Development of an International Right-to-Know: Towards Public Disclosure of Multi-national Corporations' Environmental Practices Through Legal Transparency Measures
Amy J Bann
University of Miami School of Law
This article addresses the development of an international-right-to-know via the emergence of effective measures for public disclosure of corporate environmental practices. The issue is addressed in light of recent developments such as the terrorist attacks and upcoming Rio 10 Conference on Sustainability. An assessment of existing initiatives is provided as well as recommendations for a binding global system grounded in international law.
Keywords: Corporate Accountability, Environmental Disclosure, International Law, Social Justice Movement, Public Disclosure, International Right-to-Know, Globalization.
This is a Refereed article published on 8 November 2002.
Citation: Citation: Bann A J, 'Development of an International Right-to-Know: Towards Public Disclosure of Multi-national Corporations' Law, Social Justice & Global Development Journal (LGD) 2002 (1) <http://elj.warwick.ac.uk/global/02-1/bann.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2002_1/bann/>
Public disclosure of information is central to all areas of environmental protection. The use of information for community planning and awareness can increase the ability of citizens to hold corporations accountable for their actions. Individuals, local communities, non-governmental organizations, scientists, governments and corporations are integral parts of this process. International law on this topic is in its infancy; no multilateral treaty, forum, or compliance body currently exists. Currently, no international law requires companies to disclose their environmental impacts regarding their activities across borders. However, numerous company- specific, regional, domestic, and industry- specific initiatives have emerged. Publication of chemical use, production and release, toxic pollution, resource extraction, and violations of environmental requirements are some of the regulated and reported activities.
Inevitably, a system will develop on the international level for regulation of corporate environmental practices. The best approach is one embodying the precautionary principle, a doctrine of international environmental law that dictates proactive action be taken when irreversible damage is threatened. Rather than pursue reactive policies that clean up after disasters, the precautionary principle empowers people to prevent disasters, preempt negative health effects, and protect themselves and future generations from harm.
Support for such a system is found in existing international documents. The right to freedom of expression through information is found in several international agreements. The Universal Declaration of Human Rights states:
'Everyone has the right to freedom of opinion and expression; this right includes freedom to … receive and impart information and ideas through any media and regardless of frontiers'.
This Declaration is considered today to be a normative instrument, binding as customary international law. The International Covenant on Civil and Political Rights (ICCPR) contains similar language. Countries that have ratified the ICCPR are bound to uphold its principles; it is widely ratified. This sense of obligation is codified in the Vienna Convention on the Law of Treaties: even if a country has only signed a treaty, it has expressed its desire to translate into law the principles it has endorsed and to refrain in good faith from acts that would defeat the object and purpose of the treaty.
The United Nations recently reaffirmed the existence of this right by calling for all member states to protect it in the Commission on Human Rights Resolution 1998/42 on the Right to Freedom of Opinion and Expression. In addition, the Special Rapporteur on the Right to Freedom of Opinion and Expression reaffirmed the importance of broadly interpreting the right in his report to the UN Commission on Human Rights in 1995, stating that freedom of information can only be restricted or limited if provided by law and are necessary for the respect of the rights or reputation of others, or the protection of national security or of public order or of public health or morals pursuant to Article 19(3) of the ICCPR.
International environmental documents also demonstrate recognition of an emerging international right-to-know. The Rio Declaration calls for the development and implementation of right-to-know legislation throughout the international community.
'Each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision- making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided', Principle 10, Rio Declaration.
The World Charter for Nature states:
'Knowledge of nature shall be broadly disseminated by all possible means. Constant efforts shall be made to increase knowledge of nature… and to disseminate such knowledge unimpeded by restrictions of any kind. To the extent they are able, corporations shall cooperate in the task of conserving nature [by] information exchange and consultations'.
This highlights the need for a legal framework to link disclosure of environmental information to corporate responsibility. Further, the Legal Principles for Environmental Protection and Sustainable Development support disclosure of environmental practices. These Principles emphasize that implications extend beyond national borders when natural resources are used or interfered with and advocates for a legal mechanism to address such situations. Corporations that extract and use resources for their benefit and the benefit of the country in which they are based transform the resources into transboundary status. Additionally, the Stockholm Declaration states:
'It is … essential that mass media of communications avoid contributing to the deterioration of the environment, but, on the contrary, disseminate information … on the need to protect and improve the environment',
emphasizing the importance of the role of information disclosure to environmental protection. These environmental declarations add normative value to the legal development of an international right-to-know.
The European Convention on Human Rights is another international declaration that seeks to explicitly protect freedom of information. Additionally, the European Court of Human Rights has recognized and explained the right to freedom of expression. In Handyside, the court noted that the freedom constitutes one of the essential foundations of a society without which democracy can not exist. In Jersild v. Denmark, the court held that freedom of expression is to be interpreted widely, in that case when a television journalist allowed airing of xenophobic material; the court found a violation of Article 10 of the European Convention which grants the right to freedom of expression within certain limitations.
The United States Supreme Court has also recognized the importance of this right in various contexts. For example, in Reno and others. V. American Civil Liberties Union et al, the court held that the Communications Decency Act of 1996, concerning internet pornography, violated the right to freedom of expression by regulating speech on the internet in a manner both vague and overreaching. It posited that although the government has an interest in protecting children from potentially harmful materials, governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it, describing the benefits of censorship as unproven.
A French court attempted to place a domestic limitation on freedom of information by ruling that a US-based company was liable under French law for allowing its citizens to access websites including Nazi memorabilia in the Yahoo Case. Backlash and criticism have undermined the meaning and effects of this case. Industry and citizen groups from the US filed amicus briefs supporting Yahoo, and raised concerns that holding all internet publishers responsible for multiple domestic restrictions on freedom of internet information would severely limit online speech and commerce. The considerable debate in response to The Yahoo Case demonstrates that limits on freedom of information can not be imposed broadly on companies. This developing case law demonstrates a growing trend towards recognizing freedom of information as the amount of relevant material increases in areas such as internet regulation. Although these cases have addressed freedom of information applied to the relationship between corporations and states, the reasoning helps lay the foundation for a broad-based international right-to-know.
