The Supranational Corporation: Beyond the Multinationals (Studies in Critical Social Sciences, 53) [Illustrated] 9789004249103, 9789004252721, 9004249109

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The Supranational Corporation

Studies in Critical Social Sciences Series Editor

David Fasenfest

Wayne State University Editorial Board

Chris Chase-Dunn, University of California-Riverside G. William Domhoff, University of California-Santa Cruz Colette Fagan, Manchester University Matha Gimenez, University of Colorado, Boulder Heidi Gottfried, Wayne State University Karin Gottschall, University of Bremen Bob Jessop, Lancaster University Rhonda Levine, Colgate University Jacqueline O’Reilly, University of Brighton Mary Romero, Arizona State University Chizuko Ueno, University of Tokyo

VOLUME 53

The titles published in this series are listed at brill.com/scss

The Supranational Corporation Beyond the Multinationals

By

Laura Westra

LEIDEN • BOSTON 2013

Cover illustration: On October 4, 2010, a retaining dam of one of the waste reservoirs at the MAL Hungarian Aluminum Ajka factory, collapsed, flushing the nearby cities and villages with highly alkaline and corrosive (caustic) red mud. At least ten people died, and more than 120 people were injured, in the nearby settlements of Kolontár and Devecser. © Akos Stiller/hvg. Library of Congress Cataloging-in-Publication Data Westra, Laura. The supranational corporation : beyond the multinationals / by Laura Westra. pages cm. -- (Studies in critical social sciences) Includes index. ISBN 978-90-04-24910-3 (hardback : alk. paper) -- ISBN 978-90-04-25272-1 (e-book) 1. International business enterprises--Law and legislation. 2. Juristic persons. 3. Corporate power. 4. Corporations--Political activity. I. Title.  K1315.W47 2013  338.8’8--dc23 2013010252

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. ISSN 1573-4234 ISBN 978-90-04-24910-3 (hardback) ISBN 978-90-04-25272-1 (e-book) Copyright 2013 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Global Oriental, Hotei Publishing, IDC Publishers and Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper.

For my son Mark Tjalling Westra

CONTENTS Foreword  Richard Westra������������������������������������������������������������������������������������������������������xi Introduction����������������������������������������������������������������������������������������������������������������1 1 The Corporation: From the “Original Sin” (Santa Clara)  to Right of Personhood (Roe)���������������������������������������������������������������������5 Introduction���������������������������������������������������������������������������������������������������������5 The Corporation: Natural versus Juridical Personhood���������������������������8 Fetal Personhood and the Law Before and After Roe���������������������������� 11 Some Further Arguments Regarding the Right to Life  of the Preborn in Common Law������������������������������������������������������������� 12 Arguments about the Possible Introduction of “Human Life  Amendments” into Law���������������������������������������������������������������������������� 15 Personhood and its Problems���������������������������������������������������������������������� 18 Personhood as “Categorization” not “Recognition”: the Source  of Corporate Power������������������������������������������������������������������������������������ 21 2 The Corporation: Controlling Public Health and Other  Basic Rights�������������������������������������������������������������������������������������������������� 25 Individuals and the Corporation����������������������������������������������������������������� 25 Corporate Activities and their “Toxic Trespass”�������������������������������������� 29 Pulp and Paper Mills and Mercury Poisoning: The Canadian  Case of Grassy Narrows and White Dog����������������������������������������������� 30 Central and South American Cases: Attacks on Health  through Mining and Extractive Industries������������������������������������������ 32 A Brief Overview of the Constitutional Protection Available  for the Environment in Colombia and Ecuador�������������������������������� 37 Corporate Agribusiness and Health����������������������������������������������������������� 40 Corporate Crime as Human/Animal Oppression����������������������������������� 41 From Big Tobacco to the Framework Convention on Tobacco  Control���������������������������������������������������������������������������������������������������������� 44 The Corporation and Its Internal Stakeholders�������������������������������������� 48 Concluding Thoughts������������������������������������������������������������������������������������� 55 3 The Corporation and the State: A Question of Power��������������������������� 59 Introduction������������������������������������������������������������������������������������������������������ 59

viii

contents “Corporate Clout” in a Lawless World�������������������������������������������������������� 61 Existing International Laws for State and Corporate  Responsibility���������������������������������������������������������������������������������������������� 62 The Corporation as a “Quasi-State”������������������������������������������������������������ 65 The State and the Corporation: Responsibility and Complicity��������� 67 Jus Cogens and the Effects of Corporate Activities��������������������������������� 71 The Impunity of Corporate Criminals and the State����������������������������� 73 Corporate Impunity and “Imperial Plunder”������������������������������������������� 75 National Lawyers Guild International Committee��������������������������������� 76 Corporate/State Crime and Third States Obligations���������������������������� 79 Corporate Power and Cosmopolitan Democracy����������������������������������� 83 Corporations, the State and the “Two Constitutions”��������������������������� 84

4 The Corporation as Criminal����������������������������������������������������������������������� 87 Introduction: External Stakeholders���������������������������������������������������������� 87 Norms to Restrain Corporate Harms: “Gaps” or Structural  Violence?������������������������������������������������������������������������������������������������������ 89 Corporate Forward March: From Weedkillers and  “Super Insects”��������������������������������������������������������������������������������������������� 93 Pesticides Beyond Agriculture: Corporate Power and  Chemical Warfare��������������������������������������������������������������������������������������� 98 Colonization, Genocide and War Crimes: Germany and  the Herero People�������������������������������������������������������������������������������������101 Complicity and Responsibility from Nuremberg to Vietnam�����������103 Corporation as Criminal: Internal Stakeholders�����������������������������������104 Corporation as Criminal: Asbestos Imposes Direct and  Indirect Harm��������������������������������������������������������������������������������������������109 Concluding Thoughts�����������������������������������������������������������������������������������111 5 The Corporation as a Supranational Power: The European  Union�����������������������������������������������������������������������������������������������������������115 Introduction����������������������������������������������������������������������������������������������������115 Europe’s Revolt and Resistance to Corporate Power: Theory  and the Law������������������������������������������������������������������������������������������������117 Revolt and Resistance to Corporate Power in Practice�����������������������122 Criminal Precedents and Corporate Disaster in Hungary������������������126 Bayer’s Criminal Precedents: Unacknowledged Dangers�������������������127 Corporate Power and the “European Dream” in Conflict�������������������129 The Roots of “Europe, Inc.” in the American Dream���������������������������132 Corporate Responsibility under ATCA����������������������������������������������������137

contentsix

Corporate Criminality, Fitness to Rule and “Tempering  Globalization”��������������������������������������������������������������������������������������������139 Corporations are Unfit to Hold Their Present Ruling Position���������141

6 The Corporation as a Supranational Power�������������������������������������������145 Introduction����������������������������������������������������������������������������������������������������145 Climate Change and Corporate Culpability�������������������������������������������148 Climate Change and State Corporate Relations������������������������������������150 “Nature’s Trust” Against the Power of Drones and Caterpillars��������153 Corporate Complicity in Attacks Against the Right to Life���������������155 Legal Versus Natural Persons����������������������������������������������������������������������160 The New Supranationalism and Corporate Attacks on Civil  and Political Rights: The EU and the US on Conflicting  Trajectories�������������������������������������������������������������������������������������������������164 Europe’s Protection of Human Rights Against Multinationals���������165 The United States and the Reach and Limits of Supranational  Power�����������������������������������������������������������������������������������������������������������167 Supranational Corporate Power and Post-National Citizenship������170 From Local to Global Citizenship Against Corporate Power:  The Occupy Movement��������������������������������������������������������������������������174 Concluding Thoughts�����������������������������������������������������������������������������������176 Appendix I: Cases�������������������������������������������������������������������������������������������������181 Appendix II: Documents�������������������������������������������������������������������������������������183 References���������������������������������������������������������������������������������������������������������������185 Index�������������������������������������������������������������������������������������������������������������������������195

FOREWORD Karl Marx, the fiercest critic of capitalism, decried the class division of capitalist society where the material accoutrement of economic reproduction becomes the property of the bourgeoisie, leaving the majority laboring population with their ability to toil as the only possession separating them from starvation. Marx saw the concentrated power of capital, the factories, technology, transportation networks, which the bourgeoisie wielded with impunity over the working class, as the fruit of past or “dead” labor enchaining the living worker. At the mid-nineteenth century temporal juncture of Marx’s economic writing, the embodiment of capitalist concentrated power was the industrial enterprise that on average employed around 200 workers. And in exceptional cases, the largest cotton mills of Marx’s day employed up to 1500 workers. Marx, of course, passed away well before the giant steel and chemical oligopolies of the early twentieth century, with their labor forces of over 40,000 workers, took shape. And in his wildest dreams, Marx would never have imagined the concentrated power of capital morphing into giant multinational corporations, each employing hundreds of thousands of workers, and each with thousands of corporate branches lording over economic life across wide swathes of the globe. What Laura Westra draws attention to in the first instance in this book is the extent to which multinational corporations wield power not only over laborers that toil for them, in the sense of the kind of work, remuneration, safety of workers, availability of work and so forth, as concerned Marx. But corporations wield power over governments and states themselves, which many individual multinational corporations significantly trump in terms of wealth and resources. More than at any time in modern history, the gamut of decisions about what people will wear, eat, be entertained by or transport themselves in, are made in private corporate offices well beyond the ambit of household or community influence. In the second instance, then, what Laura Westra draws attention to in this book is not just the fact that multinational corporations as preponderating institutions in democratic societies exist in a world where their power faces no mass public curbs like governments that must periodically stand for election. But through an ingenious legal machination that Laura dubs the “original sin”, corporations are endowed with the same rights as the so-called legal person that is the very foundation according to democratic

xii

foreword

theory for protecting liberties and property of individuals from trans­ gressions of others, as well as from government purportedly contracted and empowered by individuals in democratic society to enforce the protection. From the historical point of original sin, Laura argues, corporations parlay their combined peculiar legal status as “persons” and ponderous economic and organizational power as anything but, into the accession of ever more rights that afford corporations levels of legal protection unattainable for actual individual human persons. Such legal protection, as the cases of corporate products and activities impacting on human health, the earths’ biosphere and even the conduct of war show, enable multinational businesses to evade criminal sanctions that would be applied had human persons perpetrated those acts. Laura Westra then proceeds to examine the legal and regulatory regimes existing in national and international spaces of the global polity only to find them woefully wanting in the face of the concentrated power of the corporation. But this confronts us and the future of humanity with the following question: Marx castigated the political philosophers of his era for their naiveté in believing freedom and human rights could be guaranteed in class divided, asymmetric wealth distributive capitalist societies by the bourgeois democratic state. Marx proclaimed bourgeois thinkers to be drunk on ideologies of “the market” that maintained optimal social outcomes flowed from individual self-aggrandizement. And that the role of government was simply to provide rules of the game. Over the course of the twentieth century, democratic suffrage expanded from the property qualifications existing in Marx’s time to universal suffrage. Further, complementing democratizing of national polity’s has been the constitution of a global superstructure of organizations defending international law. Yet wealth asymmetries within states have widened as captured by the recent protest slogan of the 99 percent versus the 1 percent of über-rich. They have also grown internationally tempered only by data based on a numerically large but proportionally limited cohort in India and China rising above a 2 dollar per day poverty measure. And, to be sure, multinational corporations have ridden this wave of rising global inequality to its apex. Thus, to return to the question for academics, students and progressive policy actors: If the strengthening of democracy and emergence of global governance has failed to restrain the concentrated power of capital, as Marx claimed would be the case even when the embodiment of that power was but a miniature of that existing today, and if the products and activities of the concentrated power of capital now threaten human life

forewordxiii itself, as argued by Laura Westra, then the time may have finally arrived for human beings to think carefully about an economic system that century after century produces the same social outcomes. And look at the alternatives that better advance human flourishing. Dr. Richard Westra Nagoya, Japan November 2012

INTRODUCTION Starting from the research on which I based my second Ph.D. thesis, a common thread has been emerging. Whether I was considering environmental justice (Westra, 2006, 2007, 2009), in general or human rights in relation to legal instruments affecting the collective (Westra, 2011b), or even various aspects of global governance (Westra, 2011a, 2012), the main issue, or common source of most of the problems I researched appeared to be corporate power. This power manifests itself in a number of ways, some obvious, some insidious. It is obvious when one corporate actor brings so-called “development” to a third world country, or to any area where Indigenous peoples, people of color, or the poor live even in North America: mining and other extractive industries wreak havoc on both the health and the civil rights of those populations, with the complicity of the local governments. Even more dangerous is the operation of multiple chemical enterprises, subsidiaries of the main corporate legal person, now proliferating in many countries where controls and monitoring are minimal or absent. These are the manifest aspects of corporate control, which demonstrate total disregard for the human rights violations involved, human rights to physical integrity and safe living conditions, but also civil and political rights, culminating in the right to defend and protect a community’s way of life, its culture and traditions. As well, increasingly, there are several insidious ways of advancing corporate interests through lobbies, corporate infiltration in various government agencies and bureaucracies, in the relentless effort to manipulate the language and the main sense of the law itself to ensure the legality and the promotion of corporate activities. Finally, there are groups and associations whose power is far superior to that of the nation-states where their head offices reside; because their decisions are reached in secrecy, they are not open to appeals, and thus often supersede state decisions. None of this information indicates a new discovery, to be sure, but in this book I have started from what I have termed the “original sin,” that is, the Santa Clara court decision of 1886, affirming the personhood of the corporation. It is that humble, unremarkable beginning that permitted the addition of many subsequent “rights” to legal persons, all of which have contributed significantly to the present conditions of powerlessness

2

introduction

on the part of most human beings, but also on that of nation-states themselves. The first chapter discusses that original question (that is, the personhood of the corporation), while Chapter 2 shows the interface between corporate interests and public health, surely the most basic of human rights. Chapter 3 discusses the relation between states and corporate legal persons, and the changed face of international law and global governance that ensues. Chapter 4 raises a further question: given the role of corporations both as single actors and as groups or associations regarding governance, what are their qualifications for such a role? They are not elected, hence they lack democratic legitimacy, and there are dangerous aspects that follow upon their intrusions in governance. We must realize that, despite their immense power, several times corporations and their chief officers have been tried and found guilty of crimes beyond the financial realm, starting from the time of the Nuremberg trials. Hence, it seems appropriate to raise the question of the corporate “fitness to rule,” once their power to dominate in so many realms has been demonstrated. Chapter 5 discusses the corporate quest for power in relation to another supranational power: the European Union. We discover there is a difference between the way multinational corporations originating in North America (specifically, the US) function in their quest for power elsewhere, and their somewhat less blatant relations with the European Union. The latter has a history of standing up for human rights, public health and other important principles, something that does not happen often in North America. Finally, Chapter 6 starts with the most global threat to humanity today: climate change, and the seminal role of corporations in that regard. Global warming is a grave threat to life, and is acknowledged in all its multiple consequences today. The source of that scourge depends primarily on corporate practices and policies, which promote a lifestyle of overconsumption (and thereby contributes to the ongoing problem), rather than advocate restraint and “greener” choices. The attacks on the life of natural persons noted herein are simply viewed as “collateral damage” of the results of corporate projects. These attacks are also evident in yet another field of corporate dominance: the ongoing war machine, where corporate participants have full knowledge of the effects of their products, and of the illegal activities these products will support. Yet, just as in the case of chemical corporations, since the Bayer case referred to in the following pages, such complicity is not

introduction3 singled out and treated as collaboration in war crimes, according to Nuremberg. The major emphasis so far has been on corporate attacks on the physical integrity of natural persons. Yet the presence of supranational corporate persons also represents an attack on civil and political rights, and on the very nature of citizenship, which is both a right and a duty of human beings, who must participate in their own democratic governments to exercise those rights. To some extent, it is this sort of attack that has motivated most of the recent revolts against corporate power, from G8/G20 protests to today’s Occupy movement. Given the deep penetration of corporate governance in legal regimes described in this work, it seems that such a “bottom-up” movement may well be the only hope that natural persons may have singly and collectively, to escape the stranglehold of supranational corporate power. But that should be the topic of future research.

CHAPTER ONE

THE CORPORATION: FROM THE “ORIGINAL SIN” (SANTA CLARA) TO RIGHT OF PERSONHOOD (ROE) Introduction Over the last 150 years the corporation has risen from relative obscurity to become the world’s dominant economic institution. Today, corporations govern our lives. They determine what we eat, what we watch, what we wear, where we work, and what we do. We are inescapably surrounded by their culture, iconography, and ideology. And, like the church and the monarchy in other times, they posture as infallible and omnipotent, glorifying themselves in imposing buildings and elaborate displays. (Bakan 2004: 5)

This meteoric rise is particularly amazing, given its very limited beginnings. The oldest commercial corporation in North America was incorporated by English Royal Charter and King Charles II on May 2, 1670, as the Governor and Company of Adventurers of England trading into Hudson’s Bay, northern Canada. That company was intended to handle the fur trade in North America, before European States could lay claim to that land. At one time, this first corporation, which is today a well-known Canadian institution, held the monopoly over the Indian trade, especially the fur trade in Hudson’s Bay. The region it controlled consisted of 1.5 square miles in the drainage basin of Hudson’s Bay, known at the time as Rupert’s Land, as Rupert was the company’s first director, and cousin to King Charles. The corporate mode of operation was simple. In the spring and summer, First Nation and Metis trappers caught the animals and treated their pelts. They travelled by foot and by canoe, and arrived either at Fort Severn in Manitoba, or at Cumberland House in Saskatchewan, where they traded the furs for “metal tools and hunting gear, often imported by the company from Germany, the center of inexpensive manufacturing in that era (see http://en.wikipedia .org/wiki/Hudson’s_Bay_Company). At this stage, the corporation was thriving as a single-purpose organization: it was fulfilling a “need” (or at least a clear “want”) of society at the time, and it was operating directly under the direction and the guidance of the funding government. It is vital to keep in mind these points in order to judge eventually the distance the corporation has travelled, especially

6

chapter one

recently, but, most significantly, from the time of the case I have termed “the original sin”: Mr. Chief Justice Waite said: the court does not wish to hear argument on the question whether the provision of the Fourteenth Amendment to the constitution, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does. (Santa Clara County v. Southern Pacific Railroad Company; California v. Central Pacific Railroad Company, Supreme Court of the United States 118 US 394; 6 S. Ct. 1132; 30 Led. 118, May 10, 1886, Decided)

This banal US Decision has been widely recognized as the first step in the ongoing assumption of parity between natural and legal persons. As well, this case is a clear precursor of a long history of dubious decisions, purporting to defend justice, fairness, equal treatment and the rule of law, while manifesting a number of common characteristics. Typically, the Chief Justice ignores and by-passes the major, substantive issue of principle, while the discussion focuses on minor facts and on procedural issues instead. Another leitmotif in the decision is the assumption of the public interest as the basic motive of the corporate goals, without discussion or debate, thus automatically legitimizing any and all activities pursued for the achievement of those goals. In this specific case, the opening of the railroads from the east to the west of the US was probably a desirable goal, promoting the eventual well-being of people that would follow upon the opening of those frontiers. However, for the most part, corporate activities are not so generally benign to all involved stakeholders. Beth Stephens cites a book (Black, 2001) on the role of IBM in Nazi Germany during World War II: In his book, Black condemns IBM and its management for selling a revolutionary data management system to the Nazis. Black concludes that this system enabled Nazi Germany to organize information about the ten millions of people under their control, a key tool without which they would not have been able to implement their brutally efficient extermination program. (Stephens 2002: 45).

This position may be contrasted with that of Richard Bernstein (Bernstein 2001: E8), who argues that the Nazis could have conducted their “business” also without the assistance provided by IBM, and that “Such business decisions … were reasonable, morally neutral choices” (Stephens 2002: 46), thus presenting an oft-repeated position in support of business as usual.



from the “original sin” to right of personhood7

Yet, it is precisely after World War II (WWII) that human rights law came into its own, with a number of new declarations and instruments for their protection and, at least in principle, corporations are increasingly under scrutiny with regard to their impact on human rights: Large corporations magnify the consequences of the amoral profit motive. Multiple layers of control and ownership insulate individuals from a sense of responsibility for corporate actions. The enormous power of multinational corporations enable them to inflict greater harms, while their economic and political clout renders them difficult to regulate. (Stephens 2002: 46)

Essentially, from the standpoint of human rights, today’s corporations are far from being beneficial. During the “colonial era,” the power of the state with regard to the corporation, evident in the relationship between the British Crown and the Hudson’s Bay Company, was paramount. The main point was that “the home state could generally dictate to its own colonies whatever terms it chose” (Ratner 2001: 453). But not all early corporations were effectively controlled by the government (such as the British East India Company, the Dutch East India Company, Hudson’s Bay Company all of which actually helped to administer the colonies of their countries of origin). Some other corporations were controlled by private investors, but they were by far the least powerful (Ratner 2001: 453). Many corporations received permission to operation in foreign countries as “concessions.” The same practices were followed in the developing world, especially in South America, where the US used various political tactics, including “covert interventions to protect [its] economic interests” (Ratner 2001: 454). Decolonization and the resulting independence of colonial territories changed these relations drastically after WWII. In 1970, the United Nations General Assembly passed a resolution to establish a “new economic order” (UNGA Resolution 3281, Charter of Economic Rights and Duties of States; UNGA Resolution 3201, Declaration on the Establishment of a New International Economic Order). Most European countries were affected as they had to relinquish their colonies. The US was not, as its practices for the advancement of its economic interests and its intrusions into the governance and the ideological preferences of central and South American States continued unabated (Westra 2012a). Hence, without delving into the details of corporate presence before and after decolonization at this time, we can affirm that the close connection between corporations and state governance persisted albeit in different forms, without however diminishing their alliance and joint power.

8

chapter one

We will explore those issues in details in the following chapters. But before that, it is important to understand what a corporation is, as a legal person, before we attempt to clarify its role and power. The Corporation: Natural versus Juridical Personhood What is a person? What responsibilities and obligations do we have to entities we recognize as persons under the law? These are not simply theoretical questions. Louisiana recently became the first state to statutorily designate ex utero embryos as “juridical persons,” with rights to sue and liability to being sued. (Berg 2007: 369)

Berg states that “it is not simply a theoretical question” we are considering, but, instead of exploring the various positions regarding this very important question, her whole article only discussed the procedural rather than the substantive aspects of “personhood.” Thus the first point that emerges clearly is that no attempt is made to identify corporations (or fetuses for that matter) with an acceptable etymological, philosophical, or moral understanding of what a person is, nor to show how and why it fits the proposed extensions to a different entity. In contrast, Berg limits her argument to what the legal documents or the US Constitution and the courts state. Hence, she starts by limiting the “evidence” to a closed circle, whereby an unsubstantiated definition is used to “explain” a concept, in a purely circular manner. One might wonder why there should be a need to start with such a complex question, when the main focus is, and should be, the aims and the actions of the corporation, based on its rights as a person. But as Berg herself acknowledges, different entities possess differentiated rights to act (Berg 2007: 373), as children, for instance, do not have the same rights as adults. Hence it is necessary to start with what a “person” is in its paradigmatic, accepted definition, to which the US is—at best—a late contributor. Berg acknowledges: “Natural person” is the term used to refer to human beings’ legal status. Certain legal rights adhere automatically upon birth, and the designation “natural person” may be taken as shorthand for identifying entities that are entitled to the maximum protection under the law. (Berg 2007: 373)

Careful reading suggests that (1) “natural person” and “human being” are essentially the same, and that (2) such a designation is sufficient to ensure “automatically” full legal rights. Thus the first point that needs to be



from the “original sin” to right of personhood9

emphasized is that the whole long-standing debate that is focused on whether the fetus is a “person” is unnecessary. Berg suggests that the designation is limited “to human beings once they are born” and adds that her “evaluation of legal personhood [starts] from the initial premise that natural persons are entitled to priority” (Berg 2007: 374 and n. 26). But why “personhood”? No doubt in common language, a fetus is not a person, nor is an embryo, nor—to remain within the ambit of the natural—is a late-stage Alzheimer patient, someone in a coma, an infant in the first six months of life, or any severely retarded individual. Ronald Dworkin says: Though scientists disagree about exactly when the life of any animal begins, it seems undeniable that in the ordinary case a fetus is a single living creature by the time it has become implanted in a womb, and that it is human in the sense that it is a member of the animal species Homo sapiens. It is in that sense a human organism whose life has begun. (Dworkin 1992)

Dworkin hastens to add that this does not really change the position advocated in Roe v. Wade (410 US 113, 158, 1972). The question, for Berg, Dworkin, and many others, is one of “choices,” “will,” or “interests,” and Berg elects the latter as the better position (Berg 2007: 370, no. 8; see also Waldron 1984: 9). It seems indisputable that, while not being persons, all the listed categories to which we referred above share an interest that does not require personhood: the interest in being (and staying) alive. That right of the “natural person” (e.g. of human beings) is, as Berg has it, “the initial premise that natural persons are entitled to priority” (Berg 2007: 374 n. 26). However, as Berg, Buelow (1998: 963–993), Dworkin and the others argue, the “natural person’s definitions are the reason why a fetus is not a “natural person,” but a corporation may be considered a person, albeit a juridical one. We need to keep in mind this starting point, as we evaluate the arguments for and against extending that starting point. From here, most US authors argue about the legalities, starting from the Fourteenth Amen­ dment of the US Constitution: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (US Constitution, Amendment XIV, §1; emphasis added)

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But it is a logical mistake to use as a starting point a specific right of US citizens, arising from their Constitution, and apply it to reach universally valid conclusions about the rights of an entity in general. Such specific rights, such as the right to a passport, an education or (for Canada) free medical care, are specific to a country and applicable to its citizens. To be fair, all the authors here surveyed are also US citizens. Yet the problem persists, as those definitions and those conclusions are now forming part of the legal reasoning of the world and the global approach to “women’s rights” in almost all countries. The US Constitution, however, does not even attempt to define the concept of a “person,” and the various courts in several US States take different positions in that regard, particularly when a fetus is killed in utero, or otherwise harmed, and the question is raised regarding whether it should be considered a homicide or a case of manslaughter. A second significant mistake can be found when we consider the decisions of both Santa Clara and the Roe courts; in both cases, the judges came to their respective courts with a decided position, that is, that corporations were “persons” and that the fetus was not. Neither considered seriously either the logical soundness of their position, or the implications that would follow upon those judgments: “While purportedly seeking to resolve the issue ‘free of emotion and predilection,’ the Roe majority appears to have manipulated and misrepresented the facts, suggesting disingenuousness and a pre-determined bias in the matter” (Buelow 1998: 9898 n. 232). In other words, the majority already held its opinion, and no real effort was made to seek a seriously argued philosophical/moral or even practical analysis of the concept of personhood, beyond assuming that the fetus was not subsumed under that concept according to the Fourteenth Amendment of the US Constitution. The result of this partiality (also obvious in the brief passage cited from the Santa Clara decision), however motivated for Roe (Faux 1988), suggests that Justice Blakmun’s time as a resident counsel for the Mayo Clinic led him to ensure that the judgment would free doctors from the criminal penalties that were attached to abortions at the time. It created no less havoc in other branches of law, including criminal, tort, and other aspects of common law. Buelow says: While the central question presented in Roe was whether a woman has a constitutional right to obtain an abortion, the question first necessitated assessing adequately the fetal personhood question. The Court would have been more persuasive in its reasoning if it had analyzed more fully the fetal personhood question (Buelow 1998: 967 n. 35).



from the “original sin” to right of personhood11

Although the main topic of this work is the corporation, it is worthwhile to follow this line of analysis in this introductory chapter, as both cases are joined together by the lack of rigor and gravity with which the respective questions were approached, and by the immense range of negative consequences, in the sense of contrary to the protection of basic human rights, that the two decisions engendered. Fetal Personhood and the Law Before and After Roe The defendant in Cass was charged under the State’s Vehicular homicide statute, which provided that anyone whose negligent or reckless operation of a motor vehicle results in the death of another “person” is guilty of homicide by motor vehicle. Finding that the legislature provided no definition for the meaning of the word “person,” the court ruled that “[a]n offspring of human parents cannot reasonably be considered to be other than a human being, first within, then in the normal course outside, the womb.” (Buelow 1998: 975; Commonwealth v. Cass: 1325–1329).

