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Vol. XI

Volume 11, 2008

 

Symposium, Corporate Social Responsibility in the Extractive Industries 

Yale Law School, March 8, 2008 
 

Volume 11 is comprised of the Proceedings of The Yale Human Rights and Development Law Journal's inaugural Symposium on Corporate Social Responsibility in the Extractive Industries.  It took place on March 8, 2008.

CONTENTS

Preface

An Introduction to Corporate Social Responsibility in the Extractive Industries by Gare A. Smith  

Essay

Laws and Codes for the Resource Curse by Paul Collier
Abstract

  • Response by Marisa B. Van Saanen, YLS 2010 

 

Articles

Extracting Accountability: Implications of the Resource Curse for CSR Theory and Practice by Matthew Genasci & Sarah Pray
Abstract

  • Response by Alex Kardon, YLS 2010

Out of the Conflict Zone: The Case for Community Consent Processes in the Extractive Sector by Lisa J. Laplante & Suzanne A. Spears
Abstract

  • Response by Connie K. Chan, YLS 2010


Crushed by an Anvil: A Case Study on Responsibility for Human Rights in the Extractive Sector
by Adam McBeth
Abstract 

  • Response by Lindsay C. Nash, YLS 2010 


Home State Responsibility and Local Communities: The Case of Global Mining 
by Sara L. Seck
Abstract

  • Response by Adrienne Bernhard 

Energy Security: Security for Whom? by Matthew F. Smith 

by Matthew F. Smith 

& Naing Htoo
Abstract

  • Response by Vivek Krishnamurthy, YLS 2008

 


 ABSTRACTS

Essay: Laws and Codes for the Resource Curse by Paul Collier
The international community assigns a high priority to helping impoverished societies, yet its efforts are currently lopsided. While it spends around U.S. $ 100 billion on aid and provides over 100,000 UN peacekeepers, to date it has largely neglected the potential of international codes and laws to raise standards of economic governance. This Essay analyzes the potential contribution of such codes and laws to increase the development impact of natural resource revenues. The current commodity booms make this a critical opportunity for assistance.  This Essay reviews the evidence on the resource curse and its causes, including a prognosis for the long term consequences of the present commodity booms, concluding that where behavior patterns to stay unaltered the present booms would be a missed opportunity of quite staggering proportions. The Essay then anatomizes the decision process by which valuable natural resources in the territory of the society are harnessed for economic growth that benefits the society, delineating five key decisions and considering, for each, whether past failures were predominantly due to mistakes or to misaligned incentives. Next, the Essay turns to the scope for new international voluntary codes and discusses the potential need for new laws, the national promulgation of which would be coordinated across the OECD analogous to anti-bribery legislation. Such laws are difficult to introduce and so are a last-resort approach for the realignment of incentives.

Extracting Accountability: Implications of the Resource Curse for CSR Theory and Practice by Matthew Genasci & Sarah Pray 
While corporate social responsibility (CSR) is important to economic development and baseline human rights in countries dependent on extractive industry revenues, failures in governance—such as the absence of basic services like health care and electricity—require new strategies and incentives to encourage governments to play their traditional role more effectively. Political economic theories of the “resource curse” see the breakdown of a sense of government accountability to its people as one of the more destructive aspects of excessive reliance on natural resource rents. The authors look to recent innovations such as transparency projects that can reinvigorate a sense of government accountability, among other positive outcomes.  The authors argue that both mandatory and voluntary models of CSR could have an adverse impact on sustainable development so long as they focus exclusively on the role of the corporation rather than the on ways corporate investment might be used to create incentives for a more effective state role.

Out of the Conflict Zone: The Case for Community Consent Processes in the Extractive Sector by Lisa J. Laplante & Suzanne A. Spears 
An examination of contemporary struggles over extractive industry projects shows that they are not adequately captured by current CSR strategies because they are not exclusively disputes about the environment, human rights or health and safety as those subjects are generally understood by companies.  Rather, they are better understood as disputes over community control of resources and the right of community members to control the direction of their lives.  Increasingly, they are also manifestations of profound anxiety and antagonisms among groups within the international economic order.  While some might conclude from this assessment that, beyond implementing defensive CSR measures, there is nothing extractive industry companies can do to alleviate these tensions, this Article is more optimistic 

Building on the findings of a number of recent studies, this Article proposes that extractive industries can tackle the underlying causes of the growing opposition to their projects in the developing world by engaging in consent processes with communities and groups directly affected by projects with a view to obtaining their free prior and informed consent (FPIC).  The authors propose that FPIC must be enduring, enforceable, and meaningful in order to take companies and communities out of their current defensive positions.  FPIC should instead allow companies and communities to take up proactive positions—with those companies that have the consent of the communities in which they operate obtaining a competitive advantage and those communities that have enforceable agreements with companies obtaining control over the natural-resource-based development process on which their future depends.

