that the statute of limitations had expired, despite computer simulation evidence demonstrating that inadequate safety measures were in place at the factory at the time, including no stairs and emergency exits, as well as a lack of fire extinguishers and fire alarms. It was argued that KiK ‘knew or should have known about the structural details if, as they claim, their representatives visited the factory several times’. Read more here and here.

Canadian Supreme Court hears Nevsun appeal

On 23 January 2019, the Canadian Supreme Court heard evidence involving a lawsuit involving Nevsun Resources, a Canadian mining company, which is accused of being complicit in using forced labour by one if its sub-contractors at the Bisha mine in Eritrea. The case was initially brought in 2014 by four Eritrean miners.

In 2016, the British Colombian Supreme Court rejected Nevsun’s motion to dismiss the lawsuit, which was upheld by the British Colombian Court of Appeal in 2017. In 2018, the Canadian Supreme Court allowed Nevsun to appeal the decision of the British Colombian Court of Appeal with the trial being heard earlier this year. The Canadian Supreme Court will need to decide, inter alia, whether it has jurisdiction to hear cases involving alleged breaches of customary international law by a Canadian business involving its actions in a foreign country. Read more here.

Canada introduces bill regulating forced labour and child labour within businesses

On 13 December 2018 a private members bill was introduced in Canada titled ‘C-423 – An Act respecting the fight against certain forms of modern slavery through the imposition of certain measures and amending the Customs Tariff’ (the Bill) to regulate forced labour and child labour in businesses. The Bill requires certain entities[1] to provide the Minister with an annual modern slavery report that sets out the steps it has taken to ‘prevent and reduce the risk that forced labour or child labour is used at any step of the manufacture, production, growing, extraction or processing of goods in Canada or elsewhere by the entity or of goods imported into Canada by the entity.’ Other criteria that must be included in the report includes the entity’s policies in relation to forced labour and child labour and the training provided to employees on these areas. The Bill carries penalties for non-compliance; namely, the relevant entity may be liable of an offence punishable on summary conviction and liable to a fine of up to $250,000.

UK releases report with recommendations to improve transparency in supply chains provision of Modern Slavery Act

The Independent Review of the UK Modern Slavery Act recently released an interim report. The report notes that the UK Government’s current approach to eradicating modern slavery in supply chains through the transparency in supply chains provision ‘while a step forward, is not sufficient’. Among other things, the report recommends that the UK Government should take the following action to improve its approach to addressing modern slavery in supply chains:

  • Establish an internal list of companies in scope of the transparency in supply chains provision and check with companies whether they are covered by the legislation.
  • Amend the option reporting criteria against which businesses may report, so that they are mandatory criteria against which businesses must report.
  • Set up a central government-run repository to which companies are required to upload their statements and that is easily accessible to the public, free of charge.
  • Empower the Independent Anti-Slavery Commissioner to monitor compliance and report annually.
  • Strengthen the Modern Slavery Act’s approach to tackling non-compliance with the reporting requirement, adopting a gradual approach. For example, initial warnings, fines (as a percentage of turnover), court summons and directors’ disqualification.
  • Introduce sanctions gradually over the next few years so as to give businesses time to adapt to changes in the legislative requirements.
  • Set up or assign an enforcement body to impose sanctions on non-compliant companies.

 

UN and International organisations publications and statements

 

NGO and Law Firm publications and statements

 

In Court

 

In the News


Academic Materials

 

Blogs           

Asser Institute Doing Business Right Blog

Others


Call for Papers and Abstracts

 

Upcoming Events

[1] An ‘entity’ is defined as a corporation or a trust, partnership or other unincorporated organisation that: (a) is listed on a stock exchange in Canada; (b) has a place of business in Canada, does business in Canada or has assets in Canada and that, based on its consolidated financial statements, meets at least two of the following conditions for at least one of its two most recent financial years: (i) it has at least $20 million in assets, (ii) it has generated at least $40 million in revenue, (iii) it employs an average of at least 250 employees.