While the personhood question remains undiscussed regarding abortion, it is a live issue in several branches of common law, primarily criminal law. Cass was one such case. Of course the legislature did not offer a clear definition of “person,” hence chief Justice Henessey noted that “[an] offspring of human parent,” as above, a simple question that no abortion advocate sees fit to answer. Nor is this the only case where there has been a problem with the vagueness of fetal personhood. Many criminal cases have succeeded Cass. California, for instance, has supplied an answer to the vagueness by statute: (1) Whoever engages in conduct that violates any of the provisions of law listed in subsection (b) and thereby causes the death of, or bodily injury (as defined in section 1365) to, a child, who is in utero at the time the conduct takes place, is guilty of a separate offense under this section. (2)(A) Except as otherwise provided in this paragraph, the punishment of the separate offense is the same as the punishment provided under Federal law for that conduct had that injury or death occurred to the unborn child’s mother. (B) An offense under this section does not require proof that (i) the person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was pregnant; or (ii) the defendant intended to cause the death of, or bodily injury to, the unborn child. (C) If the person engaging in the conduct thereby intentionally kills or attempt to kill the unborn child … (Crimes and Criminal Procedure, Chapter 90A, Protection of Unborn Children, §1841, January 7, 2011)

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It is interesting to note that the old “thin skull” rule applies here—that is, that the attacker must take his victims as he finds them, so that ignorance of a specific feature of the person he attacks does not alter the crime or its consequences in law. In addition, California had already decided to extend the protection of fetuses, as in 1994, in People v. Davis, the Supreme Court had decided that “even non-viable fetuses were entitled to the protection of the State’s criminal statutes” (Buelow 1998: 975). In that case a pregnant woman was shot in the chest by a robber. Although she survived the trauma and the blood loss, her fetus was stillborn the following day, and the robber was charged with “the unlawful killing of a human being or fetus” (Buelow 1998: 976). In this case, the Court accepted that, rather than wait for the finding of viability, the latter was not “an element of fetal homicide,” but stated that a fetus should be protected when it had progressed beyond the embryonic stage (Buelow 1998: 976). Similarly, in Arizona “manslaughter statute protects the unborn child at any stage of its development”; in Illinois, the” “unborn child” is so protected as “any individual of the human species from fertilization until birth” (Buelow 1998: 977; Ariz. Rev. Stat. Ann. 813–1103 (A)(5), West Supp. 1998; 720 I11. Comp. Stat. 5/9–3.s). In general, then, we can conclude that, except for the case of abortion law, the concept of personhood “continues to expand” (Buelow 1998: 978), in direct conflict with the presumed position defended (or intended) in the Fourteenth Amendment. Some Further Arguments Regarding the Right to Life of the Preborn in Common Law The case is not the measure of the principle … thus, one by one, important principles become recognized through adjudications which illustrated them, and which constitute authoritative evidence of what law is when other cases shall arise. (Allaire v. St. Luke Hospital et al.; Boggs, J. dissenting)

Although common law draws strictly from civil law in its consideration of the preborn, the arguments provided for the status of the infans conceptus are viewed from a somewhat different perspective. Rather than harking back in time to Ancient Rome, Greece and the traditional values and arguments present in the scholarly work of those times and then tracing their historical development, common law relies primarily on decided cases. Thus its main disadvantage is the lack of requirements to consider seriously legal tradition and, especially, scholarly argument. Its main advantage, however, is the fact that, as Mr. Justice Holmes suggested, “the



from the “original sin” to right of personhood13

life of the law has not been logic: it has been experience” (The Common Law, 1938). As Mr. Justice McGuire put it (Bonbrest et al. v. Kotz et al., 1946; 1946 US Dist. Lexis 2712, p. 2), “The common law is not an arid and sterile thing, and it is anything but static and inert.” Mr. Justice McGuire continues by recognizing the existence of “the process of judicial lawmaking,” as common law is intended to be more than sterile exercise of the consideration of precedents, but that process permits “extracting a rule of law” from that judicial process. In contrast with civil law, common law judges are expected to appraise and compare “social values.” This, I believe, is a significant part of both its weakness and its strength. It is its weakness because then it must rely on the “social values” of a specific state or nation, and it does so no matter what the logical or factual basis of these values, at times. In this respect, then, it skirts very close to unrestrained cultural relativism. Yet if judges are allowed (even encouraged) to reason out the arguments supporting precedent, they might also do so by rejecting positions that do not fit recently discovered scientific facts, for instance, or by embracing positions that better respect extended human rights. This comparative analysis must be performed, according to Mr. Justice McGuire, by “weigh[ing] competing demands of social advantage, not unmindful that continuity and symmetry of the law are themselves such advantages” (1946 US Dist. Lexis 2712, p. 3). Through this exercise the “vitality of the common law system” and its capacity for growth is advanced. The case of Dietrich v. Inhabitants of Northhampton (1884) has been relied upon, and its main position (that is, the “fact” that the unborn child is part of the mother) accepted without question, despite the presence of conflicting decisions and dissents, such as Allaire v. St. Luke Hospital et al., decided after Dietrich, at the turn of the century, where the strong dissent of Boggs, J. introduced another more logical point of view: Medical science and skill and experience have demonstrated that a period of gestation in advance of the period of parturition, the fetus is capable of independent and separate life, and that, though within the body of the mother, it is not merely a part of her body, for her body may die in all its parts and the child remain alive, and capable of maintaining life, when separated from the dead body of its mother. (Allaire v. St. Luke Hospital et al. 1900: 6)

This position and approach is basic to moving forward to a more serious consideration of the rights of the child to health and the environment, our main quest in this work. It is this medical reality that permits Ron Beal to argue that “It would be difficult to set forth an argument that a child does

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not have the right to the fullest extent possible to be born with a sound mind and body” (Beal 1984: 325). Beal’s argument goes to the heart of the matter as it deals with the most intractable of topics: not only the possibility of tortious action for harm to the fetus because of negligent acts or omissions by third parties, but also the possibility of such action being brought against the mother herself. If accepted, this position would effectively reverse the “correct” policy that gives, in most countries, effective life/death power to the mother, in regard to her conceived infant. But scientific research has increasingly been able to demonstrate the connection between early embryonic stage and fetal exposure, and harm to the child: “In fact, the medical profession recognizes the fetus as an individual patient, in addition to its mother, as it relates to prenatal care” (Pritchard and MacDonald 1980). But the US Supreme Court decided that the mother’s right to privacy supersedes the child’s right to life before birth. Yet “[i]t appears then that society may still recognize the right of a child to begin life with a sound mind and body, the right to be well-born” (Ament 1974: 24). The intractable conflict between the US Supreme Court Decision and even the mere possibility of acknowledging the preborn’s rights to health, to be “wellborn,” is not often recognized in any of the treatments of this topic I have come across. Its lack of logic is not addressed, although it is especially obvious when it is possible for a child to sue her mother for “wrongful life” or prebirth negligence. How can a mother who has not exercised her absolute power of life/death over the fetus (a right held by the Roman pater familias in ancient times) be sued subsequently, if, after granting the fetus a “stay of execution,” she does not fully direct her energies and efforts to its well-being? Clearly this conceptual conflict is not a major component of this work’s research, but the US Supreme Court decision in Roe v. Wade (1973), which allowed only some consideration to the fetus at viability, certainly is, as no case or instrument escapes at least one reference to that landmark decision. Thus we can benefit, for instance, from Beal’s arguments without getting fully involved in the specific focus of possible actions for negligence by the born child, against its mother. Acts and omissions by third parties are clearly much easier to handle, if we accept the child’s right to be “well-born,” that is to have health and normal function. One significant aspect of Dietrich must be emphasized. Although the judgment was intended to make clear the fact that the preborn does not have legal personhood, hence that prenatal injuries caused by negligence were not actionable, in that case the infant actually survived



from the “original sin” to right of personhood15

for ten or fifteen minutes “in the sense that the child exhibited motion in its limbs for that period of time” (Roe v. Wade 1973: 327). Hence there was a point when the infant was (a) not “part of his mother’s body” (as Justice Oliver Wendell Holmes maintained); and (b) alive; hence the decision was biologically as well as logically unsound, and its “rejection of the civil law ‘birth for benefit’ approach” (Roe v. Wade 1973: 328), was equally unsound, in this case. Tort law aims to allow a remedy when a wrong has occurred, as Bonbrest clearly indicates (Bonbrest et al. v. Kotz et al. 1946). Criminal law aims at bringing to justice those who commit crimes. Both realms of law are not well served by the Holmes decision, which has been set aside and superseded by later cases, as we shall see. It is unfortunate, however, that the Roe v. Wade decision has not been viewed as equally obsolete in recent times, as I believe it might be that decision, single-handedly, that has blocked the possibility of advances in the recognition of human rights, which was one of the touted advantages available to common law decisions. Arguments about the Possible Introduction of “Human Life Amendments” into Law Following the Roe v. Wade decision, the US Congress received several proposals for “human life statutes” and for “constitutional amendments,” to reserve the decision that held that “the constitutionally protected right to privacy includes the right of women to terminate pregnancies free of state interference until the fetus is viable” (Westfall 1982: 98). This decision prompted no less than “three proposed constitutional amendments and the Helms-Hyde Bill” (The Ashbrook Proposal, 1981; The Garn-Rhodes Proposal, 1981; The Helles-Dorman Proposal, 1981; The Helms-Hyde Human Life Bill, 1981; H. R. 900, 97th Cong. 1st Sess, 1981). The first thing to note is that David Westfall writes on the topic from a pro-abortion perspective, a routinely found position in most writings on this subject. Thus his analysis of the problems that might follow the acceptance of a human life amendment first considers the difficulties, without offering a balanced list of possible advantages that might also result. He does recognize that there are “fundamental ethical and religious views on the value of human life,” as well as considerations about “society’s high regard for individual privacy and autonomy” (Westfall 1982: 97). Yet to characterize the value of human life as “ethical and religious” mistakes the issue. It prompts the questions “whose ethics?” and “whose religion?,” thus

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providing a mistaken analysis of the issue from the start. The human right to life is entrenched in international law instruments, and not open to contrary “evidence” based on religious or culturally bound beliefs. The difference between the question of “ensoulment” of the infans conceptus and her humanity is relevant. The former is clearly a religious question, the latter based on biology and the medical sciences. To attempt to reduce it to a religious question is simply to embrace the neoliberal approach, which gives primacy to preferences, however based, over principles, and thus defensible choices; and that is the true mark of relativism. But the value of all human life is a basic principle of both law and morality. For instance the (human) rights of women are so viewed, and appeals to religious dogma do not excuse depriving women of their human rights, either in domestic or international law. Similarly, support based on a religious stance that does not recognize and respect humanity in the preborn should not be used as a final argument in support of her non-humanity. Many recognize the conflict as one of rights. For instance, the Garn-Rhodes proposal (§2) says: “No unborn person shall be deprived of life by any person. Provided however that nothing in this article shall prohibit a law permitting only those medical procedures required to prevent the death of the mother.” It is worthy of note that this and other proposed amendments use the highly controversial expression “person,” a position on which much has been written in biomedical ethics, specifically on the abortion issue. Instead, the Helms-Dorman proposal reads as follows: “The paramount right to life is vested in each human being from the moment of fertilization without regard to age, health or condition of dependency.” This proposal starts with a biological fact, thus avoiding the controversial issue of what a person is, and precisely when an infant becomes one, a subject treated by Mary-Ann Warren, for instance, in relation to infanticide (Warren 1991: 438–444). The conceptus, however, is undeniably human, not feline, porcine, or representing the embryonic or fetal state of any other animal. That said, the next argument advanced by Westfall is a sound one: it would be extremely difficult, once one of the proposed amendments became law, to ensure that its only effect would limit abortion to conflicts with the right to life of the mother, as other laws would be affected as well, in various realms, from voting to taxation, all of which depend on live birth being the start of life (Westfall 1982: 97). If an “abortion only” application of a “life proposal” would not be possible, there are two other possible interpretations: it might be used to ensure (2) “protection from



from the “original sin” to right of personhood17

bodily injury,” or even ensure (3) “equal protection with other persons” (Westfall 1982: 104). I believe that any attempt to characterize fetuses and embryos as persons is doomed from the start, because it lacks both logical and scientific support. In fact, a “full panoply” of rights, comparable to those adults enjoy, even if available to born infants, is not defensible; instead, for the infans conceptus, civil law’s proposal of accepting “rights as minors” is a lot closer to a defensible position. But the second possibility, if combined with the first, has a much stronger, more defensible appearance than the paradoxical inclusion of “full rights” or “personhood,” positions that can easily be attacked and defeated. In contrast, “It would be possible to weigh the potential detriment to the conceptus from given forms of conduct by the woman, against the potential interference with her privacy and autonomy interests” (Westfall 1982: 104). Aside from the obvious mismatch between the potential limitation of “privacy and autonomy” for a specified time, and, on the side of the conceptus, the elimination of all potential life experiences through the irreversible termination of all life processes (Marquis 1989), another possibility is not even envisaged: that of third parties inducing bodily injury, a common occurrence. In fact a parallel situation exists with another group strongly demanding and powerfully defending its almost unlimited present “rights”: the group of corporate legal persons. As Dr. John Bradshaw says as he laments the lack of reflective interventions in biomedical public policy by the laity: Matters involving their rights, you will have noticed—or so-called rights— are more readily voiced by consumers than those involving duties or agonizing choices … It is indeed my opinion that this self-assertiveness, the harping on limitless rights, the disregard for the rights of other people that characterizes these consumers’ liberation movements constitute one aspect of the moving spirit, the Weltanschauung of our time. (Bradshaw 1982: 85–86)

Bradshaw contrasts the consumerist approach with the reflective soulsearching needed to understand these issues. He also argues that what happened in America and Britain in abortion law did so “in clear contravention variously of the expressed intention of the legislators, the judges and the doctors” (Bradshaw 1982: 86). The evidence of events contrary to the public interest in those countries is also surprising: “Washington, DC now has more abortions than live births” (Bradshaw 1982: 89). With widely available contraceptives, in the late 1970s the number of sexually active girls aged 15 and under doubled; in England and Wales, abortions in 15-year-olds have tripled; and freely

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available contraception (the “pill,” as he has it) “now kills more women than did all forms of abortion in the 1960s” (Bradshaw 1982: 89). Thus, simply citing “privacy and autonomy” as unequivocally superior “goods,” capable of superseding all other choices, is incorrect even if the only referents are the women involved. Figures regarding the result of sexual activities with multiple partners, regarding sexually transmitted disease and cancer of the womb, bear out this analysis, thus any “balancing” should include other effects of abortion on demand (based on the fetus’s status, that is, on no legal personality), as it now exists in most common law countries. In addition, infans conceptus can also be seen as a member of a politically helpless and highly vulnerable minority, a minority that has endured a history of discrimination matched by few other groups (United States v. Carolene Prod. Co. 1938). But the recognition of the preborn as a minority, suffering from unparalleled discrimination, as they are, legally, “as a class, unlike any other human beings … made subject to death at the convenience of others” (Westfall 1982: 106), is not yet acknowledged. Personhood and its Problems [W]hile a fetus is still not a person under abortion law, the actual legal status of a fetus is confused by the fact that under other areas of the law fetuses are granted protection consistent with personhood. (Buelow 1998: 971)

That protection is especially evident in criminal law. The uncertainty and confusion are, at least in part, inherited from previous times. In English common law, the “born alive” rule was debated by scholars, but today, a position based upon the inability of doctors to be sure whether an injured fetus in the womb was or was not alive is totally anachronistic, when now it is easy to ascertain the condition of the fetus at any time during its development (Buelow 1998: 972). In fact, the old rule was rejected in recent US jurisprudence. Civil law also contributes the confusion, and to the double standard prevailing for the preborn. In old Roman law (which was then allowed by civil law in most European countries), the preborn or the conceived infant (infans conceptus) possessed well-established rights from the beginning: “Infans conceptus pro iam nato habetur quoties de commodis eius agitur” (“the infant simply as conceived is taken to be born each time the situation concerns its own interests”). This position was held throughout antiquity and beyond, and it was generally accepted in law, without a specific reference to a legal text. For



from the “original sin” to right of personhood19

instance Plutarch relates an example of the rule’s application in Lycurgus. He recounts that when Polydectus died everyone thought that Lycurgus would become king. But the queen, Polydectus’s wife, was pregnant at the time, and the infant to be born was declared the rightful heir to the crown, relegating Lycurgus (his uncle) to the role of administrator on behalf of the infant to be. Another application of his rule can be found in the possibility of inheriting not only a title, but the social position of the father. Ulpian refers to the position of senator, but also to that of a freed slave, both of which are said to accrue to the preborn for his future life, even if the pater familias no longer exists: once again this use of the rule would be in the child’s interest (Massager 1996: 21). That said, Natalie Massager (1996) argues that the time has come to extend the rule, because the progress of biology and of medical sciences demands it, beyond the presence of purely social and inheritance related advantages. The necessity to intervene in utero, whether or not the parents consent to such intervention (as happens for instance in the case of Jehovah’s Witness parents who refuse intervention for their unborn child who needs a transfusion to save his life) fully supports Massager’s argument and that of other scholars (Meyer 1987: 578). Although some authors only use the maxim infans conceptus in anticipation of a live birth, rather than in general recognition of a present juridical status, some acknowledge a status capable of generating immediate obligations (Mémentau 1983: 332). Speaking of lex ferenda, Massager suggests that the present uses of the rule conditionally and in anticipatory fashion only, is not rational, and would prefer to see instead a uniform juridical regime, able to recognize a non-conditional form of personhood to the conceived infant instead, albeit admitting the possibility of waivers in certain cases: De lege ferenda, nous estimons qu’il serait plus rationnel de substituer au mécanisme de la fiction juridique infans conceptus, qui constitue désormais en realité, une anticipation assortie d’une condition résoltoire, un régime juridique uniforme, qui reconnait à l’enfant conçu une personnalité non conditionelle, sauf dérogations apportées par des textes particuliers. (Massager 1996: 33)

After all, one must keep in mind that the consideration of the preborn as “born” only applies when it is in her interest, so that, for instance, economic advantages may be attribute to the preborn, not debts (Labbée 1984: 401–404). The right to inherit is indeed present in common law countries as well, and, in the US, it is possible for a child or young adult to sue either parents

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or obstetrician for either “wrongful life,” if the child is born with severe, irreversible damage, or for damages as compensation for an injury that occurred prebirth, but produced ill effects later (Murray 1996: 464–472). Thus it is possible to acknowledge harms received by the preborn, even view them as criminal in some cases. Even this brief survey of cases and legal positions confirms that it is indeed nonsensical … to conclude that any individual including an unborn fetus is a “person” in some situation, but that the same individual at the same point of time and development, is not a person in other situations. The problem, however, is that current abortion law, as handed down by the United States Supreme Court, forces states to adopt this nonsensical and inconsistent position. (Buelow 1998: 986)

It is equally inconceivable that, whatever its status, the rights of the fetus depend solely on the wishes of the pregnant woman. I hesitate to call her its “mother” as her role is most often that of denier of the entity’s rights, in collusion with its eventual executioner. Can the reality of the actual status of the preborn in law be reconciled with abortion rights, despite the attempts of the Roe Court to mitigate somewhat its stark decision by including a nuanced consideration of fetal development, according to her time in the womb? A further consideration may be that not only in Roe, but also in Planned Parenthood v. Casey (1992), the Court’s decisions were far from unanimous (Buelow 1998: 993). Buelow argues that the Fourteenth Amendment should not state outright that “the fetus is not a person”; rather, it should simply argue that “there is insufficient evidence to prove a fetus is a person under the Fourteenth Amendment” (Buelow 1998: 994). This change might satisfy legal scholarship regarding some of the procedural conflicts in US law, but would do little to bring Roe’s position in line with logic, common sense, and the defense of basic human rights. We have noted that whenever personhood is brought into question, the final answer or the basis for a counter-argument lies in deciding that it is—after all—a human being, whether fully developed and capable of some independent life or not. This remains the basic position from which the primacy and most defensible rights may be viewed. The solution Buelow proposes represents only a further entrenching of the inconsistencies and imprecisions of the Fourteenth Amendment and—in general— of US laws based on Roe, and now permeating the whole approach to human rights and abortion in the world.



from the “original sin” to right of personhood21

How can “we’re not sure what a person is in our legal regime” correspond to a reasonable solution? Buelow is correct when he terms even that answer “technical.” But if a “person,” once the concept is scrutinized in order to reach important legal decisions, is nothing other than a “human” (as most have thought all along), and if that is the essential meaning of “person” when in doubt, how can that understanding simply be applied without further ado to corporations? The simple acceptance of the “fact” that corporations are “persons” (or actually “human beings”?) with an increasing range of rights and powers, as we shall see in the following chapters, is not a satisfactory answer. Further, this reality is particularly galling when we consider that ongoing attacks on the preborn are a part and aspect of the exercise of those right against the most vulnerable human beings in existence, as we shall see in the next chapter (Westra 2006; Clements 2012). Personhood as “Categorization” not “Recognition”: the Source of Corporate Power Since juridical persons are not natural persons, the law does not give them equal rights or protections. They are creatures of the state and as such, limited to whatever rights the state chooses to give or not give them. (Vines Crist 2010: 864)

What has emerged clearly in our brief review of the legal literature thus far is: 1. because juridical personhood is often applied by courts without framework or rationale, it is difficult to determine the rules and reasons for conferring juridical personhood; 2. in other cases the law grants personhood because of the interests natural persons have in the entity; so that ultimately 3. one of the earliest rationales for granting juridical personhood was the need to protect shareholders, as the owners of the company (Vines Crist 2010: 864; Pembina Consol Silver Mining and Milling Co. v. Penn­ sylvania 1888; Santa Clara County v. Southern Pacific Railroad Company 1886; County of San Mateo v. Southern Pacific Railroad Company 1882). Therefore “personhood” does not apply to an entity’s essential or inherent properties that might warrant granting it a specific status and protection. In contrast, “personhood” means “what the law wants it to mean”