Many national constitutions recognize and guarantee freedom of expression or similar rights, particularly in Western democracies. In addition, governments that have signed the declarations discussed above are obligated under international law to abide by their according commitments. There is a body of literature addressing the historical development of freedom of information in democratic governments. Jeremy Bentham argued for three exceptions to a prohibition on government secrecy: where publicity would assist an enemy of the state, where it would harm the innocent, or where it would inflict unduly harsh punishment on convicted persons as necessary restrictions on the freedom of information. In Article 19(2) of the ICCPR restrictions are explicitly limited to those provided by law and necessary for respect of the rights or reputations of others or for the protection of national security or of public order, health, or morals. Most scholars agree that this right is not absolute and is subject to necessary limitations in areas such as issues affecting security, public safety, and commercial interests. However, these concerns can be countered with specific provisions in legislation or agreements to protect sensitive information as needed.
The duty of states to inform others of impending harm or a significant risk of harm from environmental impacts has been recognized by legal scholars and could be extended to apply to corporations via their respective governments. This notion is codified in the United States' Restatement (Third) of Foreign Relations:
'A state has an obligation to warn another state promptly of any situation that may cause significant pollution damage in that state … . A state is obligated to take such measures as may by necessary, to the extent practicable under the circumstances, to ensure that activities within its jurisdiction or control conform to generally accepted international [environmental] rules and standards … beyond the limits of national jurisdiction'.
It is also recognized in the Draft Articles on International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law:
'If a State has reason to believe that an activity [with a risk of causing transboundary harm] is being, or is about to be, carried out in its territory or in other places under its jurisdiction or control, it shall (c) accompany… notification by available technical data and information in order to enable the notified States to assess the potential effects of the activity in question; (d) inform them of the measures which it is attempting to take… and… those which might serve as a basis for a legal regime between the parties governing such activity'.
Because corporate activity can and has caused transboundary environmental harm, the government that legally recognizes a corporation has an implied responsibility towards their activities abroad. The doctrine of state action requires states to abide by international obligations as well as domestic guarantees.
Regardless, states can not be solely responsible for regulating information regarding human and environmental conditions. These principles must be applied to multi-national corporations as economic and political power increasingly stems from private actors. Transnational corporations (TNCs) wield more power than ever, now producing one- fourth of the world's total output, which is 5% more than the output of all developing countries combined. Their power is becoming more consolidated and direct investment in developing countries is the single most important source of external finance, overshadowing inflows from official aid and exceeding net lending by international banks. The economies of most UN member states are smaller than the annual revenues of the largest transnational corporations; twenty- five percent of the world's productive assets are controlled by the 300 largest TNCs.
At some point, corporate behavior must be more definitively linked to accountability mechanisms pursuant to domestic and international regulation. If the international right-to-know is located at least in part at the domestic level, governments will be obligated to regulate the actions of their corporations abroad. The growing recognition of a right to information in international law as demonstrated in these documents and examples provides a basis for more concrete legal developments. A Russian environmentalist and former prisoner of conscience cogently stated:
'I am convinced that ecology cannot be kept secret. Environmental openness is an inalienable human right. Any attempt to conceal any information about harmful impact on people and the environment is a crime against humanity'.
The United Nations has addressed the issue of developing a system for environmental disclosure of corporate practices. Kofi Annan presented the UN Global Compact in 1999, a creed of nine principles of which three relate to the environment, which corporations can pledge to abide by and strive for. There is also a Working Group for development of a Pollutant Release and Transfer Register Protocol (PRTR), the international term for inventories of chemical release and transfers. The United Nations Economic Commission for Europe (UNECE) is coordinating meetings and aims to complete the Protocol by 2003. The United Nations Environmental Program (UNEP) issued a voluntary guide for chemical manufacture and use called the Code of Ethics on the International Trade in Chemicals. The United Nations Sub-Commission on the Promotion and Protection of Human Rights conducts a Working Group on the methods and activities of transnational corporations. Its current Draft Guidelines for Companies includes an environmental protection clause; the results will be presented at the 54th session of the Sub-Commission in August 2002. Currently it does not include a monitoring or enforcement plan or any scheme for public disclosure.
Numerous regional initiatives to increase public disclosure of corporate practices also exist. Initiatives that do not address the environment, such as those concerning labor, human rights, or ethical concerns, are beyond the scope of this paper. The Organization for Economic Cooperation and Development (OECD)'s Guidelines for Multinational Enterprises, revised in 1998, include provisions for disclosure of environmental practices to shareholders, but not the general public. Each of the thirty-three involved countries is required to set up a National Contact Point to which claims can be brought as the key regulatory institution. The members are mostly industrialized nations including countries such as the US, European countries, Mexico, Korea, Argentina, Brazil, and Chile.
The Global Sullivan Principles (1985) were drafted for companies doing business in apartheid South Africa under the leadership of The Rev. Leon Sullivan. Very general in scope, these principles aim to work towards common goals including environmental protection. There are over three hundred endorsers, but the process has been more about developing a vision than accomplishing concrete action. The website mentions implementation of internal policies, procedures, training, and reporting structures. However, they are minimal, described as an 'easy, not burdensome form' and currently only utilized by a few endorsers. In addition, some of the worst environmental offenders are on the list.