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Doing Business Right Blog | The Ilva Case – Part 2: The Transnational Recourse Against a Disaster Foretold - By Sara Martinetto

Doing Business Right Blog

T.M.C. Asser Instituut

The Ilva Case – Part 2: The Transnational Recourse Against a Disaster Foretold - By Sara Martinetto

15. September 2017 Antoine Duval (0)

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.

Having explained the Italian legal trajectory of the Ilva case, this second post focuses on the transnational reach of the case. Two main actors have played (or play) a crucial role: the European Union (especially the EU Commission) and the European Court of Human Rights (ECtHR). Both have tackled the Ilva case from different perspectives, depending on their competences. The Commission even dealt with the case from two distinctive viewpoints, as it started infringement proceedings related environmental protection state and aid.


The European Union and the Ilva case

As previously discussed in Part I, the EU has a prominent role in determining the environmental policy of the Member States: in particular, the EU issued a number of Directives, which provide for a general legal framework with regard to industrial pollution. Yet, Taranto’s disaster has also attracted special attention from the EU institutions. Specifically, the Commission has opened several infringement procedures against Italy in the matter. The measures undertaken at the EU level can be divided in two categories: measures on environmental protection, and measures regarding state aid. 

Infringement of EU environmental law

The first infringement procedure opened by the European Commission relating to the Ilva steel plant dates back to 2008. The Commission submitted that Italy did not fulfil its obligations under the Integrated Pollution Prevention and Control (IPPC) Directive,[1] by failing to bring the old permits awarded to the Ilva plant in compliance with the new norms. The Commission referred the issue to the CJEU, which found a violation of Art. 5(1) of the Directive.[2]

Simultaneously to the first provisory measures in the ‘Environment for sale’ trial, the European Parliament adopted a Resolution, which called on both the Italian authorities and the EU institutions to tackle the situation in Taranto. In turn, the EU Commission opened another infringement procedure in 2013. According to the related press release, Italy was deemed again in violation of the IPPC Directive (which would then be replaced by the Industrial Emissions Directive (IED) from January 2014) and the Environmental Liability Directive (ELD) prescribing the ‘polluters pay’ principle. The Commission recalled the extensive evidence of pollution caused by Ilva, and submitted that IPPC permits should be issued only if plants comply with the specific requirements set out in the Directive. Moreover, it reminded that the ELD provides for strict liability in case of environmental damage: once a causal link is established between the activity and the damage, there is no need to prove fault. For these reasons, the Italian authorities had to take steps to bring the Ilva plant in compliance with EU law and adapt national legislation in order to provide redress for ongoing violations. After a second letter of formal notice in 2014, the Commission issued a reasoned opinion pursuant to Art. 258 TFEU, stating that violation of the IED and ELD Directives have not ceased. However, the CJEU has still not been seized on the matter.

Infringement of State aid rules

As previously stated, Ilva has been a State-owned enterprise for more than thirty years and it has always been considered part of Italian strategic national interests: for this reason, the financing of the plant with public funds has been a long standing problem, and it has become even more so with the latest temporary receivership.[3]

In 2016, the Commission opened an infringement procedure for State aid against Italy, which has allegedly granted Ilva around 2 billion € for the rehabilitation of the plant. This contributions are not only the result of direct funding, but also of a law granting loans to Ilva a priority status in case of bankruptcy, including over debt to public entities; a law allowing Ilva access to funds seized during ongoing criminal proceedings against Ilva's shareholders and former management before those proceedings have established who owns these funds; and the favourable settlement of a long standing dispute between State-owned Fintecna and Ilva.[4] The procedure was then extended to cover the new 300 million € subvention provided in Law Decree 191/2015.

In this regard, Commissioner Vestager has recognised the delicate state of the steel plant, and the urgent need to proceed with the depollution of the area. Theoretically, the State can provide funding to accelerate such process, but the funds must be reimbursed by Ilva, pursuant to the ‘polluters pay’ principle.

