Human Rights and International Mining Disputes
The mining industry can have positive, long-term beneficial effects generating economic and social benefits for local communities and wider society. Equally, it is necessarily accompanied by a high risk of adverse impacts on human rights. Mining operations are complex, and managing the associated risks is challenging, but failing to do so effectively increases the potential for disputes.
In this chapter we discuss the ways in which human rights issues typically arise in mining projects, assess recent efforts by the mining industry to address those issues – spurred by stakeholder pressures and legislative developments – and consider the variety of dispute resolution methods that are utilised to seek remedy against businesses for alleged human rights harms associated with mining operations. Throughout the chapter, we consider the key role played by the UN Guiding Principles on Business and Human Rights (UNGP), the global authoritative standard on business and human rights, in framing the way in which disputes arise in the sector.
Human rights and mining
The responsible and sustainable development of mines can bring economic empowerment to communities local to the mine, and can contribute to inclusive social development, transparency and the good governance of public revenues from the exploitation of a country’s natural resources. Conversely, the negative impacts of mines can be severe and far-reaching. The collapse of a tailings dam at the Córrego do Feijão iron ore mine in Brazil is illustrative. The incident, which occurred on 25 January 2019, reportedly killed 270 people and polluted nearby rivers. The dam is owned by Samarco Mineração SA (Samarco), a joint venture between Vale SA (Vale), a Brazilian corporation, and BHP Billiton Brasil, whose parent company is BHP Group Plc, a dual-listed entity in the United Kingdom and Australia. It was the second time in four years that an operation in which Samarco had an interest had collapsed. In the initial aftermath, investor reaction was swift, and BHP faced litigation on several fronts, including a £5 billion lawsuit in the United Kingdom brought by over 200,000 Brazilian claimants and a class action lawsuit in the US by shareholders affected by the drop in share prices. Two years on, the Samarco disaster continues to have financial consequences for Vale. Since the 2019 disaster, Vale has agreed to pay 37.7 billion reais in compensation to the state of Minas Gerais, where the collapse took place, and indemnification agreements have so far been signed with 8,900 individuals. While Vale’s market share has now recovered since its lows in January 2019, concerns over its performance on environment, social and governance (ESG) issues remain. BHP’s profits have similarly been impacted. Meanwhile, calls for stronger governance in the mining industry have continued to come to the fore, with one former investor in Vale stating that the incident made it clear that investors were ‘overlooking the risks associated with mining, the climate issue’, issues that ought to be taken seriously. These tragic incidents have, however, served as an impetus behind collective industry action to improve the safety of tailings infrastructure.
Unfortunately, these types of incidents in the mining sector are not rare, nor are the significant environmental and human rights impacts that accompany them. Since the Samarco disaster in 2019, there have been a number of other incidents in the mining sector. For example, Rio Tinto has recently come under fire for exploding a 46,000-year-old cave in Juukan Gorge. Despite having permission to carry out the explosion, the site has been identified as one of cultural importance and the incident led to the resignation of the CEO. In addition to these catastrophic impacts there is a wide range of human rights risks associated with the mining sector that arise on a daily basis. The supply chain related to any mining project is likely to involve potential impacts on employment and diversity rights, child rights and risks of modern slavery. The right to a safe and healthy working environment is often at risk in the inherently hazardous work conditions associated with mining. Indigenous peoples and local communities can be affected in multiple ways by mine operations (for example, when they are exposed to the environmental effects of operations and associated infrastructure construction, or resettlement). Security and conflict risks are inherent in many mining projects that are located in areas affected by unrest, conflict or severe economic deprivation, or in weak governance zones. Systemic issues within many of the countries in which mines are located may exacerbate human rights risks for businesses. In these contexts, business ethics and corruption will also be a concern. Most recently, the mining industry has become an obvious target for calls to address the negative human rights consequences of climate change.
The particular human rights challenges facing a mining project will vary in intensity and nature, depending on the stage of the mine’s life cycle; but the responsibility is acute, given that projects can span decades. Thus, from exploration through design and development, construction, extraction and production and then upon closure and reclamation, significant potential human rights impacts arise and have the potential for dispute, unless managed sensitively and effectively.
The international standards and expectations for states and businesses in respect of business-related human rights harms are articulated in the UNGP. The UNGP is a non-binding instrument endorsed unanimously in 2011 by the UN Human Rights Council. The UNGP operate within a three-pillar framework endorsed by the UN Human Rights Council in 2008 (the Three Pillar Framework). First, states have existing legal obligations to respect, protect and fulfil human rights. Second, business enterprises are required to comply with applicable laws and respect human rights. Third, effective remedies need to be available when rights and obligations in respect of human rights are infringed.
According to the UNGP, the corporate responsibility to respect means that business enterprises should avoid infringing on the human rights of others and address adverse human rights impacts with which they are involved. Accordingly all business enterprises should avoid causing or contributing to adverse human rights impacts through their own activities, and address those impacts when they occur (by ceasing the activity or mitigating the impact, and providing or contributing to remedy); and seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships.
The responsibility to respect human rights applies to all business enterprises regardless of their size, sector, operational context, ownership and structure, although these factors, may, along with the severity of the enterprise’s human rights impacts, be relevant to the appropriate scale and complexity of the measure adopted to implement the UNGP.
To meet the responsibility to respect human rights, all businesses should have in place policies appropriate to their size and circumstances, human rights due diligence (HRDD) processes to identify, prevent, mitigate and account for how they address their impacts on human rights, and processes to enable the remediation of any adverse human rights they cause or to which they contribute. HRDD is key to the fulfilment of the responsibility to respect human rights. As Professor Ruggie, the architect of the UNGP, noted, ‘without conducting human rights due diligence, companies can neither know nor show that they respect human rights and, therefore, cannot credibly claim that they do’.
The responsibility to respect human rights is rooted in a transnational social norm. It exists over and above applicable legal requirements, and so cannot be defined or adhered to simply by reference to applicable laws with which enterprises must comply. Nevertheless, increasingly the responsibility to respect human rights is encouraged or required through evolving systems of regulation, and it also may be reflected in contractual arrangements that may be enforced if breached.
Failures to respect rights by carrying out HRDD or providing remedy in appropriate cases can have legal consequences, and will attract scrutiny from ‘the court of public opinion’, which comprises stakeholders including employees, local communities, consumers, civil society and investors. Given its nature and breadth, the responsibility to respect human rights serves to meet a company’s ‘social licence to operate’.
Managing business-related human rights impacts in mining industry
The term ‘social licence to operate’ (referred to in the UN report setting out the Three Pillar Framework) was initially coined to describe the acceptance required from local communities to support the successful operation of mining operations hosted by them. The concept reflects the importance of establishing trust between local communities and mining companies; where there is reciprocity and enduring regard for the other’s interests, a company should be able to demonstrate that it has a social licence to operate. If it fails to do so, the company can expect to face community protests, security problems, and even the revocation of government licences, each of which carries legal, reputational and financial implications. The loss of a social licence to operate has been identified as the top business risk for companies operating in the extractive sector in 2019 and 2020. As to the financial implications, one study reported that where community–company conflict gives rise to temporary shutdowns and delay, ‘a mining project with a capital expenditure of US$3–5 billion will suffer costs of roughly US$20 million per week of delayed production in Net Present Value (NPV) terms, largely due to lost sales’.
The imperative to establish a social licence to operate has encouraged businesses in the mining sector to adopt voluntary standards and implement processes for the management of social and environmental issues, even in the absence of regulation requiring such measures.
Social impact assessments have been used since the 1990s by companies operating in the mining sector to understand, prevent and mitigate the social impacts of their projects. More recently, industry-wide initiatives seek to promote the management of common challenges facing the sector. A prominent example is the International Council on Mining and Minerals (ICMM), established by extractive industry operators in 2001 to strengthen the management of environmental and social performance.
Security is one issue that the mining industry has, for some time, sought to manage by reference to human rights. The Voluntary Principles Initiative (VPI) is a multi-stakeholder platform for companies, non-governmental organisations (NGOs) and governments to discuss security issues affecting the extractive industry. The VPI developed the Voluntary Principles on Security and Human Rights in 2000 (VPSHR), which provide guidance to companies on measures to support safety and security of mining operations while respecting human rights. Companies that participate in the VPI are encouraged to incorporate the VPSHR into contracts when engaging private security contractors and also into memoranda of understanding with host governments.
Since 2011, businesses in the sector have increasingly focused on the management of human rights risks by reference to the UNGP. This has been facilitated by the alignment with the UNGP of other, existing international standards such as the UN Global Compact, the International Finance Corporation’s Performance Standards and the Equator Principles.
Notably, the Organisation for Economic Co-operation and Development (OECD) has undertaken significant work to create guidance and tools to assist OECD-based mining businesses to implement HRDD practices through their complex supply chains. An example is the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas. Countries outside the OECD with important overseas mining interests have also articulated human rights-focused expectations on companies in the mining sector. The China Chamber of Commerce of Metals, Minerals and Chemicals Importers and Exporters (with support from the OECD) adopted voluntary industry guidelines on responsible mineral supply chains in line with the OECD’s guidelines in 2015. In 2019, the ICMM announced new requirements for members to support and implement the UNGP, and in February 2020, the ICMM introduced the ICMM Mining Principles, which apply uniformly across 38 areas, including human rights due diligence and labour rights and which include new requirements on the transparent disclosure of certain ESG issues. These standards are likely to be significant in prompting further alignment and attention on better management of human rights issues across the sector.
Law and regulation will also be drivers. A variety of legal measures recently adopted or proposed by governments encourage or require more effective management of human rights risks, and are designed to support the prevention of human rights abuse. Most have broad application to all industries. These new measures generally support the effective management of human rights risks consistently with the UNGP, even if they do not expressly require it. They differ in their terms as the national objectives in introducing such legislation are not uniform but certain broad trends are discernible.
Most of the requirements involve some form of public reporting of human rights issues; for example, the UK Modern Slavery Act 2015, which seeks to promote transparency within supply chains. Other legislation requires reporting a range of non-financial issues including human rights. Across the EU, national measures to regulate are driven by EU-level legislation such as the EU’s amendments in 2014 to the directive regarding the disclosure of non-financial and diversity information by certain large undertakings and groups. This requires companies to report on human rights and other matters to the extent necessary to understand their development, performance, position and human rights impacts, and recommends the reporting of due diligence steps that have been taken. Other legislation goes further still, mandating due diligence on human rights-related issues. For example, the US government places strict requirements on certain government contractors and subcontractors to annually confirm (after carrying out due diligence) that neither they nor any of their proposed subcontractors or agents have engaged in prohibited trafficking-related activities (which include forced labour), or if prohibited activities are found, certify annually that appropriate remedial and referral actions have been taken. In France, large French-registered companies are required to include in their annual report an overview of measures taken pursuant to a ‘vigilance’ plan that concerns the company’s steps to address risks to human rights and fundamental freedoms. Penalties for non-compliance are extensive and include allowing third parties to seek injunctive relief against recalcitrant companies as well envisioning the imposition of damages. In February 2021, the German government announced agreement on a legislative proposal for mandatory HRDD.
