Chronicles of corporate impunity
Copper mine pollutes livelihoods in Zambia
Since 2005, eight communities in Chingola, Zambia, have been suffering from repeated water pollution caused by the toxic mining processes . With extreme dedication, they managed to sue the British mother company responsible for the destruction of their livelihoods and water sources in front of British courts. And they won. Three times.
Farmers suffer from impact of environmental pollution
In Zambia, more than 50% of the population lives next to the Kafue River. It is the longest river in the country, crossing from its northern border with DRC to its southern with Zimbabwe. As it flows close to the Copperbelt towns of Chililabombwe, Mufula and Chingola, environmental issues are a major concern. In these regions the water often turns blue due to slurry discharge, causing municipal supply to be suspended.
The Nchanga Copper mine is located in the northern Zambian town of Chingola. It is considered the second largest open cast mine in the world. From here, acidic materials are spilled into local waterways, and therefore discharged in upstream into the Kafue river. Copper is one of the most toxic metals to aquatic organisms and ecosystems – contamination can cause marine dead zones. Simultaneously, excess copper in the soil creates a toxic environment for micro-organisms to animals and humans to thrive.
Farmers in the region rely on land and waterways to sustain their basic agrarian livelihoods. Contaminated water devastates their entire livelihoods.
In this particular case, the exact nature of damages the farmers have suffered has not been published; but for humans to suffer from copper contamination, the degree of contamination must be critical. Indeed, copper is less toxic for humans than it is for other living beings and especially aquatic organisms.
Thousands sue British parent company and win again
1,826 citizens from the village of Chingola have pursued the Nchangas Copper mine owners for; “personal injury, damage of property, loss of income, loss of amenity and enjoyment of land arising out of alleged pollution and environmental damage” (Vedanta v Lungowe, 27 May 2016). Nchangas Copper mine is part of a public limited company incorporated in Zambia, named KCM. By raising a European regulation (Recast Brussels Regulation, article 4) the claimants could sue the transnational British corporation that is the daughter company hold KCM; Vedanta.
Usually, such transnational corporations (TNCs) aren’t held responsible for subsidiaries’ activities. But here, communities have taken this case to British courts. In 2016, the British corporation lost on all grounds when heard by the High Court. The company appealed , where in 2017 they lost on all grounds again. Then they appealed to the Supreme court where, in 2019, they lost again.
But it must be said that the outcome of this case isn’t a radical shift for communities seeking to protect their rights against TNCs interests. It only highlights the possibility for a European company to be held accountable for subsidiaries activities overseas. This is because: 1) judges in any European country is not linked to this British case and 2) in the UK itself, this case only set a very specific precedent motivated by material evidence proving that Vedanta was acting as if it wholly owned KCM. This last point turned out to be a gap that corporations needs to address.
International law firms protect the architecture of impunity of TNCs
Clearly, the outcome of this case is a threat to TNC interests; a reaction was expected. Macfarlanes, a British international law firm that focussed on “delivering excellence in the international market”, did it publicly. On their website, they advised commercial groups to operate with a clear division between activities of parent company and its subsidiaries, clarifying the methods to do so.
Now, the legal responsibility that links a parent company and its subsidiaries working overseas cannot be proven. European corporations cannot be held accountable, like Vedanta has been in the present case and, consequently, corporate impunity will remains. International law firms have already found a legal gap for this extraordinary juridical case not to set a precedent.
A systemic imbalance is highlighted here. TNCs can afford an exorbitant amount of money to hire international legal experts willing to protect their interest while communities in rural Zambia could never do so. Moreover, TNC interests are protected by lex mercatoria hard law while communities rights are protected by human rights and environmental soft law widely based on a voluntary mechanism. This systemic imbalance allows for the creation of an architecture of impunity ,TNC, overruling communities’ dignity. It has to be challenge at the highest possible level.
Promoting an impactful Binding Treaty to tackle TNC impunity
Dealing with this systemic imbalance involves adopting a radical shift in international law standards. For this reason, the Global Campaign to Dismantle Corporate Power with others are working on pushing for the adoption of a Binding Treaty. In 2014, a UN international working group has been established for the elaboration of a legally binding instrument meant to hold transnational corporations responsible in regard of human rights. The working group strives for a Treaty draft to be presented to the UN General Assembly, therefore promoting communities’ rights against corporates interests.
But the present draft misses key points and therefore does not provide that much needed radical shift. No international regulatory body can hold TNCs responsible, communities consent is not needed for the implementation of TNC activities, and it should be needed. Furthermore the draft Treaty scope is broaden to any business activities, therefore not targeting TNCs. Moreover, it never tackles illicit financial flows practices. An international Binding Treaty that targets those issues in an ineffective manner will be counterproductive to the cause of defending affected people rights.
This October in Geneva, we had push for a more impactful Treaty to be presented. A Treaty that puts the rights of communities at the forefront. Such a Treaty won’t immediately shut down TNC architecture of impunity. It will be a step towards for communities in rural Zambia and elsewhere in being able to challenge this impunity, promoting the sovereignty of people.