CSR from belowDr Adaeze Okoye

Environmental Law ConferenceUCC- 23rd April 2015

‘amplifying’ the voices of the affected persons as part of subaltern cosmopolitan studies of global concepts.

Viewing CSR from the communities ‘stakeholder’ perspective, that is, what they can do or have done---in the face of a CSR issue & the limitations of their actions.◦ actions and responses from within the community

are an integral and interesting element of CSR◦ This plays out in a legal environment that could

be seen as enabling or passive

CSR from below

A brand of localized globalism =“ It consists of the specific impact of transnational practices and imperatives on local conditions that are thereby de-structured and restructured in order to respond to transnational imperatives. Such localised globalisms include: free trade enclaves; deforestation and massive depletion of natural resources to pay for foreign debt…” (Santos p. 263)

Why?

The concept of hegemony or power is central to CSR

Corporate law as is: appears to have chosen utility over responsibility.

This is a conscious choice as Hurst points out “we treated the corporate instrument as so useful for desired economic growth that warrant using the law to make it available on terms most responsive to businessmen’s needs and wishes.” (1970: 62)

Nevertheless CSR still leaves significant room as a site of counteractions and contention so as to give expression to other actors in the CSR relationship.

rather than accept the futility of law in the face of hegemony, Santos suggests we should turn ‘our analytic gaze to plural forms of resistance and embryonic legal alternatives arising from the bottom of the world over’ (2005: 12).

One of the major flash points for local communities in African communities is the Environment.

Elsewhere I had spoken about the Dumasi women of Ghana

Today however the example is even stronger- it examines the Niger-Delta communities & their influence on the adoption of CSR by oil corporations…

Similar narratives

The place of oil as a global commodity versus the environmental sustainability of lives of the local community serves as a great illustration of Santos’ ‘localised globalism’.

Nigeria found commercial quantities of oil in Oloibiri in 1956◦ The Niger-Delta is located in the south of the

country

The Niger-Delta case

Environmental impact on local communities:

◦ Water pollution- oil spills◦ Air pollution- gas flaring◦ Loss of livelihood - [fishermen & farmers]◦ Could be driving some to illegal oil extraction

causing further spills.

Over 50 years later

“In 49 cases, the study observed hydrocarbons in soil at depths of at least 5 metres. At 41 sites, the hydrocarbon pollution has reached the groundwater levels. Clearly, this exposure to hydrocarbons is putting the health of community members at serious risk.

Oil pollution in many inter-tidal creeks has left mangroves denuded of leaves and stems. When an oil spill occurs on land, fires often break out, killing vegetation and creating a crust over the land, making remediation difficult…

The Ogoni community is exposed to petroleum hydrocarbons in outdoor air and drinking water, sometimes at concentrations at highly elevated levels. Hydrocarbon contamination was found in water taken from 28 wells in 10 communities adjacent to contaminated sites. In seven wells, the samples were at least 1,000 times higher than the Nigerian drinking water standards”

UNEP 2011 environmental assessment of Ogoniland region of Niger-Delta

Gas-flaring

Picture from Curse of Black Gold – Ed Kahsi

Source: sweet crude reports.com

Pictures by Michael Kamber NY Times 12/09/ /05- Ebocha with flares that have burnt continuously since the 1970s

Local communities are using all that is effectively at their disposal for counter-hegemonic CSR

Protest Demonstrations Negotiations *All aspects of law the prove useful

◦ -local v international◦ Corporate, torts, environmental

Not necessarily organised*

Emerging solutions

CSR & Niger-Delta Shell came out in 1998 with its first

sustainability report: Profits & Principles: Does there have to be a

choice? Triggers: Execution of the Ogoni 9 & Brent Spar….

15,600 fishermen won compensation in an out of court settlement agreed between Shell and the Bodo community (Leighday solicitors)

Map source : BBC

The 2015 settlement

Shell (Global CSR champion & target)

Trigger for CSR –Saro Wiwa & the

continued battle of his people

Continued push within Nigeria and

Outside- attempts to use ACTA & The

Kiobel Case

UNEP Ogoni Report 2011

The 2015 UK Shell case settled out of

court (small victories)

Embryonic forms: Alternative dispute resolution Negotiated agreements ---could they

become contractually binding? Corporate –community dialogue Possibility of settlement being replicated? Sustainability? Legal issues around Shell

settlement, weariness with extra-territorial tortious action (US Kiobel)

Potential

Property rights: Land use Act 1978, Petroleum Act 1969

Lack of legal enforcement: Associated Gas re-injection Act , Oil Pipelines Act, Oil in Navigable Waters Act, Environmental Impact Assessment Act

In 2014 Friends of the Earth observed the non-implementation of solutions proffered by the UNEP 2011 report.

Access to Justice limitations: Cost, Enforcement, Delay

“ambiguity of resistance”* intra-conflict*, corruption.

Wider limitations

Power on two levels Corporations / Government – ideology of

economic growth privileged above environmental sustainability & social sustainability ----interference for “economic well-being of the country”

Patrilineal/ hierarchical societies & decision-making by men, Chiefs, local leaders

Issues of power

Through this CSR issue, a platform is then created for non-governmental organisations to work with local people to amplify the voices and invent solutions to overcome barriers and achieve freedoms.

This is where Sen’s view of development as ‘freedoms’ is given physical expression (Sen, 2001). ◦ social protests of women in neighbouring Niger-Delta oil

producing communities (Ngomba-Roth, 2007)

On one level….

“corporations transform the idea of social responsibility into a marketing device and into a commodity that conceals the power relations that underlie the relationship between global capitalism and social inequality, social harm and social wrongs” Shamir 2005

Exclusion of social responsibility from corporate & investment laws

The relatively weak position of communities as ‘stakeholders’

But on the other

◦ CSR allows Experimentation

◦ it is in the nature of power conflicts that such experiments may or may not succeed.

◦ What must be explored are continuous bottom-up solutions that encourage socially responsible and accountable behaviour of corporations & governments.

Yet

Thank you