Crushed by an Anvil: A Case Study on Responsibility for Human Rights in the Extractive Sector by Adam McBeth
In October 2004, Congolese troops conducted violent reprisals for a minor uprising in the small town of Kilwa, engaging in summary executions, rape, torture, pillaging, and other human rights atrocities. Allegations that a multinational corporation, Anvil Mining, provided logistical assistance for the military’s actions led to calls for the company and its employees to face legal responsibility. This article examines the deployment of the multitude of legal and quasi-legal accountability mechanisms available in the Anvil case, including civil and criminal avenues in the home and host states, the application of international criminal law and the use of international “soft law” mechanisms. In examining the way those avenues were used in the Anvil case, this article attempts to illustrate the practical relationship between the multiple avenues theoretically available for imposing human rights accountability on multinational corporations, including a consideration of non-legal factors affecting decisions on whether and how to assert jurisdiction within a given avenue. It concludes that the incoherence of a fragmented, ad hoc system, and the central importance of political will in invoking a given avenue, present serious problems for the effective enforcement of human rights responsibility for multinational corporations.

Home State Responsibility and Local Communities: The Case of Global Mining  by Sara L. Seck
Home states that are actively engaged in global mining have considered and rejected calls to regulate the conduct of transnational mining corporations so as to prevent and remedy human rights and environmental harms.  This reluctance to regulate is often expressed as a concern that extraterritorial regulation will conflict with the sovereignty of foreign states.  This paper argues that the public international law of jurisdiction is permissive of home state regulation that can be justified under the nationality or territoriality principles, provided that there is no true conflict with an exercise of host state jurisdiction.  In the human rights and environment contexts, it is more likely that home state regulation would result in concurrent but not conflicting jurisdiction, particularly where the regulation is designed to further shared international norms.  Beyond permissibility, this paper argues that international sustainable mineral development law imposes an emerging obligation on all states, including home states, to ensure that the three pillars of public participation rights are respected.  These rights are access to information, public participation in decision-making, and access to justice in environmental matters, and they are formulated in the global mining context as a right of indigenous and local communities to free, prior and informed consent.  Support for the existence of such a home state obligation may be found in the recommendations of international human rights treaty bodies, and in the work of the International Law Commission on both state responsibility, and the prevention and allocation of loss for transboundary harm.

Energy Security: Security for Whom? by Matthew F. Smith & Naing Htoo 
In military-ruled Burma, also known as Myanmar, large-scale natural gas projects have directly and indirectly led to violations of basic human rights through the complicity of multinational corporate actors. These abuses are ongoing and there is an unreasonably high risk they will increase as more gas projects are developed. This paper assesses the past, present, and future human rights impacts of large-scale natural gas extraction in Burma, and the implications these impacts have in terms of corporate accountability. The paper provides background information regarding Burma’s government, economic policy, and the energy sector and considers past and present human rights abuses connected to the Yadana natural gas project, developed by a consortium including Chevron, Total, PTTEP, and MOGE. The authors argue that the companies are complicit in ongoing human rights abuses in connection to their investment.  The paper then describes the threat of future human rights abuses in connection to the country’s largest offshore gas deposits, concluding that there is a high risk that current human rights abuses in the proposed project areas will be exacerbated by the new gas production, and that there will likely be abuses directly linked to the Shwe pipeline project.  Finally, the authors assess the interests and actors involved in the Southeast Asia regional energy security dynamic as it relates to Burma’s fast growing oil and gas sector, human rights, and corporate accountability. They argue that the energy security strategies of China, Thailand, and India—and by association, the national oil corporations under those governments—relying on Burmese resources have paid dangerously inadequate attention to the protection of human rights.