The push for regulation of businesses’ management of non-financial issues, and, increasingly of ESG issues, is set to continue. The EU’s initiative on sustainable corporate governance, which gives legislative teeth to aspects of the European Green Deal, is well progressed. While a draft proposal of legislation anticipated from the European Commission in 2021 is yet to be released, a key component of the sustainable governance package will be mandatory supply chain due diligence, not only on human rights but also on environmental issues, which will apply to EU companies (including mining companies), as well as to companies that supply goods and services into the EU (including mining companies).
In addition to these developments, the mining industry is specifically impacted by legislation and regulation that seeks to target impacts closely associated with the industry.
The European Commission has recently tabled a proposed regulation that seeks to improve the sustainability of batteries across their entire life cycle. The current draft regulation, which has the support of the European Parliament and the European Council, acknowledges the role of due diligence on social issues including human rights impacts in the battery supply chain and pays regard to the role of the OECD Due Diligence Guidance for Responsible Business and the specific guidance for responsible supply chains in conflict-affected areas, which is likely to be a feature of the due diligence expected of those bound by the regulation in due course. The mining industry is already subject to legislation that regulates the illicit extraction of, and trade in, minerals sourced from regions affected by conflict. In the US, Section 1502 of the Dodd–Frank Act requires all Securities and Exchange Commission-reporting companies to conduct supply chain due diligence to identify tin, tungsten, tantalum and gold and, where applicable, to conduct additional disclosure and audits on the sourcing of those minerals. Similar legislation has recently entered into force in the EU and affects companies importing certain volumes of the minerals and metals of ‘3T and gold’ into the EU. In common with the Dodd–Frank Act, the EU Conflict Minerals Regulation imposes mandatory due diligence requirements on certain businesses that source minerals from areas affected by conflict, or high-risk areas where there are widespread and systematic violations of international law, including human rights abuses. Industry bodies echo the importance placed on responsible sourcing; the London Metals Exchange will require reporting and due diligence on the matter from 2022.
Given the mining industry’s historic appreciation of its impact on social issues, it is perhaps unsurprising that, shortly after the UNGP’s endorsement in 2011, extractives were evaluated by some commentators as having strong policies and processes in place consistent with the UNGP. Nevertheless, the typically complex, systemic and severe human rights challenges that face mining companies make it equally unsurprising that the sector still has a long way to go in achieving widespread and consistently effective management of human rights risks, to the extent of significantly reducing the prospects that disputes may arise. As late as 2019, eight years on from the adoption of the UNGP, the High Commissioner for Human Rights recognised that there remain concerns as to the mining sector’s ability to meet the responsibility to respect.
The increased regulation on the mining industry, coupled with increased scrutiny on the performance of mining companies on human rights and, more broadly, ESG issues, is likely to enhance calls for accountability for human rights-related harms, including in litigation and other forms of dispute resolution.
Disputes in the mining sector related to human rights
The prevalence of human rights effects of the mining sector brings with it a high potential for dispute, with a variety of stakeholders seeking to hold companies to account for alleged creation of or involvement in harm, including claims for redress. The UNGP have driven a more sophisticated understanding of what remedies for victims of human rights-related harms should entail. This will impact the ways in which disputes that concern business-related human rights harm are approached in the future.
First, the UNGP emphasise that rights holders have a right to an effective remedy where business-related harm is suffered. States have the duty to ensure, within the scope of their jurisdiction, that this internationally recognised human right to an effective remedy may be realised. An effective remedy is one that is appropriate and sufficient to restore the rights holder as far as possible to the position he or she would have been in, had the abuse or impact not occurred. Businesses also have the responsibility to respect the right to an effective remedy where business-related harms are involved. The UNGP clarify that businesses should not infringe or diminish the ability of victims to gain access to forums to air their grievances and that they should provide or cooperate in good faith in remedial processes, including by supporting their outcomes.
Second, the UNGP identify the three categories of mechanism that are available for the resolution of business-related human rights disputes: state-based judicial mechanisms, state-based non-judicial mechanisms and non-state-based mechanisms, such as operational-level grievance mechanisms. Work mapping available mechanisms and identifying barriers to access to remedies has highlighted the distinctions between these various mechanisms and some of the barriers to effective remedy that exist, leading to policy initiatives aimed at tackling those barriers. In the next four sections, we consider examples of human rights-related disputes involving the mining sector in each of these forums.
Operational-level grievance mechanisms
The UNGP clarify the unique function that company-led operational level grievance mechanisms (OLGMs) can play in both helping prevent the escalation of human rights-related disputes (often mitigating or putting an end to harm at an early stage, and providing an information loop into HRDD) and in providing access to remedy for harms that companies identify they have caused or to which they have contributed. If OLGMs meet the effectiveness criteria stipulated by the UNGP (the ‘effectiveness criteria’), they may resolve grievances before they escalate into human rights abuses, avoiding the need for recourse by rights holders to more formal dispute resolution processes.
Most mining companies already have in place OLGMs and some have made efforts to develop mechanisms that are consistent with the UNGP. For example, energy company Eni acknowledges the role that OLGMs play in providing remedy, and recognises businesses’ part in remedy under the UNGP. In 2020, Eni published details of its review of grievance mechanisms in 20 Eni subsidiaries, which was aimed at assessing the implementation process, improving management of the grievance mechanism and enhancing the quality of the procedure.
Barrick Gold Corporation (Barrick) has also sought to be transparent about efforts to formulate a remedial mechanism meeting the effectiveness criteria in the context of operations at a gold mine in Papua Guinea. Barrick implemented the Olgeta Meri Remedy Framework (the Porgera Framework) in 2011 to consider and resolve claims of egregious human rights abuses involving sexual violence by security forces employed at the mine. The mechanism provided 119 women with cash compensation and other forms of remedy including medical care, counselling, school fees and business training, in return for a waiver of future claims against Barrick.
While the mechanism has been praised for its ‘ambition’ and commitment to the UNGP it was also recognised, in retrospect, that this particular OLGM suffered significant flaws in its design, did not live up to some of the effectiveness criteria of the UNGP (including in the ways remedy was evaluated and provided), and failed to address broader issues faced by alleged victims and other women working at the mine, many of which were deep-rooted. Despite implementing the Porgera Framework, Barrick has faced litigation (which later settled) in the US by women who chose not to use the scheme. This demonstrates that corporate initiatives to provide remedy via an OLGM, even within a well-funded and sophisticated framework, may not dissuade rights holders from pursuing recourse by more conventional litigation routes. Barrick has continued its efforts to learn from the shortcomings of the Porgera Framework and has stated its commitment to improve its OLGMs in line with the UNGP. The highly publicised example of the Porgera Framework demonstrates the complexities involved in seeking to provide access to remedy through an OLGM, especially where particularly serious human rights abuses are involved. It also highlights the fact that companies should be realistic in their expectations whether an OLGM will or should provide a complete solution for the remedy of negative human rights impacts; an OLGM should not preclude rights holders from pursuing legitimate efforts to access remedy by other available routes. This area promises significant future developments in efforts to design mechanisms and dispute resolution outcomes that ensure rights are respected and harms remedied appropriately, while carefully balancing legitimate interests of companies to achieve finality and certainty of outcomes once their remedial responsibilities have been met.
National courts remain the primary legal mechanism through which rights holders seek to hold corporates to account for human rights-related harms. However, various intractable factors mean that the barriers to mounting claims in an effective forum, establishing a legal liability and accessing a remedy against a corporate entity for human rights-related harms remain high.
In the criminal sphere, it is possible to hold corporate executives to account for aiding and abetting the commission of gross human rights abuses by states and other actors, but successful prosecutions are extremely rare. Typically, liability for complicity in a third party’s gross human rights abuse may arise where: (1) a company assisted in the perpetration of a gross human rights abuse or crime; (2) the assistance had a substantial effect on the perpetration of the crime; and (3) the company knew that its acts would assist the perpetration of the crime even if it did not intend for the crime to be committed. Prosecutions of corporations are most likely in states that have created domestic law offences for the commission of international crimes, and whose laws permit the corporate prosecutions (not all legal systems do), meaning that prosecutions of executives of the company are generally more likely. The indictment of a French company for alleged complicity in crimes against humanity is reportedly the first example of such a prosecution involving a corporate defendant. BNP Paribas faces litigation in both the US and France over alleged crimes against humanity in Sudan, on the basis that it financed al-Bashir’s regime, which allegedly resulted in genocide.
The circumstances in which a corporation may be considered legally complicit in abuses by another actor under domestic civil laws varies across jurisdictions and remains uncertain in many. Claims against corporations for directly causing human rights harms as well as for complicity in the wrongful acts of a third party are most commonly advanced in proceedings under general laws of tort (common law jurisdictions) or the law of remedies for breach of non-contractual obligations (civil law jurisdictions). As such, the claims are often not framed in terms of human rights, but are founded, rather, on existing frameworks for prosecuting wrongs committed by corporates under domestic law that do not expressly refer to international or national human rights laws.
As it is common for multinational corporations to operate transnationally through separately incorporated subsidiaries, claims are often brought against both a locally incorporated subsidiary operating where the harm occurred, and its ultimate parent company. A subset of such claims that is on the rise seeks to identify direct duties of care owed by ultimate parent companies towards alleged victims for harms directly caused by others. A series of these cases in England has sought to establish a duty of care on parent companies to third parties (who may be employees of their subsidiary or local communities affected by their subsidiary’s operations). The existence of the duty turns on whether the parent company has voluntarily assumed direct responsibility over an issue or area (such as health and safety or security), such that the parent company may be held liable for damage suffered by individuals because of failures (acts or omissions) in such areas.
