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Beyond the UN: The Application of Legal Régimes
In the absence of equitable governance or access to
influencing institutions of governance, some CSO activity can be directed towards the
establishment of international consensus and campaigning to give some teeth to "soft
law". In the past, these activities have given CSOs another arena in which to raise
issues. It seems reasonable to assume that these strategies will be renewed in relation to
questions of global governance and economic globalization.
The application of legal régimes involves several
strategies and campaigns. International law and moral authority may be taken up by
international truth commissions or tribunals on human rights. These are attempts to
transfer international and "soft law" agreements to national law, particularly
in developing countries where national law can be inadequate to the maintenance of the
public interest. Another example is the infant formula campaign against the marketing of
breastmilk substitutes in the developing world. In this context, there have been attempts
to enforce codes of conduct or voluntary corporate policies that were often adopted to
pre-empt regulatory constraints, as well as attempts to apply national laws to
international companies or their representatives, in host countries.119
Tribunals
The Rome-based Permanent People's Tribunal (PPT) is the
self-appointed heir to the International Tribunal on the American War Crimes in Vietnam
and the Second Russell Tribunal on Latin America. The PPT "assumes a surrogate
function for the lack or inadequacy of international tribunals and the inaccessibility of
peoples, individuals and NGOs to such courts which are exclusively empowered to adjudicate
upon interstate litigations or under a strictly regulated mandate".120 The Tribunal has been looking at transnational corporations since
1994, and in 1997 it will focus especially on them. The Permanent People's Tribunal on
Industrial Hazards and Human Rights was held in London in 1994 on the tenth anniversary of
the Bhopal disaster, and it argued that industrial hazards fell firmly within their
province:
First, many industrial or environmental hazards
have transborder effects, as was illustrated by the Chernobyl disaster.... Second, the
protection of workers and of the population which can be affected by an industrial
accident raises fundamental questions of human rights.... Third, the most dangerous
industrial plants are managed by transnational corporations whose very nature requires the
setting up and enforcement of international standards.121
The Tribunals do not work toward greater access or a
better process of global decision-making, but rather, like the truth commissions that
investigate human rights abuses, their intention is to set the record straight for
history. They provide an alternative source of information on important developments for
the public and for policy makers, and thus reduce the likelihood that such conditions will
recur.122 Tribunals also rely on media coverage to promote their legal and
moral case.
Codes of
conduct
In confronting the transnational corporate system, CSOs
have promoted codes of conduct for international business and introduced a whole new
language of global environmental management in international business practices. Civil
society (and a number of developing countries) have lost ground to the transnational
corporate system with the UN decision to reduce the Centre on Transnational Corporations
and subsume it into UNCTAD. With the provisions in the new WTO Agreement on Trade-Related
Investment Measures and expansion of claims to "self-regulation" by the
international business community, global civil society has also lost ground in its effort
to regulate TNC behaviour.
In 1992, after more than 12 years of discussion, the UN
ceased negotiating a Code of Conduct for TNCs. The GATT Uruguay Round negotiations, which
liberalized trade standards and decreased national control over capital, were seen by many
as the reason for the cessation of negotiations. Since then, numerous groups have called
for new negotiations on a Code of Conduct for TNCs.123
The Permanent People's Tribunal launched at the 1994
conference a "Draft Charter of Health, Safety and Environmental Rights of Workers and
Communities", to be adopted after a period of review "as an operational platform
for the defense and promotion of the respect of human rights".124 Other initiatives, however, have been taken. Single issue codes of
conduct have also played a role in regulating marketing practices. Initiated by NGOs, the
International Code of Marketing of Breastmilk Substitutes was adopted in 1981 by the
governing bodies of the WHO and UNICEF. The code established a set of guidelines
addressing the marketing of infant formula and called on transnational corporations to
comply with the suggestions.125 As a result the
negative publicity associated with resisting adoption of the code, Nestlé succumbed in
January 1994 to citizen pressure and adopted the suggested code. Some countries have
adopted the code as national law.
