Selectivity in law-making: regulating extraterritorial environmental harm and human rights violations by transnational extractive corporations

This Chapter considers the intersection between human rights and the environment through an examination of how states have addressed the problem of transnational resource extraction. To date, there has been little effort to tackle in any concerted or effective way the environmental and human rights impacts of transnational corporations (TNCs), including transnational extractive companies. Indeed, for the most part, these two areas of concern have been the subject of separate and distinct research and discourses. At the same time, there has been considerable unevenness in the treatment of human rights concerns and environmental concerns. Environmental norms and practices addressing transnational corporate conduct have long enjoyed greater acceptance than have human rights norms among business actors and among states. Despite this relative prioritization of the environment, however, it is not clear that the international legal system, including its interaction with domestic law and soft forms of regulation, protects the environment from damaging TNC conduct anymore than it does human rights. This Chapter will consider the extent to which the privileging in the development – and ‘increasing convergence’ – of norms of environmental conduct for TNCs has led to more effective governance of TNC environmental conduct than for human rights and in particular extractive company activity in developing host states. It will be argued that, while the clear prioritization of environmental concerns in legal and other governance mechanisms facilitating or directed at the conduct of transnational extractive companies may suggest a certain consensus on the need to address the environmental impacts of TNC conduct, states have been selective about the use of ‘hard’ law and hard compliance mechanisms with respect to the oversight of non-economic impacts of TNC activity. The protection of the environment therefore suffers from the same disability as human rights. States have used international and domestic laws to facilitate and protect corporate activity that contributes to environmental degradation. The precedence given to environmental norms only appears in ‘soft’ legal provisions and softer regulatory mechanisms and such norms and mechanisms are not effective on their own in redressing this problem. This multidimensional problem requires intelligent, varied, multifaceted responses at the domestic, international and transnational levels. Such responses should not exclude soft approaches to TNC governance, but they must include hard enforceable obligations for TNCs in order to begin to redress the partiality of the international and domestic laws that support corporate impunity.