A case at the forefront of shaping the law in this area ran for four years and reached the highest court in the UK. In Lungowe v. Vedanta Resources Plc and Konkola Copper Mines Plc, an English court held that it was arguable that the parent company assumed a duty of care to 1,826 Zambian farmers who allegedly suffered personal injury, damage to property and loss of income, amenity and enjoyment of land owing to alleged pollution and environmental damage caused by discharges from a copper mine owned and operated by its Zambian-incorporated subsidiary. The Court of Appeal upheld the decision, noting that while no prior case had imposed a duty of care between a parent company and an unrelated party affected by the operations of its subsidiary, this lack of precedent does not ‘render such a claim inarguable’. In 2020, the UK Supreme Court confirmed that there was an arguable claim against Vedanta. The Supreme Court confirmed that there is nothing ‘special or conclusive about the parent/subsidiary relationship’ that gives rise to a novel duty of care and that well-established general principles apply to assessing whether a duty of care arises.
This stance was recently confirmed in Okpabi v. Shell, which concerned two sets of proceedings where it was alleged that oil spills occurring from pipelines and associated infrastructure in Nigeria caused environmental damage including water and ground contamination. In considering whether a common law duty of care was owed by the UK-domiciled parent company, Royal Dutch Shell (RDS), to the appellants, the UK Supreme Court reaffirmed the conclusion in Vedanta that the liability of a parent company is to be determined by ordinary, general principles of the law of tort regarding the imposition of a duty of care. Though the UK Supreme Court found that there was at least an arguable case that RDS owed the appellants a duty of care, allowing the case to proceed to trial, like Vedanta, the case settled shortly after the UK Supreme Court’s decision was handed down.
A notable feature of these cases is the attempt made by the claimant rights holders to argue that the relevant assumption of responsibility by the parent and consequent duty of care is evidenced by corporate statements about policy or governance that concern the multinational’s approach to matters such as corporate social responsibility, human rights or security (including, for example, adherence to the VPSHR; consider Kalma v. AML). The English courts concluded that such policy documents do not, in themselves, suffice to evidence such an assumption of responsibility. That said, the Supreme Court in Vedanta held that if a parent company not only states that it has policies in place, but takes steps to actively implement those policies at its subsidiaries, a duty of care may arise to those affected by the subsidiaries’ activities. Similarly, if a parent company holds itself out as exercising control over its subsidiaries in published material, it may have assumed a responsibility to such third parties, ‘even if it does not in fact do so’. The significance of corporate policies cannot be entirely dismissed.
Setting to one side cases involving parent company liability, mining-related claims against companies on other bases have also been aired before the English courts. For example, Kalma v. AML concerned multiple human rights violations allegedly committed by police responding to a protest at a mining site at Tonkolili in Sierra Leone. The judge dismissed the claims predicated on various causes of action including negligence, employee and non-employee vicarious liability and accessory liability, that the company was liable in relation to the harms caused by the police. However, the judge did find that standards voluntarily subscribed to by the company, namely the VPSHR, had not been met, representing a failure to meet the applicable standard of care, had a duty existed (which he held it did not). This is not the first time that an English court has made clear that where companies state commitments to abide by voluntary standards, more than ‘lip service’ to them is required.
Whether or not the claims are successful, claimants’ lawyers continue to use litigation to refine and adapt liability theories to take advantage of situations where corporate behaviour might not match the socially responsible image that companies are at pains to portray. Publicity around proceedings mounted on behalf of more than 100 claimants against Gemfields Limited, a UK company, referred to the company’s active involvement in the running of a mine in Mozambique owned by one of its subsidiaries, where serious human rights abuses were said to have occurred. The claimants’ lawyers referred to Gemfields’ claims to be a supplier of responsibly sourced gemstones, promoting transparency, trust and responsible mining practices. Gemfields issued an immediate statement reaffirming its commitment to investigating and acting on any abuses connected with the group’s operations, and the case settled within a year without any admission of liability. Not only were the terms of a cash settlement publicly announced, but the company’s commitment to work with the claimants’ lawyers to develop an OLGM to deal with the going matters at the mine that would be consistent with the UNGP was also published, as was the company’s commitment to fund training on agricultural planning for the life of the project.
In other jurisdictions, mining-related litigation involves similar themes. Choc v. Hudbay and others involves three claims against a parent company, Hudbay Mineral Inc (Hudbay), regarding alleged serious human rights abuses including killings and rape by security personnel working at its subsidiary’s nickel mining operations in Guatemala. Courts have so far refused to dismiss the claims on the basis that it was not ‘plain and obvious’ that Hudbay did not owe a duty of care to the plaintiff or (in relation to one of the claims) that the corporate veil should not be lifted to establish Hudbay’s liability for the actions of its subsidiaries.
Other cases that would have tested novel legal bases for corporate liability have since settled. For example, in Araya v. Nevsun, three Eritrean refugees claimed, on behalf of themselves and more than 1,000 Eritrean workers, that the Canadian company Nevsun Resources Ltd (Nevsun) was liable in negligence and for breaches of customary international law (CIL), including forced labour, torture, slavery and crimes against humanity. The claims related to Nevsun’s alleged complicity in the use of forced labour at the Bisha mine in Eritrea by Nevsun’s local sub-contractors employed by its subsidiary in Eritrea. Though the claim was permitted to proceed on the basis that it is arguable that CIL forms part of Canadian law, the matter settled.
OECD national contact points
Aside from courts and other judicial tribunals, states may opt to set up non-judicial mechanisms to deal with business and human rights-related disputes. National contact points (NCPs) established under the OECD Guidelines for Multinational Enterprises (OECD Guidelines) are one example that has received increased attention in recent years. The OECD Guidelines stem from an international agreement binding OECD members and adhering states to set standards for OECD-based enterprises operating across borders to conduct their businesses responsibly. NCPs offer a mediation and conciliation platform that can be used as a route for rights holders and civil society organisations with a relevant interest to bring complaints against businesses where the expectations in the guidelines have not been met.
A large proportion of cases initiated before NCPs relate to the extractives sector. Since the inclusion of a human rights chapter in 2011 that incorporates HRDD in line with the UNGP, many complaints now include assertions of non-compliance with the human rights chapter of the OECD Guidelines. Recent examples include alleged failures in environmental and human rights diligence in oil and gas or mining, quarrying and oil operations in locations such as Colombia, Papua New Guinea, Chad and Brazil. Most recently, the Global Legal Action Network filed parallel complaints against BHP, Anglo American and Glencore regarding the Cerrejón mine in Colombia. It is notable that NCP complaints are also focused on investors, as the OECD NCP mechanism is increasingly used as a means to put indirect pressure on companies and projects via complaints aimed at parties on whom they depend for financial support.
The effectiveness of NCPs across OECD Member States is mixed and the overarching perception is that more could be done to improve consistency, increase effectiveness and enhance the process more broadly. NCPs cannot impose or enforce remedy, nor compel cooperation by businesses, meaning their main deterrent strength lies in the reputational risks associated with negative pronouncements by an NCP. In some recent cases, however, the ability to broker mediated or encourage separately negotiated settlements, and to monitor and comment upon progress by businesses, has proven effective in achieving tangible shifts in adherence to the OECD Guidelines and the expectations in them.
International arbitration is not typically used for holding businesses to account for their impact on human rights. Individual or collective rights holders seeking remedy for human rights abuses through international arbitration will find that the barriers are high. Unlike the court system, arbitration is consent-based. In commercial transactions, businesses frequently agree to arbitration as an appropriate means to resolve their disputes. However, those impacted by business operations are not usually party to any agreement with the companies responsible for human rights impacts, and the incentive for businesses to invite proceedings by third parties through agreeing in contracts to grant them enforceable rights is less clear. Although international commercial arbitration may be employed by companies to settle disputes that involve human rights issues in connection with their commercial dealings, it is not generally accessible for the settlement of human rights-related disputes between affected rights holders and businesses. Recent developments may augur a shift towards greater use of arbitration between private parties in human rights-related matters. These are discussed later in this section.
As far as investment treaty arbitration is concerned, human rights are often relevant to examining the facts at the heart of investor–state disputes, not least because the types of regulatory decisions that trigger investors’ claims frequently form part of a government’s steps towards societal goals, usually seeking to improve citizens’ rights. For example, a tobacco company challenged Uruguay’s implementation of domestic measures asserting (unsuccessfully) that the measures were expropriatory and in breach of standards of fair and equitable treatment afforded to it under the relevant bilateral investment treaty (BIT). The measures were implemented to control the use of tobacco, to protect health and reduce high levels of smoking in the country, and were not aimed at depriving the investor of its investment treaty rights. In August 2020, Barrick registered a dispute with the International Centre for Settlement of Investment Disputes under the Australia–Papua New Guinea 1990 BIT in connection with the government’s decision not to renew Barrick’s mining lease over the facility. The government reportedly cited ‘legacy issues’ as one reason why Barrick was refused the lease extension.
In spite of this, the role of human rights law in investment treaty arbitrations continues to be limited. The reasons are well-rehearsed. International investment treaty law and international human rights law are considered to co-exist, separately, in two distinct fields that do not and, arguably, should not overlap. Many consider that international investment law is a self-contained regime that seeks to protect investors and promote investment.
Historically, investment treaties do not typically refer to the human rights obligations of states, nor do they oblige companies to comply with human rights standards. Instances of states founding a defence, or indeed a cause of action relating to human rights, on the express wording of the treaty, has been limited. In practice, rather than citing compliance with human rights obligations in defence of their actions, states tend to defend their actions by asserting that their strategies are necessary for public policy reasons, or allege that the investment underpinning the investor’s claim has not been made in accordance with the law, as required by the investment treaty. Where human rights defences have been raised by states, tribunals have been reluctant to recognise them.
However, states have begun to introduce human rights arguments by positing in investor–state disputes that tribunals should interpret treaties in line with international human rights law by virtue of Article 31(3)(c) of the Vienna Convention on the Law of Treaties 1969, which permits the interpretation of treaties consistently with any relevant rules applicable in the relations between the parties. In Urbaser v. Argentina, admitting a counterclaim by the state that the investor had breached individuals’ right to water, the tribunal held that ‘the BIT has to be construed in harmony with other rules of international law of which it forms part, including those relating to human rights’. The counterclaim, however, subsequently failed on the merits.
Other similar attempts have also been unsuccessful. For example, the case of South American Silver Limited v. Bolivia concerned the alleged expropriation of mining concessions covering an area predominantly inhabited by indigenous peoples. Bolivia defended a claim for expropriation in respect of the cancellation of relevant licences on the basis that the claimant had violated the human and collective rights of the indigenous communities. Bolivia further argued that the BIT should be interpreted in accordance with Bolivian law and international law instruments that protect indigenous communities, as well as the UNGP and the OECD Guidelines. The tribunal held that the express provisions of the BIT (which made no reference to human rights) must prevail.