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(Vines Crist 2010: 865; Dewey 1926: 655). William Blackstone originally noted that “artificial [persons] are such as created and devised by human laws for the purposes of society” (Blackstone 1809: 119, emphasis added). But, pace Vines Crist, this explanation does not simply repeat or clarify the previous one, as the earlier decisions about corporate personhood were based on the wish to protect the rights of the investors. In contrast, Blackstone’s explanation is much more defensible, as it proposes the goals (hence the interests) of society as a whole as the main reason why the law should confer the protection of “personhood” upon the corporation. Thus any analysis of the corporation and its activities needs to keep that definition in mind. The corporation is only a tool, created by the law in order to fulfill specific society goals and requirements: unlike the fetus and any other natural person, it does not possess any “metaphysical characteristics” (Vines Crist 2010: 866). Therefore, when we consider corporation rights, the first question to ask is whether the corporation in general, or any specific corporation in particular, is indeed such that it “fulfills societal goals.” Its “personhood” and its rights depend upon whether that question can be answered in the affirmative. It would seem obvious, then, that if the corporation fails to fulfill its goal to benefit society, its privileges should be withheld, and, perhaps, its actual “life” should be terminated. Keeping in mind that fetal life is regularly terminated without due process, or even discussion, if and when the interests of one person, the pregnant woman, may conflict with its basic interest in its own survival, it should be easy to reach this conclusion when the interests of many natural persons may be affected by those of a corporation. However this is not the case. The corporation has any number of rights: the right to property; to due process (denied to the fetus); equal protection (another right denied to the fetus, as most abortions happen to terminate females); and, from 2010, after the case of Citizens United v. Federal Elections Commission, although technically the corporation cannot vote, in practice there is no limit to the contributions a corporation can make to a political campaign, resulting in its domination of the outcome of the elections in the US (Clements 2012: 8). Thus even their “right” to “free speech” (US Constitution, First Amendment) was upheld to permit them to participate in “electioneering activities,” in direct conflict with the “longstanding prohibition on corporate political contributions to candidates,” dating from 1907 (Clements 2012: 9; Kerr 2008; Citizens United v. Federal Elections Commission). At any rate, Vines Crist’s statement that “the corporation



from the “original sin” to right of personhood23

cannot vote” (Vines Crist 2010: 866) is no longer true, as its ability to significantly impact the outcome of an election, far exceeds the democratic mantra “one person one vote.” Nor is the personhood of the corporation only a problem in contrast with the status of the fetus. John Flynn, in contrast, argues that the lack of study and research into the meaning of the concept itself indicates there has been a “misuse of the concept of person in Santa Clara”: There can be little doubt from a jurisprudential view that the Court’s method for recognizing corporate personhood in Santa Clara constituted a serious misuse of concepts for legal purposes. Indeed, it is difficult to characterize the court’s methodology as a form of legal analysis. It resembles a dictatorial edict issued without reason, explanation or argument. The Court’s conclusion sounds like an article of faith, the roots of which were not explained and the consequences of which were not explored. (Flynn 1987: 133)

Flynn’s argument is based on the fact that to shift power from individuals to a collective such as the corporations is a very serious step. The judges charged with taking that step has a very serious responsibility, and they should have considered the “long term consequences” of their decision, “in order to determine the moral question of what to be done in a particular case or circumstance” (Flynn 1987: 134). He adds that “every legal question is unavoidably an ethical one: a question of what is to be done in specific circumstances in the light of moral values found relevant and all the consequences of the decision” (Flynn 1987: 134). The very idea of fixing the meaning of a concept in all circumstances and for all time demonstrates a mechanical implementation consonant with the interests and beliefs the Court intended to uphold, and the Court’s failure to explain the major premise of its argument manifested a “significant lapse of judicial responsibility to reveal its reasoning process” (Flynn 1987: 136). In so doing the Court used the US Constitution’s Fourteenth Amendment, originally intended to protect the rights of “newly made citizens of the African race,” for a leap to the conclusion that “corporations were persons of the class of persons uniformly protected” (Flynn 1987: 138). The basis for the leap was “the scope of the property rights of a collective,” which was intended to be grounded in the moral question of what public purpose was—in fact—served by that collective, a question that, as we shall see, has not often been asked. In fact the Fourteenth Amendment was discussed precisely in the context of racial discrimination. Justice Douglas noted that to allow a corporation (say a restaurant) to make decisions regarding human rights because of its “personhood” would lead to decisions with grave consequences:

24

chapter one Affirmance finds in the Constitution a corporate right to refuse service to anyone “it” chooses and then get the State to put people in jail who defy “its” will. More precisely, affirmance would make corporate management the arbiter of one of the deepest conflicts of our society: corporate management could then enlist the aid of state police, state prosecutors, and state courts to force apartheid on the community they served, if apartheid, best suited the corporate need; or if its profits would be better served by lowering the barriers of segregation, it could do so. (Robert Mack Bell et al., Petitioners v. State of Maryland; Flynn 1987: 144–146)

This early case simply anticipates the growing and ongoing disjoint between the rights of the “corporate persons” and moral questions regarding the conflict between human rights and corporate interests. We will discuss several aspects of that problem in the next chapters. But the failure of the Santa Clara court to understand the gravity of that superficial decision will continue to demonstrate that only when the law that legitimizes the corporation’s personhood has been reformed can any improvement in human rights be implemented. In the following chapters we will consider whether the purpose for conferring rights upon the corporation is resulting in the fulfillment of social interests, as we discuss the actual effects of corporate powers. Chapter 2 will discuss the many ways that corporate power impacts on natural persons’ right to life, right to health, and other basic human rights. Chapter 3 will discuss the interplay between corporate power and domestic constitutions, in order to isolate its political role. Chapter 4 will take a radical stance, based upon the findings of Chapter 2, as it proposes several aspects of corporate activity that can be defined as criminal, including some cases where the courts themselves have reached that conclusion in specific cases. Chapter 5 will argue that even beyond its role in the political situation of nations, the corporation acts through the most powerful nations in Europe (and even beyond them) as it imposes its will and the pursuit of its interests supranationally, with the full cooperation of both domestic and international legal regimes, as we conclude in Chapter 6.

CHAPTER TWO

THE CORPORATION: CONTROLLING PUBLIC HEALTH AND OTHER BASIC RIGHTS Individuals and the Corporation Most states have adjusted domestic laws to make them more attractive to corporations, handed out tracts of land to de facto control by corporations, or simply turned a blind eye to violations of domestic law … For the corpora­ tions, the relationship with the citizenry became a matter of getting the best terms out of the employment contract. The citizenry’s human rights were the government’s responsibility, not theirs. In short, the race to the bottom was on. (Ratner 2001: 460)

This work is intended to explore precisely that relationship; that is, the one between the corporation and individuals, as well as that with states. Corporate nature and rights will be examined. Why is the corpora­ tion a “person,” and what are the resulting implications? The answer is simple: it is not a matter of its essence or its nature, as such; it is simply the effect of the original court’s decision. That decision was reached in order to allow them (1) to benefit society, and (2) to protect the natural persons (investors) who depended on the corporation for the safety of their investments. In fact, even denying the personhood of the fetus (see Chapter 1) was decided in order not to allow the developing fetal life to interfere with the projects of one other natural person—the pregnant woman. We need to return to that rationale, and keep it in mind for both cases, as the reasons for granting or denying personhood are equally not based on principles or argument. Both reasons are based on expediency, and the supreme Court’s rationale is far more defensible regarding the corporation than it is in the case of the fetus. For the latter, one person’s interests regarding her lifestyle or career and other choices supersede the other (albeit devel­ oping) person’s right to life, and to the interests and career choices that may develop. As far as the corporation is concerned, the interests of society as a whole sounds like an acceptable rationale for the granting of personhood, as long as some limits to its operational rights are preserved. But in that case, the obvious question is this: what happens when such interests are

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not served by corporate activities? Is the corporation allowed to continue its chosen activities, when these only benefit its owners, founders, and perhaps some investors? And who is responsible to judge the corporate performance from the standpoint of its original raison d’être, that is the general benefits to society as a whole, necessary in order to confer its justification as well as its existence? At any rate, a corporation interacts with both internal and external stakeholders. The former include its investors and shareholders, but also its employees and contractors. The latter include everyone, globally, who buys its products and services, as well as all who might be physically affected by its operations, especially in the case of manufacturing and extractive industries. Different moral theories offer disparate accounts about what is owed to all persons, from Kant’s categorical imperative, which demands equal respect for the dignity and the will of all, to those who prefer a differentiated approach to moral duties, prescribing different levels of partiality towards “family, community, association” on one hand, and humanity in general, on the other. Ratner (2001: 507) cites a number of philosophers, from Julia Annas to Brian Barry and Alan Gewirth. Although they are “persons,” corporations have no family or community ties (in the affective sense), hence the more diffuse position of impartial­ ity and equal respect for the dignity of all humans and their projects should be required moral corporate stance. That is indeed the position advocated and clearly stated by legal instruments such as the UN Dec­ laration of Human Rights, among others, and which, in general, appears to be the basic position expected. Ratner proposes instead viewing the ties as falling within concentric circles emanating from the enterprise, with spheres enlarging from employees to their families, to the citizens of a given locality otherwise affected by their operation (admittedly a broad and amorphous category) and eventually to an entire country. (Ratner 2001: 508)

But whether we consider a national corporation or a multinational corpo­ ration (MNC), pace Ratner, (1) we cannot equate family loyalty and affec­ tive commitment with the economic interest-based loyalty that obtains among the working employees within a corporation, nor do the “fami­ lies”  of employees play a part in a corporation’s moral considerations; (2) neither the community within which they operate, nor the area, or region where they are located, form a part of the moral considerations (if any at all) of a corporate body: at best the corporation will comply with the minimum requirements of environmental and occupations health regulations; and, finally, (3) all industrial enterprises (but MNCs



controlling public health and other basic rights27

especially) have effects that extend far beyond their specific area of opera­ tion, either singly or collectively, and climate change is an example of the far-flung, grave imposition of harms that results from corporate activities and their products. In fact, Ratner also adds that the “proximity of the corporation to cer­ tain individuals” ought to lessen its obligations to avoid discrimination as required by the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) and the International Convention on Civil and Political Rights (ICCPR) in its hiring practices (General Comment No. 118, para. 12, in Report of the Human Rights Committee, UN GAOR, 45th Session, Supp. no.40, vol. 1, Annex VI at 173, 175, UN Doc. A/44/40, 1990, prohibiting “discrimination in law and in fact in any field regulated and protected by public authorities”). Thus Ratner’s reference to the corporation’s “spheres of influence” anal­ yses the corporation’s possible duty to distribute its products globally in a non-discriminatory way. But the corporate responsibilities extend much further than that. Ratner argues that “institutions owe greater duties to those with whom they have special associative ties than to others beyond that sphere” (Ratner 2001: 508). The basic error here is that “institutions” may indeed have special obligations: hospitals must give priority to the interests and needs of their patients, and schools to those of their stu­ dents. But a corporation is not an “institution” intended and organized primarily to perform a service to the public, despite its original mandate. A corporation is a self-interested entity, whose possible benefits to society or even to its own personnel are often—to say the least— questionable. In fact the results of the corporate activities may or may not be desir­ able. For their employees, the presence of work and its remuneration are clearly a desirable aspect of corporate operations. The question is whether the effects of the corporate operations are beneficial in a general way and to a general public. Perhaps one or another corporation may be viewed as a benign “institution,” but this conclusion cannot be reached a priori for any and all corporate aims and activities. Many of these activities produce things that are hazardous from cradle to grave, during manufac­ ture (or extraction), distribution, use, and disposal. This reality is the main problem we encounter when we examine the corporation’s “spheres of influence”: through globalized trade all those who use the corporation’s services or purchase its products are affected, and millions who do neither, are affected as well through climate change originating from the overuse of energy and other ongoing and

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legal corporate practices. Racial discrimination may or may not be present at the distribution side of its operations; Philip Morris and other tobacco producers may and should be charged with discriminatory intent as they feel free to sell their products to developing countries. Those products are severely restricted in Europe and North America, and they have been found to be hazardous to human health, so that taking advantage of less well-informed citizenry in other poorer countries, despite full awareness of the dire results of the use of their products, should render corporations liable to criminal prosecution. Tobacco sales represent only one of the most obvious examples of the corporate stranglehold on public health in numerous ways. This is just one lucrative but harmful trade. Many others are similar, such as the continuing export of asbestos from countries where it is banned (such as Canada) to where it is not (that is, developing countries; Soskolne and Ruff 2012); the widespread push to sell genetically modified (GM) products everywhere; the similar effort to introduce and keep hormone-laced beef products to Europe and other countries who are aware of the multiple dangers this acceptance would introduce (and this with the support of the World Trade Organization); and many other similar situations. The corporate/trade’s ongoing attacks to public health take many forms, ranging from unsafe products (this is the aspect reaching the widest col­ lectivity) to the actual manufacture or extractive practices and the general corporate control over political issues (including the provision of pharma­ ceutical products and the presence of health care), as well as the presence of a strong corporate lobby in the US, Canada and elsewhere, aimed at minimizing regulatory restrictions to their operations, regardless of the possible danger to health. Hence these collective harms on the grand scale have, for the most part, replaced the Marxian “exploitation” of inside stakeholders—that is, of the workers within the corporations—as the main dangers of what is left now of the older forms of capitalism. Those forms of exploitation have now been replaced with outsourcing to areas where workers’ protec­ tion is seldom present and, often, where the working conditions rival the horrors Marx saw in early capitalism (Westra, R. 2012) We will return to this issue. In the next sections, I will address most of these issues, in no particular order, as they are all equally grave for those affected. I will then turn to the lack of legal regimes able to restrain and redirect the many hazardous corporate activities.



controlling public health and other basic rights29 Corporate Activities and their “Toxic Trespass” The right to health is a legal instrument—a crucial and collective tool for the health sector to provide the best care for patients, and to hold national governments and the international community to account. (Lancet 2008)

Despite the existence of that “right,” at least in theory, gross attacks on the life and health of human beings persist even in modern, Western, democratic countries, and Canada is a prime example of that problem. Before proceeding with examples, it is important to note that the above passage (unwittingly perhaps) hides the main cause of ill health: not the lack of healthcare after one becomes ill, but the presence of toxic exposures that make one ill. These are for the most part perfectly legal and ongoing in developed countries, and even more unrestrained in devel­ oping ones, under the heading of “development.” Toxic Trespass was the name of a 2007 short film, the doctoral thesis in social studies, of Dorothy Goldin-Rosenberg of Toronto. Technically, this is not a case, as it never appeared before a court of law. The problem is the presence of numerous cases of asthma, childhood cancers, and other diseases, often present in several children in the same family. This phenomenon was noted by grassroots groups in the city of Windsor, Ontario, and a similar picture emerged from Sarnia, Ontario, in the heart of the “chemical valley” between Ontario and Detroit, Michigan. For Windsor, the city lies at the end of the Ambassador Bridge, which con­ nects it with Detroit: an exponential increase in the abundance of truck traffic to and from Detroit entails an ongoing and ever-increasing expo­ sure to all the pollutants such traffic produces. Various Windsor groups and citizens’ associations joined together to research and compare notes, involving various Toronto hospitals and health facilities in the US, and even testing children in the area for the presence of toxic substances in their blood. Some of the background of the history of carcinogenic exposures can be found in Devra Davis’s landmark work (Davis 2007). A segment of Toxic Trespass has Dr. Davis discussing the issue in person. A similar situation was and is present in Sarnia. In the same area, the Aamjinwaang First Nation suffers even worse attacks to their health and normal functioning as the effluents and particulates from the operation of multiple chemical/industrial compounds operate in the area. The effects of both the high intensity traffic in Windsor, and of several industrial

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operations, each one of which may, most of the time, operate at the limit prescribed by law, but whose combined and cumulative effects have never been tested until Health Canada eventually did so. Health Canada finally acknowledged the direct relation between the burden of pollutants in the area and a number of grave issues, beyond childhood asthma and cancers. In the area inhabited by that First Nation, many couples had children with cognitive and other abnormalities. Stillbirths and spontaneous abortions were common, and—most omi­ nous of all—the birth rate of male children has been in steady decline, in comparison with the birth rate of females. That is the typical result of exposure to endocrine disruptors and pesticides. In November 2006, Philippe Grandjean and Philip Landrigan pub­ lished their landmark research in which they listed hundreds of com­ monly used untested chemicals, produced by various corporations after WWII (Grandjean and Landrigan 2006: 36; Tamburlini 2002; Licari et al. 2005). Children are the first and most obvious “canaries in the mine,” because of their smaller size, which magnifies their exposure, and because of their specific biology and forms of development. But various chemical exposures have now been found to promote not only the main diseases mentioned thus far, but also both Parkinson’s and Alzheimer’s, diseases of later onset. Nor are all pesticides and other such chemicals the only culprits in diseases of later life: aluminum, a metal with which we are constantly in contact in daily life, has been found at the core of each of the plaques that indicate the increasing loss of nervous tissue (discovered in post-mortem examination), typical of the brain of those suffering from Alzheimer’s disease (McDougall 2012). Pulp and Paper Mills and Mercury Poisoning: The Canadian Case of Grassy Narrows and White Dog [T]he settlement and the events leading up to it provide a striking example of the fragility of Canadians’ environmental rights in the face of environ­ mental wrongs. Access to justice has been difficult to achieve for victims of environmental catastrophes. The substantive, procedural and evidentiary rules in private environmental actions appear biased in favour of the polluter. (West, L. 1987: 132)

The first point to note is that even a “mediated settlement” is, at best, a fought and won measure based on laws intended to prevent the



controlling public health and other basic rights31

occurrence of multiple harms. The case involves methyl mercury pollu­ tion, contaminating the “English-Wabigoon River system downstream from Dryden, Ontario: “Two pulp and paper plants in the area, the Dryden Paper Company Ltd and Dryden Chemicals Ltd, both subsidiaries of Reed Paper Ltd, of England, used mercury cells in sodium chloride elec­ trolysis to produce caustic soda and chlorine” (West, L. 1987: 133; Charlebois 1977: 17–20). The harm from mercury pollution is not a new discovery, as alternative technologies had been discovered already in the nineteenth century (Charlebois 1977); also, scientific evidence about the toxic effects of methyl mercury poisoning has been available since the early 1960s (West, L. 1987: 133). In fact, the Ontario government had sent a team to the Japanese courts (Toyama Itai-tai Case 1971; Niigata Minimata Case 1971; Yokkaichi Asthma Case 1972; Kumamoto Minimata Disease Case 1973; Gresser et al. 1981). In this case, similar effects were observed in the Ojibway communities, as the ravages of mercury pollution affect all aspects of the health and the life of the inhabitants. West lists some of the grave problems they encountered: “in the years immediately preceding and following the pollution, the unemployment rate quadrupled from twenty percent to eighty percent … Statistics indicated increases in violence, alcoholrelated deaths caused by pneumonia, exposure, and suicide” (West, L. 1987: 135). What emerged was “the link between mercury poisoning and the increase in deviant and violent behaviour” (West, L. 1987: 135; Troyer 1977: 5; Charlebois 1977: 24). In addition, scientist Michael Gilbertson, recently retired from the International Joint Commission, submitted a Ph.D. thesis on December 31, 2006, on the topic of “Injury to Health: A Forensic Audit of the Great Lakes Water Quality Agreement (1972–2005), with Special Reference to Congenital Minimata Disease.” The scientific evidence has been available for years, yet in 1985 when the federal Department of Indian affairs contacted Mr. Justice Emmett Hall (former Supreme Court of Canada Justice), who visited Grassy Narrows and studied a “211-page legal brief prepared for the Indian Bands by Robert Sharpe, a University of Toronto professor and expert in such litigation” (West, L. 1987: 136), what emerged persuaded him not to recom­ mend going to trial. He believed that the results of the complex and time-consuming litigation would be uncertain, and hence that the best interests of the Ojibways would be served by “a negotiated settlement outside the court system” (West, L. 1987: 136).

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chapter two Central and South American Cases: Attacks on Health through Mining and Extractive Industries [W]here the enterprise effectively manages a particular piece of territory, as in the case of mineral or timber concession, it would have a certain presum­ ably larger set of duties to those living within the territory, distinct from those to persons living outside it. The enterprise operates as a quasi-state whose special obligations to those under its control are accepted in both moral philosophy and international law doctrine. (Ratner 2001: 509; see also n. 272 on the same page)

The Indigenous peoples in South America are not better protected by either their own courts (despite the excellent constitutions many such countries have recently enacted) or by the US court system under the Alien Tort Claims Act (ATCA), available to non-citizens who have been harmed in other countries by MNCs with offices in the US Extractive industries have a long history of imposing environmental and health harms with impunity: “Citizens of Peru and Ecuador brought class action suits alleging that defendant oil company polluted rain forests and rivers in their countries, causing environmental damage and personal injury” (Aguinda and others including the Federation of the Yagua People of the Lower Amazon and Lower Napo v. Texaco, Inc. 2002). This case is typical of this kind of jurisprudence and it has a long previ­ ous history that led to this unsuccessful appeal. Texaco’s oil operation in Ecuador initiated in 1964, when Texaco Petroleum Company (TexPet), began oil explorations and drilling in the Oriente region of eastern Ecuador (Aguinda v. Texaco, Inc. 1996; Aquinda v. Texaco, Inc. 2001; Jota v. Texaco, Inc. 1998). A petroleum concession was initiated in 1965 for a “consortium” whereby TexPet was part owner with Gulf Oil Corporation and, in 1974, the republic of Ecuador (PetroEcuador) joined in with a 25 percent ownership. Eventually Gulf oil relinquished its shares to TexPet and the latter operated a trans-Ecuadorian oil pipeline and continued to operate the Consortium’s drilling activities until 1992. At that time PetroEcuador took over that aspect of the operation and finally, in 1999, TexPet left the Consortium entirely in PetroEcuador’s hands. The plaintiffs brought a suit against Texaco in 1993, as the latter’s activi­ ties had “polluted the rain forests and rivers” in both Ecuador and Peru, and those polluting and harmful activities were “designed, controlled, conceived and directed … through its operation in the United States.” The indigenous peoples sought to recover damages, citing “negligence, public and private nuisance, strict liability, medical monitoring, trespass, civil conspiracy and violations of the Alien Tort Claims Act, 28 USC § 1350”.



controlling public health and other basic rights33

These requests were appropriate redress for contaminated water and environment, for the restoration of hunting and fishing grounds, for both medical and environmental monitoring, and the establishment of stan­ dards for future Texaco operations, as well as “an injunction restraining Texaco from entering into activities that risk environmental or human injuries.” These details are vital to a full understanding of the specifics of the case, as well as an appreciation of these proceeding in general. Note that the substantive claims, based on indisputable scientific evidence, and the extensive research that supports this sort of claim (in relation to extractive industries’ operations), can be found in the work of the World Health Organization (WHO) and in that of many epidemiologists, public health, and cancer specialists (Soskolne and Bertollini 1999; Tamburlini et al. 2002; Licari et al. 2005; Epstein 1978; Westra 2006). But the US Court’s responses are, once again, typical of the courts’ analyses in this sort of claims: they do not answer any of the claims made with counter-claims, and they do not even attempt to dispute the factual issues as set out by the Plaintiffs. But the logic of their responses is flawed. Forum non conveniens, for instance, is based on the “fact” that too many witnesses should be brought in to testify, speaking various languages and dialects. But the injuries and diseases the plaintiffs name are well-known consequences of chemical and toxic exposure, not some obscure symptom that needs to be personally verified by someone who “saw” the development of the disease (an almost impossible feat for illnesses such as cancer). Not only are certain diseases well docu­ mented as following upon certain exposures, but their treatment is equally well known, and no member of an indigenous community can be better informed about both illness and treatment than the information available from scientists and practitioners at local universities and hospitals, or the WHO itself. In fact the corporation could not say that their operation did not and could not result in the harmful consequences the claimants outlined. When the extractive operations are pursued in the usual way, one can and should expect the resulting harm, both ecological and biological. As Ratner states, the corporation operates as a “quasi-state”—an amaz­ ing admission, especially when one adds to that power the fact that because of its own self-interested aims, and because of its connection with the most powerful organizations in existence, such as the World Trade Organization (WTO), corporations are essentially more powerful than most states within which they operate. Ratner adds:

34

chapter two For instance, if the activities of the corporation poisoned the only supply of drinking water of an adjacent area, then the human right to the “highest attainable standard of physical and mental health” would appear to place some duties on the corporation to prevent or respond to such damage. (Ratner 2001: 509; ICESCR Art. 2(1), 993 UNTS)

The language of General Comment no. 3 in the report of the Committee on Economic, Social and Cultural Rights (1991) is particularly telling, ask­ ing states to use their resources to maximize human rights protection, when one considers that most developing countries where mining and extractive activities take place possess far less wealth than the corporate “plunderers” (Mattei and Nader 2008) that despoil them. An especially apt description of the protracted, lengthy, and legally and morally unsatisfactory conduct of domestic and international courts regarding MNCs can be found in Sarah Joseph’s recent article on “lawfare” (Joseph 2012: 70–91). That protracted form of warfare against the Indi­ genous populations needs to be understood against the background of Ecuador’s own constitution, an exceptional document insisting on abso­ lute respect for both the environment and the communities that live close to the land there (Westra 2011b). The case started in Ecuador (Aguinda v. Chevron Texaco), where argu­ ments were presented about the responsibility of Chevron/Texaco for the actions of their derivative, TexPet. At that court, Judge Zambrano, who delivered the final verdict on February 14, 2011, awarding the plaintiffs US$9.4 billion damages, argued that Such subsidiaries, as was the case with Texpet … may have insufficient capi­ tal to recompense victims, particularly if the alleged damage is a significant as that alleged in Ecuador or, as another example, in India with the Union Carbide industrial accident in 1984. (Joseph 2012: 75; see also Baxi 2010: 23–44)

Nor was this an unusual case involving an MNC and the developing country where their operations were located. Some other examples are the cases of Hindustan Coca-Cola Beverages (Perumatty Grama, Panchayat v. State of Kerala; Hindustan Coca-Cola Beverages v. Penumatty), accused of activities that resulted in environmental harm and of depriving the community of drinking water. The company was a subsidiary of Coca-Cola, and their license to operate was revoked. The case is in the High Court at this time, and their license might be reinstated (Joseph 2012: 74 n. 31). Returning once again to Ecuador, another case that has still received no resolution is that of Aguasanta Arias et al. v. DynCorp (2001). In that case,



controlling public health and other basic rights35

although the hazardous activities were decided and organized in the US, the targets of the case were Monsanto Corporation and its products, but primarily the corporation performing a “service” for the US and Monsanto itself, that is DynCorp. DynCorp’s own target was the coca plantation in Colombia, but the eventual victims were, for the most part, the Indigenous peoples of Ecuador, and of Colombia, despite the fact that both countries had excep­ tional constitutions designed for the protection of both environment and Indigenous peoples. Relying partly on Vitoria’s naturalist theory of international law, Brazil recognized the right to primordial occupation of land. While, under the pre-1988 Constitution, lands occupied by “forest dwelling aborigines” were part of the “patrimony of the Union,” i.e. property of the federal government, those lands were inalienable, and it was prescribed that the Indians “shall have permanent possession of them, and their right to exclusive usufruct of the natural resources and of the useful things therein existing [was] recognized.” (Wiessner 1999; Constitution of the Federal Republic of Brazil, Art. 8, XVII, Art. 4(4), and Art. 198, as cited by Pallemaerts 1986: 374)