Other initiatives including environmental provisions include The MacBride Principles (1984, 1986), a Corporate Code of Conduct for US companies doing business in Northern Ireland, also limited in scope and content. ISO 14000 (1995), the International Organization of Standardization, is an international standards for environmental management system, but it does not address public disclosure of practices. The Caux Principles, put forth by a roundtable of business leaders, at most requires transparency reporting to shareholders on environmental issues but is basically a 'moral foundation'. The Global Reporting Initiative (GRI), supported by NGOs, academics, and the United Nations Environmental Program (UNEP), does create expectations for release of credible and consistent environmental information, but does not have the base of corporate support necessary to be effective. The CERES Principles (Coalition for Environmentally Responsible Economies) does provide annual public reports on environmental policies, but the endorsing companies conduct their own monitoring. The ICC Charter for Sustainable Development (International Chamber of Commerce) similarly does not provide for any external monitoring procedures, but does require periodic international audits. These initiatives are more aspirational in nature and not structured to provide a cohesive, effective system for disclosure of corporate social practices.
Several countries have specific domestic regulatory provisions for corporate environmental practices. The United States has the most extensive development in this area. For example, The Emergency Planning and Community Right-to-Know Act (EPCRA) provides for detailed environmental reporting and planning requirements. The Freedom of Information Act allows the public to obtain broad amounts of information from government agencies subject to certain exemptions. The Toxic Release Inventory (TRI) database is the most advanced of its kind for chemical reporting and information dissemination.
The US-based International Right to Know (IRTK) Coalition is comprised of over two hundred environmental, human rights, and labour groups. The Coalition is proposing legislation containing provisions for toxic release, resource extraction, and emissions reporting for corporations' activities abroad. The information would be submitted to government agencies and maintained in a public database. Proposed remedies include standing for citizen suits, civil and criminal penalties, accounting requirements for the companies, and public access to information through government agencies. A parallel grassroots campaign aims to spotlight specific ongoing examples of environmental abuse that could be prevented or alleviated with an IRTK system in place, as consumer awareness is a key to gaining government and corporate support.
Europe has developed some regional mechanisms for environmental disclosure. Europe's Convention on Access to Information, Public Participation in Decision- Making and Access to Justice in Environmental Matters entered into force on October 30, 2001 providing a framework for a European equivalent to the US Toxics Release Inventory (TRI). The European Community also adopted the Seveso Directive, which requires public risk communication. The Directive excludes several industries and involves limited public participation, but it does have a functioning reporting network. There is a proposed European Code of Conduct for European Enterprises Operating in Developing Countries, which includes a monitoring and public hearing platform.
Europe enjoys an active citizen movement that encourages environmental responsibility. The United Kingdom has a chemical release inventory program that is limited in scope and not publicly accessible; Canada has a similar scheme. Germany's policy is strict, but legislation has been proposed to erode the policy of secrecy. The Czech Republic recently passed legislation through its lower chamber of Parliament introducing a PRTR and Right to Know and is included under Europe's required law on Integrated Pollution Prevention Control (IPPC). The Danish government established an international institution, the Copenhagen Center, to promote corporate social responsibility partnerships.
Overall, Asia, Latin America, and Africa have relatively little voluntary reporting. In Japan, consistent publicly available environmental data on corporations is absent. Japanese firms voluntarily report on environmental policies, achievements, and costs, but do not provide hard data on issues such as emissions, energy use, and water use. Internally- produced reports are the primary source of information for environmental performance assessment. Mexico's lower house recently passed legislation requiring a registry of pollutant emissions and transfer in which emissions to air, water, land and the subsurfaces must all be reported. In Lebanon, Greenpeace recently conducted a tour demanding public access to information on chemical use, gaining governmental support for a toxic use and release inventory. Interestingly, Colombia's constitution guarantees citizens the right to receive truthful and impartial information, but Colombia does not have any right-to-know legislation. These are a few examples of the variety of domestic efforts towards public disclosure of corporate environmental practices, but this paper is focused on those that are international in scope.
Also, many companies have adopted individual corporate codes of conduct that include environmental provisions. They are often phrased in general, aspirational terms, subject only to internal company compliance standards, and do not provide public disclosure. There is a lack of coherence among the existing codes, which could serve to confuse consumers when they receive mixed messages from companies and critical organizations. The International Chamber of Commerce noted that as of May 2000 there were more than forty codes designed to govern global corporations; the Organization for Economic Cooperation and Development (OECD) recently reviewed 246 codes, including company-specific ones. The unclear purposes and results of such codes present a confusing message to the public, highlighting the need for a harmonized global framework.
Scholars such as John Ruggie and trade expert George Kell argue that expanding global markets require a social response and that as national economies have become more integrated, there is a clear need for international institutions to replace the uneven patchwork of national rules and regulation. An international right- to- know is essential because traditional consumer responses such as single company or product boycotts are ineffective when the production process is increasingly complicated. Often multiple companies share factories; specific pieces and parts are outsourced or subcontracted. It is difficult if not impossible to trace the chains of production, in large part because of the lack of a harmonized system of disclosure on the national or international level.
Public disclosure of corporate practices is crucial for protection of the environment and health of local populations. It can increase accountability through greater transparency because citizens and organizations can monitor corporate activity and raise concerns if and when a company is not operating in the best interests of the people it effects. Community planning and awareness can serve to prevent disasters because better plans can be put in place through risk assessment and demand of safer procedures. A lack of information facilitates a lack of accountability for the exercise of power and influence and the impact these forces have upon the public interest where democratic controls are absent. Couched as a democratic value, a right- to- know assumes that information is a feature of power as is its control, use, and regulation.