The majority took a similar view in Bear Creek v. Peru. The dispute concerned a project to develop a silver mine in Santa Ana, an area populated by indigenous communities. Bear Creek had secured the right to mine by way of a decree that authorised the acquisition and development of the necessary concessions. Following large, violent protests and strikes, the decree was revoked by the state and the project halted. Bear Creek sought damages for expropriation and other breaches of the Canada–Peru Free Trade Agreement. Peru argued that the claimant had failed to secure a social licence to operate for the project, had caused social unrest and had failed to comply with relevant international norms requiring consultation with indigenous peoples, rendering its claims inadmissible.
The tribunal upheld Bear Creek’s claim on the basis the company had not caused or contributed to the protests and awarded damages based on the company’s investment costs. Dissenting on the measure of damages awarded, Philippe Sands QC considered that it was appropriate to deduct the compensation afforded to the claimant by 50 per cent on the basis that the investor had contributed to the loss it had suffered by failing to secure a licence to operate, and that while international human rights instruments did not impose obligations on investors, such standards should not be without significance or legal effects for investors.
There has also been a growing trend towards the introduction of human rights considerations by way of non-party submissions (or amicus curiae briefs). Though well-established in litigation, since certain arbitral rules have clarified tribunals’ powers to admit these briefs in certain circumstances, amicus curiae briefs are now more frequently employed in investment treaty arbitration. For example, in Bear Creek v. Peru, the tribunal accepted an amicus curiae brief from a Peruvian NGO and a Peruvian lawyer who assisted the court with an understanding of the law applicable to the social licence to operate. Philippe Sands QC acknowledged the intervention as ‘helpful’, but it is unclear the degree to which, in general, such amicus briefings assist or influence the decision of a tribunal.
There are indications that the prevalence of human rights arguments in both investor–state and commercial arbitration may continue to grow in the future.
States are beginning to include express reference in their model investment and trade agreements to human rights and impose obligations on investors in relation to human rights-related issues. This has been invigorated in part by the UNGP, which call on states to ensure that ‘they retain adequate policy and regulatory ability to protect human rights under the terms of such agreements, while providing the necessary investor protection’. For example, the 2012 South African Development Community model BIT requires investors to meet minimum standards for human rights and act consistently with international human rights and labour standards that are binding in either the state hosting the investment or the state from which the investor comes (whichever sets the higher standard). The BIT also states that any requirement to carry out an environmental social impact assessment before making an investment should be coupled with HRDD.
In a provision reminiscent of the rationale invoked by Professor Sands QC in Bear Creek v. Peru, the 2019 Dutch model BIT includes a provision whereby the compensation that an investor may be awarded in any dispute may take into account where an investor is in ‘non-compliance with its commitments’ under the UNGP and the OECD Guidelines. Model BITs containing similar provisions have also been adopted by certain other jurisdictions.
These model investment treaties evidence a heightened focus by states on the important role that investors can play in promoting respect for rights through the manner in which their investments are undertaken. This is matched in the model treaties by obligations upon investors to take steps to respect rights, and penalties if they fail to do so. Whether these model terms will crystallise into provisions in binding treaties, and the extent to which this will drive the discussion of human rights in investment treaty arbitration in the future, remains to be seen.
Of potentially broader application is the set of specialised arbitral rules developed to deal with human rights-related disputes, the Hague Rules on Business and Human Rights Arbitration (the Hague Rules). These were launched on 12 December 2019, following a period of public consultation. The Hague Rules, which are based on modification of the UNCITRAL Arbitration Rules, provide a default framework for parties that wish to facilitate dispute resolution of human rights-related disputes in line with the UNGP. This may mean ensuring that disputes are heard by those with the relevant expertise for both commercial and human rights-related issues, increasing transparency around the process of arbitration, and providing default rules suitable for disputes involving victims of human rights-related harms who may be vulnerable and require protection during the proceedings. Those in favour of the Hague Rules believe that they could offer a vehicle for the direct enforcement of human rights against companies by rights holders. It is envisaged that commercial parties will incorporate the Hague Rules into their arbitration agreements and, in addition, agree provisions that allow non-parties to pursue human rights-related claims against them through rights-sensitive arbitration agreement. Alternatively, companies may incorporate the Hague Rules into arbitration agreements with rights holders directly, perhaps after a dispute has arisen, in the manner of an ad hoc submission to arbitration. Given that the Hague Rules are consent-based in this way, there are some doubts as to how far and how quickly the architects of the rules will be able to transform the nature of human rights-related dispute resolution.
Despite those doubts, it seems that there are circumstances in which companies may be willing to voluntarily agree to arbitration to resolve disputes connected with human rights. The Bangladesh Accord was signed by over 200 companies and trade unions in the aftermath of the collapse of the Rana Plaza complex in Bangladesh, which killed over 1,000 and injured many more. The Accord seeks to ensure that standards are met in factories and that companies assist in the funding of remediation where issues are found. Disputes under the Accord may be referred to arbitration. In 2016, two signatory trade unions sought to enforce terms of the Accord against two signatory companies. The arbitrations settled in 2017. The names of the respondent companies remained confidential throughout the proceedings and the arbitration would never have yielded a direct remedy for victims of the collapse of Rana Plaza. It may be, therefore, that there is scope to improve this type of remedial mechanism so that it conforms with the effectiveness criteria of the UNGP. Nonetheless, the fact that the companies were willing to agree in advance to the resolution of disputes concerning human rights-related issues by way of arbitration is significant, and demonstrates that there are circumstances where arbitration has been and will likely continue to be considered the most appropriate dispute resolution mechanism.
Mining inherently impacts human rights, often negatively. The mining industry itself has committed to respecting rights and taking steps to manage its negative impact on human rights in line with emerging standards, most notably the UNGP. However, resolving human rights issues through meaningful and effective HRDD takes time. Meanwhile, impacts proliferate. Indeed, it would be naïve to think that mining will ever be free of disputes over human rights-related harms associated with its operations.
The trajectory towards increased accountability will be driven more and more by legislation and regulation that mandates the mining industry to approach respect for rights through the responsible management of human rights risks and social issues. Moreover, the impacts of mining will increasingly be drawn out in terms of human rights terms, and rights holders will remain alive to any improvements in the avenues for seeking remedy against businesses; more disputes are inevitable.
1 Anna Kirkpatrick is a senior associate at Clifford Chance LLP. The author would like to thank Deepaloke Chatterjee and Olivia Johnson for their assistance in the preparation of this chapter.
2 Amanda Jasi, ‘Employees removed following Brazil dam collapse’ (The Chemical Engineer, 12 March 2019), www.thechemicalengineer.com/news/employees-removed-following-brazil-dam-collapse/, accessed 6 April 2021.
3 An iron ore tailings dam in Mariana collapsed on 5 November 2015, killing 19 people and polluting nearby rivers. Samarco also owned the tailings dam. Dom Phillips, ‘Samarco dam collapse: one year on from Brazil’s worst environmental disaster’ (The Guardian, 15 October 2016), www.theguardian.com/sustainable-business/2016/oct/15/samarco-dam-collapse-brazil-worst-environmental-disaster-bhp-billiton-vale-mining, accessed 6 April 2021.
4 Examples include the move by the head of sustainable finance at Swedish bank Nordea to block the bank’s investment managers from buying shares in Vale SA (Barbara Lewis, Simon Jessop and Clara Denina, ‘Trust in tailings? Vale dam disaster spurs investors into action’ (Reuters, 15 February 2019), www.reuters.com/article/us-vale-sa-disaster-investors/trust-in-tailings-vale-dam-disaster-spurs-investors-into-action-idUSKCN1Q41PE, accessed 6 April 2021); the sale by the Church of England of its shares in Vale SA (August Graham, ‘Church of England sells shares in miner Vale after dam disaster kills hundreds’ (City AM, 31 January 2019), www.cityam.com/272558/church-england-sells-shares-miner-vale-after-dam-disaster, accessed 6 April 2021); and the reduction of Vale’s credit rating from credit rating agencies Moody’s, S&P Global Ratings and Fitch (Jonathan Wheatley, ‘Vale’s credit rating cut to junk by Moody’s’ (Financial Times, 27 February 2019), www.ft.com/content/964a924c-3aca-11e9-b856-5404d3811663, accessed 6 April 2021).
5 Jonathan Watts, ‘BHP Billiton facing £5bn lawsuit from Brazilian victims of dam disaster’ (The Guardian, 6 November 2018), www.theguardian.com/environment/2018/nov/06/bhp-billiton-facing-5bn-lawsuit-from-brazilian-victims-of-dam-disaster#:~:text=The%20worst%20environmental%20disaster%20in,in%20Mariana%20three%20years%20ago, accessed 6 April 2021. Municipio de Mariana v. BHP Group plc and BHP Group Ltd  EWHC 2930 (TCC). Over 200,000 claimants, including individuals and businesses, filed a lawsuit for damages caused by the collapse of the BHP’s Samarco dam in Brazil in 2015, which killed 19 people. The High Court struck out the group claim at first instance, finding that the lawsuit amounted to an abuse of process due to the fact that the claimants were pursuing almost identical parallel proceedings in Brazil. The High Court refused permission for appeal, finding the case would be ‘irredeemably unmanageable if allowed to proceed further’ in the English courts. Counsel for the claimants sought permission directly from the Court of Appeal to appeal the High Court’s determination but were unsuccessful. ‘UPDATE 1-Samarco dam claimants to take BHP class action to English Court of Appeal’ (Reuters, 2 February 2021), www.reuters.com/article/bhp-samarco-idCNL1N2K82CC?edition-redirect=uk, accessed 6 April 2021.
6 Zhang Investor Law PC, ‘VALE ALERT: Zhang Investor Law Announces the Filing of a Securities Class Action Lawsuit Against Vale S.A. – VALE’ (Globe Newswire, 22 February 2019), www.globenewswire.com/news-release/2019/02/22/1740924/0/en/VALE-ALERT-Zhang-Investor-Law-Announces-the-Filing-of-a-Securities-Class-Action-Lawsuit-Against-Vale-S-A-VALE.html, accessed 6 April 2021. A US District Court for the Southern District of New York court approved Vale’s US$25 million settlement of the lawsuit. Vale had reported that the dismissal will be final and binding, no longer subject to appeals.
7 On 28 January 2019, almost US$18 billion was wiped off the market capitalisation of Vale. Vale’s shares on Brazil’s stock exchange fell by as much as 24 per cent to 42.67 reais: Neil Hume, ‘Vale sheds quarter of its value after Brazil dam disaster’ (Financial Times, 28 January 2019), www.ft.com/content/0c3ba452-22e1-11e9-b329-c7e6ceb5ffdf, accessed 6 April 2021.