The strategy of developing international codes of conduct
has had an uneven impact. One consequence of the pressure for an international code of
conduct to apply the "rule of law" to international corporations has been an
active push from corporations to create their own codes of conduct, as a method to avoid
the application of national or international law.126 Although
this is intended to counter pressure for higher performance standards, civil society has
been successful in setting the terms of this response. The range of issues addressed in
these codes of conduct and corporate guidelines include commitments to sustainable
development, the precautionary principle, the polluter pays principle, and commitments to
sustainable methods of production and consumption.127 Although
this activity has declined somewhat, there is a move in Australia to take these
international concepts and apply them to national law. The initiative will create a
memorandum of understanding between the Federal Environmental Protection Agency on the
responsible conduct of Australian companies abroad. This initiative was created in
response to pressure and publicity over several years from the Australian Conservation
Foundation, and will be based on the application of ecologically sustainable development
and a comprehensive environmental management system.128
Court
actions
Court actions based on enforcing national law against
international actors are the basis of citizen campaigns around the world. In 1992, a
non-profit environmental organization in Argentina, Centro de Estudios Ambientales, filed
a lawsuit against Argentina's governmental agency on water and sewers for not meeting its
obligations to control water pollution; and against four foreign companies accused of
dumping untreated waste into rivers. The case raised the issue of pollution by
transnational corporations and the question of who should be held responsible. One of the
polluting companies has since included effluent controls in its manufacturing process.129
This tactic has also been used in Indonesia, where there
are several groups at work. One is the Indonesian Environmental Forum WAHLI (Wahana
Lingkungan Hidup Indonesia). WAHLI is an umbrella organization of over 400 environmental
NGOs working on environment and development issues. It organizes conservation education
and environmental training programmes, provides technical assistance on issues such as
fund-raising, and lobbies government officials. It has brought lawsuits for violating
environmental laws130 and initiated Indonesia's first lawsuit against a foreign
corporation for environmental infractions.131
Box 8
Court Action by a Local Community |
| An example of direct action is the case of
263 families of the Sei Balumai people of the North Sumatra Province in Indonesia, who are
currently suing the foreign firm PT Sari Morawa (PT SM) in the Lubuk Pakam District Court
over river pollution by PT SM, which has been continual since 1992. The community is also
suing other parties implicated in the issue, including North Sumatra's Governor and the
Head of North Sumatra Region Office of Industrial Department, for failure to take action
against the company as required by law. PT SM is a
pulp and paper producer. As a consequence of its flouting of existing environmental
regulations and reneging on its August 1993 agreement with the community to build a waste
water treatment facility, the Balumai River is so polluted that people living in its
vicinity have to buy clean water for their daily needs, because they can no longer use the
water from the river. Hazardous wastes in the river far exceed environmental regulatory
levels. The Indonesian Environmental Management Agency (BAPEDAL) has rated the company "black"
in its Clean River Program Business Performance Rating.132 The
litigants are suing for compensation for material loss, for immaterial loss (health), for
loss of use of the Balumai River, and for the death of fish.133 |
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New Processes for Co-ordinating Impact on Global Governance
The impact of any of the strategies outlined above is
obviously greater in whole than in the sum of the parts: many of these strategies overlap
in practice, and NGO campaigns can draw on several strategies either simultaneously or
sequentially over a period of time. A new set of opportunities is afforded to CSO
organizing by new communications technologies.
New
technology
Technology is key becoming more important in information
sharing and strategic work. Computers, Internet ability and telecommunications access are
key. A South African network created March 1996, for example, combines the energies of the
Environment and Development Network of Norway, the South African based International South
African Group of Networks, and Friends of the Earth. It will "primarily be a
cyberspace working and meeting place...with a WWW site and electronic conferences".134
Several existing models attest to the impact that such
networks can have on global governance. Mechanisms have been set up that allow
organizations to assemble and distribute multiple comments on current documents relating
to international conferences and then produce an integrated and consensus-based reply.
Such a system, for example, has been crucial in building WEDO's capacity to get to the
international conferences with cadres of women who know exactly what the conference text
says, where women's issues are situated and where they are challenged, what elements of
text must be disputed, strong alternative texts they can propose, and who the most
supportive or obstructive governments are likely to be.135 As noted earlier, the European Environment Bureau produced a
consensual "NGO environmental statement" to the OECD that included input from
dozens of environmental groups around the world. The process was so successful that it
resulted in an invitation to create an institutional relationship between the OECD and
environmental groups, and the preliminary planning for this was done through the same
process.136
CSOs have become adept at lateral communication. CSO
networks are agile and accurate in communicating complex information towards a shared
understanding of a global issue that affects them all in similar ways. This facile
information-sharing stands in stark contrast to the rigid information sharing approach
that has characterized some other global entities where much material is "confidential"
and where public documents sometimes have no relation to what is actually happening or to
what should be done in relation to issues, including animal rights, worker rights, food
security and environmental policies. The model of the web thus captures the many ways that
CSOs can become temporary and effective partners at multiple points in a complex set of
global connections.