Although the passage above refers to Brazil rather than Colombia or Ecuador, the status in relation to the governments of their respective countries is similar, although Colombia, for instance, has the additional problem that Wiessner terms the “fog war of narcoterrorism” (Wiessner 1999: 81). Still, Colombia’s constitution has a new “unit of protection for human rights (accion de tutela)” (Wiessner 1999: 81), as well as the consti­ tutional recognition of their collective property rights; the official protec­ tion of native languages and dialects, a guaranteed share in oil and mining royalties, and respect for their cultural identity through the national education system (Wiessner 1999: 81). Yet despite their protected position within the country, the US and the Colombian governments established a contract to combat the illegal drug trade in the area: “the agreement, labeled Plan Colombia, involved the eradication of illegal crops in Colombia, using the aerial herbicide Roundup, which was produced by the American chemical company Monsanto” (Mayers 2009). Can we consider this “plan” an effect of development? Perhaps not in principle; but neocolonialism, or the economic/political power of a stron­ ger and richer state against a poorer and weaker one, is indeed a major aspect of globalized development. The problem is that “glyphosate,” the major component of Roundup, cannot be directed only to the coca plants

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slated for eradication, as it is sprayed aerially. The UN Commission on Human Rights (58th Session, January 24, 2002), states that “[r]eports indicate that the mixture likely contains herbicide concentrations that are more than five times greater than levels [permitted] for aerial application” (Mayers 2009: 15). Because the airplanes fly over the border region between Colombia and Ecuador, the Indigenous population of Ecuador is constantly at risk, far more than the coca growers of Colombia. In addition, the Indigenous peoples of this impoverished region have little or no access to health care or other social services. The position of the US agencies in this regard is that any possible negative results caused by their activities would be “more than compen­ sated by their extensive financial contributions, in the name of social and economic development” (Mayers 2009: 16). Can these activities be consid­ ered in any way as forms of “advancement,” or as positive “development” for the affected countries? The health and the very physical survival of the Indigenous communities around the border area and Ecuador are gravely at risk, as are the basic necessities of their survival: their crops and their water, both of which are affected (Oldham and Massey 2002: 3). The violations of human rights are obvious, and the UN High Commissioner for Refugees recognizes the reality of the situation: Ecuador is arguably Colombia’s most vulnerable neighbour and has suffered profound effects from both Colombia’s internal conflict and Plan Colombia. Problems on the border include drug-related violence, increased rates of crime, kidnappings, the forced migration of Ecuadorians from their homes, effects on human health and the environment from the aerial spraying of coca that drifts across the border, and food insecurity. (United Nations High Commissioner for Refugees 2008: 5)

Hence, it is Indigenous peoples who have been gravely affected, not “drug lords,” and even the Plan Colombia US–Colombia project has not achieved its goals, other than to promote (and hence enrich) Monsanto, a US-based MNC, at the expense of the health, safety, and cultural integrity of the affected and displaced persons in the local Indigenous communities. These activities and their results are in direct conflict with the mandates of the UN Declaration of the Rights of Indigenous Peoples (Article 7), ensuring their “life, physical and mental integrity, liberty and security of person.” In addition, the survival of the traditional culture should be equally protected, as all activities that might affect their lands or resources, are in violation of Indigenous rights (UN Declaration of the Rights of Indigenous Peoples, Article 8).



controlling public health and other basic rights37

Nor is this particular case unusual or the first “attack” on Indigenous rights and survival, as oil companies have also carried out their “development” in the region for some time, with grave effects on the health of the local populations, especially in Ecuador and the Amazon region (e.g. Earth Justice 2002: A236; Walcott 2002; Anaya 2004: 134). Despite the efforts of the US government to maintain secrecy, the substance sprayed was identified as glyphosate herbicide, manufactured by Monsanto under the brand name Roundup, although it has now been established that it is in fact Roundup SL, “considerably more toxic than Roundup Ultra” (Oldham and Massey 2002: 1–2). The health effects have been studied for some time: Aerial spraying has a significant negative effect on the lives of large numbers of people, particularly the rural poor in Colombia. These is strong evidence linking spraying with serious human health effects; large-scale destruction of food crops; and severe environmental impacts in sensitive tropical ecosystems. There is also evidence of links between fumigation and loss of agricultural resources, including fish kills, and sickness and death of livestock. (Oldham and Massey 2002: 2)

The Indigenous Cofan people of the Putumayo province complained to their Health department of “dizziness, diarrhea, vomiting, itchy skin, red eyes and headaches” (Oldham and Massey 2002: 3), after the spraying and similar reactions were reported in Ecuador near the Colombia border (in the Sucumbio province, as well as in Mataje, Esmeraldas). In September 2001, the Ecuadorian Indians who live near the Colombian border filed a class action suit against DynCorp Corporation, the company in charge of the spraying in Colombia (Aguasanta Arias et al. v. DynCorp 2001). The physical and monetary damages were evident, as was the loss of cultural integrity and identity of these peoples, many of whom had to abandon their homes. Aside from the question of whether this sort of globalized industrial activity can be stopped, or at least “humanized” (that is, modified to respect human rights), these events raise a number of other questions related to human collective rights, and these will be addressed in the next section. A Brief Overview of the Constitutional Protection Available for the Environment in Colombia and Ecuador It is the duty of the State to protect the diversity and integrity of the environ­ ment to conserve areas of special ecological importance, and to foster the education for the achievement. (Constitution of the Republica de Colombia 1991)

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This clear commitment is accompanied by several statements, all of which would appear to be in direct conflict with what is happening on the ground. They are: • Every individual has the right to a healthy environment; • The laws must guarantee the Community’s participation in the decisions that may affect the environment and • The state must also cooperate with other nations in the protection of the ecosystems in border areas.

If these are constitutional mandates, it is hard to see how the government of Colombia could even enter into Plan Colombia with the US, let alone permit the human rights violations that ensued. When we turn to Ecuador’s legal instruments, it is even harder to see how the country’s new constitution (2008), a unique and inspirational document, could allow the country to tolerate the toxic operations taking place at their borders. The articles approved by Ecuador’s Constitutional Assembly on July 7, 2008, include the following: Art. 1. Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution. Every person, people, community or nationality, will be able to demand the recognition of rights for nature before public institutions. The applica­ tion and interpretation of these rights will follow the related principles established in the Constitution. Art. 2. Nature has the right to an integral restoration. This integral restora­ tion is independent of the obligation of natural and juridical persons or the State to indemnify the people and the collectives that depend on the natural systems. In case of severe or permanent environmental impact, including that caused by the exploitation of non renewable natural resources, the State will establish the most efficient mechanisms for restoration, and will adopt adequate measures to eliminate or mitigate the harmful environmen­ tal consequences. Art. 3. The State will motivate natural and juridical persons as well as collectives to protect nature; it will promote respect towards all the elements that form an ecosystem. Art. 4. The State will apply precaution and restriction measures in all the activities that can lead to the extinction of species, the destruction of the ecosystems or the permanent alteration of the natural cycles. The introduction of organisms and organic and inorganic material that can alter the national genetic heritage in a definitive way is prohibited. Art. 5. The persons, people, communities and nationalities will have the right to benefit from the environment and from natural wealth that will allow wellbeing.



controlling public health and other basic rights39 The environmental services cannot be appropriated; their production, pro­ vision, use and exploitation, will be regulated by the State. (República del Ecuador Constituciones de 2008, Chapter 3, “Rights for Nature”)

Articles 4 and 5 appear to address specifically the problems encountered by the local/traditional inhabitants. Hence it appears that even the best constitutionally entrenched protec­ tion for both the environment and the peoples who depend upon it, are totally insufficient against a background of corporate and neoliberal state power, from a powerful country. That said, for an international instrument to be effective in a national setting, it has to be explicitly included in the domestic constitution or charter of each particular accepting country, but the converse does not hold. The articles cited above should be inserted and explicitly adopted in the international instruments mentioned thus far. Only then could these provisions be appealed to in international courts, to help curb and redress the sort of abuses we have cited, and other similar, but common situations. Yet we must acknowledge that even the constitution of Ecuador does not explicitly link environmental degradation and disintegrity to human rights, as, for instance, “people and communities” will have the right to benefit and to achieve/natural wealth, rather than have right to the pro­ tection of their life and health. Similarly, even the European Court of Human Rights, the only one where one finds some of the few existing cases that link environment and human rights, makes use of Article 8 of the European Charter—that is, the “right to one’s home and family life”—instead of addressing directly the right to life, to one’s dignity, and to health (Guerra v. Italy 1998; Lopez Ostra v. Spain 1994; Fedeyava v. Russia 2005; Oneryildiz v. Turkey 2004). The few cases that the European Court of Human Rights decided in favor of the plaintiffs were individual human rights cases and, for the most part, did not involve minorities or Indigenous peoples. Another clear example of the disastrous effects of extractive industries’ activities on human rights has been the presence of Royal Dutch Shell Oil in Nigeria’s Ogoniland (Westra 2007: appendix 1): Over the past half century, oil companies have turned the Niger delta in West Africa, one of the world’s largest mangrove swamps, into a poisoned land­ scape. Twice the size of the Mississippi delta, it is today a desolate world of oil-encrusted creeks, dead fish, stinking swamps and charred soils, where villages are exposed to dangerous levels of Hydrocarbons in their drinking water. (Pearce 2012)

Hence, even after the acknowledgement of the criminal exploits of Royal Dutch Shell Oil, persisting for decades, and the legal victory

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(via an out-of-court settlement) achieved by the people of Ogoniland in 2009, followed by a two-year United Nations Environment Programme (UNEP) study attesting to the contamination of the whole area, the local people are still suffering. At the same time, the oil revenues from the time when Shell started pumping oil there in the 1950s “have helped to make Shell the fifth largest corporation in the world” (Pearce 2012: 2). Without doubt, the “toxic legacy” of their activities, under Nigerian law, should be the responsibility of Shell. However, UNEP scientists found that Shell’s clean-up practices “do not meet the local regulatory requirements or international best practices,” as “public health is seriously threatened” (Pearce 2012: 3). In the next section we will consider some other aspects of the corporate stranglehold on public health, this time through various aspects of agribusiness. Corporate Agribusiness and Health Due in no small part to profound increases in consumption of saturated fat and cholesterol from products derived from other animals, death rates in the United States from cardiovascular disease more than tripled from 149 per 100,000 in 1900 to 522 per 100,000 by 1960. This type of harm is referred to as “structural violence” when injury and premature death are the results of institutional arrangements—in this instance, especially the workings of the economic system. (Nibert 2012: 149)

Even more pervasive than the harms perpetrated by the means of produc­ tion used by agribusiness is what emerges clearly from a consideration of the history and development of corporate control of (or attacks on) public health: their very goal and purpose is to promote their own interests at the expense of public health. To add further misery to this situation, resulting illnesses require increasing quantities of pharmaceuticals to cure, if not the diseases themselves, then at least some of the symptoms, and to pro­ long the life of the victims. In turn, these chemicals impose their own damages upon those who come into contact with them, through drinking water, for instance, or in other ways (WHO 2011), and we will review some of that research in the next section. For now, we can start by discussing the relation between human and animal rights, starting with the history as traced by David Nibert, as the gravest hazards to human health arise from the practice of eating meat and from the industrial provenance of such meat.



controlling public health and other basic rights41 Corporate Crime as Human/Animal Oppression Systemic oppression of both human and other animals did not exist until approximately 1000 years ago, with the advent of agricultural society in Eurasia. Humans there captured and began to manipulate biologically and raise sizeable numbers of large, sociable animals such as cows, goats, pigs, sheep and horses, and to exploit them as labourers and as a source of food, clothing and other resources. (Nibert 2012: 143)

David Nibert shows how various varieties of “social animals” contributed to the increasing disregard for human lives and human rights, first as horses carrying “aggressive” groups (such as those led by Attila the Hun) into their wars of pillage and slaughter; then even instigating the exten­ sion of such wars, because of the need of more and more forage for their animals, but also initiating the occurrence of zoonotic diseases in Asia and Europe, presaging similar spreads of disease when, eventually, the Spanish conquistadores descended on the Americas (Nibert 2012: 143). Most of the early corporations to which we have referred above, such as the Dutch East India Company (1623), supported their trade and slavery expeditions by feeding “salted meat” to their crews (Nibert 2012: 144). Eventually, the newly formed enterprises of the “meat-packing industry” employed poor immigrants as “slaughterhouse workers” involved in the brutal killing of millions of animals (Nibert 2012: 144–145). These sentient animals were turned into “livestock” and “property” by corporate persons, who in turn benefited from US government tax breaks: Additionally, state-funded land grant colleges and other public institutions used taxpayer funds to develop ways to manipulate biologically and raise increasing numbers of oppressed animals more cheaply and in ways that fostered rapid physical growth of the animals’ bodies. Factory farming was born as the oppression of other animals increased in both scale and inten­ sity. Large confined animal feeding operations (CAFOs) allowed enormous numbers of animals to be raised in tiny areas by feeding them on surplus grains. (Nibert 2012: 147)

The special conditions of confinement also required the administration of various pharmaceuticals, including antibiotics, growth hormones and the like, all of which eventually contributed to the health hazards of the humans consuming that toxic meat, and rendered those who became ill to have become resistant to most of the antibiotics that may otherwise have cured them. At any rate, in this section we are concerned with the public health aspects of those operations, which represent some of the most

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successful corporate enterprises today. That meat became the basis for the ubiquitous presence of globally fast food, McDonald’s especially, but also Burger King, and Kentucky Fried Chicken for poultry. These operations, intent as they were on promoting their economic interests, relentlessly promoted the eating of meat, three times a day, through the proclamation of the need for the “four food groups nutritional campaign,” whereby meat and dairy were glorified and institutionalized as necessary (Nibert 2012: 148). In stark contrast with the “Mediterranean diet” promoted by the WHO, which suggest eating cow meat at most once a month (and grown naturally of course), poultry at most once a week, and shifting the onus of providing good nutrition primarily to vegetables, legumes, grains, and fish, the results of the corporate expansion of “fast food” clearly demonstrates the ultimate control of public health on the part of the corporation. This control has now expanded from North America, where it originated, to the whole world, and the control itself started with their control of the media. Public health concerns were raised as early as 1970 in the US, but they were not allowed to be disseminated to the public: Though education is usually considered a safe, harmless and ineffective activity, the meat and egg industries feared that an educational campaign might include information about fats, cholesterol and heart disease. Quick, strong lobbying by the meat and egg industries killed the legislation in the House Agricultural Committee. (Jacobson 1980: 128; see also Nibert 2012: 148–150)

However, as corporate agribusiness pervaded education at the expense of public health, its negative control penetrated the latter through multiple avenues. A recent WHO report clearly documents how it is not only the direct consumption of meat and fats that have a noxious impact on our health, but also the indirect effects of the ways animals are raised: “Many surveys and studies have confirmed the presence of pharmaceuticals in municipal wastewater and effluents, and these have been identified as a major source of pharmaceuticals in the drinking water” (WHO 2011: ix). These chemicals include hormones so that, in addition to the other pharmaceuticals and antibiotics ingested directly with the meat products consumed, these are an additional cause of concern. In those cases, the corporations involved are not simply the meat packers, poultry packers, and dairy producers, but also the large pharmaceutical companies known as “Big Pharma.” All of these corporations benefit directly from the very public health disasters they foster and support.



controlling public health and other basic rights43

Veterinary drugs Feed additives

Human drugs excretion

disposal

sewage

waste

excretion (run-off)

(liquid) manure

(leakages) landfill site STP

soil

(digested sludge)

surface water

ground water drinking water

Figure 1. Occurrence of drugs in German sewage treatment plants and rivers (Ternes, 1988).

In addition, the status of the corporation and its multiple “rights” work seamlessly with these operations to ensure maximum economic advan­ tage for all involved. They also foster their aims through direct “vetoes” for any attempt to halt or discredit the slaughter not only of animals, but also of affected individuals; they also work through lobbies and political dona­ tions to elect the “right” candidates, who will accept and tolerate present practices. Thus, keeping in mind the main reasons why corporations were allowed to come to life (that is, to promote the public good), one can see that all their operations are aimed instead at their own economic advantage, and that this takes place in total disregard of the basic rights to life and biologi­ cal integrity, hence to human rights. The structural (that is, accepted and institutionalized) violence imposed on countless victims is thus both obvious and easy to ascertain. Nor have the trends here described abated in any way: on the contrary, obesity and related diseases have spread not only all over the US, but they are now also moving to developing countries, such as China, and even to Europe, despite the latter’s efforts to resist the WTO and refuse both hor­ mone-laced meat and GM organisms (GMOs). Particularly worthy of note is that, in the US,

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chapter two State power is also being used to further agribusiness’s ideological agenda. In the Spring of 2011, lawmakers in Florida, Iowa and Minnesota introduced legislation to make the videotaping of abuse of animals by agribusiness a crime, a criminal offense, and to label the whistleblowers as “eco-terrorists.” (Nibert 2012: 151)

In the next section we will glance briefly at the story that, by now, every­ one knows: that of tobacco and the addictive manipulation of public health information that killed millions. But, commonplace and well known as it is, that story needs to be reconsidered in the light of the infor­ mation discussed in this chapter thus far: the similarities between chemi­ cal hazards and tobacco, and what is actually required in order to influence present regulatory regimes to truly protect public health. From Big Tobacco to the Framework Convention on Tobacco Control The first Reader’s Digest story revealed laboratory tests proving that the amount of nicotine inhaled from filter cigarettes was no less, and was some­ times far greater, than that taken from plain smokes. (Davis 2007: 17)

Devra Davis here describes the efforts of the industry to “save cigarettes” in some way, after there was no possibility of denying the harms they inflicted on all smokers. Would the presence of filters perhaps save the day? It appeared that this was not the case. In fact, one of the materials used for filters at the beginning of the new “discovery” was a “remarkable aerosol filter,” discovered and used by the Atomic Energy Commission; but that “remarkable” material was simply a “kind of asbestos” (Davis 2007: 173). Eventually that material was shown to add lung cancer and mesotheli­ oma to the litany of diseases to which smokers are exposed: “585 million packs of these asbestos-filtered cigarettes” were sold in the US in the late 1950s (Davis 2007:174). We are all familiar with the lengthy court battles and fake “expert witnesses” that delayed for decades the acknowledgment that tobacco kills. The first step forward was the limit imposed to the free speech rights of the corporations, who shamelessly promoted their prod­ ucts to children, ensuring the earliest possible addiction, resulting in the largest future sales. In the 1990s, the Supreme Court of Canada in Quebec finally took a position on the tobacco industry, and that case is worth considering, as the judgment contains several important points that support our position regarding the corporation. Following the introduction of the Tobacco Act of 1995, and the Tobacco Product Information Regulations (enacted pursuant to Sections 17 and 33



controlling public health and other basic rights45

of the Act on June 8, 2000), and the enforcement of large and explicit package warnings, several tobacco companies (J.T.I. MacDonald Cor­ poration, Rothman, Benson and Hedges, Inc., and Imperial Tobacco Canada Limited) challenged the Tobacco Act (SC 1997, Chapter 13) in three separate actions. They asked the court to declare the act unconstitu­ tional under the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, Chapter 11). The plaintiffs argued that the Act violated their freedom of expression under Section 2(b) of the Charter, and other rights under Sections 7, 8, and 11. The difficulty in adjudicating this case is that these are basic and, in fact, fundamental rights that are in question, as freedom of expression is pitted against the protection of public health and the public interest in general. This conflict also underlies the analogy that links this case to environmental cases, but, in the latter, the conflict is often with corporate freedom and free trade, not only with the freedom to advertise and pro­ mote products, as the freedom to produce and to encourage consumption must be restrained as well. In essence, as we shall see below, public health is viewed as primary, and its protection trumps both the freedom to promote and free expres­ sion. We will find that the major emphasis is on harms and the harmed groups, and on the consequences of such harms. The foundation for both kinds of cases is solid science supporting the harm claims. The December 13, 2002 judgment used the extensive scientific evidence available on the effects of tobacco, and the Canadian Cancer Society intervened, as did several doctors, many of whom reported on the work of the WHO and their findings on the effects of tobacco on individual health (these included Dr. Nancy-Michelle Robitaille; Dr. Leonard Ritter, Dr. Adrian Wilkinson, Dr. Richard Pollay, Dr. Ronald M. Davis, and others). However, their evidence emphasizes some of the main differences between tobacco and other environmental harms, although I argue that the analogy remains strong enough to support our claim that ecocrimes should be treated and regulated minimally, in a similar manner. Some of these differences are: 1. Tobacco is physically addictive, whereas environmental/chemical exposure, a product of the technologically “advanced” lifestyle of afflu­ ent countries, is not addictive in itself. Yet the “lifestyle” is vigorously promoted as the desirable indication of modernity; hence, the corpo­ rate activities that produce the physical harms are only addictive in a figurative or emotional sense, not in the biological one.

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2. Tobacco produces a long and well-documented list of various forms of morbidity, whereas the discovery of ecological harms is more recent and less specific: in many cases there are cumulative and synergistic effects that produce the harm; in some cases, the capacity of the immune system is generally lowered, hence, it becomes far less easy to produce a specific list of directly caused diseases, unless the individuals at risk live or work close to the ecologically compromised site (e.g., a tannery, uranium ponds, heavy industrial or carbon monoxide emis­ sions, or water infected with e-coli). 3. Although the infringement of Section 7 of the Charter’s “right to life, liberty and security of persons” is present in both cases in a physical sense that has not so far been clearly allowed, despite the efforts of the Canadian Environmental Law Association (CELA), the use of tobacco is—at least initially—a personal choice intended to produce pleasure. In contrast, there is no pleasure in breathing air containing particu­ lates, or drinking unsafe water, although on the whole the modern life­ style does provide some individuals with pleasures and satisfaction indirectly linked to harmful industrial practices and products. Another substantial difference is the fact that there is little or no element of choice in environmental exposure: most North American states and provinces do not offer a voting choice that might eliminate these prac­ tices. For instance, in North America there is no non-nuclear political choice possible. Thus, both similarities and differences in the factual aspects of tobacco use, on one side, and of environmental violence from chemical exposure, on the other, manifest and support some aspect of the argument by anal­ ogy here proposed. Similarities (and some differences) can also be found in the law. But the facts had to be established first as the tobacco case could not be made without the scientific evidence of the effects of its use. So too the presence of credible scientific evidence linking pollution and disintegrity to human health effects is the necessary starting point of the analogy. Before turning to the laws relating to the risk imposed through the manufacture and sale of tobacco products, and the risk/harm imposed through environmental hazards, we need to consider the basis for both arguments—the constitutional questions that can be raised in both cases. The first constitutional question hinges on the application of the “peace, order and good government of Canada” (pursuant to Section 91 of the Constitution Act, 1867, as being enacted pursuant to the criminal law power in Section 91 (27) thereof). The second constitutional question is



controlling public health and other basic rights47

based on the freedom of expression as set out in Section 2(b) of the Canadian Charter of Rights and Freedoms, and whether this “does consti­ tute a reasonable limit on that right as can be demonstrably justified pur­ suant to Section 1 thereof” (RJR-MacDonald Inc. v. Canada (A.G.) 1995: 239–240). These are the constitutional questions that frame the moral conflict between two fundamental rights in legal terms. To be able to answer these questions, the next step is to identify the purpose of the law: what is the “evil or injurious or undesirable effect that the law is supposed to combat” (RJR-MacDonald v. Canada 1995: 239–240 at 38). First, it is desirable to introduce “extrinsic evidence,” although clear rules on its admissibility are not available. But there are some very strong reasons for the introduction of such evidence: [62] a) extrinsic evidence is not only permissible, but often essential; b) when examining legislative facts, the court must take into account the context in which the legislation is enacted; […] g) the court must have the best evidence available at the time […]

The importance of extrinsic evidence is obvious in both the tobacco case and—in principle—in environmental cases: the quest for substan­ tive justice is based on the understanding of both “context” of present harms and on the evidence of consequences. Only by facing squarely this evidence, will it be possible to see that we cannot simply “strike a balance between the claims of legitimate but competing social values” (McKiney v. University of Guelph 1990: 285–286). But the right to free expression is not equal to the right to life, which is primary, temporally, conceptually, and morally. The result of curtailing the freedom of expression of tobacco companies is to restrict their promotional efforts, and hence, at most, their sales, and ultimately their profits. But there is no constitutional right to profit (L’Heureux-Dubé, J. in dissent, Egan v. Canada 1993: 37). There is, however, a fundamental “right to life and security of persons” (Charter, Section7 ). The Supreme Court’s judgment in RJR-MacDonald v. Canada ((1995) 3 SCR 199) in the section on Freedom of Expression (Section 2(b), in “Contextual Analysis”) states: [217] We must ask ourselves what values are at stake in the case at bar. On the one hand, we have the constitutionally guaranteed freedom of expres­ sion; on the other, we have the right to life guaranteed under section 7 of the Charter. By extension, the Parliament is obligated to promote the health of all Canadians.