8 ‘Brazil’s Vale agrees to $7 billion Brumadinho disaster settlement’ (Reuters, 4 February 2021), www.reuters.com/article/us-vale-sa-disaster-agreement/brazils-vale-agrees-to-7-billion-brumadinho-disaster-settlement-idUSKBN2A41V5, accessed 6 April 2021.
9 ‘Vale dam-break trauma raises level of ESG funds in Brazil’, (Reuters, 27 October 2020), www.reuters.com/article/us-vale-sa-esg-brazil-focus/vale-dam-break-trauma-raises-level-of-esg-funds-in-brazil-idUSKBN27C0R5, accessed 6 April 2021. BHP’s market value has recovered and increased to almost £124 billion, making it the most valuable company on the London Stock Exchange. BHP and Vale have nevertheless improved their environment, social and governance (ESG) efforts and established a foundation called Renova to oversee the ongoing reparation and remediation work that may have provided some comfort to investors.
10 In its 2020 Annual Report, BHP reported an exceptional loss of US$1.1 billion (after tax), which partially related to the current year impact of the Samarco dam failure: ‘Annual Report’ (BHP, 2020) 17, www.bhp.com/-/media/documents/investors/annual-reports/2020/200915_bhpannualreport2020.pdf?la=en, accessed 6 April 2021.
11 Marcio Correia, stock manager at Rio de Janeiro-based JGP (‘Vale dam-break trauma raises level of ESG funds in Brazil’ (Reuters, 27 October 2020), www.reuters.com/article/us-vale-sa-esg-brazil-focus/vale-dam-break-trauma-raises-level-of-esg-funds-in-brazil-idINKBN27C0R5, accessed 6 April 2021). Also note, in response to the Vale incident, the Investor Mining & Tailings Safety Initiative was established, chaired by former BHP investor the Church of England Pensions Board and the Swedish Council of Ethics of AP Funds.
12 ‘ICMM commits to create an international standard for tailings dams’ (International Council on Mining and Minerals (ICMM), 26 February 2019), www.icmm.com/en-gb/news/2019/international-standard-for-tailings-dams, accessed 6 April 2021.
13 Rio Tinto pledges to protect cultural heritage after Juukan Gorge disaster, (The Guardian, 23 March 2021), www.theguardian.com/business/2021/mar/23/rio-tinto-pledges-to-protect-cultural-heritage-after-juukan-gorge-disaster, accessed 6 April 2021.
14 A report by the World Resources Institute published in 2020 showed that there is a need to strengthen legal protections for indigenous lands in the Amazon, and ensure that all mining meets established safeguards: ‘Undermining Rights: Indigenous Lands and Mining in the Amazon’, (World Resource Institute, 2020), https://wriorg.s3.amazonaws.com/s3fs-public/Report_Indigenous_Lands_and_Mining_in_the_Amazon_web_1.pdf, accessed 6 April 2021. The report highlights that artisanal and small-scale mining can be dangerous work and have substantial health implications, while the influx of workers brought in for mining operations can lead to the displacement of local people and a decline of culture (among other things). Child smuggling and labour exploitation are also risks associated with the mining sector: id., .
15 ‘10 Human Rights Priorities for the Extractives Sector’ (BSR, n.d.) www.bsr.org/en/our-insights/primers/10-human-rights-priorities-for-the-extractives-sector, accessed 6 April 2021; ‘Climate and Human Rights: The Business Case for Action’ (BSR, November 2018), www.bsr.org/en/our-insights/report-view/climate-human-rights-the-business-case-for-action , accessed 7 March 2021. ‘Mining’s climate Mining’s climate accountability’ Nat. Geosci. 13, 97 (2020). Accountability’, https://doi.org/10.1038/s41561-020-0541-1, accessed 6 April 2021. More recently, in Australia several teenagers, with the support of their litigation guardian, filed a claim in Melbourne’s Federal Court to prevent the expansion of a large coal mining project on climate-change related grounds. The case went to trial on 2 March 2021. If the case succeeds, it could make the approval of coal mines in Australia more difficult: Adam Morton, ‘“A duty of care”: Australian teenagers take their climate crisis plea to court’ (The Guardian, 1 March 2021), www.theguardian.com/environment/2021/mar/02/a-duty-of-care-australian-teenagers-take-their-climate-crisis-plea-to-court, accessed 6 April 2021; ‘Australian teens lead class action against Whitehaven’s coal mine expansion’ (Reuters, 1 March 2021), www.reuters.com/article/australia-coal-environment-idINKCN2AT1JZ, accessed 6 April 2021.
16 Investors are increasingly becoming alive to human rights-related concerns as well as broader ESG considerations, and take such factors into account when determining whether to continue with a mining project. In 2020, the European Bank for Reconstruction and Development (EBRD) announced that it would end its investment in a US$400 million gold mine in Armenia operated by Lydian International (having previously funded exploration, drilling and feasibility studies and environmental and social mitigation measures associated with that mine) after the project came under fire from the public for its potential environmental and social harms: Thomas Rowley, ‘Major bank investment in disputed Armenian gold mine to end’ (Open Democracy, 12 August 2020), www.opendemocracy.net/en/odr/major-bank-investment-disputed-armenian-gold-mine-end/, accessed 6 April 2021. Lydian (Amulsar Gold Mine) – Extension (48579) REQUEST NUMBER: 2020/02 (EBRD, November 2020), www.ebrd.com/work-with-us/projects/ipam/2020/02.html, accessed 6 April 2021.
17 UNHRC Res 17/4 (2011) UN Doc A/HRC/RES/17/4.
18 John Ruggie, ‘Protect, respect and remedy: a framework for business and human rights: report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises’, (7 April 2008) A/HRC/8/5 (Third Pillar Report).
19 UNHRC, ‘Guiding Principles on Business and Human Rights’ (2011) HR/PUB/11/04 (UNGP).
20 id., Principle 11.
21 id., Principle 13.
22 id., Principle 15.
23 John Ruggie and John Sherman, III, ‘The Concept of ‘Due Diligence’ in the ‘UN Guiding Principles on Business and Human Rights: A Reply to Jonathan Bonnitcha and Robert McCorquodale’ (2017) 24(3) EJIL, https://academic.oup.com/ejil/article/28/3/921/4616676, accessed 6 April 2019.
24 OHCHR, ‘Q7: If the Guiding Principles are not a legal instrument, are they just voluntary?’ in Frequently Asked Questions about the Guiding Principles on Business and Human Rights (2014) HR/PUB/14/3, 9, www.ohchr.org/documents/publications/faq_principlesbussinesshr.pdf, accessed 6 April 2021.
25 Third Pillar Report, footnote 18, 54; John Ruggie, ‘Remarks’ (International Institute for Conflict Prevention & Resolution: Corporate Leadership Award Dinner, New York, 2 October 2008), www.business-humanrights.org/sites/default/files/reports-and-materials/Ruggie-speech-to-CPR-2-Oct-2008.pdf, accessed 6 April 2021.
26 Miguel Schloss, ‘Transparency and Governance in the Management of Mineral Wealth’ (World Mines Ministries Forum 2002, 14 March 2002); Kieren Moffat and others, ‘The social licence to operate: a critical review’ (2016) 89(5) Forestry, 477.
27 Robert G Boutilier and Ian Thomson, ‘Modelling and Measuring the Social Licence to Operate: Fruits of a Dialogue between Theory and Practice’ in Peter Darling (ed), SME Mining Engineering Handbook (Society for Mining Metallurgy and Exploration 2011) 4.
28 Aparna Sankaran, ‘License to operate remains top mining risk, with high-impact risks a close second’ (EY, 30 September 2020), www.ey.com/en_gl/news/2020/09/license-to-operate-remains-top-mining-risk-with-high-impact-risks-a-close-second, accessed 6 April 2021.
29 Rachel Davis and Daniel Franks, ‘Costs of Company-Community Conflict in the Extractive Sector’ (Shift, 2014), https://shiftproject.org/resource/costs-of-company-community-conflict-in-the-extractive-sector/, accessed 6 April 2021. In the Latin America region specifically, Verisk Maplecroft – a global risk and strategic consulting firm – identified that the costs to the mining sector between 2004 and 2019 resulting from lost investment, disruption to operations and legal proceedings as a result of social conflicts amounted to around US$7.78 billion: Victoria Gama, ‘Human rights posing “high risk” to miners’ social license to operate in Latin America: Human Rights Outlook 2019’ (7 October 2019), www.maplecroft.com/insights/analysis/human-rights-posing-high-risk-to-miners-social-license-to-operate-in-latin-america/, accessed 6 April 2021.
30 Susan A Joyce and Magnus MacFarlane, ‘Social Impact Assessment in the Mining Industry: Current Situation and Future Directions’ (2001) 46 MMSD.
31 Voluntary Principles Initiative, ‘Voluntary Principles on Security and Human Rights’ (2001).
32 The UN Global Compact, Principles 1 and 2. The UN Global Compact promotes tools and resources aligned with the UNGP.
33 International Finance Corporation, ‘IFC Performance Standards on Environmental and Social Sustainability’ (January 2012), 1.
34 Equator Principles Initiative, ‘The Equator Principles’ (July 2020), 3, 9, 13.
35 Organisation for Economic Co-operation and Development (OECD), ‘OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas’, www.oecd.org/corporate/mne/mining.htm, accessed 6 April 2021. The OECD has also issued broader guidance for companies implementing due diligence on but going beyond human rights: ‘OECD Due Diligence Guidance for Responsible Business Conduct’ (OECD 2018), www.oecd.org/investment/due-diligence-guidance-for-responsible-business-conduct.htm, accessed 6 April 2021.
36 OECD, ‘Chinese Due Diligence Guidelines for Responsible Mineral Supply Chains’ (2 December 2015), http://mneguidelines.oecd.org/chinese-due-diligence-guidelines-for-responsible-mineral-supply-chains.htm, accessed 6 April 2021.
39 For a review of reporting and due diligence requirements relating to human rights as at May 2020, see Catie Shavin, Rae Lindsay, Anna Kirkpatrick and Jo En Low, ‘Business and Human Rights: Navigating a Changing Legal Landscape’ (Global Business Initiative on Human Rights/Clifford Chance, May 2020), www.cliffordchance.com/content/dam/cliffordchance/briefings/2020/05/business-and-human-rights-navigating-a-changing-legal-landscape.pdf, accessed 6 April 2021.