Unfortunately, a multitude of documented examples exists to demonstrate the need for an international right-to-know. Pollution, resource exploitation, illegal logging on indigenous peoples' lands, and felling of primary forests are some common violations. Union Carbide has still not released complete information as to what chemicals were released when a pesticide plant leaked in Bhopal, India in 1984, killing thousands of people. Medical problems continue to plague residents in surrounding towns, but without knowledge of the chemicals or the results of tests Union Carbide conducted on people and animals, appropriate and effective treatment remains elusive. BP Amoco has made public promises to respect the environment, yet has a history of toxic pollution of forests and rivers in the US and abroad. Chevron's oil production in Nigeria has resulted in severe air pollution and increased respiratory ailments among local residents, despite its commitment to preserve the culture and environment of host communities. Unocal's devastating environmental impacts in Burma include habitat fragmentation, destruction of natural resources, wetlands, and mangrove ecosystems despite repeated efforts to expose this protected information. Freeport-McMoRan's mining operations in Indonesia dump thousands of tons of toxic waste into local rivers daily, which will have destructive long- term effects on the environment. ExxonMobil is planning construction of a pipeline in Chad and Cameroon's fragile rainforests, cutting across the region's major water sources. Its current environmental impact assessment does not include an oil spill response plan. These glaring examples provide evidence that public disclosure of environmental practices is urgent and vital for the affected communities.
Consumer pressure is a driving force for encouraging responsible social behaviour. Because the intrinsic goal of business is profit, social costs are often sidelined for financial gain. However, disclosure of responsible environmental practices is strategic and beneficial for corporations. A growing trend of consumer preference demonstrates that investors and consumers care about a company's social practices. If a consumer can choose between a company that has negative effects on ecosystems and public health, recent studies show that the consumer will choose the one with best practices. Divestment campaigns, such as that of BP Amoco's shareholder group opposing an oil pipeline project in Tibet, show another facet of this trend. A publicly traded company has a duty to maximize shareholder returns; this duty can provide a useful mechanism for addressing corporate behaviour.
Another benefit for corporations is that money spent on reporting can save up to six times as much money in avoided clean-up and other costs. The fear that they will be forced to reveal trade secrets and lose a competitive edge can be countered with specific legislative provisions and opt- out clauses for sensitive information, such as that in the US' Emergency Planning and Community Right-to-Know Act. A legal scholar stated that:
'Protectionism in trade in goods has not benefited the world economy. Protectionism in the flow of information threatens to be even more harmful'.
Overall, it is in corporations' best interest as well as duty of good faith to act responsibly. If they are satisfied with their practices, there should be no reason to conceal information from the public.
There are several challenges to effectively carrying out public disclosure initiatives. A seminal issue surrounding the development of corporate codes of conduct and public disclosure of environmental practices is the form of compliance. Who should administer monitoring systems is controversial: whether they should be implemented through internal documentation or independent, external monitors. If monitors are not independent from the corporations, the credibility of reporting is greatly jeopardized.
Corporate codes are clearly inadequate as a solution as they are varied and usually general in nature. Voluntary initiatives may be easier to get companies to join and less expensive, but they have no teeth for compliance measures and are overall less effective. In fact, codes that exist only on paper can serve to lessen the very goals of environmental and health protection because people may have the impression that a company is living up to certain standards when actually the effort is more of a public relations tool. Internal monitoring procedures are questionable because there are conflict of interest problems, auditors may not have adequate skills or training, and workers are often excluded from the audit process.
Other challenges include practical issues; reporting systems for data collection require adequate resources and upkeep. Funding must be secured or collected from each company on a contingent or fixed basis, but electronic reporting can decrease the costs of initiatives. Defining what is or is not a multi-or trans-national corporation can result in liability loopholes. For example, outsourced and subcontracted sites can be excluded or included. Also, reporting can be conducted by company or individual facilities, which changes the definition of where the activity is legally based. Whether or not a company is considered multi-national can also be contingent on the percent of voting securities or equivalent controlled by a foreign affiliate, ranging from 10% to majority control to presumption of a degree of managerial influence. Another complication is that exceptions can be created for certain industries, decreasing the number of companies that can be required to disclose information by filing reports under relevant legislative or treaty requirements.
What is the ideal form of a system for environmental disclosure of corporate practices? A global framework with local, national, and regional implementation through legislation, monitoring, and active community participation would comprise an effective system. Enforceable codes with monitoring systems in place, standing provisions for citizen suits, and mandatory legislative requirements for reporting are strategies for achieving actual results. Legislation is an important step but not sufficient without the appropriate institutions and framework. Liability must be extended to corporations for breaches of national and international laws. National sanctions must be imposed on corporations that violate requirements. Once an implementation mechanism is established, a forum to hear grievances will be necessary.
Reflection upon the standards question of how current initiatives measure up against an ideal system reveals that existing initiatives are lacking in truly effective procedures. The UN Global Compact, the OECD Guidelines, and other initiatives discussed above are all voluntary and have numerous structural weaknesses because of their limited substantive and procedural scope as well as lack of widespread membership. The UN Global Compact has been heavily criticized by NGOs, interest groups, and even corporations for various reasons, including its association with notorious companies such as Nike. There is little substantive information on the website and there are no enforcement penalties. The OECD Guidelines and other such voluntary codes are inherently conservative and do not mandate changes to business behaviour.
Notre Dame Law School Professor Dinah Shelton commented that soft law is often necessary for private sector agreements because non-state actors are incapable of writing binding treaties. She notes this is true particularly for environmental issues in which the constantly changing technological innovations make the speed and flexibility of soft law an attractive governance option. However, without legal mechanisms for enforcement, voluntary standards do not provide remedies for infractions or government responsibility to monitor compliance or implementation, and violators are only accountable to the court of public opinion. By adopting voluntary codes, companies may be trying to avoid legislation that requires rather than merely encourages responsible behaviour. Public scrutiny of this behaviour can not occur without transparency; assurances are not enough.
The UN Working Group on the methods and activities of transnational corporations has largely agreed that a binding set of guidelines is preferable because a voluntary system would reproduce other such efforts. Also, it posits that international regulation is necessary because states can be too weak or focused on attracting investment to enforce such standards, preventing uniform enforcement. However, it points out that a binding set of guidelines may take years to be signed into law and be stripped of its aspirational standards after being subjected to a lengthy political process.