The procedures are still on-going. Indeed, there is no easy solution to both claims raised by the Commission, especially if the main goal of the Italian Government is to keep the plant open. Albeit the Government must implement EU Directives into national law, the issuing of the IPPC permit (AIA) partly depends on the margin of appreciation entrusted to administrative authorities. Such a margin is likely to be exploited to its full extent in order to avoid the shutdown of the factory. Furthermore, public financing seems necessary to proceed with the clean-up of the area. However, it is hard to see how this amount could be then reimbursed in the short run, since the plant was only recently sold to Am Investco Italy, a joint venture of Marcegaglia Group and ArcelorMittal. The new owner is planning to invest more than one billion euros tp depollute the area, in conformity with the new AIA, but it is likely to require some time. In the meantime, the multiple Government interventions have put Ilva in a privileged position.

 

The Ilva case at the European Court of Human Rights

The previous sections have shown the multiple conflicts caused by the Ilva case among institutions at different levels. However, the victims of the Ilva plant have not been able, up to now, to actually get redress or to see a significant improvement of their living conditions. That is what drew citizens to file recourse to the ECtHR, in an attempt to hold Italy responsible for the Ilva case.

A first application was filed by Ms Smaltini in 2009, who died of leukaemia during the proceeding. The applicant submitted there was a causal link between her disease and the Ilva emissions and hence Italy violated Art. 2 ECHR (right to life). However, the Court declared the case inadmissible because manifestly ill-founded. In its decision,[5] the ECtHR noted that the applicant had previously initiated a proceeding in domestic courts, which was then discontinued due to lack of evidence regarding the link between the polluting activities and her illness. In fact, the evidentiary report carried out by Italian authorities showed that the percentage of people affected from leukaemia in Taranto was not higher than in other areas. Therefore, the Court held that the applicant had access to a fair process, which was carried out in the light of the scientific data available at the time of the complaint. Thus, Ms Smaltini failed to prove Italian authorities breached the procedural aspects of her right to life, thus rendering the case inadmissible. Ms Smaltini failed to argue, more generally, that the State did not fulfil its positive obligation in ensuring her right to life, and limited her complaint to the determination of the causal link between her disease and Ilva’s activities.  The Court ruling was strongly criticised by many commentators,[6] who were unconvinced by its decision to limit its reasoning to the legal claims raised by the complainant. Indeed, in Guerra v. Italy,[7] the ECtHR stated that it is not bound by what the applicant asks, but that it can amend the legal characterisation given by the parties pursuant to the principle ‘iura novit curia’ (‘the Court knows the law’). Thus, theoretically, the Court could have rephrased the legal arguments brought by the applicant and applied its previous jurisprudence under Art. 2 and 8 ECHR vis-à-vis environmental matters.

Building on the legacy of this ruling, two other applications were filed to the ECtHR, and are now being examined jointly before the Court. The first recourse was filed in 2013 by a group of 52 applicants, represented by Sandro Maggio, and promoted by the Committee “Legamjonici”, a non-profit association dealing with environmental issues in Taranto. The second one was filed in 2015, and involves 130 citizens of Taranto, who are represented by the Roman law firm Saccucci & Partners. Due to the extreme importance and urgency of the case, the Court has decided – on 4th February 2016 – to prioritize the case, pursuant to Art. 41 of the Rules of the Court. On 27th April 2016, the Court found the case non-manifestly inadmissible and accepted to rule on the merit. However, the Italian Government has asked for multiple delays, lengthening the procedure. A final ruling is expected in 2017.

The aim of such applications is not only to obtain compensation for the victims but to compel Italy to create a legal framework to be applied in case of environmental disasters. The main legal argument of the complainants is that Italy has not put in place a normative and administrative structure capable to prevent and address the great damage generated by the Ilva plant. In order to do this, they submit the violation of Art. 2 (right to life), Art. 8 (right to family and private life), and Art. 13 ECHR (right to an effective remedy).