40 See, also, the California Transparency in Supply Chains Act 2010, the Australian Modern Slavery Act 2018, the New South Wales Modern Slavery Act No. 30 (passed but not yet in force), the forthcoming Netherlands Child Labour Due Diligence Act (adopted in May 2019 and expected to come into force in 2022) and the forthcoming Swiss Counter-Proposal to the Responsible Business Initiative.
41 Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups  OJ L 330/1.
42 Amendment to the Federal Acquisition Regulation; Ending Trafficking in Persons (2015).
43 Law 2017-300 related to Duty of Vigilance of Parent Companies and Commissioning Companies.
44 ‘Germany: Cabinet passes mandatory due diligence proposal; Parliament now to consider & strengthen’ (Business & Human Rights Resource Centre, 3 March 2021), www.business-humanrights.org/en/latest-news/german-due-diligence-law/, accessed 6 April 2021.
45 European Commission, Sustainable Corporate Governance, https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12548-Sustainable-corporate-governance, accessed 6 April 2021.
46 European Commission, Regulation of the European Parliament and of the Council concerning batteries and waste batteries, COM(2020) 798/3, 10 December 2020, https://ec.europa.eu/environment/topics/waste-and-recycling/batteries-and-accumulators_en, accessed 6 April 2021.
47 US Dodd-Frank Act Final Rule 12 USC Section 1502 (2010).
48 Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017 laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas.
49 Institute of Chartered Accountants in England and Wales, ‘Responsible sourcing and low carbon metals at the LME’ (23 June 2020), www.icaew.com/insights/covid-19-global-recovery/regulation-analysis/responsible-sourcing-and-low-carbon-metals-at-the-lme, accessed 6 April 2021.
50 Kendyl Salcito, Chris Wiegla and Burton H Singer, ‘Corporate human rights commitments and the psychology of business acceptance of human rights duties: a multi-industry analysis’ (2015) 19(6) IJHR, 682. The study showed that the oil and gas and mining sector companies, as a sector, displayed one of the strongest commitments to adopting policies and processes to implement the UNGP in 2012–2013.
51 OHCHR, ‘Statement by the UN High Commission for Human Rights Michelle Bachelet’, 23 April 2019, www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=24507&LangID=E, accessed 6 April 2021.
52 For example, see Universal Declaration on Human Rights, Article 8 and European Convention on Human Rights, Article 13.
53 See generally, Sonja Starr, ‘The Right to an Effective Remedy: Balancing Realism and Aspiration’ in Mashood Baderin and Manisuli Ssenyonjo (eds), International Human Rights Law: Six Decades after the UDHR and Beyond (Ashgate, 2010) 477–98; UN General Assembly (UNGA), ‘Report of the Working Group on the Issue of Human Rights and Transnational Corporations and other Business Enterprises’ UNGA 72nd Session No. 73(b) UN Doc A/72/162 (2017) (UN Working Group Report 2017).
54 See also the 2016 HRC Resolution, which calls on business to contribute actively to initiatives that aim to promote a culture of respect for the rule of law, and participate in good faith in domestic judicial processes, as well as establish effective operational-level mechanisms. UNHRC Res 32/10 (2016) UN Doc A/HRC/RES/32/10, .
55 The Council of Europe issued recommendations lowering barriers to accessing remedy in 2016, Recommendation CM/Rec/(2016)3: ‘Appendix 4: Recommendation CM/Rev(2016) 3 of the Committee of Ministers to Members States on human rights and business’ (COE 2016); the EU Agency on Fundamental Rights issued an opinion in 2017, FRA (2017) Improving access to remedy in the area of business and human rights at the EU level, Vienna, 10 April 2017; and the European Parliament published a comprehensive report with recommendations in 2019, Directorate-General for External Policies, ‘Access to legal remedies for victims of corporate human rights abuses in third countries’ (European Union, February 2019). The OHCHR’s initiative on improving accountability and access to remedy in cases of business involvement in human rights abuses has been ongoing since 2014 (‘OHCHR Accountability and Remedy Project: Improving accountability and access to remedy in cases of business involvement in human rights abuses’, www.ohchr.org/EN/Issues/Business/Pages/OHCHRaccountabilityandremedyproject.aspx, accessed 6 April 2021). A drive to clarify and facilitate effective implementation of the obligations of states regarding business-related human rights abuses and the responsibilities of business enterprises in that regard, including in relation to providing access to remedy, has led to the UN supporting an initiative to develop an international treaty. The ‘Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises’ (6 August 2020) is currently in its second draft. www.business-humanrights.org/en/big-issues/binding-treaty/, accessed 6 April 2021.
56 UNGP, footnote 19, Principle 22.
57 id., Principle 31.
58 ‘Eni For Human Rights’, (Eni, 2020) 101, www.eni.com/assets/documents/eni-report-human-rights.pdf, accessed 6 April 2021. Eni scores at the top of the extractives for human rights performance in the Corporate Human Rights Benchmark 2020, www.worldbenchmarkingalliance.org/publication/chrb/companies/eni/, accessed 6 April 2021.
59 ‘Pillar III on the Ground: An Independent Assessment of the Porgera Remedy Framework’ (Enodo Rights, 2016) 2.
60 Margaret Jungk, Onida Chichester and Chris Fletcher, ‘In Search of Justice: Pathways to Remedy at the Porgera Gold Mine’ (BSR, 2018) 5, www.bsr.org/reports/BSR_In_Search_of_Justice_Porgera_Gold_Mine.pdf, accessed 6 April 2021.
61 ‘Pillar III on the Ground: An Independent Assessment of the Porgera Remedy Framework’ (Enodo Rights, 2016) 1, www.enodorights.com/assets/pdf/pillar-III-on-the-ground-assessment.pdf, accessed 6 April 2021.
62 ‘In Search of Justice: Pathways to Remedy at the Porgera Gold Mine’ (BSR, 2018) 68, www.bsr.org/reports/BSR_In_Search_of_Justice_Porgera_Gold_Mine.pdf, accessed 6 April 2021.
63 id., .
64 UN Working Group Report 2017, footnote 53, .
65 UNHRC, ‘Improving Accountability and Access to Remedy for Victims of Business-related Human Rights Abuse’ UNGA 32nd session, Nos. 2 and 3 UN Doc A/HRC/32/19 (2016).
66 Doug Cassell, ‘Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts’ (2008) 6(2) NJIHR.
67 Prosecutor v. Anto Furundzija (Trial Judgment) IT-95-17/1-T (ICTY) . See generally, ICJ, Corporate Complicity & Legal Accountability, Volume 1: Facing the Facts and Charting a Legal Path (2008), www.icj.org/wp-content/uploads/2012/06/Vol.1-Corporate-legal-accountability-thematic-report-2008.pdf, accessed 6 April 2021; ICJ, ‘Corporate Complicity & Legal Accountability, Volume 2: Criminal Law and International Crimes’ (2008), www.icj.org/wp-content/uploads/2012/06/Vol.2-Corporate-legal-accountability-thematic-report-2008.pdf, accessed 6 April 2021; and ICJ, ‘Corporate Complicity & Legal Accountability, Volume 3: Civil Remedies’ (2008), www.icj.org/wp-content/uploads/2012/06/Vol.3-Corporate-legal-accountability-thematic-report-2008.pdf, accessed 6 April 2021.
68 See, for example, the recent convictions of two former executives of Ford Motor Argentina in Buenos Aires (Uki Goñi, ‘Argentina: two ex-Ford executives convicted in torture case’ (The Guardian, 11 December 2018), www.theguardian.com/world/2018/dec/11/pedro-muller-hedro-sibilla-ford-executives-argentina-torture-case?CMP=Share_AndroidApp_Tweet, accessed 6 April 2021) and pending convictions against Lundin executives (Richard Milne, ‘Swedish oil bosses set to be charged over South Sudan deaths’ (Financial Times, 18 October 2018), www.ft.com/content/c7295ae6-d2cf-11e8-a9f2-7574db66bcd5, accessed 6 April 2021).
69 In June 2018, the French cement company, LafargeHolcim (formerly, Lafarge SA) (Lafarge), was charged with complicity in crimes against humanity and financing terrorists, for allegedly paying significant sums (approximately €13 million) to jihadists, including the Islamic State group, to keep a factory open in Syria during the conflict there. In addition to Lafarge itself, three senior executives are under formal investigation. In November 2019, the Paris Court of Appeal dropped one of the four charges (in respect of complicity in crimes against humanity committed in Syria between 2012 and 2014) but upheld the other three charges for endangering the lives of its workers, financing a terrorist enterprise, and violating an embargo. Liz Alderman, ‘Terrorism Financing Charge Upheld Against French Company Lafarge’ (The New York Times, 7 November 2019), www.nytimes.com/2019/11/07/business/lafarge-terrorism-syria.html, accessed 6 April 2021. ‘French court narrows charges against Lafarge’ (Sherpa, 7 November 2019), www.asso-sherpa.org/french-court-narrows-charges-against-lafarge, accessed 6 April 2021.
70 The lawsuit in the US continues, following a ruling by a New York federal judge on 16 February 2021, which rejected BNPP’s request for a dismissal of the case (Reuters Legal, 17 February 2021), ‘BNP Paribas must face Sudanese refugees’ lawsuit over genocide’ (Westlaw Today, 17 February 2021), https://today.westlaw.com/Document/Ia454b73070bc11ebb70a9e1371ac3280/View/FullText.html?transitionType=SearchItem&contextData=(sc.Default), accessed 6 April 2021.
71 For example, in the US, the Alien Tort Statute (ATS) has previously provided particularly fertile ground for claims by non-US nationals against corporations based both in and outside the US, based on alleged involvement in ‘violations of the law of nations’ (international law). The scope of risk under the ATS has been significantly curtailed for non-US companies and operations by the US Supreme Court’s decision that the ATS should not be interpreted to extend to activity taking place entirely outside the US, on the basis of a ‘presumption against extraterritoriality’. See Kiobel v. Royal Dutch Petroleum Co, 621 F.3d 111 (2d Cir. 2010); Jesner v. Arab Bank, PLC 138 S. Ct. 1386 (No. 16–499) (2018).
72 These cases are based on attempts to apply and expand principles first enunciated in relation to an asserted parent company duty of care for damage suffered by an employee of a subsidiary on the basis that the parent company had assumed responsibility for such employee’s health and safety (Chandler v. Cape plc  EWCA Civ 525).