Concrete legal remedies and incentives to enforce are absent from voluntary codes. Proposed legal remedies include standing for citizen suits under an international forum and domestically. For example, the Alien Tort Claims Act has been utilized by citizens and non-governmental organizations (NGOs) in the United States to hold corporations accountable for actions committed abroad with some success. Use of codes as public relations tools and a lack of uniform compliance are problematic; an expectation of good faith is not enough. Voluntary systems may be viewed as a first step, raising international consensus and public awareness of the need for binding, effective systems. Acknowledgement of the need for environmental protection is essential, and common frameworks such as the UN Global Compact may aid in putting forth the ideas. The creation of a mandatory system would also prevent a continuing downward spiral of competitiveness for those companies that opt not to abide by voluntary standards. A uniform system would also help prevent conflict under international trade dispute mechanisms. Once a monitoring system is established, periodic national update reports on corporate activity would be essential tools, highlighting the importance of the legislation, such as the proposed US International Right-to-Know legislation, for the development of successful transparency measures.
The International Right- to- Know (IRTK) Coalition's vision lends insight for direction towards a cohesive, stringent system, though it would only apply to US companies. This model can be used as a learning tool for other countries, regions, and even as a global strategy. The Coalition's success in its legislative campaign will, however, be affected by recent events; the political climate in the US has changed dramatically in the past few months. With the reaction to the terrorist attacks the possibility of passing legislation requiring public disclosure of information such as risk- management plans has become a greater challenge. Policy makers have voiced concern over copycats or terrorists using such information for destructive purposes. A Washington law firm representing energy companies recently produced a report for Tom Ridge, Homeland Security Director, including a request to withhold safety information currently required to be available on the internet by the government. It also requested the ability to file 'security impact statements' which could presumably override environmental impact statements and therefore corollary expensive pollution controls. The federal government has already required removal of agency websites with environmental and energy data. Multinational companies that previously claimed they were global in allegiance seek bailouts from US taxpayers while continuing to evade domestic laws for environmental disclosure and abuses.
One proposed response to these concerns is to issue information now considered sensitive to citizens on an as-needed basis. The danger accompanying that option is that public opinion can not be critically mobilized, undermining the goal of prevention rather than minimization of suffering. The ability to use collective action is a key component in making information disclosure useful; citizens would not have the resources or time to individually evaluate corporate activity and reporting. Another proposal posits the creation of an evidentiary self- evaluative privilege for environmental audits requiring public disclosure; it would presumably protect certain internal documents while enhancing the quality and consistency of environmental information management.
The current political climate makes it more essential than ever for multinational corporations to earn a responsible and accountable image in the world. By emphasizing people and the environment rather than just profit- driven interests, companies improve their reputation as well as their respective country's reputation. A former Gap, Inc. compliance officer recently stated:
'Even before September 11, multinational[s] … had responsibilities that went far beyond their bottom line. In this new era, that is truer than ever. [People] in the global economy know when they are being abused … codes [of conduct] can head off their radicalization'.
A multilateral commission and development of a global clearinghouse for environmental information to conduct direct regulation or domestic reporting is one possible strategy. An ongoing strategy for citizens and groups is to use existing foreign domestic systems and the media to their advantage. For example, a Peruvian environmental law group called on the United States to provide information about Texas Crude's corporate structure, financial position, and record of compliance with US environmental laws to eventually force the company to abandon its oil drilling plans in Peru. In addition to domestic legislatures, there is a need for regulation through international rule- making or adjudicatory institutions or organizations. Adopting a uniform global system would involve giving up certain governmental elements of sovereignty and power over particular aspects of some related activities. However, it would reward governments in having a more stable situation and reduction of transaction costs, resulting in a more comfortable commercial environment. Transparency would allow governments and corporations to enjoy increased reassurances that they are not being taken advantage of when their compliance is contingent on similar action by other participants and exercise deterrence against actors contemplating noncompliance.
Currently there is neither a road map for how firms should operate around the world, nor is there one set of norms for governing global corporations. The World Order Models Project stated that environmental responsibility has emerged as a necessary part of the governing framework:
'A recent addition to the normative agenda had been the rediscovery of human dependence on natural surroundings. The modern scientific illusion supposed that technological ingenuity could enable human society to master nature, ignore limitations on resource availability, and expand indefinitely both resource- consuming lifestyles and the population of the planet. An emergent environmental consciousness over the last several decades, while still subordinate to market pressures and an ideology of growth, is emphasizing anew ideas of sustainability and limits'.
A normative treaty framework could provide the foundation for a compliance strategy to build a sense of legally binding prescription. Legal norms codified in an international treaty would become binding on member states under Article 26 of the Vienna Convention on the Law of Treaties, obligating parties to abide by treaties and perform them in good faith. The subsequent development of data systems to regulate activities would stem from reporting requirements determined in a regulatory treaty and could be subjected to a variety of informal cross- checks or more formal verification procedures. The Legal Principles for Environmental Protection and Sustainable Development states:
'States shall establish systems for the collection and dissemination of data and regular observation of … the environment … to facilitate the evaluation of conservation policies and methods'.
Dispute settlement mechanisms are an essential part of a management strategy, through either formal adjudication procedures or an informal approach. As environmental information related to technical issues changes, such as scientific research on health effects or improved safety procedures, adaptive procedures are necessary to provide a flexible, interactive process to modify the norms. Epistemic communities can aid in fostering environmental institutions that enhance effectiveness through open- ended procedures and information dissemination. Such a system can be theoretically sound and practically effective. Local communities- those living and working in the areas corporations operate- should be included directly in the drafting, feedback and monitoring process to result in a fair, effective system. Without frequent and substantive input of community members, a disclosure and monitoring system may evolve into little more than an abstract bureaucratic exercise. Citizen and community rights to consult, challenge, and redress corporate practices are essential.