McDonald's Corporation, for example, could not have
dreamed that a local event would turn into a two-year nightmare that put them on the
defensive with customers and potential host communities around the world. Some CSOs,
particularly those involved in food issues, land degradation and agribusiness, have been
critical of the company for years, but it took a small civil suit in London to bring all
those trends together, due to which McDonald's faced a major public relations battle.
Environmental and animal rights activists around the world have shared and distributed
information and steadfastly kept this event under the public microscope, on the World Wide
Web and in the media.137 Because Web sites
remain relatively unregulated, this has become an arena where CSOs, along with others in
the private sector, can post information embargoed by the UK court system. It is not clear
what the impact will be of this campaign on McDonald's products or processes. But it is
clear that civil society can effectively interpret an apparently local event as a global
incident — in this case as an example of the unfettered power of multinational
corporations (see box 9). Links are being drawn in this campaign to other corporate
campaigns and direct action, particularly consumer boycotts. New technology could
therefore potentially reduce the structural weaknesses that have fettered local and direct
action campaigns. Judging by the number of boycotts called for in these corporate
campaigns, we may see renewed vigour in this kind of strategy — and renewed impact.
Box 9
The McLibel campaign: A brief history |
| Designed to debunk the image of McDonald's
food as nutritious and wholesome, a fact sheet, "What's wrong with McDonald's?
Everything they don't want you to know", was circulated in England. It claims that
McDonald's food is cholesterol-inducing and nutritionally empty; that child consumers are
victims of an aggressive advertising campaign; that wasteful packaging practices are
significant contributors to landfill problems; that beef cattle and chickens are abused
without reason; that workers are badly treated and poorly paid; and that their large-scale
cattle-grazing practices in Latin America had resulted in deforestation and displacement
of farmers and communities. In June 1994, McDonald's-UK
charged two activists with the production of the "libelous" pamphlet. Libel law
in England generally favors corporations, and earlier libel threats from McDonald's had
silenced critiques from the BBC and The Guardian. This time the strategy failed.
The two defendants remained in court for two years at significant cost to McDonald's in
terms of legal fees. The trial has become dubbed "the best free entertainment in
London" as McDonald's executives claim that Coke is nutritious; that their US$ 1.8
billion advertising budget is to "dominate the communications arena because we are
competing for a share of the customer's mind", and that dumping polystyrene is "a
benefit, otherwise you will end up with lots of vast, empty gravel pits all over the
country". They have acknowledged that high levels of bacteria remain in beef in
McDonald's burgers, and that workers are hired and fired according to short-term economic
cycles.
"McSpotlight" has been placed by some CSOs on
the World Wide Web. This includes a full copy of the six-page "What's Wrong"
pamphlet currently embargoed in the UK because of the trial, as well as other media
stories also not published because of the actual or implied threat of libel. In Fairlight,
Australia; in the Italian North End of Boston; in central and northern London:
neighbourhood groups have prevented McDonald's from opening branches. Readers can retrieve
information on other international companies, and get a perspective on how the power of
TNCs affects the life of individual citizens. |
Networks
A network can provide enhanced support for a local
initiative and a global issue at the same time. It is a flexible method with which to
capture a diversity of perspectives and integrate them towards a common goal; it is
ideally suited to the use of electronic communications for rapid transmission of
information and collective working on global issues. WEDO has formulated effective methods
to use e-mail to develop a collective women's voice for international issues. Another
important network is the International NGO Forum, INGOF, which assembled representatives
of 77 NGO networks in December 1995 in Manila to work out methods to combat the
anti-democratic tendencies of globalization. Other networks proliferate, often on a
specific theme. The Pesticide Action Network (PAN), for example, has mobilized over 300
NGOs from 50 countries with the goal of developing and disseminating information on
sustainable pest control methods. The infant formula network, IBFAN, has had significant
success over two decades of international work. The "Fifty Years is Enough"
Campaign has organized scores of NGOs around the world in its campaign against policies
and practices of the World Bank, the Bretton Woods Institutions and the WTO.
Participatory
democracy
As a basic condition for democracy, civil society
continues to demand participation — and often direct participation — and
transparency. Direct participation, of course, is often antithetical to organizational
development and strategic change, and the debate about how civil society should work is
lively within the CSO community. Greenpeace, for example, argued that the OECD's
invitation to create a consensual environmental statement to the OECD and then an
Environmental Advisory Group was élitist, claiming that the "opportunity" being
given to an NGO voice on environment at the OECD is on OECD terms and does not suit the
agenda of NGOs for open participation.138 Rather, such a
programme would needlessly divert NGO energies, resources and funds, and create and
legitimize rules of access that may not suit the NGO community and be inappropriate for
other stakeholders. The arguments in this perspective are tenable in terms of both
democracy and effectiveness. At the same time, they favour local organizational
strategies. Internationally, this strategy will favour groups who have access to
information and funds to attend these meetings, over those that do not.