73 Lungowe and others v. Vedanta Resources Plc and Konkola Copper Mines Plc  EWHC 975.
74 Lungowe and others v. Vedanta Resources Plc and Konkola Copper Mines Plc  EWCA Civ 1528.
75 id., .
76 Vedanta Resources Plc and Konkola Copper Mines Plc v. Lungowe and others  UKSC 20, –.
77 Okpabi and others v. Royal Dutch Shell Plc and another  UKSC 3.
78 id., .
79 Other litigants with claims on similar bases have failed to demonstrate an arguable case of a duty of care. In AAA and Others v. Unilever PLC and Another  EWCA Civ 1532, it was unsuccessfully argued that a parent company was liable for failures to protect third parties (local communities) from personal injury and associated damage arising from post-election violence in Kenya. Okpabi and others v. Royal Dutch Shell Plc and another  EWCA Civ 191 involved a claim against the UK-incorporated parent holding company, Royal Dutch Shell, in relation to environmental damage from oil spills allegedly emanating from the pipelines and associated infrastructure owned and operated by its Nigerian incorporated subsidiary. The claims were dismissed on the basis that no arguable case was made out. This underscores that the legal landscape is unpredictable, with each case to be determined on the basis of its own particular facts and context.
80 Kadie Kalma & Ors v. African Minerals Ltd & Ors  EWHC 3506 (QB).
81 Briggs J noted that he regarded that ‘the published materials in which Vedanta may fairly be said to have asserted its own assumption of responsibility for the maintenance of proper standards of environmental control over the activities of its subsidiaries, and in particular the operations at the Mine, and not merely to have laid down but also implemented those standards by training, monitoring and enforcement, as sufficient on their own to show that it is well arguable that a sufficient level of intervention by Vedanta in the conduct of operations at the Mine may be demonstrable at trial’ Vedanta Resources Plc and Konkola Copper Mines Plc v. Lungowe and others  UKSC 20, .
82 id., –.
83 Kadie Kalma & Ors v. African Minerals Ltd & Ors  EWHC 3506 (QB).
84 id., .
85 Vilca and 21 others v. Xstrata Limited and another  EWHC 389 (QB), .
86 Thomas Harding, ‘Gem miner reveals alleged human rights abuses in Africa’ (The Telegraph, 10 February 2018), www.telegraph.co.uk/business/2018/02/10/gem-miner-reveals-alleged-human-rights-abuses-africa/, accessed 6 April 2021.
88 ‘Gemfields Press Statement’ (Gemfields, 29 January 2019), https://gemfields.s3.amazonaws.com/News%20and%20Announcements/2019/January/20190117-%20GGL%20SENS%20announcement%20-%20Gemfields%20Press%20Statement%20in%20relation%20to%20Settlement%20Agreement.pdf, accessed 6 April 2021.
89 Choc v. Hudbay Minerals Inc, HMI Nickel Inc and Compañia Guartemalteca de Níquel SA, 2013 ONSC 1414.
90 Araya v. Nevsun Resources Ltd  BCCA 401.
91 ‘Amnesty International applauds settlement in landmark Nevsun Resources mining case’, (Amnesty International, 23 October 2020), https://amnesty.ca/news/amnesty-international-applauds-settlement-landmark-nevsun-resources-mining-case accessed 6 April 2021.
92 OECD (2011), OECD Guidelines for Multinational Enterprises, OECD Publishing.
93 One study noted that, between 2001 and 2015, 57 specific instances related to the mining sector and a further 33 were related to the oil and gas sector, OECD Watch, ‘Remedy Remains Rare’ (June 2015), www.oecdwatch.org/wp-content/uploads/sites/8/2015/06/Remedy-Remains-Rare.pdf, accessed 6 April 2021; ‘Case statistics ( June 2015) – Cases by sector’ (OECD Watch), https://complaints.oecdwatch.org/cases/statistics, accessed 6 April 2021. In 2019, mining and quarrying accounted for 10 per cent of all complaints submitted, according to the OECD’s 2019 Annual Report on the OECD Guidelines for Multinational Enterprises (2020), https://www.cancilleria.gob.ar/userfiles/ut/2019_annual_report_on_the_oecd_guidelines_for_mne_en.pdf, accessed 6 April 2021.
94 John Ruggie and Tamaryn Nelson, ‘Human Rights and the OECD Guidelines for Multinational Enterprises: Normative Innovations and Implementation Challenges’ (2015) Corporate Social Responsibility Initiative, Harvard Kennedy School Research Paper 6, 14, www.hks.harvard.edu/sites/default/files/centers/mrcbg/programs/cri/files/workingpaper.66.oecd.pdf, accessed 6 April 2021.
95 ‘OECD claims against BHP, Anglo American, Glencore and Ireland’s state-owned energy provider lodged today’ (Twenty Essex, 19 January 2021), www.lexology.com/library/detail.aspx?g=848575cc-b6e4-4e3c-9da0-90c63a436f4b, accessed 6 April 2021.
98 Vale S.A. v. Rogério Mário Ziviani Gomes (OECD, 14 February 2020), http://mneguidelines.oecd.org/database/instances/br0031.htm, accessed 6 April 2021; Vale S.A v. two individuals (OECD, 23 January 2020) http://mneguidelines.oecd.org/database/instances/br0030.htm, accessed 6 April 2021.
99 ‘Big miners face new front in Colombia human rights battle’ (Financial Times, 19 January 2021), www.ft.com/content/f63adfa4-1b63-4e9c-809e-138815d9ee50, accessed 6 April 2021; ‘OECD claims against BHP, Anglo American, Glencore and Ireland’s state-owned energy provider lodged today’ (One Essex Court, 19 January 2021), https://twentyessex.com/oecd-claims-against-bhp-anglo-american-glencore-and-irelands-state-owned-energy-provider-lodged-today/, accessed 6 April 2021.
100 For example, Norges Bank Investment Management was found by the Norwegian national contact point (NCP) to have failed to implement human rights due diligence in respect of the human rights impacts of a proposed steel plant to be developed in India by POSCO, one of its investee companies. ‘Final Statement: Complaint from Lok Shakti Abhiyan, Korean Transnational Corporations Watch, Fair Green and Global Alliance and Forum for Environment and Developments vs. POSCO (South Korea), ABP/APG (Netherlands) and NBIM (Norway)’ (The Norwegian NCP for the OECD Guidelines, 27 May 2013).
101 Christine Haigh, ‘ The global system for holding corporations to account is in need of serious reform’ (The Guardian, 20 February 2015), www.theguardian.com/global-development-professionals-network/2015/feb/10/the-global-system-for-holding-corporations-to-account-is-in-need-of-serious-reform, accessed 6 April 2021; Shelley Marshall, ‘OECD National Contact Points: Better navigating conflict to provide remedy to vulnerable communities’ (Corporate Accountability Research, 2016), http://corporateaccountabilityresearch.net/njm-report-xvi-oecd-ncp/, accessed 6 April 2021; ‘Meeting Report: Update on the role of OECD National Contact Points with regard to the extractive sectors’ (OECD National Contact Points and the Extractive Sector, London, 22 March 2013), www.ihrb.org/pdf/IHRB-NNCP-OECD-National-Contact-Points-and-the-Extractive-Sector_2013-Update.pdf, accessed 6 April 2021.
102 FIFA and Building and Wood Workers’ International reached a mediated settlement through the Swiss OECD NCP in which the parties undertook to cooperate in ensuring decent work and safety in the workplace for migrant construction workers involved in 2022 FIFA World Cup Qatar including bolstering the effectiveness of grievance mechanisms and strengthening the functionality of FIFA’s body tasked with overseeing the implementation of human rights. ‘Final Statement FIFA BWI’; ‘Follow-Up Statement FIFA BWI’ (SECO), www.seco.admin.ch/seco/en/home/Aussenwirtschaftspolitik_Wirtschaftliche_Zusammenarbeit/Wirtschaftsbeziehungen/NKP/Statements_zu_konkreten_Faellen.html, accessed 6 April 2021.
103 In this chapter, we do not consider the role that investors’ human rights may play in investment treaty arbitration in any detail, but broadly, similar considerations apply.
104 Philip Morris Brands Sàrl, Philip Morris Products SA and Abal Hermanos SA v. Oriental Republic of Uruguay, International Centre for Settlement of Investment Disputes (ICSID) Case No. ARB/10/7.
105 Barrick (PD) Australia Pty Limited v. Independent State of Papua New Guinea, ICSID Case No. ARB/20/27.
106 ‘Barrick Gold AGM Faces Continued Failure on Human Rights’ (Mining Watch, 5 May 2020), https://miningwatch.ca/news/2020/5/5/barrick-gold-agm-faces-continued-failure-human-rights?, accessed 6 April 2021.
107 ‘Barrick Serves Notice of Dispute Over Porgera’, Barrick Gold Corporation (Barrick News, 10 July 2020), www.barrick.com/news/news-details/2020/barrick-serves-notice-of-dispute-over-porgera/default.aspx, accessed 6 April 2021. Reuters reported that Prime Minister Marape said, in April 2020, that: ‘The state has every right to refuse the lease, or to extend the lease, and in this instance, because of the environmental issues, resettlement issues and many, many other legacy issues . . . the state has now refused the lease to Porgera’ , (Reuters, 24 April 2020), www.reuters.com/article/us-papua-barrick-mining/papua-new-guinea-to-take-control-of-barrick-gold-mine-idUSKCN2261TB, accessed 6 April 2021. On 5 April 2021, the government of Papua New Guinea announced that it would be negotiating a new leasing deal with Barrick. See ‘PM Marape Government set to sign agreement with Barrick to reopen Porgera Gold Mine’ (Mining Watch, 5 April 2021) https://miningwatch.ca/sites/default/files/nr-_pm_marape_government_set_to_sign_agreement_with_barrick_to_reopen_po.pdf, accessed 6 April 2021. It is unclear whether the ICSID claim will continue.
108 e.g., Nicholas J Diamond and Kabir A N Duggal, ‘2020 in Review: The Pandemic, Investment Treaty Arbitration, and Human Rights’, Kluwer Arbitration Blog (2021), http://arbitrationblog.kluwerarbitration.com/2021/01/23/2020-in-review-the-pandemic-investment-treaty-arbitration-and-human-rights/, accessed 6 April 2021.