The United Nations may be the best forum for a global environmental reporting system. Although it is a state- based institution, it could forge a direct role in corporate regulation through the collaboration among states, companies, and other organizations. Non- governmental organizations (NGOs) may provide the needed link between UN, state- based interaction, corporate activity and local communities. They present challenges to governments, urging them to live up to their claims and obligations. NGOs also provide information through actual monitoring, producing reports, and maintaining grassroots connections to local communities . The most promising forum for establishment of a disclosure system is the World Summit on Sustainable Development (Rio 10) which will take place in Johannesburg, South Africa, in September 2002. NGOs are currently strategizing for this Summit to put forth effective positions on corporate accountability measures.
As the world globalizes, corporations continue to expand their geographical boundaries and profits, yet inequality persists and even increases across the world. A notable author on globalization describes the rise of informationalism in relation to social exclusion, rising polarization of rich and poor, and the need for conscious action to countervail these tendencies:
'Divergence … is perhaps the dominant feature of modern economic history. The ratio of per capita income in the richest versus the poorest country [between 1870 and 1989] has increased by a factor of 6 and the standard deviation of GDP per capita has increased between 60 and 100%. There is polarization in the distribution of wealth at the global level, differential evolution of intra- country inequality, and substantial growth of poverty and misery in the world at large … Informationalism does create a sharp divide between valuable and non-valuable people and locals. Globalization proceeds selectively, including and excluding segments of economies and societies in and out of the networks of information'.
The social costs of a profit- driven system must coincide with the rhetoric professed that freer trade can aid poverty and spur developing countries into growth, giving way to a fairer trade reality. Market incentives do not provide adequate impetus to prioritize environmental protection and other social costs of business. The increasing influence of multinational corporations allows companies to choose where to locate production and often how to carry it out. Many countries attempt to acquiesce to a corporation's needs by establishing a corporate-friendly environment. The result is a downward spiral of lower standards for higher profits without a global framework to recognize, standardize, and implement environmental values. Companies can threaten to relocate, curbing incentives for governments to enforce high environmental standards.
Public disclosure mechanisms are a key component in improving this process. With such a system in place, companies would not have to fear losing out on competitive locations but could instead use their power positively to affect a country's treatment of people and the environment by refusing to invest in or deal with violators. Environmental impacts affect local ecology and public health and must be factored in to a company's planning. Large multinationals can afford it. The people working for and living near their operations can't afford not to be informed about the substances released and extracted that affect their lives.
In a few years, we may look back and be shocked at the lack of international law on this topic in the face of expanding multinational corporate activity without concrete checks or balances in place. A global market without global rules is untenable. These developments are on the cutting edge of international social responsibility, citizen empowerment, and the changing agenda of international institutions. If we profess to embrace democratic values, public disclosure of environmental impacts is necessary. If we want to be responsible, caring consumers, attention to this issue is crucial. If we want our companies to represent not only our commercial but our social values abroad, a system of public disclosure must be put in place.
Corporations are entities with responsibilities extending beyond profit margins because of the scale and impact of their activities. Ethical and legal foundations obligate corporations to be socially responsible particularly as they increasingly enjoy benefits of investments in countries where their power exceeds the host. Proponents and critics of the various code initiatives, tracing back to the development of the corporate form as a private actor created to achieve public purposed in 15th century feudal Europe have recognized these responsibilities. In the United States, the first corporations served the public by providing transportation, infrastructure. The discipline of business ethics in the U.S. is alive in institutions of higher learning; the 1964 Civil Rights Act and subsequent legislation contributed to characterizing the corporation as an individual entity expected to behave in a socially responsible manner. UN Secretary General Kofi Annan also recognizes corporations' social responsibility and moral duty to use the power of markets to make globalization beneficial for all. The World Bank stated that global firms are aware that their long-term investment goals can only be achieved within a stable, healthy and free social and financial environment; companies must work in cooperation with governments, civil society groups, development institutions, and citizens.
The impetus is growing to translate these principles into action; the fair trade movement that has emerged demands a response to issues such as the World Trade Organization's secretive procedures, human rights, environmental, labour, and indigenous concerns. This demonstrates that a broad- based coalition can create the driving force to pursue appropriate policies.
'What united the overwhelming majority of [the tens of thousands who came to Seattle in 2000] was concern over growing social inequality and hostility to the domination of the transnational corporate giants over working people'.
Because industry has traditionally resisted efforts to reveal information about their environmental practices, pressure must come from groups and individuals through mobilization and awareness. Manuel Castells expresses confidence:
'There is nothing that cannot be changed by conscious, purposive social action, provided with information, and supported by legitimacy. If people are informed, active, and communicate … if business assumes its social responsibility … if the media becomes the messengers, rather than the message …'.
Environmental issues are inseparable from issues of human rights, labour, women, indigenous peoples, and public health. Accordingly, ideal disclosure mechanisms include components for several substantive areas although the limitations of this article preclude full treatment.
Ultimately, information disclosure is but one facet to environmental protection, but a key and seminal aspect. Scholars and practitioners should embrace and utilize the language in international documents recognizing a freedom of information and pursue an effective, binding system. As evidenced by continued abuses, voluntary codes simply have not worked to ensure responsible environmental behaviour by multinational corporations. By exercising the precautionary principle, needless suffering can be reduced and humans can retain dignity in their communities, workplaces, and environments.
Notes and References
4 . 'Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive, and impart information and ideas … through any other media of his choice.' International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171. Article 19.