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This paragraph is—to my knowledge—unprecedented in Canadian Supreme Court judgments, and it echoes, to some extent, the approach of the European Court of Human Rights in some of its groundbreaking judg­ ments (Guerra v. Italy; Lopez-Ostra v. Spain: chapter 8), where the right to life is extended to the right to “biological” or “physical integrity” precisely in environmental disputes. The passage therefore strongly supports the argument of this work as a whole. If parliament is “obligated to promote the health of all Canadians,” then anything that can be proven to represent an assault on the health of Canadians is to be clearly proscribed. Luckily, the WHO became involved, and, after endless delays, the Framework Convention on Tobacco Control was adopted by the World Health Assembly (WHA), 21 May, 2003, and entered into force 27 February, 2005. The situation for non-smokers, previously exposed to secondhand smoke, was now drastically changed. Professors were no longer forced to be exposed to smoking students, travelers were no longer forced to share the tight space in airplanes, trains, and busses with smokers; even in Europe, where smoking had been an ingrained habit everywhere, the “no smoking” signs were obeyed in public spaces, including stations, airports, and restaurants. Of course the numerous tobacco corporations did not give up their lucrative trade altogether: they switched their massive advertising cam­ paigns to developing countries in the global South and East, in order to promote business as usual. In addition, they expanded in new fields, including sweets, cereals, fast food, all almost equally addictive and hazardous to public health, as we noted in the last section. These products had the further advantage of being such that they could be (and are) promoted to babies and small children, thus permitting earlier addiction and longer consumption periods (Dyson 1999). So far we have considered the external stakeholders of the corporation, and the latter’s control on their health in various ways. But most of the industrial products are hazardous from cradle to grave, so we should now turn briefly to the situation of the workers employed by these corporate giants. The Corporation and Its Internal Stakeholders [T]he UN Secretary Generally, in establishing in 1999 the UN’s Global Compact Program (a joint project of the UN and the world’s business lead­ ers), noted two distinct sets of duties of corporations: to respect human rights “within their sphere of influence,” and to avoid “being complicit in



controlling public health and other basic rights49 human rights abuses”—the latter term referring to corporate involvement in governmental action. (Ratner 2001: 510)

Much of what has been discussed thus far contains respect for human rights, within its “sphere of influence” (broadly understood), and “com­ plicity in human rights abuses” (Ratner 2001: 510), and we will return to some of those issues and the litigation that reflects them below. But there is a class of individuals—that is, those employed by the corporation— whose rights have been considered far longer than the less obvious rights we have discussed in this chapter: “the ILO [International Labour Organization] suggests that governments, labour unions and business leaders view the sphere of employer-employee relations as an appropriate target for detailed international regulation” (Ratner 2001: 509). The ILO (Convention no. 169, 1989, 28 ILM 138) has defended worker’s rights, starting from the Treaty of Versailles of 1919, and established the principle “to abolish the injustice, hardship and privation” suffered by workers and “to guarantee fair and humane conditions of labour” (Steiner and Alston 2000: 242). Many of the standards proposed by the ILO, are now covered under economic and social rights, and other conventions that deal with freedom of association and the right to organize trade unions, forced labour, minimum working age, hours of work, weekly rest, sickness protection, accident insurance, invalidity and old age insurance, and freedom from discrimination in employment (Steiner and Alston 2000: 242). In his Eleventh Annual Message to Congress (January 11, 1944), US President Roosevelt nominated “freedom from want” as one of the four freedoms he supported. He said: We have come to a clear realization of the fact that the individual freedom cannot exist without economic security and independence. “Necessitous men are not free men.” In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second bill of rights, under which a new basis of security and prosperity can be established for all-regardless of station race, or creed. (Roosevelt 1944)

After outlining details of his vision, Roosevelt adds “All of these rights spell security” (Roosevelt 1944). The rights outlined by Roosevelt and those named in the work of the UN preparatory committee, were foundational for the drafting of the Universal Declaration of Human Rights (1948), and many were further spelled out in the wording of the two covenants of 1966: the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the ICCPR (Steiner and Alston 2000: 244–245).

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Hence it is clear that, although the right to be free from toxic exposures and other chemical substances noxious to our health and development is not established in international law, workers’ rights come a lot closer to a level of security not enjoyed by others within the corporate “sphere of influence.” Of course codification of a right is by no means the same as its implementation. Additionally, there is now a host of situations that even Roosevelt at his most idealistic could not have anticipated. Regarding workers’ rights, the most significant difference between today and Roosevelt’s times may be found in the phenomenon of global­ ization, coupled with the increasing emergence of offshore production, which effectively moved the requirements of worker’s rights to no man’s land. The US had discovered the advantages of contracting out some of these most dubious operations. We saw a recent example of that phenom­ enon in the previous section on Toxic Trespass and the use of DynCorp to perform illegal services for the CIA. In fact extraordinary renditions are only a small portion of the work of such “contractors”: the jailers of AbuGhraib were also not regulated by any military code or other national regulation; and the torturers themselves were located in those parts of the world where torture was legally practiced (Westra 2012a: ch.4). In a similar vein, MNCs can and do routinely contract parts of their manufacturing offshore, regardless of the absence of enforceable or enforced human/workers’ rights at those locations: Marxists bemoan how workers are treated simply as cogs in this wheel of capitalist efficiency, compelled by the labour market to produce any good when demand for it increases and opportunity for capitalist profit making arise. Marxists argue this “alienates” workers from a social activity central to their lives, and will eventually foment resistance. (Westra, R. 2012: 116)

The “demand” and “opportunity” converge offshore, as resource and laborrich third world countries provide more favorable conditions than those present in the West, where all costs of production, including labor, are higher. For instance, China’s regime now provides the sort of workforce that no longer exists in the West, with worker’s conditions amounting to real slav­ ery: workers are compelled to work, mobility is non-existent, migrants have no protection and no guaranteed remuneration, and fifteen-hour workdays are routine, as is child labor (Westra, R. 2012: 162–165, see also nn. 80–89 on pp. 230–231). Essentially, all MNCs have initiated a system of relocation for both their manufacturing and assembly operations, in the quest for even less



controlling public health and other basic rights51

regulated regimes than those they face in the home country (Westra, R. 2012: 75). A banner example of offshore relocation of corporate opera­ tions, beyond a partial manufacturing and assembly, is of course the infa­ mous Bhopal situation, where thousands of workers perished in a disaster that laid bare a total lack of public health and environmental regulations in India, culminating in the effect of Union Carbide’s disinformation cam­ paign, which convinced workers that they were producing “good medicine for plants” (Baxi 2010). That blatant lie convinced the workers it would be safe to move into a “shantytown” adjacent to the toxic effluents from the plant itself. The night of the final explosion should qualify as an example of “toxic terrorism,” and spur citizens around the world to demand urgently a different “war on terror,” far more justifiable than the ongoing one, given the number of victims that exist from various forms of toxic exposure. There is no need to further elaborate the effects on the health and safety of workers present not only by chemical and pesticide operations, but also by unregulated third world offshore havens. The lack of regulatory infrastructure in India, China, and other so-called “developing countries” is well known. The beneficiaries from this general retreat from laws and regulations are, of course, the corporations themselves, the power of which has grown exponentially. A prime example is the wealth and power of Wal-Mart: Wal-Mart has indeed become emblematic of a transformation in organiza­ tion of value-claims themselves … Logistics, a term co-opted from the military, is the term encompassing the state-of-the-art way good are moved across such networks and supply chains. Wal-Mart, for example, handles 85 percent of supply chain management in house. (Westra, R. 2012: 89)

The working conditions and health of workers is not Wal-Mart’s concern, and the point is hardly worthy of elaboration. But there are also many operations in North America, where the racial background or ethnicity of the workers ensures that no serious effort is made to ensure not only their health, but even their survival. Another example of industrial harms can be found for example in uranium mining (Eichstaedt 1994). The history of uranium mining in the four-corner area (Utah, Colorado, Arizona, and New Mexico) and the Navajo Reservation between the Grand Canyon and the Petrified Forest National Park appears to have been written in blood. The evidence of the narrative is unequivocal. It is consistently one group and one group alone that is targeted. I have termed this approach

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“institutionalized ecological violence,” and this form of violence does more than destroy the unfortunate miners, working in hazardous, unven­ tilated “dog holes,” accumulating in multiple doses of the yearly maximum “safe” radiation exposure in their bodies in one week, and eventually succumbing to untreatable cancer and other diseases. Some mill workers also had up to 60 micrograms of uranium in their urine samples. The yellowcake dust they inhaled and swallowed was making them radioactive from the inside out. This intolerable violence also destroys families who attempt to survive on the pitiful sums allotted to them, or with no compensation at all for surviving wives and children. Finally, this same violence, discriminating against Native Americans, also attacks their survival as people, hence the appeal to genocide in this case. Although we all depend on a healthy, nontoxic environment, Native people have a particular right and claim to the lands they inhabit and from which they assert their identity as a Nation. Hence, when the Navajo miners, their families, and their supporters took on the “fight for justice,” requesting child support and simple com­ pensation to survive, they were asking far less than what should have been theirs by right: at the age of forty, Peter Yazzie knew the end was near and was driven to a hospital in Albuquerque. He died eight days later, on June 6, 1970. He left a home that was a simple adobe Hogan heated with wood, a wife Dolores, age thirty-six, and ten children ranging in age from two to eighteen. His wife began to collect $250.00 a month on which to raise a family. (Eichstaedt 1994: 94)

The final injustices were disclosed in February 1993, when even the evi­ dent physical damages to the miners were shown to have been calculated improperly: Dr. Louise Abel “demonstrated to the assembled doctors, law­ yers and government officials that the medical tests are inadequate” (Eichstaedt 1994: 151). This resulted in hundreds of miners being excluded from “compassion payments” ordered by the Radiation Exposure Compensation Act of 1990. When a group is singled out for special treatment that effectively eliminates most of their basic rights to life and health, and their rights to free information and consent, then all those involved are guilty of complicity in the crimes perpetrated against them. Through each sad interview describing the story of individual miners and their families (Eichstaedt 1994: 172–195), and through the appendices detailing the hearing on radiation exposure and finally the Radiation Exposure Compe­ nsation Act of 1990 (Eichstaedt 1994: 219–237), the story that unfolds is



controlling public health and other basic rights53

one that should fill everyone with shame. Nor is the United States the only country with that problem. A 2006 report from Australia, relates a similar story: Cancer rates among Aborigines near Australia’s biggest uranium mine, according to a study by the Federal Government’s leading indigenous research body, appear to be almost double the normal rate. The study also found there had been no monitoring in the past 20 years of the Ranger mine’s impact on the health of local indigenous peoples. Yet since 1981 there have been more than 120 spillages and leaks of contaminated water at the mine located in the World Heritage listed Kakadu National Park. (Minchin and Murdoch 2006)

Energy Resources of Australia (majority owned by Rio Tinto), which operates the mine, denied that the aboriginal peoples in the area were exposed to radiation, and in fact announced that the mine would continue to operate until 2020, despite the fact that a study compared Aborigines diagnosed with cancer in the Kakadu region with the cancer rate among all Aboriginal peoples in the Northern Territory from 1994 to 2003. It found the diagnosis rate was 90 percent higher than expected in the Kakadu region (Minchin and Murdoch 2006). In this case as well, neither the corporation(s) responsible for the extractive activities nor the Australian government that allowed (and, in fact, defended) this operation accepted responsibility for the harms they had perpetrated, or attempted to close the mine and redress the injustice for which they shared responsibility. Thus, it is neither the facts nor the science that are lacking, but the functionalist approach of industry and institutions that needs to accept the scientific reality and enact the required corrections. Of course it is not only the internal stakeholder that is at risk from the nuclear industry. The whole world is under threat, as evidenced by the 2011 Fukushima nuclear disaster in Japan, which brought to the forefront the dangers of a worldwide nuclear radiation. The crisis in Japan has been described as “a nuclear war without a war.” Nuclear radiation, which threatens life on planet earth, is not front page news. (Chossudovsky 2012)

This reality speaks to the role and aim of the corporation, intended to serve the public good. As well, nuclear power workers at all levels contrib­ ute to the manufacture, stockpiling, and use of nuclear weapons, with horrifying results for public health for decades following their use. The most recent abuse of public health and human rights can be observed in the effects of so-called “spent uranium” by the US in Iran, and

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by Israel in Palestine (Fisk 2012). As there are no official US findings regard­ ing these horrible fate of children f4rom these effects, so too there are no research data regarding the workers who assembled the ammunitions that used spent uranium. These are just some of the most obviously hazardous corporate opera­ tions that affect their workers, but also human beings and their habitat everywhere in the world. As they are intended as weapons of mass destruc­ tion, like other machines of war, such as drones and other armaments, mines, guns and bombs of all descriptions, the question may be raised not only about the corporate enterprise, but also about the complicity of the workers themselves. There are two ways of considering this question. The first is simply to ask whether those employed to manufacture, assemble, or otherwise produce the hazardous goods, or work in the dangerous operations pro­ moted by a corporation, are in any way complicit in the damage corporate activities inflict in using these products. After Nuremberg, one might be tempted to say that following orders is no longer a sufficient justification, especially when there is no danger to the life of those who would refuse to do the work. In contrast, for the most of the world, perhaps with the exception of the unionized laborers of the home base of MNCs, whatever the work undertaken, the laborers are either constrained by slave-like condi­ tions, as we noted in the case of China, or—at least—they desperately need to work to ensure their own survival and that of their families. This holds true even if the workers were fully aware of the implications and consequences of the use of the products and substances on which they work, and of the full effect of the industrial operations that employ them. This—as we saw in the case of Bhopal, for instance—is simply not true. Thus, despite the fact that the workers are part of the corporate appara­ tus that produces hazardous conditions, to which they themselves are often exposed, we can conclude that they are far more victims than com­ plicit perpetrators, and that the burden of intent remains with the corpo­ ration and its directors and organizers, as well as those providing the capital required by corporate operations (French 1984). Although in this section and in this whole chapter we have simply skimmed the surface of corporate operations by offering some examples of their activities and the effects of those activities, each separate corpora­ tion should be examined in detail to substantiate these findings. That would be an enterprise far beyond the scope of the present work.



controlling public health and other basic rights55 Concluding Thoughts “The 60% unknown is the elephant in the room,” says [Richard] Clapp, reit­ erating Parkin’s and Stewart’s view that, beyond obvious causes such as smoking, it is very difficult to attribute percentages to causes of cancer. However, he draws a very difficult conclusion, saying it is “counterproductive and pointless to assign certain exposures as causing a specific fraction of cancer when it is clear that preventable occupational and environmental exposure fuel excess cancer and deaths. (H&E 2012)

This passage reflects a recent debate between the authors of the December 2011 British Journal of Cancer analysis of the cancers in the UK, stating that 40 percent of cancers can be attributed to “lifestyle and environmental factors” (Parkin 2011). The report indicates, as expected, that 23 percent of male and 15 percent of female cancers are caused by tobacco use, that alcohol consumption was responsible for 3–5 percent of cancers of both males and females, and that obesity was responsible for 6 percent of female cancers (Parkin 2011: 1). The first point to note is that the expression “environmental” here refers to whatever is not genetic; that is, all that is an “external influence” (Parkin 2011: 2). Thus, all the unwanted and inadvertent exposures to environmen­ tal pollutants are not calculated. That move leaves “the other 60% of cancers unaccounted for” (Parkin 2011: 2). The debate arises because there are no solid data available to offer precise percentages reflecting which exposure produced which specific cancer(s), and how many cancers each exposure may produce. It is clear that the acknowledgment of the focus on lifestyle choices does more than “blaming the victims” (Parkin 2011: 3). It takes attention away from the burden caused by the chemical industry and air pollution. The insistence on “solid data” (Parkin 2011: 3) entails that the great major­ ity of cancer exposures are not acknowledged. The choice, therefore, as proposed in the article, is for epidemiologists to work with what is avail­ able, rather than permit the ongoing slaughter to continue, because no appropriate scientific method with precise evidence is available. Epidemiologists themselves admit that “we will ultimately have no choice but to work with limited data: being measurable is important, but only if your measurements help you make the optimal decision, rather than sim­ ply the optimal measurable decision” (Parkin 2011: 5). Such a move might finally shine a light on those whose negligence is the direct cause of most of the “other” 60 percent of cancers, and the indirect cause of the rest, through their deliberate efforts to convince us to acquire unhealthy habits,

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and further, to ensure that these persist through addiction. In that case, the guilty parties will be uncovered—that is, the corporations themselves would be unmasked. Even the superficial sampling of corporate/industrial activities in this chapter indicates the blatant disregard for the human right to health that their operations entail. Their carelessness and negligence demonstrates that the reason for their existence is to increase their economic capacities as much as possible, without accepting the limits imposed by regulatory regimes and morality, let alone the obvious ecological limits to growth in general (Rees and Westra 2003: 99–124). Neither the health of the citizens in the areas where they operate, nor yet that of the prospective users of their products or those exposed to their processes, within or without their place of business, appear to be a consideration. In fact, more than that, their short- and long-term plans tend to mani­ fest the same lack of care regarding the consequences of their operations. It is worth noting that, given their immense financial power, their knowl­ edge of the composition and effects of their products and operations is far superior to the knowledge of any government organization entrusted to control or restrain these operations. As well, for the most part, when a corporation is requested to produce an assessment of the health or envi­ ronmental risks of their activities, it is always an in-house report that is produced, guaranteed to present the product or process under consider­ ation in the most innocuous light possible, in order to ensure government approval. Essentially, corporate power is not an issue that needs to be debated. The extent of that power and its effects on public health are the issues under discussion at this time, and that needs to be emphasized. It is useful to consult the latest WHO report, originating from their regional office in Copenhagen (WHO 2012). This document does not actually address sepa­ rately the issues we have discussed, but its findings certainly support our reasons for indicting the various corporate activities we have considered. For instance, paragraph 511 is particularly relevant: The United Nations argued that, without real action to address levels of consumerism and resource use, systemic changes are barely possible. However, if action is taken, for example, to reduce excessive consumption of energy, limit the use of some hazardous substances and promote changes in consumption patterns, the result would be to reduce both noncommuni­ cable diseases such as type 2 diabetes and cardiovascular diseases. For example, WHO and the Food and Agriculture Organization of the United Nations recommend the daily consumption based on need of about 2200



controlling public health and other basic rights57 kilocalories (kcal) for women and 3000 for men. However, in 2007, consump­ tion was an estimated 3466 kcal per day for adults in western Europe and 3255 kcal per day for eastern Europe. Reducing overall energy intake could not only improve health and reduce obesity but also improve the environ­ ment by reducing transport and greenhouse gas emissions. Reducing the consumption of animal fat and protein would further increase the benefits, given the land, water and energy required for their production. Much work is going into finding ways to promote healthy diets, making them the easy and popular choice and enhancing public understanding of them. Policy-makers in the region are supported by some mechanisms and inter­ nationally agreed plans to reduce the consumption of trans-fatty acids and salt, such as the action plan for implementation of the European Strategy for the Prevention and Control of Noncommunicable Diseases 2012–2016. (WHO 2012: 105)

Obviously the paragraph’s findings refer to wealthy, developed countries in Europe and reflect similar situations and conditions in North America, rather than address health problems in the global South, which often reflect deprivation and malnutrition, rather than overconsumption of both energy and food calories. Paragraph 512 adds concerns for the need for public transport, almost totally ignored in the US and Canada, although it is a viable, well-organized alternative in all of Europe. In contrast, in the US, many large cities no longer even have a train system, despite public demand. In the case of Los Angeles, Ford offered to help build new superhighways, provided existing train systems would be limited, and neither a subway nor a train system is present there to date (report presented at Loyola University in Los Angeles, 2010, on file with the author). The WHO insists that public transport supports “increased mobility and physical activity,” which in turn reduces the “risk of cardio-vascular diseases, type 2 diabetes, some forms of cancer and hypertension (WHO 2012: para. 512). In advance of the United Nations Conference on Sus­ tainable Development (Rio +20), two bullet points among their list of suggestions are particularly relevant here: • reduce Obesity and injuries through ensuring safe environments, physical activity, and health diets; • prevent disease through improved outdoor and indoor air quality and greater chemical, biological and physical safety. (WHO 2012: para. 517)

Neither diet/lack of mobility nor chemical/biological exposures are singled out or strongly emphasized in the document, as they are mixed with other issues, I believe, in order to “dilute” them somewhat, and still

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permit their recommendation for Rio +20. The chemical industry’s lobby is a powerful one, and its representatives do not allow a clear indictment of their products and practices. At any rate, it seems that the WHO would be the best (and, indeed, the only) possible candidate capable of stemming the overwhelming power of corporate greed. If the WHO were to produce, as Lawrence Gostin pro­ poses (Gostin 2008), a Framework Convention for the Control of Chemical and Toxic Substances, specifically modeled on the Framework Convention on Tobacco Control, then it is possible that some real progress might be made. The health of the population might then regain some of the protec­ tion (as we did from tobacco) that corporate power has thus far prevented us from achieving. Their control, as we saw, is exerted in two separate but related manners: the first is the effort to promote and sell its products and whatever it is mining or extracting to the best of its considerable ability, with no regard for ecological, biological or moral limits. The second is the equally relent­ less push to modify or—better yet—to stop any regulation that might have an impact on either products or mode of production, to the point of criminalizing any protest that might interfere with the ongoing forward march of corporate goals. Yet there are still regulations and international legal regimes that, although unobserved and unobeyed, persist today. This will be the topic of the next chapter, where the corporation’s power is compared with the power of the state.

CHAPTER THREE

THE CORPORATION AND THE STATE: A QUESTION OF POWER Introduction Rebalancing the big seminal goals of retribution and deterrence would inform not only who is an appropriate subject for criminal sanctioning, but also what type of behaviour should truly be considered “criminal.” Retribution brings to the criminal law an evaluative function, an announcement that there are some actions so outrageous and heinous that they merit punishment, not only to deter future conduct, but to restore and re-affirm the community’s core values. (Robson 2010: 144)

Regina Robson correctly takes a Kantian stance regarding corporate crimes: most of the debate thus far, she notes, hinged on whether the presence of criminal charges might not be a better deterrent to such crimes than present practices. Deterrence in itself is by no means a confirmation of our choices. Cosa Nostra continues unabated in Sicily despite the fact that its activities have been considered criminal for a very long time, and the same can be said of Ndrangheta and its illegalities in Calabria. But no one proposes that their crimes should be demoted to regulatory or administrative breaches, to foster better deterrence. Whether or not it “works,” an uncompromising moral stance is the best position to take regarding corporations who generally tend to be entirely opposed to any form of regulation or other restriction to their freedom of operation. A Kantian stance ensures absolute respect for life and for the dignity of human beings: “Traditional criminal jurisprudence has used the distinction between malum in se and malum prohibitum to treat the issue of moral content in crime” (Robson 2010: 138). The former expression refers to actions that do not need confirmation of statutory prohibition, because they would be considered morally wrong by anyone. The same evaluation may be applied to actions that impose grave risks of harms, when regulatory standards are transgressed, because a violation of such standards may be evidence of disregard for the value of persons and property, which may be jeopardized by such an action (Robson 2010: 138). The worst of such human rights violations are described in the previous chapter. Although I presented there a brief survey of some of the horrors perpetrated by unrestrained corporate/industrial activity, that sampling,

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which included the lack of both appropriate scientific methodology to ensure detection and of regulatory regimes to assess culpability, clearly indicated the seriousness of the charges that should be brought against such actions. Most of the harms we have discussed are not simply regulatory breaches: they all represent grave human rights violations, proscribed by international law as jus cogens norms violations, and prescribing duties erga omnes. Principal among these are actions that run counter to the Con­ vention Against Racial Discrimination, and attacks against the life and health of affected populations, some of which amount to crimes against humanity. Hence, the first illegality on the part of legal persons lies in their relentless campaign to misrepresent the results of their activities as regulatory breaches that should, at most, be tried as torts. In that way, they can continue to keep the damages, if any, to the economic realm, allowing them to transfer the expense to a cost of production, and thus to recoup their losses. This sleight of hand happens with the full cooperation of the governments of the home countries, as well as that of the governments where the MNCs may pursue their activities. This joint action raises the questions of complicity, of who might be the perpetrator, and of who aids and abets that activity. Essentially, it is the economic power of the corporation that ensures their ability to obscure the truth and to misrepresent facts, together with a general climate of protectionism. The prime example of this ability may be easily identified in the general approach of energy corporations to climate change. The misinformation campaign they have been waging for years, starting with outright denial and abundant junk science campaigns, took a long time to unfold. The Inuit Petition, which attempted to lay the blame where it belonged (Watt-Cloutier et al. 2005), failed; it is now represented to the International Court of Justice, and no judgment has been pronounced yet. The effort to uphold the rights of the US Native Peoples of Kivalina (in Alaska) also failed, despite the wealth of evidence both attempts presented. Thus the energy/extractive industry is by far the best-known corporate “criminal,” as I shall argue below, but the question of the respective responsibility of the corporate persons and the states within which they operate is not clarified by these examples: neither failure could have taken place without an administration and a judiciary unwilling to take seriously the victims of corporate activities. The reason for these failures lies clearly in the economic power of the corporation.



the corporation and the state: a question of power61 “Corporate Clout” in a Lawless World Of the world’s 100 largest economic entities in 2009, 44 are corporations. If you look at the top 150 economic entities, the proportion of corporations raises to 59. The largest in 2009, Wal-Mart Stores, had revenues exceeding the respective GDPs of 174 countries. (Keys and Malnight 2010: 1)

These statistics reinforce the message of this work as a whole concerning corporate power not only within its “sphere of influence,” but also with the governments of all countries where they operate. The composition of this global power is constantly changing: in 1996, 51 corporations were in the top 100; in 2000 that number had fallen to 50, and in 2009 to the 44 cited above. Another important change is that, in contrast with earlier figures, now “3 of the top 10 are Chinese, with almost 20% (95 companies) of Global 500 firms headquartered in rapidly developing economies” (Keys and Malnight 2010: 1). Statistics do not answer some of the most difficult questions that arise—for instance, whether nations or corporations have more power— since “if we were to compare government revenues/budgets rather than GDP with corporate revenues, the relative economic power between nations and corporations would shift strongly in favour of corporations” (Keys and Malnight 2010: 3). The strongest corporations, after Wal-Mart Stores, remain Royal Dutch Shell, Exxon Mobil and BP. These corporations share the culpability for climate change. They also share the “distinction” of having been named as defendants in a number of cases, one of which ended with an indictment, as we shall see in the next chapter. Thus we can say that, regrettably, the major policy “clout” lies in the hands of corporations who have a “record” of sorts, as they have been brought to various courts because of their practices. Hence, not only are corporations not elected in the way states’ governments are, in most cases, but they also lack the most basic requirement of government officials at any level: had they been tried as natural persons, they would be ineligible from holding public office, even in a minor capacity. Their power has no democratic foundation, and even the most basic criterion for decision-making that will affect the public—that is, a “clean record”—is missing. Essentially, when even a low-level government offi­cial or a policeman is held to a higher standard than a corporation, it should be cause for alarm, as it “rules,” or controls those who do, with no credentials, no public interest mandate, and no democratic basis of any sort.