This concept of direct democracy is heard time and again
in the civil society community, and is consistent with the insistence from many actors in
civil society that direct action, with all its limitations on impact, is a crucial form of
political activity.
117 Heinz Greijn, "International conventions can make a difference", Ecoforum,
Vol. 18, No. 2, August 1994, p. 11.
118 Aubrey Williams, "A growing role for NGOs in development", Finance
and Development, Vol. 27, No. 4, The World Bank, Washington, D.C., 31 December 1990,
p. 33.
119 A US campaign gathering steam argues that corporations today violate the letter
and the spirit of the US corporate charter, and citizens should exercise their right to
revoke that charter. See Richard Grossman of the Campaign on Corporations, Law and
Democracy, Taking Care of Business: Citizenship and the Charter of Incorporation,
pamphlet, Charter, Ink., Boston, 1993.
120 Findings and Judgement, Permanent People's Tribunal
on Industrial Hazards and Human Rights, Fourth and Final Session, London, 28 November-2
December 1994, p. 2.
121 ibid.
122 For a history of truth commissions, see Priscilla Hayner, "Fifteen
truth commissions - 1074-1994: A comparative study", Human Rights Quarterly,
Vol. 16, 1994.
123 These include CUTS, WEDO, the Interfaith Center for Corporate Responsibility (in
New York), a group of dozens of NGOs that signed the Copenhagen Declaration, a group
coming together under the Integrative Strategies Forum (based in Washington, D.C.), and
others.
124 Draft Charter of Health, Safety and Environmental Rights of Workers and
Communities, Annex 2 in Permanent People's Tribunal on Industrial Hazards and Human Rights, Fourth
and Final Session, London, 28 November-2 December 1994, p. 22.
125 Leah Marqulies, "The International Code of Marketing of Breastmilk
Substitutes: A model for assuring children's nutrition rights under the law", in
George Kent (ed.), The International Journal of Children's Rights,
Kluwer Academic Publishers, forthcoming 1997.
126 WEDO, "Infant formula manufacturers in the developing world", in
WEDO, Transnational Corporations at the UN: Using or Abusing their Access?, op.
cit.
127 For examples of industry association environmental codes of conduct, see UNCTAD,
Self-Regulation of Environmental Management, New York and Geneva, 1996. Also see
Harris Gleckman, "Transnational corporations and 'sustainable
development': Reflections on the debate", op.
cit.
128 "Environmental code of
conduct for Australian multinationals", in Environment Business (Australia), November
1995.
129 Centro de Estudios Ambientales (CEDEA), Annual Report 1992, Buenos Aires.
130 See Indonesian Center for Environmental Law, Balumai River Pollution,
Press Release, ICEL, Jakarta, 31 May 1996.
131 This was noted in US Agency for International Development, Toward an
Environmental and Natural Resources Strategy for ANE Counties in the 1990s, USAID,
Washington, D.C., 1990.
132 "Black" is
the worst rating on a spectrum between black and gold, meaning that PT SM did not make any
efforts towards pollution prevention or waste treatment. This BAPEDAL programme has
reputedly been successful in other cases, publicizing the ratings and "shaming" the
companies into compliance.
133 Indonesian Center for Environmental Law, Green News Indonesia, ICEL,
Jakarta, 31 May 1996.
134 "Capscan: Birth of a network", LINK
71, March/April 1996, p. 19.
135 Martha Alter Chen, "Engendering world conferences: The international women's movement
and the United Nations", op. cit.
136 "Groups seek enhanced role
for OECD's environmental directorate", International Environmental Reporter (Washington,
D.C.), 21 February 1996.
137 See "McSpotlight" on http://www.mcspotlight.org. The campaign is being run
from McLibel Support Campaign, London. Information for this box drawn from Ann Dougherty, "Hype,
lies and ketchup: McDonald's burned by activist grilling", in SEEDLinks,
No. 21, April 1996, pp. 3-5.
138 Jim Puckett, Greenpeace International Toxics Campaign Director, in e-mail to the
facilitators of the OECD EAC on 18 April 1996.
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