10 . World Charter for Nature. Adopted by the U.N. General Assembly, 28 October 1982. G.A. Res. 37/7 (Annex), U.N.GAOR, 37th Sess., Supp. No.51, at 17, U.N.Doc. A/37/51; reprinted in 22 I.L.M. 455 (1983) & 5 Weston V.B.11. Paragraphs 15, 18, 21(a).
11 . 'States shall provide the other States concerned upon their request and in a timely manner with all relevant and reasonably available data concerning a transboundary natural resource, including the uses and interferences with them ... States shall inform all persons in a timely manner of activities which may significantly affect their use of a natural resource or their environment and shall grant the concerned persons access to and due process in administrative and judicial proceedings.' Legal Principles for Environmental Protection and Sustainable Development. Adopted by the Experts Group on Environmental Law of the World Commission on Environment and Development (WCED), 18-20 June 1986. U.N. Doc. WCED/886/23/Add.1 (1986); reprinted in 5 Weston V.B.12. Article 15: Exchange of information. Article 6: Timely information, access and due process.
12 . Stockholm Declaration of the United Nations Conference on the Human Environment. Adopted by the U.N. Conference on the Human Environment at Stockholm, 16 June 1972. Report of the UN Conference on the Human Environment, Stockholm, 5-16 June 1972, U.N. Doc.A/CONF.48/14/Rev. 1 at 3 (1973), U.N. Doc. A/CONF.48/14 at 2-65, and Corr. 1 (1972); reprinted in 11 I.L.M 1416 (1972) & 5 Weston V.B.3. Principle 19.
13 . Article 10(1) states: 'Everyone has the right to freedom of expression. This right shall include freedom to … receive and impart information and ideas without interference by public authority and regardless of frontiers.' The right is subject to limitations 'as are prescribed by law and are necessary in a democratic society' such as national security or public safety. See Birkinshaw, Patrick. Freedom of Information: The Law, the Practice, and the Ideal. Weidenfield and Nicolson, 1988. p.175-176.
14 . See Handyside, E. Court H.R., Series A, vol. 24, December 7, 1976; Case of Perna v. Italy, July 25, 2001; Jersild v. Denmark, September 23, 1994; Nilsen and Johnsen v. Norway, November 25, 1999; Janowski v. Poland, January 21, 1999. European Court of Human Rights, found at the <http://www.echr.coe.int>.
20 . Yahoo! Case: Tribunal de Grande Instance de Paris, May 22, 2000 UEJF and Licra v. Yahoo! Inc. and Yahoo France, Superior Court of Paris, Order in Summary Proceedings. English Translation by Richard Salis. Available at <http://www.juriscom.net/txt/jurisfr/cti/yauctions20000522.htm>, page 3.
21 . See Geist, Michael. Is There a There There? Toward Greater Certainty for Internet Jurisdiction. PRACTISING LAW INSTITUTE; PATENTS, COPYRIGHTS, TRADEMARKS, AND LITERARY PROPERTY COURSE HANDBOOK SERIES. 5th Annual Internet Law Institute, 2001; Akdeniz, Yaman. Case Analysis of [Yahoo]. ELECTRONIC BUSINESS LAW REPORTS, 1(3) 110-120: 2001. Available at
22 . See also The Felix Som Case/ The German CompuServe Case (cyber-rights.org/isps/somm-dec.htm) (reversed on appeal, not holding online-service provider responsible for pornographic material and messages customers transfer over the Internet); LIBERTY, ED., LIBERATING CYBERSPACE: CIVIL LIBERTIES, HUMAN RIGHTS, AND THE INTERNET. Pluto Press: 1999.; LIPSCHULTZ, JEREMY, FREEDOM OF EXPRESSION IN THE AGE OF THE INTERNET: SOCIAL AND LEGAL BOUNDARIES. Westview: 2000.; LAW OF CYBERSPACE SERIES, THE INTERNATIONAL DIMENSIONS OF CYBERSPACE LAW. UNESCO Publishing: 2000.
26 . Restatement (Third) of the Foreign Relations Law of the United States. Adopted by the American Law Institute, 14 May 1987: §§ 601-604 (with comments): Obligation to notify and consult. Subsection 1(a).
27 . International Law Commission Draft Articles on International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law. Adopted by the International Law Commission, 30 May 1989. Report of the International Law Commission, on the Work of Its Forty- First Session. U.N.GAOR, 44th Sess., Supp. No. 10, at 222, U.N.Doc. A/44/10 (1989); reprinted in 1 Weston I.G.2. Chapter III: Notification, Information and Warning. Article 10: Assessment, notification and information.
37 . For an extensive discussion and comparative charts of the existing initiatives surrounding the environment, human rights and labor, see Aaronson, Susan Ariel. Can Governments Promote Global Corporate Citizenship? NATIONAL POLICY ASSOCIATION. 2001; Aaronson, Susan Ariel. Oh, behave! Voluntary codes can make corporations model citizens. THE INTERNATIONAL ECONOMY, March/April 2001. p. 40 <http:www.npa1.org>.
38 . For example: the Apparel Industry Partnership Code of Conduct of 1997 for domestic and overseas apparel factories with monitoring procedures; the International Labor Organization's Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy; the Fair Labor Charter Agreement (U.S.); Code of Labour Practices; Ethical Trade Initiative Base Code, ICTI Code of Business Practices; Responsible Care (U.S.) and Electronic Privacy Principles. Source: Aaronson, supra at Appendix 2.
40 . Sikkel, Marinus. (Chair of the OECD Working Party on the Guidelines). Spotlight on the OECD Guidelines for Multinational Enterprises: Introduction: A reinvigorated instrument for global investment. OECD Observer, December 2000.
42 . For example, Shell Oil, Unocal Corporation, Freeport McMoRan Copper and Gold, Inc., Chevron Texaco Corporation. See Implementation: Global Sullivan Principles. November 19, 2001; LGD Issue 2002 (1) and Global Sullivan Principles Update: A Periodic Report on the Activities of the Global Sullivan Principles of Social Responsibility, October 2001.