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In the next section we will consider what exists in international law to direct or restrain the unchecked corporate power to harm, which has emerged clearly as we surveyed some aspects of its activities. Thus, our task must go beyond showing the power of the corporation, not only in regard to the collectivity of citizens of all countries; we also need to show how and why the corporation is singularly unfit for such a pivotal role. Existing International Laws for State and Corporate Responsibility The state-based system of global governance has struggled for more than a generation to adjust to the expanding reach and growing influence of transnational corporations. (Ruggie 2007: 1)

To control and restrain such “expanding reach and growing influence,” what we have today are “guidelines” for multinational enterprises (OECD undated), the ILO “tripartite Declaration of Principles Governing Multi­ national Enterprises (2000), and the United Nations Global Compact (GC), the latter promoting the UN principles in the area of human rights. Although all well intended and well designed, all of these instruments share one major failing: they are voluntary (Ruggie 2007: 2). These documents were produced in response to what John G. Ruggie (a rapporteur recently appointed as a UN Special Representative) terms “corporate human rights abuses, especially in the extractive sector and the footwear and apparel industries” (Ruggie 2007: 3). In addition, in 2003, the UN Sub-Commission on the Promotion and Protection of Human Rights, through its working group, produced the draft Norms on the Responsibilities of Transnational Corporations and Other Business Enter­ prises with Regard to Human Rights (“Draft Norms”; Ruggie 2007:31 n. 7). These Draft Norms, in fact, are billed as the first non-voluntary initiative (in the area of business and human rights) accepted at the “international level” (Weissbrodt and Kruger 2003: 903). Unfortunately, although the best-known non-governmental organizations (NGOs) adopted the Draft Norms, the business community, including the International Chamber of Commerce (ICC) and the International Organization of Employees (IOE), insisted that the document “had no legal standing” (Ruggie 2007: 4). Despite the potential importance and power of the Draft Norms, things remain stationary in the end: business and commerce organizations resist any effort to restrain their activities, or to channel any effort toward just normal ends, aside from economic “progress.” In contrast, the



the corporation and the state: a question of power63

morally principled aspects of international law do exist, but they do not connect with corporate activities for various technical/practical/ procedural reasons. According to the most recent figures, 77,000 transnational firms span the global economy today, with some 770,000 subsidiaries, and millions of suppliers—Wal-Mart alone is reported to have more than 60,000 suppliers (Ruggie 2007: 6). Clearly these “global value chains” (Ruggie 2007: 7) have increased exponentially the economic prospects of corporations. In contrast, they also pose a regulatory “challenge to the international legal system” (Ruggie 2007: 7). For instance, these are “limited” companies, and this entails that usually they are not legally liable for their subsidiaries’ activities. Nevertheless, corporate activities are involved in environmental pollution, and the fact that they have more power than some states, and are collaborating with others, should ensure that their rights are accompanied by corresponding responsibilities (Weissbrodt and Kruger 2003). At least business operations should be responsible in the following four areas: “non-discrimination,” the security of the person, labor standards, and Indigenous people’s rights” (Ruggie 2007: 9). No doubt, states are intended to be the primary duty bearers, so that attributing duties to corporations has been hard to accept by some, although these legal persons have no problem with their ever-increasing range of rights. Perhaps we need to move in the direction of considering the effect of their activities on all stakeholders, rather than taking issue with what falls (or should fall) within the corporate “spheres of influence” (Ruggie 2007:  11). In 1949, the International Court of Justice affirmed that the “rights and duties” of corporations were not the same as those of states (Ruggie 2007: 12). But since that time the corporate power has grown, as we saw, beyond that of many states; in fact, not only does the state now have a duty to protect against corporate abuses, but there is also an increasing demand for corporate responsibility and accountability for international crimes and “other human rights violations” (Ruggie 2007: 13). The major UN human rights treaties, such as ICERD, ICCPR and ICESCR, as well as the Convention Eliminating All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC), all impose general obligations, although they are not directed specifically to the corporate community. In addition, a number of countries have ratified the ICC Statute, with the notable exceptions of the US and Israel. Still, although these legal systems also provide for extraterritorial jurisdiction with respect to international crimes, those provisions too may

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be extended to corporations (Ruggie 2007: 17; Ramasastry and Thompson 2006). But the main problems remain: despite the “concern” of the global community and the presence of ATCA, any and all attempts to bring some justice through civil indictments produce dismal results. The legal regimes and the various “norms” and guidelines leave “sizeable protection gaps” (Ruggie 2007: 21), as repeated affirmations of corporate responsibilities and of the principles governing such responsibilities leave the impunity on the ground largely untouched. Even if one corporation were to be found guilty of human rights breaches, such a decision does not “fix the larger systemic imbalances” (Ruggie 2007: 28), as these remain embedded in a system that is slanted towards the protection of the corporate criminal. Even Ruggie, perhaps one of the most serious present-day scholars on the question of the corporation and human rights, does not completely exclude the possibility of self-regulation, and even proposes “incentives” as well as “punishments,” as he cites Amartya Sen’s advice “to look beyond compliance,” thus citing a well-known supporter of neoliberalism and the status quo (Ruggie 2007: 29; Sen 2006: 2913). In contrast, other global criminal organizations, such as the Mafia, do not enjoy “incentives,” even in their “home” in southern Italy, nor has anyone proposed incentives as a better way of graining compliance for rapists, serial killers, or global pedophile organizations. Since the Draft Norms met with resistance, the Human Rights Com­ mission requested that a special representative be named to research the question of corporate responsibility and accountability, which led Ruggie to prepare a number of reports from 2006 to 2011. Positivists will argue that there is no binding legal duty for MNCs to match precisely the duties of states on moral obligations; the same path is followed by Steven Ratner in this regard, as we shall see. Tullio Scovazzi sees in these “normative prescriptions” a return to “natural law” (Scovazzi 2012: 3–24). As noted, the corporation functions as a legal person, as well as a “quasi-state.” Hence, while it is important to insist upon principles to ensure the respect for human rights, it is wrong to permit “market-based instruments” and voluntarism to guarantee the respect for such rights, rather than relying on command and control instruments (Scovazzi 2012: 23). The history of the corporation indicates the ongoing evolution of corporate rights and corporate power. It is necessary that corresponding duties be added to that picture, which—at this time—appears to be



the corporation and the state: a question of power65

totally out of balance. We will turn to that power, and the power of the state, in the next section. The Corporation as a “Quasi-State” The enterprise operates as a quasi-state whose special obligations to those under its control are accepted in both moral philosophy and international law doctrine. (Ratner 2001: 509)

If we agree with Ratner, then corporations are subjects of international law in two separate but connected ways: as “states” of a sort, and as individuals. Given this double accountability, the first question that arises is why the moral and legal condemnation remains strictly in the “doctrine,” in the scholarly writings, maybe even in UN declarations, but is not applied in any of the numerous cases that involve a corporation and human rights violations. Corporations should be doubly open to indictment and judgment: both states and individuals are, or should be, controlled by well-established legal instruments, starting with the principles of Nuremberg. International law also addresses “violations of individual rights by … governments against citizens of other states-acts deemed an affront to those states and thus within the ambit of international law” (Ratner et al. 2009: 4). The most important among these instruments are viewed as supporting jus cogens norms and applying to individuals as well as states. After the human rights violations of WWII, and starting with the principles of Nuremberg, and under the aegis of the UN, the new international law instruments prescribed “individual criminal accountability for violations of the laws of war,” as well as “a corpus of law prescribing limits upon a government’s conduct towards its own citizens,” in both peace and war times (Ratner et al. 2009: 5). In addition, there is a developing body of international criminal law, intended to ascribe criminal responsibility for both branches of human rights law (human rights and humanitarian law), but also meant to include other crimes, such as those related to drugs or terrorism. It is under this category that we should find the corporate attacks of human rights we have described so far. States, at least in principle, have accepted the concept of duties towards individuals, including ensuring that “the highest attainable standard of physical and mental health” would be part of their responsibility (ICESCR, art. 12, 993 UNTS at 8). A similar responsibility should be imposed on the corporation, beyond the sphere

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of employer–employee relations: “Both Amnesty International and the Prince of Wales Business Leaders Forum have distinguished corporate responsibility for a company’s own operations, from duties extending to the broader environment in the state” (Ratner 2001: 510). It is worth noting that the strongest, clearest declaration of corporate responsibility come from well-known NGOs, or even from philosophical work, rather than from a direct UN resolution or declaration: Gewirth and Raz, for instance, have both written of certain absolute rights, such that, in the former’s words, “agents and institutions are absolutely prohibited form degrading persons, treating them as if they had no rights or dignity.” For such rights, the corporation may well have equal duties toward all. (Ratner 2001: 511; Gewirth 1984)

It bears repeating: scholarly work is strongly outspoken, and so are the declarations of respected NGOs. Why then is there such a gulf between the theory, the words, and the actual practice? Why are corporate entities continuing to wreak havoc in the life of Indigenous and land-based communities? Why are both states and legal persons operating with almost complete impunity, while the number of victims of their legal operations, increases each year? Ratner speaks of the necessity of “balancing individual rights “with business interest and rights” (Ratner 2001: 511). But this approach introduces an inappropriate analogy between the basic human rights discussed above and “business rights”—that is, the rights to impose the choices and projects that will increase the corporation’s economic advance­ ment (something to which there is no right, either in domestic or international law). Indeed, there are some procedural rights that belong solely to states, but, for instance, “the right against cruel, inhuman or degrading treatment,” which Ratner argues can only belong to a state, seems to apply equally to corporations who impose those conditions on its internal and external stakeholders in many cases. This happens primarily in the case of MNCs, regarding the communities where extracting and mining industries operate in third world countries. Ratner compares the respective “rights,” which include the right of individuals to leave a country, and the right “to vote and run for office” (Ratner 2001: 512). The argument here proposed includes, and in fact singles out, the right to run for office: this right presumably does not apply to legal persons, yet they appear to do equivalent activities, by controlling public policy in various ways, as noted above. On the question



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of imposing restraints on the freedom of movement of individuals, Ratner himself notes: “Yet private actors are capable through physical force of preventing their employees from leaving the country, as the problem of forced prostitution makes clear” (Ratner 2001: 512). However, this example is somewhat misleading, as it refers to an illegal corporate activity. But the same happens when legal activities are considered. We need only consider Wal-Mart Stores’ practices regarding its employees in Asia to see examples of abuse and forcible confinement, in the pursuit of an economic activity that is perfectly legal, although it enforces slave-like conditions on workers. This contributes to the enrichment of Wal-Mart Stores, whose gross domestic product is now higher than that of several countries (Westra, R. 2012). Is the state guilty of not enforcing respect for human rights, and is the corporation simply complicit? Or should this order be reversed, as the corporation is directly involved, and the state’s involvement appears to be only indirect? The State and the Corporation: Responsibility and Complicity L’une des causes principales de la défaillance du système démocratique réside sans doute dans la soumission au monde économique des pouvoirs politiques censés représenter l’intérêt general. (Balanya et al. 2005: 15)

Since Nuremberg, many of the categories taken for granted before WWII, such as the obedience to superior orders, or participating in and planning any form of aggression against nations and peoples, have become illegal, and the concomitant damage these activities create is condemned in the strongest terms. This argument brings us to consider obligations erga omnes, as we argue that it is through these obligations and the norms of jus cogens that we can best hope to control international corporate crime. These norms are not based on anachronistic principles, even though crimes committed today are the products of a technologically “advanced” society, not present in Roman or Medieval times. What these obligations and norms emphasize is the universal morality that is, or should be, present in all articulations of substantive justice that can defend and support human rights. If we consider the non-derogable principles and norms embodied in the principles of Nuremberg, we can see other useful tools for preventing corporate crime. For instance, the Nuremberg defendants were charged with four counts:

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1. “common plan or conspiracy”; 2. “crimes against peace”; 3. “war crimes”; and 4. “crimes against humanity” (Bassiouni 1982: 209). Of these, all except war crimes are appropriate and applicable within our context. Both the Nuremberg Charter (1945) and the Charter of the International Military Tribunal (82 UNTS 279), and other related documents, represent the strongest articulations of the rules to govern legal forms of violence, hence they are most useful for understanding and analyzing corporate crimes. Principle II of the Principles of the Nuremberg Tribunal (1950) is a case in point: The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

Another important point is emphasized in Principle IV: The fact that a person has acted pursuant to an order of his government or of a superior does not relieve him of responsibility under international law, provided a moral choice was in fact possible to him.

But the most important is Principle VI: The crimes hereinafter set out are punishable as crimes under international law: a. Crimes Against Peace: (i) Planning, preparation, initiation or waging of a war of aggression, of a war in violation of international treaties, agreements or assurances; and particularly, (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). b.  War Crimes: Violations of the laws and customs of war which include, but are not limited to murder, ill-treatment or deportation to slave labour or for any other purpose of civilian populations of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastations not justified by military necessity. c. Crimes Against Humanity: murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.



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From our point of view, Principle II establishes the first salient point: what is under consideration is not the positive law of this or that country; rather, what constitutes a gross violation of morality, hence possesses universal validity. If an action can be characterized as this kind of crime—that is, one that infringes the tenets of natural law (Bassiouni 1982: 69)—then the fact that a specific country has failed to criminalize it, or even that many countries have been guilty of the same carelessness, is irrelevant to the Charter’s position. Principle IV reinforces the difference between procedural and substantive justice: something that is entrenched as part of a state’s positive law still does not require obedience if an individual’s morality forbids it. Bassiouni is correct when he describes the Charter as being “between law and morality” (Bassiouni 1982: 69). In the seventeenth century, Grotius said, “crimen grave non potest non essere punibile” (“a grave crime cannot be unpunished”). How is a “grave” crime defined? Turning to Grotius again, we see that such a “crime” may not violate a state’s “principles of legality,” but it violates natural law, in turn defined as follows: the dictates of right reason which points out that a given act, because of its opposition to or conformity with man’s rational nature, is either morally wrong or morally necessary, and accordingly forbidden or commanded by God, the author of nature. (Grotius, DeJure Belli, ch. XX, N8II, 3)

In essence, both Principle II and Principle IV establish the primacy of universal morality over procedural legalities of any country, and jointly ensure that those responsible will be indicted, whether or not the person charged has a position of power, or is expected to obey. Principle VI, on the other hand, outlines the factual elements that render certain acts criminal; in addition, it adds that even “planning,” “preparing” (VI.a(i)), and “participating” or being “complicit” (VI.a(ii)) in the carrying out of “crimes against humanity constitute crimes in themselves. From the material standpoint, then, the actions that can be considered corporate crimes are “murder,” “ill-treatment,” “devastations not justified by military necessity,” and “wanton destruction of cities” (VI.b). There are also some elements of VI.c, especially the reference to “extermination” and to “racial” grounds that support the argument for criminalizing actions that infringe human rights from the standpoint of environmental justice. If we consider many of the acts indicted through Article VI, we find great similarities between these acts and the actus reus of ecocrimes. “Murder” is surely no less such, when it takes place immediately, or slowly, even by increments, as through the administration of poisons or toxic substances.

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In the Canadian Criminal Code, for instance, §227, which required that a death followed an assault by no more than a year and a day, has been repealed. There is also reference to “ill-treatment,” and it refers to the conditions to which civilians and non-combatants and prisoners may be exposed. But “ill-treatment” may also refer to the conditions that result from corporate crimes: for instance, famine following droughts, or cholera and other diseases following floods when these are fostered and rendered acute by global climate change. When we willingly participate in activities that produce these effects, we are, at the very least, complicit in the violent conditions that form an inescapable part of the life of those most severely affected by those forms of ill-treatment: the citizens of developing countries. But we must note that the comparison with military violence are disanalogous in one important respect: there is no “just war” in progress. Hence all references to “military necessity” are out of place in this discussion: both “devastations” and “wanton destruction of cities” are the regular results of careless and reckless environmental practices, and they must be viewed as breaches of human rights, without “countervailing benefits” or any other “common good” being achieved. As Francis Biddle argues, “Crimes against humanity constitute a somewhat nebulous concept on, although the expression is not unknown to the language of international law” (Biddle 1974). Yet, nebulous though the concept might be, I think that an objective description of the consequences of corporate crimes—many of which are irreversible, while others produce terminal disease or are capable of affecting “humanity” in the real sense of inflicting DNA damage through toxic/ chemical exposure, as well as through endocrine disruption (Colborn et al. 1996)—provides a list of conditions and circumstances that fit that “nebulous” definition all too well. Some argue that International Law has always, to some extent, been concerned with whatever happens to individuals within states, although its primary focus has been the interaction between states. This historical concern can be expected, given that international law, like domestic laws, “had roots in an accepted morality and in natural law” (Henkin 1989). Henkin, however, argues that beyond common traditions and common morality, “political–economic (rather than humanitarian or human rights)” concerns might have motivated international law. Nevertheless, the main point at issue, from the standpoint of the tradition of morality and respect for human rights, is the basic reason for the presence of international laws and international tribunals.



the corporation and the state: a question of power71 Jus Cogens and the Effects of Corporate Activities The ILC identified as jus cogens the prohibition of aggression and the illegal use of force, the prohibitions against slavery and the slave trade, genocide and racial discrimination and apartheid, the prohibition against torture, the basic rules of international humanitarian law and the right to selfdetermination. (Talmon 2006: 99)

To those norms, others were added, such as the prohibition of cruel, inhuman and degrading treatment (German Federal Constitutional Court, 2003, 129 at para. 67), “crimes against humanity,” the prohibition of piracy and the principle of permanent sovereignty over natural resources” (German Federal Constitutional Court, 2003, 100). As well, the “basic rules for the protection of the environment” were viewed in part as jus cogens by the German Constitutional Court (2004, 175–183 at 178). This expanding list appears to cover both acts that can only originate from a state and others that describe many harmful activities we have discussed as part of industry. It is important to note that the obligation does not only apply to the states involved, or perhaps to “quasi-states” or corporations, if that position can be accepted, but that the same obligation NOT to accept an illegal situation is the duty of all “third states” and the global community itself. Talmon (2006) offers one of the most obvious examples of such an obligation not to recognize, taken from the International Court of Justice (ICJ) regarding the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (hereafter, ICJ Reports 2004; see www .icj-cij.org/docket/index.php?p1=3&p2=4&k=5a&case=131&): Given the character and importance of the rights and obligations involved, the Court is of the view that all states are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid and assistance in maintaining the situation created by such construction (ICJ Reports 2004).

This obligation applies to states, but even the corporations that supported both the construction of the wall, and the illegal expansion of Israeli “colonies” in Palestinian areas, such as Caterpillar, for instance, should be counted as complicit and equally guilty. In fact, a number of NGOs, such as the Jewish Voice for Peace and others, have been recommending divesting from any economic deal with Caterpillar in 2011 and 2012. Given the special position of the acts listed as breaches of jus cogens, the universality of the obligation of non-recognition (that is, the obligation “not to recognize as lawful”) should apply to most of the situations

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described thus far, both for the corporation’s role regarding its internal and external stakeholders. Hence, cases of racial discrimination, slave-like working conditions, inhuman or degrading treatment, or dangerous exposures, such that a specific community or people become victims of grave harms amounting to crimes against humanity, should all be subject to the obligation of non-recognition; that is, neither the specific state where these events occur nor the international community as a whole should simply treat the result of these corporate actions as “lawful.” Talmon discusses this obligation, starting from Judge Kooijmans’s position regarding the division of states’ opinions regarding the Wall, as he raises the question of what the obligation might actually entail: That question is even more cogent considering that 144 States unequivocally have condemned the construction of the wall as unlawful (res.ES-10 113), whereas those States which abstained or voted against (with the exception of Israel) did not do so because they considered the construction of the wall as legal. The duty not to recognize amounts therefore, in my view, to an obligation without substance. (Talmon 2006)

Talmon continues by raising a further question: what about situations like the genocide in Rwanda? What are other states’ obligations? As far as the wall is concerned, its route was clearly designed to demarcate a de facto annexation of territory (Talmon 2006: 105). It seems that a question of law, therefore, becomes a question of politics and, ultimately, one that indicates the interests (both imperialistic and economic) of the US. And if these situations are not recognized as lawful, then according to Art. 41(2) of the ILC (2001), all other states are under a double-pronged obligation: (1) not to recognize what happened as a legal action/event; and (2) “not to render assistance in maintaining the situation” (Talmon 2006: 105). Talmon acknowledges that no state has altered its position regarding Israel in any way, or cut their dealings with that state, or their funding to it. This lack of reaction puts the situation clearly in context when one considers the ongoing push from the US (and of course Israel) to “punish” Iran by sanctions, or possibly even by force, for its nuclear ambitions, which might lead to future warfare, when Israel itself is behind the ongoing conflict in the Middle East, and guilty of illegal acts now, aside from whatever it might choose to do in the future. Ian Brownlie adds that “[t]he specific content of norms of this kind involves the irrelevance of protest, recognition, and acquiescence; prescription cannot purge this type of illegality” (Brownlie 2006: 149–150). Therefore the question persists: what can and should be done in these



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cases? It seems as though a retaliatory aggression against the country that tolerates or initiates the illegal action is not acceptable. Similarly, anything that respects or supports the country involved in its ongoing illegality ought to be equally illegal and impermissible, aside from retaliatory aggression: “the obligation of non-recognition of the legality of a specific situation amounts to a duty of active abstention” (Talmon 2006: 125). However, it would seem that not all listed examples of situations requiring non-recognition may be viewed as equal: “non-recognition can operate only in cases of a factual situation that also takes the form of a legal claim (to statehood, territorial sovereignty, governmental capacity, etc.) intended to have erga omnes effect” (Talmon 2006: 125). In that case, surely the wall/annexation of Palestinian territory should be a prime example of an erga omnes obligation; yet, like all other corporate/state illegalities, the already limited scope of application is limited even further by the economic and power interests of the countries involved. The illegal colonization on the part of Israel and the construction of the illegal wall are still present, despite their obvious attack on selfdetermination and territorial sovereignty of the people of Palestine, as all resolutions and declarations against both are no more than paper tigers at this time (Westra 2012a). Hence it would be naive to hope that the obligation of non-recognition would have any actual effect on ongoing corporate illegalities. The Impunity of Corporate Criminals and the State [W]here everything was “perceived as being legal,” there was no perception that, even when you were in fact violating the law, that there would be any legal jeopardy or legal consequence to what you were doing … I was really surprised that people would so overtly and explicitly do things that 20 years previously probably would have gotten them landed in prison. (Leonard 2012)1

This paragraph is a telling one in a number of ways; not only in what it says and implies, but in what it omits. The first “surprise” is that a well-informed (and angry) author finds it surprising that the present US administration (like the previous ones) does not “perceive” illegality or acknowledge its 1 An interview on Charles Ferguson’s Oscar -winning documentary film “Predator Nation”.