109 See generally, Howard Mann, ‘International Investment Agreements, Business and Human Rights: Key Issues and Opportunities,’ (February 2008) IISD, www.iisd.org/system/files/publications/iia_business_human_rights.pdf, accessed 16 April 2021; James D Fry, ‘International Human Rights Law in Investment Arbitration: Evidence of International Law’s Unity,’ (2007) 18 Duke J. of Comp. & Int’l. L. 77, https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1077&context=djcil, accessed 19 March 2021; Susan Karamanian, ‘The Place of Human Rights in Investor-State Arbitration’ (2013) 17(2) Lewis & Clark Law Review, 423; Vivian Kube and Ernst-Ulrich Petersmann, ‘Human Rights Law in International Investment Arbitration’ (2016) 11(1) AJWH, 67; Monica Feria-Tinta, ‘Like Oil and Water? Human Rights in Investment Arbitration in the Wake of Philip Morris v. Uruguay’ (2017) 34(4) JIA, 601; and Ursula Kriebaum, ‘Human Rights and International Investment Arbitration’, in Thomas Schultz and Federico Ortino (eds), The Oxford Handbook of International Arbitration (OUP, 2020) 151-185.
110 See, for example, Pierre-Marie Dupuy, ‘Unification Rather than Fragmentation of International Law? The Case of International Investment and Human Rights Law’, in Pierre-Marie Dupuy, Ernst-Ulrich Petersmann and Francesco Francioni (eds), Human Rights in International Investment Law and Arbitration (OUP, 2010) 45–62, 46; International Law Commission, Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law (International Law Com. No. 13, 2006) ; Christoph Schreuer and Ursula Kriebaum, ‘From Individual to Community Interest in International Investment Law’, in Ulrich Fastenrath et al. (eds), From Bilateralism to Community Interest: Essays in Honour of Bruno Simma (OUP, 2011) 1079; and Moshe Hirsch, ‘Interactions between Investment and Non-Investment Obligations’, in Peter Muchlinski, Federico Ortino and Christoph Schreuer (eds), Oxford Handbook of International Investment Law (OUP, 2008) 154.
111 Marc Jacob, ‘International Investment Agreements and Human Rights’, INEF Research Paper 3/2010, [1.3.1].
112 In Copper Mesa Mining Corporation v. Republic of Ecuador, PCA No. 2012-2, Ecuador unsuccessfully argued that the claimant’s case was barred due to its ‘unclean hands’ in its management of a mining concession alleging flagrant breaches of Ecuadorian and international human rights law and international public policy.
113 In Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited v. Republic of Kenya, ICSID Case No. ARB/15/29, the tribunal confirmed that the carrying out of an environmental impact assessment study was one of the requirements of a lawful investment in accordance with Kenyan law.
114 In Joseph Houben v. Republic of Burundi, ICSID Case No. ARB/13/7, the investor alleged that land acquired for a real estate venture was illegally occupied by third parties, in breach of Burundi’s obligations under the Belgium–Burundi investment treaty. Burundi unsuccessfully asserted that expelling the squatters would have been in violation of both Burundian law and Article 17 of the International Covenant on Civil and Political Rights. The tribunal dismissed the argument holding that the relevant inquiry was not whether expulsion would violate human rights law but whether Burundi had taken necessary measures to prevent the squatters’ occupation in the first place.
115 Yannick Radi, ‘Realising Human Rights in Investment Treaty Arbitration: A Perspective from within the International Investment Law Toolbox’ (2011) NCJILCR 37(4); Bruno Simma, ‘Foreign Investment Arbitration: A Place for Human Rights?’, 60(3) Int’l and Comp Law Quarterly (2011); Bruno Simma and Theodore Kill, ‘Harmonizing Investment Protection and International Human Rights: First Steps Towards a Methodology’ in Christina Binder and others (eds), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (OUP, 2009).
116 Urbaser SA and Consorcio de Aguas Bilbao Bizkaia, Bilbao Biskaia Ur Partzuergoa v. The Argentine Republic, ICSID Case No. ARB/07/26.
117 id., .
118 South American Silver Limited (Bermuda) v. The Plurinational State of Bolivia, PCA Case No. 2013-15 (PCA 2013).
119 id., .
120 These comprised (1) the 1969 American Convention on Human Rights, (2) the 1994 Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, (3) the 1989 Indigenous and Tribal Peoples Convention (ILO Convention No 169), (4) the 2007 United Nations Declaration on the Rights of Indigenous Peoples, and (5) the 2009 Political Constitution of the Plurinational State of Bolivia.
121 South American Silver Limited (Bermuda) v. The Plurinational State of Bolivia, PCA Case No. 2013-15, Award (PCA 2013) –.
122 id., . The tribunal also dismissed Bolivia’s contention that the purported non-compliance with the investment treaty could be excused by a state of necessity, namely the necessity to protect ‘human and indigenous rights’.
123 Bear Creek Mining Corporation v. Republic of Peru, ICSID Case No. ARB/14/21.
124 Jean-Michel Marcoux and Andrew Newcombe, ‘Bear Creek Mining Corporation v Republic of Peru: Two Sides of a “Social License” to Operate’ (2019) ICSID Review, 2, https://academic.oup.com/icsidreview/advance-article/doi/10.1093/icsidreview/siy020/5366378, accessed 6 April 2021.
125 Bear Creek Mining Corporation v. Republic of Peru, ICSID Case No. ARB/14/21, Award (30 November 2017), , , , .
126 Bear Creek Mining Corporation v. Republic of Peru, ICSID Case No. ARB/14/21, Partial Dissenting Opinion (30 November 2017), , .
127 Professor John Ruggie provided a statement of the UNCITRAL Working Group highlighting the importance of transparency in investor–state arbitration and this is evidenced in the new rules, which provide that a non-disputing party may apply to make a written submission to the tribunal: UNCITRAL, ‘Report of the Working Group on Arbitration and Conciliation on the work of its forty-eighth session’, (2008) UN Doc A/CN.9/646, Article 4.
128 For example, Monica Feria-Tinta recently filed an amicus brief on the issue of the right to consultation under international law in the context of extractive industries before the Supreme Court of Justice of the Nation of Mexico. The case under consideration examines a challenge brought by the Masewal people of Cuetzalan based in the Sierra Norte of the Mexican state of Puebla, who filed a constitutional action against Mexico’s Federal Mining Law. ‘Monica Feria-Tinta in Mexican Supreme Court’s mining law case’ (Twenty Essex, 4 September 2020), https://twentyessex.com/monica-feria-tinta-in-mexican-supreme-courts-mining-law-case/, accessed 6 April 2021.
129 Chen Yu, ‘Amicus Curiae Participation in ISDS: A Caution Against Political Intervention in Treaty Interpretation’, ICSID Review – Foreign Investment Law Journal, 2020, siaa025, https://doi.org/10.1093/icsidreview/siaa025, accessed 6 April 2021; Nikos Lavranos; ‘The (ab)use of Third-Party Submissions’ (2020) 5(1) European Investment Law and Arbitration Review, 426; https://brill.com/view/journals/eilo/5/1/article-p426_19.xml?language=en, accessed 6 April 2021; Lucas Bastin, ‘Amicus Curiae in Investor-State Arbitration: Eight Recent Trends’ (2014) Arbitration International, 30(1) 125, 126–30, https://doi.org/10.1093/arbitration/30.1.125, accessed 6 April 2021.
130 Bear Creek Mining Corporation v. Republic of Peru, ICSID Case No. ARB/14/21.
131 id., .
132 Bear Creek Mining Corporation v. Republic of Peru, ICSID Case No. ARB/14/21, Partial Dissenting Opinion (30 November 2017), . See also Nicolette Butler, ‘Non-Disputing Party Participation in ICSID Disputes: Faux Amici?’ (2019) 66 Netherlands International Law Review, 143–78, https://link.springer.com/article/10.1007/s40802-019-00132-8, accessed 6 April 2021.
133 In relation to investor–state arbitration, see Moshe Hirsch, ‘Social movements, reframing investment relations, and enhancing the application of human rights norms in international investment law’ (2021) Leiden Journal of International Law, 34(1), 127–54, www.cambridge.org/core/journals/leiden-journal-of-international-law/article/social-movements-reframing-investment-relations-and-enhancing-the-application-of-human-rights-norms-in-international-investment-law/EE6C0C696735AD3FDCC047A3C93D71ED, accessed 6 April 2021.
134 See further: Jennifer Zerk, ‘Human Rights Impact Assessment of Trade Agreements’ (Chatham House International Law Programme, London, 26 February 2019), www.chathamhouse.org/event/human-rights-impact-assessment-trade-agreements, accessed 6 April 2021.
135 UNGP, footnote 19.
136 South African Development Community Model Bilateral Investment Treaty Template with Commentary (2012), ISBN 978-1-894784-58-0, Articles 13.1 and 15, www.iisd.org/itn/wp-content/uploads/2012/10/sadc-model-bit-template-final.pdf, accessed 6 April 2021.
137 Netherlands Model Bilateral Investment Treaty (2019), Article 23 on Behaviour of the investor, accessed 6 April 2021.
138 See, for example, Kingdom of Morocco Model BIT (2019), Article 20 on social and environmental responsibility, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5895/download, accessed 6 April 2021. See also Belgium–Luxembourg Economic Union Model BIT (2019), Article 18 on corporate social responsibility emphasising socially responsible practices, https://investmentpolicy.unctad.org/international-investment-agreements/treaty-files/5854/download, accessed 6 April 2021.
139 At present, the majority of the human rights provisions in recently concluded BITs are confined to the preamble of the BIT. For an analysis of international investment agreements concluded in 2020, see Nicholas J Diamond and Kabir A N Duggal, ‘2020 in Review: The Pandemic, Investment Treaty Arbitration, and Human Rights’, Kluwer Arbitration Blog (2021), http://arbitrationblog.kluwerarbitration.com/2021/01/23/2020-in-review-the-pandemic-investment-treaty-arbitration-and-human-rights/, accessed 6 April 2021.
140 Centre for International Legal Cooperation (CILC), ‘The Hague Rules on Business and Human Rights Arbitration’ (CILC, 2019), www.cilc.nl/project/the-hague-rules-on-business-and-human-rights-arbitration/, accessed 6 April 2021.
141 See, for example, Shavana Haythornthwaite, ‘The Hague Rules on Business and Human Rights Arbitration: Noteworthy or Not Worthy for Victims of Human Rights Violations?’, Kluwer Arbitration Blog (2020), http://arbitrationblog.kluwerarbitration.com/2020/05/05/the-hague-rules-on-business-and-human-rights-arbitration-noteworthy-or-not-worthy-for-victims-of-human-rights-violations/, accessed 6 April 2021.
143 IndustriALL Global Union v. Respondent, PCA Case No 2016-36 (PCA 2016); UNI Global Union v. Respondent, PCA Case No. 2016-37 (PCA 2016).