The claims under Art. 2 and 8 are supported by a great body of ECtHR jurisprudence in environmental cases: since the ECHR does not include an autonomous provision on the right to a healthy environment, the Court has progressively expanded its interpretation of these Articles to address claims connected to environmental damage. In this proceeding, Art. 2 came into play at a later stage: firstly, the Court focuses on including the right to a healthy environment into the right to private and family life under Art. 8 ECHR. The first case in this regard is Lopez Ostra v. Spain (1994), in which the Court found that the Spanish Government did not succeed in striking a fair balance between the rights of the applicant under Art. 8 and the economic well-being of the country (§58).

As far as Art. 2 is concerned, Öneryildiz v. Turkey (2004) should be regarded as the landmark case. Drawing from Osman v. United Kingdom (1998) (§115-116), the ECtHR held that Art. 2 entails “a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life” (§89). Moreover, the Court took up its previous jurisprudential distinction[8] between the substantial and procedural limbs of Art. 2: the State has not only the positive duty to safeguards lives within their jurisdiction, but also to set up a framework which would guarantee the prevention and punishment of violations (§91). This is where Art. 2 gets intertwined with Art. 13 ECHR, the right to an effective remedy. Indeed, in the Ilva case, the victims are still awaiting a final judgement and have not received any kind of compensation. Moreover, the judicial measures aimed at stopping production were seriously impaired by the Government.

Therefore, the ECtHR has in place the legal means to require Italy both to provide compensation for victims and to reform its national law, as well as further clarify the extent of State obligations with regard to environmental disasters caused by private actors incorporated in their territory.

 

Conclusions: Between national impotence and transnational redress

The more one dives into the Ilva case, the more worrisome the picture gets. Many actors have continuously tried to address a tragedy that has been dragging along for more than fifty years. However, the opposing interests in play have driven institutions to step on each other’s feet, to adopt measures in response of narrow concerns, and to the detriment of others. These conflicting instances are reflected in the infringement procedures initiated by the Commission. Ultimately, the European Court of Human Rights is called now to give victims an answer which is not likely to be granted at the national level. In particular, an ECtHR ruling could respond to different needs: it could grant relief to the victims; it could force the State to put in place an adequate normative framework to tackle this crisis; it could further elaborate on the State obligations related to environmental harm caused by private actors. There are great expectations upon non-national actors to break an impasse which national authorities seem incapable, or unwilling, to solve. While the Ilva case showcases the incapacity of Italian authorities to tackle an environmental matter of life and death, transnational legal interventions are an external disruption hopefully capable to drive change. To this extent, the additional level of protection offered by EU and ECHR rules can be of invaluable assistance to the victims of Ilva. In the meantime, the ‘Environment for sale’ trial will continue to try to determine the criminal responsibility of a network of public and private actors who contributed to harm Taranto and its citizens. 

[1] The Directive established that all industries presenting an environmental risk should be granted a permit by public authorities in order to produce. Such permit is conditional on the compliance with Best Available Techniques (BATs).

[2] Art. 5(1) obliges Member States to review all the permits previously issued in the light of the new requirements. In particular, the Court held that a mere revision of previous permit aimed at correcting only manifest violation of the new Directive could not be considered sufficient to fulfil the obligations therein prescribed (§36). CJEU, C-50/10, Commission v. Italy, 31 March 2011

[3] See the Commissions proceedings related to the financing of ILVA by IRI in 1993

[4] EU Commission, Press Release, State aid: Commission opens in-depth investigation into Italian support for steel producer Ilva in Taranto, Italy, 20 January 2016

[5] ECtHR, Smaltini v. Italy, 16 April 2015

[6] A. Mascia, Nel Caso Smaltini C. Italia La Corte Europea Dei Diritti Dell’uomo Ha Ritenuto Che Le Emissioni Provenienti Dallo Stabilimento Ilva Di Taranto Non Siano State La Causa Dell’insorgenza Della Malattia Mortale Contratta Dalla Ricorrente, 4 May 2015; M. Alagna, Smaltini C. Italia: Irricevibilità Del Ricorso O Rigidità Del Giudice?, in Ordine Internazionale e diritti umani, 2015

[7] ECtHR, Guerra v. Italy, 19 February 1998 (§44)

[8] Among others, see McCann v. United Kingdom, 25 September 1995

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