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presence, in regard to Wall Street and the corporate enterprise in general. Something written in 2012 should at least reflect the ongoing illegality of the so-called “war on terror,” the re-writing and revision of rules of war and of state relations dating back from antiquity, all based on the activities fostered by neoliberal globalization, and its relentless imperialism (Westra 2012a). When US state/corporate interests are viewed essentially as one, as, for instance, the 2006 Terrorism Act identifies acts hostile to corporate/ industrial operation with acts against the state (Clements 2012), and when this identification, like the one covering so-called “counter-terrorist” measures, views as totally permissible all sorts of murderous, aggressive acts, then the impunity with which both are treated should not occasion any surprise. If you can kill, even using drones, which, by definition, cannot distinguish between combatant and non-combatant, in the advancement of US economic interests, then surely simply depriving people of their homes or savings through various legal maneuvers intended to deprive them while enriching banks and financial institutions should be viewed as a far lesser crime. Clements is justifiably angry at the ongoing impunity facing the financial sector and Wall Street, but since 9/11 the same economic interests have been pursued under the mask of “self-defense,” or of the advancement of “democracy” in various other countries (such as Afghanistan or Iraq), with little or no concern for the brutal practices that accompany these activities, from torture, to extraordinary renditions, to the elimination of civil rights at home or abroad. These gross human rights violations are such that the purely economic illegalities pale in comparison. Thus, to paraphrase David Korten, all of these illegalities and the concomitant impunities, can only be expected when “corporations rule the world.” The other unexpected (or perhaps to be expected) omission is any reference to all the other aspects of corporate criminality such as those we have briefly listed in Chapter 2, where legal persons demonstrate no respect for the life, health or normal function of human beings. The fact is that no other corporate criminal activity is described and attacked as clearly and as strongly as their financial misdeeds, in the literature, the popular press, or even the jurisprudence. Thus, not only their critics, but the corporations themselves are unconcerned about their other crimes; that is, they don’t even work particularly hard to hide them, as they thrive in the gross inequalities that exist globally.



the corporation and the state: a question of power75 Corporate Impunity and “Imperial Plunder” The inequitable distribution of resources driven by the strong at the expense of the weak which constitutes the broad definition of plunder, finds in the rule of law the rhetoric of legitimization. This rhetoric constricts the very meaning of the word plunder, to the point of naturalizing, legalizing and ultimately denying the outrageous disparity in resource allocation, following many social processes in contexts of power imbalance. (Mattei and Nader 2008: 137)

The enrichment of corporate “criminals” proceeds apace with the impoverishment of the rest (or the 99%, according to the Occupy Movement). The impunity of corporate harmful actions is supported and defended through that enrichment. The present situation is the continuation of “colonial domination,” now hiding behind the mask of neoliberal “development” (Mattei and Nader 2008: 137; Westra 2012a: 87–92). Mattei and Nader dub the situation, which combines elements of criminality with the legal infrastructure of impunity, the “imperial rule of law” (Mattei and Nader 2008: 137). The main movers and originators of this imperial rule are the US and its satellites, but the use of law “to legitimize and even to legalize rather than criticize political horrors, such as torture or plunder” (Mattei and Nader 2008: 139) can also be found in Europe—for instance, in the work of Carl Schmitt, a famous German jurist, who proposed theories that helped to confirm and legitimize Nazi rule, and hence established his complicity. It is unfortunate that, thus far, none of the “enablers” of US criminal illegality, even in the horrors of torture and disappearances, have been brought to trial. However, there was an effort in Switzerland to bring former US President George W. Bush to justice, when there was a possibility of his coming to Europe to speak, and it will be useful to briefly review that attempt. Torture, renditions, and disappearances are described as part of a fight against “the enemy,” but the ongoing theft of resources coupled with the disregard of the desire of many not to be forced to tolerate industrial “development” cannot be described as the response to “enemies,” let alone as part of a “war on terror.” Hence it is helpful to view together the various failures of human rights instruments to extend protection to the human collectivity, even as we focus on a particular brutal aspect of imperialistic practice: the use of torture. This unusual “indictment” supports my point: only jus cogens norms, giving rise to erga omnes obligations, may, if a state is willing, bring

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to justice these grave violations of human rights. It is encouraging, as a start, to note that George W. Bush was about to join Henry Kissinger and Benjamin Netanyahu (and possibly Pinochet) among the category of heads of state and other VIPs who can no longer travel to Europe with impunity. National Lawyers Guild International Committee According to international law experts in New York-based Center for Constitutional Rights (CCR) and the Berlin-based European Center for Constitutional and Human Rights (ECCHR), former presidents do not enjoy special immunity under the Convention Against Torture (CAT). Over 60 international human rights groups signed on to the letter of Denunciation. (CCR 2011)

It is significant that George W. Bush, President of the US from 20 January 2001 to 20 January 2009, took an oath “to preserve, protect and defend” the Constitution of the United States. The human rights documents available from the CCR website (CCR undated) include an “Overview of Detention Policies and Torture Program,” starting with the Directive (memorandum of notification) issued by Bush on 17 September 2001, in which he authorizes “the CIA to capture suspected terrorists and members of Al-Qaeda, and to create detention facilities outside the United States where suspects can be held and interrogated.”2 Another important step was taken on November 13, 2001, as Bush authorized that military commissions would try detainees, so that they would not be subject to “principles of law and rules of evidence,” as would be the case were they to be tried in regular US courts. The deliberate setting aside of democratic legal procedures was intended to be used for “a broad category of persons” believed to have been linked to acts of international terrorism, and the latter is understood as anything (including “preparatory acts”) that might cause “adverse effects” not only to US citizens or to the US as a whole, but also to “its policies.” Thus, once again, it is not only direct injury that is at stake but, as in the case of “counter-insurgency,” any attack on the ideology and status quo of the US that is equally beyond discussion (Westra 2012a). The next important step was Bush’s decision that the “third Geneva Convention did not apply to the conflict with Al-Qaeda or the Taliban, 2 “The directive has yet to be publically released”; see Timeline History of Harsh Interrogation Techniques”, www.npr.org/templates/story.php?storyId=103376537.



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hence they would not receive the protection afforded to prisoners of war” (Yoo and Delahunty 2002). At this point, we can easily respond to Chief White House Counsel Alberto Gonzales, whose “Memo to Bush” of January 25, 2002 asserts that the “new paradigm” of the “war on terror” renders obsolete that Geneva Conventions’ limitations on “questioning enemy prisoners” (see CCR undated). But even the briefest review of the material regarding the support of terrorism in Central and South America (Gareau 2004) demonstrates that, rather than a “new paradigm,” what we encounter here is simply more of the same: more blatant, more openly practiced, but based on the same total disregard of human rights and of the “principles of international law” that Nixon and others practiced and supported. “Counter-terrorism” instead of “counter-insurgency,” and the 3000 deaths of 9/11 to support Bush’s claim that the defense of US interests demands nothing less than the total regression to a situation where power and violence dictate the only “language” that is appropriate to “others,” who might be contrary to our present ideology, whether or not they are involved in subversive Colin Powell’s advice to reverse his determination of January 18 regarding the Geneva Convention and their applicability. Indeed, Bush issued a memo on February 7, 2002, which called for detainees “to be treated humanely and to the extent appropriate and consistent with military necessity” (Bush 2002). According to the Red Cross, the CIA program included transfers of detainees to multiple locations, maintenance of detainees in continuous solitary confinement and incommunicado detention… [including] the infliction of further ill-treatment through the use of various methods either individually or in combination, in addition to the deprivation of other basic material requirements. (ICRC, Report to John Rizzo)

The ICRC Detainees CIA Report indicated that the whole program was clearly designed to undermine human dignity and to create a sense of futility by inducing in many cases, severe physical and mental pain and suffering, with the aim of obtaining compliance and extracting information, resulting in exhaustion, depersonalization and dehumanization. (ICRC, Report to John Rizzo, 2007, 7–9)

Some of these “enhanced interrogation techniques” were videotaped, especially those showing the interrogation of Abu Zubaydah, whose torture included waterboarding “83 times”: these tapes were destroyed by the CIA, with impunity. The ill-treatment and torture imposed on these detainees “constituted cruel, inhuman and degrading treatment” (CCR

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undated). As well, the same array of “enhanced interrogation techniques” was used on Khalid Sheik Mohammed, including the “deprivation of sleep for 180 hours,” and “threats to kill his children” (CCR undated). Through the whole period, Bush continues to assert his right to place those in CIA detention “in secure sites beyond the reach of the law” (CCR undated). The Parliamentary Assembly of the Council of Europe published a report on the “transfers” and confirmed torture in locations in Poland and Romania (CCR undated). In March 2008, Bush “vetoed legislation that would have banned the CIA from using “enhanced interrogation techniques” (Eggen 2003). Another detainee, Mohammed al Qahtain, was subjected to the “First Special Interrogation Plan”: [The] plan, which began on November 23, 2002 and ended 16 January, 2003 included 48 days of severe sleep deprivation and 20 hours interrogation, forced nudity, sexual humiliation or religious humiliation, dehumanizing treatment, the use of physical force against him, prolonged stress positions, prolonged sensory overstimulation, and threats with military dogs. (CCR undated)

Without continuing to list the horrific examples disclosed by the ICRC and by various other reports complied by human rights groups, and groups representing judges and lawyers, all concluded that what was and is involved are acts of torture under international law, as well as enforced disappearances, deliberately practiced at the behest of the US government under George Bush, for the purpose of extracting information (CCR undated). Therefore it is clear that when state (and corporate) interests are at stake, the law may not be the last refuge of blind justice available to the victims of ongoing harms, but it may well represent the strongest defense of an immoral and unacceptable status quo. This abuse of power centered  on the infamous “Bybee memo” (or “Torture Memos”). Jay Bybee was Assistant Attorney General for the Office of Legal Counsel (OLC) in the US Justice Department from November 2001 to March 2003, during which time, CIA acting General Counsel John A. Rizzo “requested legal advice on detainee interrogation” (see http://en.wikipedia.org/wiki/ Bybee_Memo). The request originated from then General Counsel Alberto Gonzales. The CIA inquired whether, after the terrorist attacks of September 11, 2001, it could aggressively interrogate suspected high-ranking al-Qaeda members captured outside the US, in ways many regard as torture. The legal memorandum, signed by Bybee, therefore defined as “enhanced interrogation techniques” what was regarded simply as torture by then Secretary of



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State Colin Powell, Navy General Counsel Alberto Mora, the Justice Department, Amnesty International, Human Rights Watch, American allies, and medical experts. The significant roster of opposition to the Bybee memo confirms the ultimate power to pervert the law to suit specific interests; but it also demonstrates that there still persists some moral and legal reasoning, primarily in NGOs, but also among the members of the US ultimate power, who, unfortunately were not successful in their appeals for restraint. At any rate, Spain is now attempting to bring some of the coconspirators to justice (Abend 2009), although the obligations of third states regarding grave human rights violations of jus cogens norms are less than clear. Corporate/State Crime and Third States Obligations [T]he right of third States to resort to reprisals cannot be based on the theoretical construction of obligations erga omnes alone. No legal consequences can be deduced per se from the classification of an obligation as erga omnes, a classification which is often largely based on its ethical and moral “value.” (Hillgruber 2006: 271)

Yet the whole reason for erga omnes obligations is the fact that these obligations represent the most important values of the global community; thus to ignore them is essentially to attack these values and that community. When this argument is proposed for one society, one community, the argument is that the moral community is the basis of a society, as Lord Patrick Devlin argued for his own country, Britain (Devlin 1959: 129–151). The argument originated from a trial regarding homosexuality and obscenity: Devlin took the position that the revulsion that a society, in general, feels against certain aspects of sexuality (at the time) was sufficient to ensure serious considerations in legal decisions about what is and is not (or should not be) permissible: I return to the statement that I have already made that society means a community of ideas; without shared ideas on politics, morals and ethics, no society can exist … For society is not something that is held together physically; it is held together by the invisible bonds of common thought. (Devlin 1959: 137)

Devlin proposed the existence of a “seamless web of morality,” where any and all attacks on any part constituted a form of “treason” and, in the final analysis, an attack on the whole. H.L.A. Hart responded to Lord Devlin’s

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1959 lecture with the publication of “Immorality and Treason” (Hart 1998: 47–53), where he argues, with J.S. Mill, that harm to others alone provides the litmus test for what can logically and legitimately be considered punishable by law. Although it is hard today, when multiculturalism reigns in most countries, to accept the existence of the “seamless web of morality” that Devlin proposes regarding one society, as we consider not only the examples of Nazi Germany, fascist Italy, South Africa’s apartheid, Israel’s Zionism, Hart’s position is equally hard to accept. A sentence from the conclusion of his essay demonstrates this point: As Mill saw and de Tocqueville showed in detail in his critical but sympathetic study of democracy, it is fatally easy to confuse the democratic principle that power should be in the hands of the majority, with the utterly different claim that the majority, with power in their hands need respect no limits. (Hart 1998: 52)

It is clear that the most powerful present-day instantiations of liberal democracy appear to subscribe precisely to the “no limits” policies Hart decried. However, the situation is entirely different when we consider the global community, rather than a single example of it. The global community does subscribe to values and principles that are part of what Devlin termed the “seamless web of morality”: that is, the sum total of the jus cogens norms which are judged to be non-derogable and basic to the natural law underpinnings of legality and jurisprudence. In that case, it is quite correct to view those who disregard or ignore those norms to be attacking the global community of states, so that each and every one, singly and collectively, should have the right to react as strongly as necessary to ensure the cessation of the human rights violation that has occurred or is ongoing. That said, this is a logical and moral argument, but it does not guarantee that there are, in fact, the legal means to bring about the cessation of the violation. Even more doubtful is whether third states have legal practical steps to do so at their disposal. First, we need to leave aside “violations of multinational treaties” (Hillgruber 2006: 273), as these may or may not be based on jus cogens. Hillgruber, however, notes that “none of the main human rights agreements contain provisions that expressly grant third States the right to take reprisals or even clear indications that this right exists” (Hillgruber 2006: 273). Aside from the explicit wording of treaties, we need also to consider the “object” and “purpose” of treaties (Hillgruber 2006: 273), as, according to human rights instruments, the conduct of states towards its own nationals



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is also subject to international law. Therefore, we can “assume that state parties to human rights agreements implicitly allow reprisals to be exercised by any one of them” (Hillgruber 2006: 275). Yet, in the case of the ICCPR, Pursuant to Art. 41, a contracting State can only bring violations of the treaty before the Human Rights Committee if both the State itself and the alleged offending State have declared that they recognize its jurisdiction. If they have not done so, there is no mechanism to settle the dispute within the treaty that would override the “more general” right to impose reprisals. (Hillgruber 2006: 275)

Of course, most countries are parties to the ICCPR, but the problem becomes acute if the breach concerns the Statute of the International Criminal Court, for instance, which has not been ratified by the most aggressive states within the global community (US and Israel). Neverthe­ less, the presence or lack of adherence to even a major treaty should not be considered regarding the issue under consideration, as jus cogens norms take precedence over any other legal obligation. Nor does the possibility of bringing a complaint before the Human Rights Committee offer a sure solution: it may offer the services of a “nonbinding conciliation commission” (Hillgruber 2006: 276). This procedure, at best, results in a non-binding decision: it is “little more than formal conciliation machinery” (Buergenthal et al. 2002: 47). Further, the right for reprisals does not even depend on whether the violation is “particularly serious and unambiguous” (Hillgruber 2006: 277). The only human rights violation that guarantees the right to reprisals is the crime of genocide. Article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide states that “all the contracting parties undertake to prevent and punish the crime of genocide” (Hillgruber 2006: 278). In fact, “if genocide is committed by a State in its own territory against its own citizens, there is no directly affected state. If third States were not permitted to take reprisals, the prohibition of genocide would be virtually unenforceable” (Hillgruber 2006: 279). Similarly, reprisals could be taken for violations of the Geneva Conventions and the victims of armed attacks (Hillgruber 2006: 280–281). Of course even the existence of formal working to establish principles intended to govern interventions to stop human rights violations does not ensure that these principles and declarations are followed. Unfortunately, “positive international law does not allow for the concept of erga omnes and international legal community” (Hillgruber 2006: 287) to carry the meaning here ascribed to these expressions.

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The United Nations as a body representative of the international community should be able to respond to grave violations of human rights or humanitarian law. However: The United Nations itself has no general competence to enforce the law, not even in connection with jus cogens or obligations erga omnes … However, the UN does have special powers under Chapter VII of the UN Charter, but these are reserved for preserving or restoring peace, not to enforce international law. (Hillgruber 2006: 288)

The main problem is that the Security Council is politically motivated in all its decisions, and essentially under the control of the veto powers of the US for the most part (Westra 2012a: ch. 6). As the US is, at present, the most aggressive state within the global community, it is easy to see why self-condemnation and self-indictment are not high on the agenda of the Security Council, especially since the next step that would follow—an appearance before the International Court of Justice, or, even worse, before the International Criminal Court—would be futile, as the US (as well as Israel) did not ratify that statute. Finally, third States may be “authorized to take reprisals,” but this is by no means obligatory. Hence, the ongoing spate of corporate violations of human rights and jus cogens norms, whether they are the originators as “quasi-states” or complicit with the states in question, continues with impunity, as there is no obligation on anyone’s part, not even the UN itself, to ensure the cessation of the violations. The third states themselves have a “broad scope that allows them to adopt weaker measures instead of reprisals, if they so choose” (Hillgruber 2006: 293). Weaker measures would certainly be appealing, as we are still in the realm of the interests of the corporations and the most powerful states, whose own interests are close to identical with those of corporate legal person. Moreover, the possibility of third states joining to further the cessation of some human rights violations suggests the possibility of giving rise to an “objective regime that might resemble in some way the presence of erga omnes obligations” (Ragazzi 1998: 39). Ragazzi explains: Powers had tried in the past to impose their will on the other members of the international community, or at least afford a majority of states an instrument for putting pressure on the dissenting states and forcing them to accept an objective regime. This would be obviously incompatible with the basic principle of the equality of states. (Ragazzi 1998: 39)

As noted above, the “equality of states,” desirable and lawful as it is in principle, appears to have given way to rampant inequality based on economic



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power. In that specific area, corporate legal persons surpass many states, and do not hesitate to join with other such persons and with states themselves to ensure that their interests should prevail, for the most part, without fear of reprisals either from the organs of the UN or from third states. Corporate Power and Cosmopolitan Democracy Now as then, no world executive power exists. As a result, at the world level a huge gap exists between the solemn statements of principle and bleak daily reality. The violation of human rights, conditions of extreme poverty, periodic recourse to war, and environmental degradation are but a few of the many problems facing humankind today. (Archibugi 2008: 2)

Daniele Archibugi notes the vast gulf between the affirmation of principles and the bleak—and, I would add, lawless—reality we face. He proposes “cosmopolitan democracy,” based loosely on the West’s vision of democracy. He proposes a cosmopolitan democracy transcending the democracy he believes exists in the West. Archibugi says that the West “is an entity composed of countries that have a market economy and consolidated democratic institutions. With the sole exception of Japan, the West involves Europe and its ancient settlements” (Archibugi 2008: 3). He thinks that, beyond the material power, we can observe the domination of the US and its ideology. Yet “freedom and democracy” are no longer the values that once carried basic universal connotations. Increasingly, these high-sounding concepts “have been turned into ideological screens to defend vested interests and attack enemies” (Archibugi 2008: 4). Hence that “world power” ought not to be the sole (or the greatest) source of power, as often the West “claimed to have values,” such as freedom and democracy, for itself while denying them to others (Archibugi 2008: 5). Democratic regimes are not the only ones of unworthy of carrying on the torch of civilization, as autocratic regimes may be more likely to be aggressive and to disregard human rights. This is not the appropriate place to follow Archibugi’s sophisticated analysis of all aspects of the possible achievement of a real global democracy (Archibugi 2008: 228). But we should consider the effect on “the West” of corporate persons, given the power these ubiquitous legal entities possess in the international community. Archibugi is correct as he says that “no world executive power exists,” at least if he refers to an officially sanctioned or elected “executive power.”

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The questions we are raising in this work refer to the possibility that a supranational power does exist, especially in the West, but ultimately affecting the whole global community, which does not represent either “democracy” or “freedom.” This power does not possess a true political ideology or a democratic mandate; it is unashamedly limited to the aggressive pursuit of its own interests. As we continue to examine the corporate legal persons’ power, together with their influence on public policy globally, we should keep in mind which institutions and organizations might have a legitimate claim on a true cosmopolitan democracy instead. Corporations, the State and the “Two Constitutions” [T]he rise of the giant corporations during the past century has been the principal influence in the creation of a second—secret—constitution. Corporations, at least those of giant size, are private governments and should be recognized as such. (Miller 1987: 242)

Although Miller’s argument pertains exclusively to the US Constitution, the fact that the “giants” to which he refers are indeed the supranational powers that intrude in global governance entails that his position supports the argument of this work, even beyond its application to US governance. His starting point is even more radical than the one proposed in Chapter 1 of this work. It seemed obvious that the court in Santa Clara did not want to discuss the personhood question, and were quite satisfied taking it for granted as a starting point, without any philosophical or political argument in its support. Some of the commentators suggested personal motives, other simply carelessness, even negligence. In contrast, Miller proposes that in fact the Santa Clara court knew precisely what it was doing, although it could not predict all the ramifications and consequences of its decision over time. Miller says: Santa Clara, accordingly, is best seen as one of a clutch of decisions in which the Supreme Court was a willing ally of the property-owning class in the United States—those that Alexander Hamilton called “the rich and wellborn” in the Constitution Convention of 1787. (Miller 1987: 243)

The attack on the Fourteenth Amendment is considered to be especially heinous, as it transformed a landmark document designed to protect freed slaves into one for the protection of those that needed it the least, as “the state action doctrine added to corporate privilege, rendering the firms immune from constitutional norms” (Miller 1987: 243).



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Nor do we need to wait for the racially motivated repressions in South Carolina or Florida (Bullard 1994), or the repression of Indigenous revolts against mining and extracting industries today (Westra 2007). August 2012 saw the violent battle of South African policemen against the miners at America mine, who protested for non-payment of wages and poor working conditions, resulting in four murdered individuals. But the use of federal troops to repress protesting workers, in the US, dates back to 1895, when a strike by Pullman workers in 1894 “stopped trains and the mail,” killing “some of the mob,” a result that was seen as acceptable as a solution to the problem (Miller 1987). Not only does the working class, one that includes African Americans, suffer from the constitutional dualism Miller decries, but every US citizen is affected by it. The US is “governed by a type of “democratic elitism” (Miller 1987: 246), but the secret institutions of the corporate-directed second constitution “have marked antidemocratic authoritarian tendencies” (Miller 1987: 246). Miller does not discuss the actual detailed results of this duality, but he does state that the separation between the economy and the polity is only functional, as they are complementary. Hence a truthful understanding of the situation would be to term it the “corporate state.” This intimate relation entails that the most important aspects of democratic citizenship are eliminated. Mark Kesselmann notes: “The hidden face of power is exercised not so much by the suppression of specific issues from the political agenda as by the exclusion of the most fundamental matters of public concern form the political sphere” (Kesselmann 1982: 57). The corporate control here acknowledged could not persist without an additional control: the corporate control of the mass media. That is the final form of supranational control—none of the control held by the law, governance, or the markets exert such widespread power. It is the ultimate social control of people’s wants and preferences, so that unhealthy and even injurious choices become the “real” preferences of citizens—first in the US, but eventually everywhere, as the “better way” is spread, from harmful McDonald’s hamburgers and Coca-Cola to mind-warping computer games and other such “necessities,” promoted to the public from childhood on. At this point we can turn to a consideration of the status of corporate rule, as the existence of such rule can hardly be put in question. In the next chapter, therefore, we will raise the question of the corporate “fitness” to rule, given its aims and its character.

CHAPTER FOUR

THE CORPORATION AS CRIMINAL Introduction: External Stakeholders In its first official confirmation, National Biodiversity Authority (NBA, India’s independent regulator on all matters pertaining to biodiversity protection, conservation and use) has stated that “it is proceeding with lodging of complaint against the alleged violators” of Biological Diversity Act on grounds of biopiracy in promoting B.t. Brinjal, India’s first transgenic GMO food. This information was provided to Environment Support Group (ESG) in response to a Right to Information query. (Countercurrents 2012)

This is by no means the only case where the external stakeholders of a corporation are deprived of their basic rights to life and health: another example is the victory of Paul François, president of the Phyto-victims network, against Monsanto, which we will examine below. As well, as recent multi-disciplinary conference emphasized the fact that, in France, “the Senate had recently announced that it would set up a commission on pesticides and health” (Health and Environment Alliance 2012: 1). The list of the variety of irreversible harms perpetrated by Monsanto, the largest pesticide public health menace, acknowledged that Parkinson’s disease was now to be added to the artificially short list of pesticide-generated diseases, including not only the expected cancers, but premature puberty in young girls and the “growing number of micro-penises in baby boys” (Health and Environment Alliance 2012: 2). Most significantly, endocrine pediatrician Charles Sultan said that scientific evidence of endocrine-disrupting pesticides was now available from five different disciplines. He described “a new concept in medicine”: exposure in the fetal phase, which produced health consequences later in life (Health and Environment Alliance 2012: 2). This important point confirms the ground-breaking research of Theo Colborn (Colborn et al. 1996), and of Grandjean and Landrigan (2006). It also indicates the cogency of the questions posed in Chapter 1 regarding the present designation of corporations as “persons,” while denying some of its major victims—that is, fetuses—the same status. It is worthy of note that Theo Colborn published scientific research on endocrine disruptors in a more popular form in the 1996 book cited above,

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but only after working for many years on the effects of endocrine disruptors on various animals, from gulls to whales, especially in Great Lakes area and the St Lawrence seaway. Thus the “new concept” in medicine that is the acknowledgement of the effects of prebirth exposures has been “discovered” a long time before Dr Sultan’s pronouncement. In 1994, my work on the principle of integrity (Westra 1994) cited Colborn as part of the argument designed to promote the protection of ecological integrity, and cited the role of endocrine disruptors on Great Lakes Wildlife. In addition, Grandjean and Landrigan’s groundbreaking work dates from 2006, six years before the research “discovery” of Dr Sultan. Finally, Health Canada funded a group of epidemiologists, medical doctors, and other scientists, and included this author, precisely to research the effects of pollutant and various exposures on children, including the preborn. Thus there is surely enough scientific evidence and knowledge, at least from epidemiology, toxicology and medicine, to confirm the effects of exposures on the fetus, so that information available to the corporation who develop, produce and distribute harmful products cannot be denied, and neither can—to say the least—its culpable negligence. At this time, it is useful to start with a specific corporation, Monsanto, because of the multiple harms it produces, but also because, in a landmark decision in France, Monsanto’s CEO was condemned for its criminal responsibility for the harm inflicted on French farmer Paul François. On February 13, 2012, for the first time, Monsanto Corporation was judged to be responsible for the toxic exposure of the French farmer Paul François, by a tribunal in Lyon, France. This is an unprecedented result, because the manufacturer was found to be guilty, given that François’s exposure resulted in symptoms which permitted the identification of the specific chemicals involved (Chabas 2012). Once the causality has been established, the victims can be compensated, but it is normally the association for the social protection of farmers that pays; that is, society itself. In contrast, in the case of Paul François, the farmer has succeeded in establishing the responsibility of the industry that distributes the products that harmed him. No doubt Monsanto will appeal, and it will be hard to sustain the accusation, because it does not involve an “accident, occurring at time t”—rather, the case involves effects unfolding over a period of time. At any rate, this case strengthens the ongoing anger in France against Monsanto’s other activity: the production of GMOs, which recently prompted national hero José Bové to say, “Culturellement, l’agriculture



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française ne’existe plus” (“Culturally speaking, French agriculture no longer exists”). On the same day, February 13, 2012, another judgment in Torino, Italy, brought closure to an ongoing case, as the victims of asbestos exposure saw the Swiss billionaire Stephan Schmidheiny, co-owner of Eternit, condemned to a prison sentence. This was the biggest and most serious European environmental health case to date. Thousands died because of the total disregard of worker’s health and safety that prevailed. Usually, in such cases, a victim (a worker harmed by asbestos exposure) might sue, and if he could prove the etiology of his disease, he might have been compensated in a way similar to the Monsanto case. But this case represents a watershed decision: the owner of the corporation was sentenced to sixteen years in jail, a serious sentence reflecting the outrage felt for the thousands of victims his negligence and his disregard for the life of his workers had produced. The occurrence of two such disparate decisions on the same day, lends some hope that in the future industrial criminals might rethink their cavalier attitude to those they employ and to the general public. Therefore, although the jurisprudence appears to move forward, as it acknowledges the criminality of those who control certain industrial operations, the legal infrastructure appears to lag behind, as the massive corporate power refuses to accept binding limits, and both single states and the United Nations itself cannot, apparently, force them to accept the limits that are part of all “persons’” duties. In the next section we will consider again the lack of binding norms, before returning once again to agricultural issues, given that that appears to be the first area where courts have accepted the direct criminality of corporate activities. Norms to Restrain Corporate Harms: “Gaps” or Structural Violence? There is something very wrong with our global economic system, which takes little, if any, account of the environmental and human rights costs of business activity. Such costs are neither internalized by markets nor adequately able to restrain market actors as “external” norms or standards. (Simons 2012: 6)

In the previous chapter we reviewed briefly the work of UN Special Representative John G. Ruggie, whose “Guiding Principles on Business and Human Rights” were submitted to the UN in May 2011. But throughout this time as a rapporteur, from 2006 on, Ruggie elected to by-pass the norms

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discussed in the previous chapter, as he based his work on “principled pragmatism” (Simons 2012: 8; Interim Report of the Special Representative of the Secretary General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, 2006). As noted in the previous chapter, Ruggie’s “guiding principles” focused primarily on third world countries, as he proposed “protect, respect and remedy” as part of his 2008 “policy framework” (Simons 2012: 8–9). His main aim was to “bring states and business back to the table” (Simons 2012: 9). But the “so-called governance gaps” (Simons 2012: 9) are simply noted as basic reasons for the existence of the present situation, not analyzed in depth. Regarding “protect, respect and remedy,” if a community and its geographical area and resources were protected and respected there would be no need for remediation. Ruggie appears to acknowledge this problem as Simons also notes: According to Ruggie … [t]he root cause of the business and human rights predicament today lies in the governance gaps created by globalization— between the scope and impact of economic forces and actors, and the capacity of societies to manage their adverse consequences: these gaps, he has argued, create a “permissive environment for the wrongful acts by companies of all kinds without adequate sanctioning or regulation.” (Simons 2012: 111)

Yet it is not sufficient to acknowledge the presence of “gaps” if we recognize the criminality of the practices of globalization. Similarly, it seems insufficient to say that “there are bodies of law and regulations applicable to business” and to speak of “normative aspirations” (Simons 2012: 13), rather than to call for binding obligations as we do for all forms of criminal attacks that produce grave harms to life and health of individuals. It would be easy to accept this unpopular but appropriate call for strong measures, if we stopped to consider comparable forms of attacks and how we expect them to be handled; for instance, rape. Note that rape, no matter how heinous the crime, does not necessarily lead to long-term health consequences, let alone to death, as do many of the corporate practices we have described. To say that the crime of rape is widespread, and that rapists would strongly reject intrusive and binding legislation, so that we might consider instead the presence of “normative aspirations” while— at the same time—adding the need for reparation to the principles advocating protection and respect, would seem to be the height of irresponsibility.