49 . Scorecard, the EPA's publicly accessible reporting website, demonstrates how useful and extensive an environmental reporting system can be. One can enter a zip code and view maps showing locations and amounts of waste in the area. See <http://www.scorecard.org>.
54 . The legislation also includes human rights and labor provisions, but they are beyond the scope of this paper. The legislation is designed to extend domestic reporting requirements such as the TRI (Toxic Release Inventory) and OSHA (Occupational Safety and Health) to American corporations' activities abroad. There is no domestic corollary for the human rights provisions that require companies to disclose security contracts with foreign militaries.
59 . Examples of active groups are the World Industry Council for the Environment, Global Management Initiative, Public Environmental Reporting Initiative, European Chemical Industry Council, International Chamber of Commerce's Business Charter for Sustainable Development and the Coalition for Environmentally Responsible Economics (CERES) (Rischitelli, supra note 3 at p.5.)
65 . First Look at Environmental Disclosure in Japanese Industry: IRRC Publishes Data from Japanese Corporate Environmental Reports. INVESTOR RESPONSIBILITY RESEARCH CENTER, Press Release June 7, 2001 <http://www.irrc.org/press_releases/06072001_EnvPerfJP.html>.
71 . Erb-Leoncavallo, supra note 24 at p.4. John Ruggie is the former dean of Columbia University's School of International and Public Affairs and has written extensively in the field; George Kell spent ten years at the United Nations Conference on Trade and Development (UNCTAD); both are advisors to Kofi Annan, Secretary- General of the United Nations, and participated as key architects of the Global Compact.
82 . See Lu, Su-Ping. Corporate Codes of Conduct and the FTC: Advancing Human Rights Through Deceptive Adverstising Law. COLUMBIA JOURNAL OF TRANSNATIONAL LAW, 2000. p. 624; discussing that human rights practices are an important facet of consumer decision making. He cites empirical surveys revealing that a majority of consumers would boycott a brand or pay more for products if they are made with socially responsible practices.
83 . A poll conducted for Cone Inc., a Boston marketing company, reveals consumer expectations for corporate behavior has increased in the wake of the terrorist attacks. At least three quarters of 1,000 people surveyed agreed that companies have a responsibility to support worthy causes, that a company's commitment to social issues affected the way they shopped, and was important in deciding what to buy, and that they would be likely to switch brands to help support a cause (assuming same price/ quality); 85% agreed that it is 'more important than ever' for companies to support their communities. Abelson, Reed. 'Consumers Look at Corporate Conduct.' Money and Business/ Financial Desk, THE NEW YORK TIMES. November 11, 2001.
85 . For example, New Jersey reported this phenomenon for toxic releases in relation to its statewide Right to Know legislation. See Questions and Answers. International Right to Know Campaign, p. 2, November 12, 2001 <http://www.irtk.org/q_a.html>.
89 . See Liubicic, Robert J. Corporate Codes of Conduct and Product Labeling Schemes: the Limits and Possibilities of Promoting International Labor Rights through Private Initiatives, 30 LAW AND POL'Y INT'L BUS. 111 (1998).
90 . See World Wildlife Fund Report, 'Right-to-Know: The Promise of Low-Cost Public Inventories of Toxic Chemicals.' 1994 (explaining that digitizing reporting processes can result in significant savings; for instance, they estimate that 80,000 United States' Toxic Release Inventory reports require only 70 megabytes of hard disk space).
92 . The World Charter for Nature states that corporations shall 'establish standards for products and manufacturing processes that may have adverse effects on nature, as well as agreed methodologies for assessing those effects; [and] implement the applicable international legal provisions for the… protection of the environment.' World Charter for Nature. Adopted by the U.N. General Assembly, 28 October 1982. G.A. Res. 37/7 (Annex), U.N.GAOR, 37th Sess., Supp. No.51, at 17, U.N.Doc. A/37/51; reprinted in 22 I.L.M. 455 (1983) & 5 Weston V.B.11. Paragraph 15 (b) and (c).
95 . 'Commitment and Compliance: What Role for International 'Soft Law'?' MANAGING GLOBAL ISSUES PROJECT, CARNEGIE ENDOWMENT FOR INTERNATIONAL PEACE. Prepared by Jonathan Blavin. November 22, 1999 p.3.
100 . See Dickerson, Claire Moore. Transnational Codes of Conduct Through Dialogue: Leveling the Playing Field for Developing- Country Workers. 2001 FLORIDA LAW REVIEW, September, 53 Fla. L. Rev, 611, p.7.
123 . FALK, RICHARD. ON HUMANE GOVERNANCE: TOWARD NEW GLOBAL POLITICS. The World Order Models Project Report of the Global Civilization Initiative. The Pennsylvania State University Press, PA: 1995. p.252.
127 . Legal Principles for Environmental Protection and Sustainable Development. Adopted by the Experts Group on Environmental Law of the World Commission on Environment and Development (WCED), 18-20 June 1986. U.N. Doc. WCED/886/23/Add.1 (1986); reprinted in 5 Weston V.B.12 Article 4(b) Environmental standards and monitoring.
131 . Id. at p.111. Functioning systems of coordinated treaty compliance include international transport and communication under the International Civil Aviation Organization, communications satellites under the International Telecommunications Convention, the European Monitoring and Evaluation Program for acid rain, the Barcelona Convention for the Protection of the Mediterranean Sea, maritime inspections under the environmental regulations of the International Maritime Organization, nonproliferation under the International Atomic Energy Agency, and UN Register of Conventional Arms. CHAYES p.141.
144 . Editorial Board. 'The social meaning of the anti-WTO protests in Seattle.' World Socialist Web Site. December 6, 1999. LGD Issue 2002 (1)145 . CASTELLS, supra note 134 at p.360.