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Ruggie insists on the state’s duty to protect, but does not even acknowledge the relationship between states and corporations, especially MNCs, whose stronger economies render their influence on state regulatory regimes and public policy a foregone conclusion: “the underlying purpose of international law that was developed in the context of the colonial and post-colonial eras was precisely the promotion and protection of economic interest in the North” (Simons 2012: 21; Anghie 2005: 269). It is for this reason that it is so important to seek out, emphasize, and use as paradigm cases the examples when the corporation and/or its directors and chief officers are criminalized. As it stands today, MNCs pursue the double policy of weakening any state policy regarding the protection of natural resources (Permanent Sovereignty over National Resources 1962), by introducing (or supporting the introduction of) “legal doctrines such as state succession, acquired rights, contracts” and the like, in order to protect the interests of MNCs at the expense of third world individuals and communities, and even at the expense of the weaker states (Anghie 2005: 211ff.). Mattei and Nader point out that the ongoing plunder practiced by corporations brings to mind “buccaneers, mercenary soldiers and violent bandits” (Mattei and Nader 2008: 172), but the “ideology of efficiency” of high finance and of global markets has left many victims: … perhaps not directly killed as in the case of embargoes, drug patent enforcement, pay or die health care or mercenary corporate soldiers—damaged by the consequential brutality of plunder behind the respectable appearance of the advanced institutions of corporate capitalism acting within the rule of law. (Mattei and Nader 2008: 173)

For instance, the Enron case represented a “scapegoat” as it was intended to indicate acts both exceptional and illegal, instead of being simply examples of ongoing plunder, seldom controlled by criminal prosecution (Mattei and Nader 2008: 174). Even the passing of a new statute, the Sarbones-Oxley Act, was the means to show the government’s increased use of criminal sanctions, and the imposition of strict regulations, were primarily symbolic, to convince the public that it was simply some “bad apples” that had corrupted an otherwise law-abiding corporate culture (Mattei and Nader 2008: 174). It is worthy of note that the particular “bad apple” selected for exemplary punishment was part of the world of finance, far removed from the daily life of most people, while the criminality that imposes nonreversible, obvious health harms, perpetrated by such giants as Monsanto, has not been touched in the US, although the Canadian case of Percy

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Schmeiser was widely known. In fact, “according to the United States European governments today, signatory countries of the World Trade Organization have no right to protect the health of their population by banning genetically modified seeds produced by Monsanto” (Mattei and Nader 2008: 112). But even Europe is not immune to agriculture-related lobbies, nor is Monsanto the only corporate criminal: Derogations and loopholes are standard business in EU pesticide policy. PAN-Europe already wrote a report on the “120-day derogation” regime, allowing EU Member States to use hundreds of illegal pesticides for almost a full crop season. (Pesticide Action Network 2011)

As well as the “120 day-derogation,” there is also the question of the “essential use” of such chemicals, such as, for instance, the poisonous gas metam sodium. This gas, used as a soil fumigant, was “officially banned by a 2009 Council decision, but immediately entered again via the backdoor by the same council decision as ‘essential use’” (Council Decision of July 13, 2009). Bear in mind that the European Union is generally far ahead of North America and of most other countries in the control of chemical substances—for example, Regulation (EC) no. 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH). Yet when the EU’s governing bodies attempt to ban a hazardous substance, such as the “poisonous gas metam,” and even extend facilitations such as granting corporations a year to substitute it with a safer product, the industry that produces that substance does not take seriously its responsibility to human life. Corporate and state responses are far from satisfactory, as they include providing only “vague answers,” not answering at all, and relying on industries who try “to relabel metam to sustainable use.” There has even been a case where Dow Chemical was involved, and even funded by the EU. Despite the presence of a directive for the Sustainable Use of Pesticides (128/2009/EC) and the proposed transition to integrated pest management (IPM), ongoing industrial machinations do not allow decisions like the 2009 banning of that dangerous fumigant or the banning by health commission Dalli in 2011 of yet another fumigant, 1, 3-dichloropropene, to be accepted by Spain, Italy, and Portugal. Both of these fumigants are an essential part of the older-style agriculture, where nature and all natural elements were to be eliminated as a prerequisite for successful agriculture. This system is required for “monocultures and narrow rotations” (Pesticide Action Network 2011), both of



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which rely on the effort “to kill biodiversity” and to turn everything that is not part of that system into a “pest,” despite the fact that, according to the Sustainable Use of Pesticides Directive (128/2009/EC), it demands the use of IPM from 2014 on (Regulation EC No. 1107/2009 of October 21, 2009). Who are the victims of metam sodium? What are the dangers involved? Everybody who eats agricultural products, in all member states, is exposed to danger: Based on US-EPA data Metam is a probable human carcinogen (malignant blood vessel tumours). … Independent studies show that Metam (and MITC) are developmental toxins, causing cranio-facial abnormalities (teratogen) at low doses. (Pruett et al. 2001: 207–222)

Thus, not only are those who use the inquinated food at risk, but also “residents and people in the neighborhood of the treated fields are at risk” (US-EPA chronic reference exposure level cite disabling effects). Yet the specifics of the hazardous effects have never been seriously analyzed. All information is based on the research produced by the industry that manufactures the fumigant, and no peer review or independent assessment is required. Of course, this is simply a single example of a widespread and ongoing attack that creates victims pretty much everywhere. Not only can the effects on those victims not be denied, but the concomitant business advances and growth (on the part of continued operations of those industries, and of the pharmaceutical companies that produce medications for cancers and other diseases) are too significant to be ignored. This situation continues, despite the preponderance of evidence available from epidemiology, toxicology, medicine, and the WHO itself regarding the terrible effects of industrial chemicals. All the ongoing campaigns that ostensibly try to combat various diseases such as cancer, raise funds for “the cure,” but no marches or fundraisers are attempted to close down any of these industries, or at least restrain their noxious practices, the sources of multiple disease and various forms of abnormal development in children. Thus both industrial chemical corporations and “Big Pharma” continue to benefit as they remain undeterred and unpunished (Epstein 1978; Davis 2007; Grandjean and Landrigan 2006). Corporate Forward March: From Weedkillers and “Super Insects” Monsanto’s genetically modified “Bt corn” has been equipped with a gene for soil bacteria called Bt (Bacillus thurigiensis), which produces the Bt-toxin. It’s a pesticide that breaks open the stomach of certain insects and kills

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chapter four them. The pesticide-producing corn entered the food supply in the late 1990s, and over the past decade, the horrible stories have started piling up. And the problems in with Bt-crops go far beyond the creation of Bt-resistant insects. (Dr Mercola 2012)

Dr Mercola calls Bt-corn “a most dangerous failure,” and the Bt-toxin it produced was found to be highly hazardous to human health. Sherbrooke University Hospital (Quebec, Canada) researched a large number of women, all eating diets common to average Canadians, including processed food and drinks containing high fructose corn syrup, as well as meat from livestock raised in factory farms. Some of their findings include the following numbers found with Bt-toxin in their blood: • 93 percent of pregnant women tested • 80 percent of umbilical blood in their babies, and • 67 percent of non-pregnant women. (Dr Mercola 2012)

Although Monsanto insists that Bt-toxin affects only insects, peer-reviewed research indicates that other animals, such as mice and rhesus monkeys, are equally affected. The toxin in the human digestive tract could result in various diseases that are, in fact, on the rise at this time. These include gastronomical problems, autoimmune diseases, food allergies, childhood learning disorders, MS and cancers (Dr Mercola 2012). What can be done? The first step would be to insist on forcing Monsanto and others to label all their GM products because, at this time, only whatever is labeled 100 percent organic is truly safe. In 2011, not only corn, soy, and canola, but also sweetcorn became dangerous: Monsanto introduced a genetically engineered sweetcorn called Seminis. This product contains  two types of Bt-toxin, plus Roundup Ready gene for weed control (Dr Mercola 2012). Labeling is the only possibility to slow (if not halt) this spiraling attack on humankind, at least in North America, because in the US at least 14 states have passed legislation to support the expansion of GMOs and remove any authority a government might have to prohibit, regulate, or label agricultural seeds and products. Monsanto spends several millions yearly to lobby the US government, and a number of former Monsanto employees are now working within the federal government in influential positions (Dr Mercola 2012). In contrast, California and 23 other states are trying to enact labeling laws (Organic Consumers Association 2012). Finally we can connect the “discovery” of Dr Charles Sultan, cited earlier, to the research of the Natural Society on birth defects caused by Roundup weedkiller (Gallagher 2012). International scientists from



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a number of countries in America and Europe have proven that the pesticide glyphosate creates a number of health problems: Monsanto was aware of the effects of glyphosate on animals’ internal organs since 1993 (Gallagher 2012). As the evidence mounted and the effects on the preborn were increasingly known, the European Commission’s health consumers’ division published a report of glyphosate in 2002, but agreed to approve its use in Europe for the next ten years, and has extended that deadline now to 2015. Further, according to the report, there are no plans to impose stringent restraints until 2030 (Gallagher 2012). In addition to that research, more has emerged: While Roundup has been associated with deformities in a host of laboratory animals, its impact on humans remains unclear. One laboratory study done in France in 2005 found that Roundup and glyphosate caused the death of human placental cells. Another study, conducted in 2009, found that Roundup caused total cell death in human umbilical, embryonic and placental cells within 24 hours. Yet researchers have conducted few follow-up studies. (Graves 2011)

As far back as 1996, Monsanto was sued in New York by their Attorney General: Roundup, according to Monsanto, was “environmentally friendly” and “as safe as table salt.” They settled out of court for $250,000, and promised to stop promoting Roundup in those terms (Graves 2011). Thus a criminality that consists in attacks on victims that include children, pregnant women, and the preborn is apparently tolerated and accepted in exchange for financial support within and outside the government, at least in North America. But now it is clear why it was so important to start this work with a consideration of personhood, and ask the unpopular but necessary question: why the corporation but not the fetus? We noted that in most states in the US and in other countries, attacks that result in feticide are considered as murders. But when we consider the wholesale disposal or attacks on a human being not yet born, then the perpetrators appear to have nothing to answer: no crime has been committed by knowingly allowing the death of hundreds of thousands of “civilians,” most often without a war, with full knowledge of the results of those exposures. As one might expect, Europe is at the forefront of protective measures, as it acknowledges at recent meetings at a conference entitled “PTox III, Environmental Stressors in the Developmental Origins of Disease: Evidence and Mechanisms” (May 14–15, 2012). It issued a “draft consensus statement” where “it describes how nutritional imbalance and exposure to certain chemicals during pre and postnatal development leads to disease

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in adults, including cancers and diabetes, and how prevention needs to be addressed” (Health and Environment Alliance 2012a). Further confirmation of these scientific discoveries lies in the “substantial increase in incidence of many chronic diseases during the last 20–40 years, a time interval much too short to be attributable to genetic change” (Health and Environment Alliance 2012a). Some of the main concerns include endocrine disruptors, as these “de-rail the home grown hormones that carry signals form one cell in the body to another” (Health and Environment Alliance 2012a). These scientific realities have a significant impact on public health as, for instance, twenty chemical exposures in the prebirth or early life periods are now defined as “obesogens,” as they are linked to increased risk of obesity and diabetes in later life (Health and Environment Alliance 2012a). In the first trimester of life the human reproductive system begins: chemical developmental exposures lead to dysfunction and disease, including “undescended testicles, low sperm count, polycystic ovary syndrome and testicular cancer” (Health and Environment Alliance 2012a). Thus we now know that early development, in utero and during the first years after birth, is where disruption caused by chemicals occurs, with grave effects in later life and a corresponding heavy burden in public health expenditures. It is now clear that a “cocktail effect” of a mixture of chemicals, especially endocrine disruptors, expose particularly the fetus and children to diseases they will carry from birth to later life (Health and Environment Alliance 2012b). Although these findings are widely disseminated in Europe, the EU Environmental Ministers are concerned about the effects of hazardous chemicals, especially hormone disruptors, because EU law aimed at protecting citizens from exposures only considers individual rather than combined exposures: “In addition, the risks from chemicals such as pesticides, biocides and industrial chemicals are assessed separately under different pieces of legislation” (Health and Environment Alliance 2012b).1 Against this clear, though somewhat limited indictment of pesticide/ chemical industries such as Monsanto in Europe, nothing but silence or even increasing facilitation for their hazardous enterprise is present in North America. In fact, the USDA is to give Monsanto’s products “speed approval”: “Despite links to organ damage and mutated insects, the USDA 1 This document adds that, “The Review of REACH foreseen to be completed by 2012 presents an excellent opportunity for ensuring that the assessment of mixture toxicity is properly addressed in this key piece of legislation.”



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says that it is changing the rules so that genetically modified seed companies like Monsanto will get ‘speedier regulatory reviews’” (Gucciardi 2012a). Even those (like this author) who limit their food intake to mostly organic grains, fruits and vegetables plus fish, are potentially at risk, as the “certified organic” label may or may not represent the entire truth. In addition, an organization called “Food and Water Watch” now notes that “Monsanto and Cargill Aggressively Pursue GE Soy Feed for Factory FishFarming Industry”: Unfortunately increased use of soy in fish feed could do greater harm to the health of fisheries by increasing the amount of soybeans grown like other monoculture crops, soybeans require large amounts of fertilizer for their production. Much of this fertilizer gets worked off the field into waterways. (Nation of Change 2012)

The executive director of the Food and Water Group adds: “Our seeds are not Roundup Ready,” despite the efforts of Monsanto to transfer “massive industrial farming models into oceans,” adding to the dangerous herbicides use and massive deforestation already caused by their practices on land (Nation of Change 2012). In conclusion, we might look at a “bullet point history” of Monsanto’s operations, a company often viewed justly as a “Modern Day Plague”: • Contributed to the research on uranium, for the Manhattan Project, during WWII. • Operated a nuclear facility for the US government until the late 1980s. • Top manufacturer of synthetic fibers, plastics and polystyrene (EPA’s 5th ranked chemical production that generates the most hazardous waste). • A top 10 US chemical company. • Agriculture pesticides producer. • Herbicide producer—herbicides 2, 4, 5-T, Agent Orange, Lasso, and DDT. • Agent Orange (used in Vietnam) had the highest levels of dioxin and contaminated more than 3 million civilians and servicemen, for which only partial compensation awarded. • Nearly 500,000 Vietnamese children were born deformed and never compensated. • Lasso was banned in USA, so weed killer “Roundup” is launched in 1978. • A major producer of both dioxins and polychlorinated biphenyls (PCBs), which generated many law suites and environmental cleanups. • $180 million settlement for Vietnam War veterans exposed to Agent Orange.

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chapter four • Fined $1.2 million for concealing the discharge of contaminated waste water. • Paid $600 million in settlement claims to more than 20,000 Anniston residents. • Produced GM cattle drug, bovine growth hormone (called rBGH or rBST). • Acquiring seed companies from the 1990s and forward. • Monsanto filed 144 lawsuits against struggling farmers and settled out of court with 700 farmers, for reportedly violating seed patents. A full-time staff of 75 Monsanto employees investigated patent infringement, dedicated solely to finding farms that have been contaminated by their unwanted seed. As of 2007, Monsanto was awarded in 57 recorded judgments against farmers a total of $21,583,431.99. (Center for Food Safety 2007)

In the next section we can see the full extent of those criminal activities, as Monsanto was involved with Dow Chemical in some of the most terrible events in recent times: the development, sale and use of Agent Orange. Pesticides Beyond Agriculture: Corporate Power and Chemical Warfare On May 10 [2012] the Summer Olympics were inaugurated at the Greek birthplace of the Ancient Games. A few days before, virtually unnoticed, the government of Vietnam addressed a letter to the International Olympic Committee expressing “the profound concern of the government and the people of Viet Nam about the decisions of the IOC to accept the Dow Chemical Company as a global partner sponsoring the Olympic Movement.” Dow provided the chemicals that Washington used from 1961 onward to destroy crop and forests in South Vietnam, drenching the Country with Agent Orange. (Chomsky 2012)

Agent Orange was an agent of “herbicidal warfare,” perpetrated by the US during “Operation Ranch Hand” during the Vietnam War form 1961 to 1971 (Pellow 2007: 157). Monsanto and Dow Chemical manufactured Agent Orange for the US Department of Defense. Because of that operation, “Vietnam estimated 100,000 people were killed or maimed and 500,000 children born with born defects” (Pellow 2007: 157). The US Air Force recorded “at least 6,542 spraying missions” so that by 1971 much of south Vietnam had been sprayed, and in some areas “TCDD concentrations in soil and water were hundreds of times greater than the levels considered ‘safe’ by the US Environmental Protection Agency” (Pellow 2007: 157).



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As we know, the latter’s standards are not independent scientific standards: they are negotiated in Monsanto’s (and Dow’s) interests. As we proceed to consider the use of such an illegal weapon and the implications for the US government and its practices, we should start by asking the question most pertinent to this discussion: why were Monsanto and Dow Chemical not charged with complicity for the crimes committed by both? We will reach an answer of sorts at the end of this section. For now, we note that a large body of scientific evidence exists about the toxicity of Agent Orange. Monsanto Corporation itself had informed the US government in 1952 that the herbicide they had produced was contaminated with dioxin (TCDD), “perhaps the most toxic molecule ever synthetized by man” (Pellow 2007: 157; Dwyer and Flesch-Janys 1995). The various effects of Agent Orange included “birth defects and stillbirths in mice,” soft-tissue carcinoma, leukemia and various cancers. A study conducted on the workers of the Hamburg company that also produced the herbicide, showed that “the risk of cancer mortality increased by 170% after working 10 years at that plant” (Dwyer and FleschJanys 1995: 476). There is no need to add more scientific evidence and information at this time: the main point is that not only the scientific community, but both the US government and the corporation itself (Monsanto and—no doubt—Dow Chemical) were well aware of the effects of their product, and therefore fully complicit in the use made of it, which was doubly illegal: (1) jungle defoliation to attack fighters with chemical weapon in war; and (2) crop destruction, which produced famine in the local civilian population. In addition, given the extreme side-effects on both humans and the environment due to the indiscriminate spraying of a hazardous substance over a wide area, a UN resolution in 1966 charged that “The US was violating the 1925 Geneva protocol, which regulated the use of chemical and biological weapons” (Peterson and Galston 2005). Of course the Vietnamese were not the only people affected: US soldiers serving in Vietnam were told that the chemical was harmless: “By April 1993, the Department of Veterans Affairs had only compensated 486 victims, although it has received disability claims from 39,419 soldiers who had been exposed to Agent Orange while serving in Vietnam” (Fleischer and Zames 2001: 178). Dow Chemical and Monsanto have faced several lawsuits. The Mayerson Law Offices (primarily Hy Mayerson) and an environmental attorney, Victor Yannacone, started the first class action suit in 1980: “The corporate defendants sought to escape culpability by blaming everything on the US

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government” (Scott, W. J. 1993: 130). Despite the abundant scientific evidence provided by Dr Ronald A. Codario, “including 100 articles from toxicology journal,” the class action suit was settled for $180 million. Slightly over 45 percent of this was ordered paid by Monsanto alone: Federal Judge Julius Weinstein refused the appeals, claiming that the settlement was “fair and just.” By 1989 the veterans’ fears were confirmed regarding how the money from the settlement would be paid out. A totally disabled veteran would receive a maximum of $12,000 spread out over the course of ten years … A widow of a Vietnam Veteran who died of Agent Orange exposure would only receive $3,700. (Chambers 1999: 725)

The victims were outraged by these decisions, especially because receiving that “compensation” from Monsanto, they ultimately became ineligible for public assistance, government pensions, and other state benefits. In 1991, the Agent Orange Act was enacted in the US, giving a long list of diseases the status of “presumptive conditions” due to exposure to Agent Orange/dioxin, and the Department of Veterans’ Affairs was charged with ensuring that the National Academy of Sciences periodically review the science on herbicides/dioxin in case other diseases needed to be added. As this chapter is intended to concentrate on the criminality of the corporation, we will not consider the US actions at this time, except that they are related to corporation responsibility. So it should be added that in 2004, the Vietnam Association for Victims of Agent Orange/dioxin (VAVA) sued primarily Monsanto and Dow Chemical (together with other smaller manufacturers). The same judge who served in the 1984 case, Judge Weinstein, dismissed the lawsuit on the grounds that Agent Orange was not considered a poison under international law at the time of its use by the US, therefore the US was not prohibited from using it as a herbicide. But the most significant point was the judge’s position regarding the fact that the US could not be sued “due to sovereign immunity,” and that the chemical companies, as contractors for the US government, shared the same immunity. This reinforces the link between “corporate power and fascist and communist totalitarianism” (Birch 2007: 154), which, given today’s globalization, supports well the argument to view the corporation as a supranational power. But that power does not have any of the normally accepted antecedents and preparation for ruling. In fact, it simply reinforces the impression of “corporate collusion” with totalitarian regimes, such as that of I. G. Farben and IBM with Nazi Germany (Birch 2007: 154). We will return to the totalitarian aspects of corporate power below. For now we



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must acknowledge, with George Soros, that “[p]erhaps the greatest threat to freedom and democracy in the world today comes from the formation of unholy alliances between governments and business. This is not a new phenomenon. It used to be called fascism”(Birch 2007: 154; Soros 2000). Colonization, Genocide and War Crimes: Germany and the Herero People The Hereros, a minority ethnic group in Namibia, are seeking political and legal redress from the German government and the corporations involved in the German colonial enterprise—they received an apology from the German government in 2004. However, the Federal Republic has not acknowledged any legal obligations, and the Hereros have not received any financial compensation (Anderson 2005: 1156). The position of the US courts in regard to Monsanto and Agent Orange/ dioxin is clear: (a) that Agent Orange/dioxin was not declared to be a poison at the time it was used; (b) that the US government cannot be sued because it has sovereign immunity; (c) that as a “contractor” of the US government Monsanto shares that immunity. We can now consider that information in relation to the reality of international law, even beyond the earlier discussion that reviewed Monsanto’s activities and products simply as agricultural additions, and discussed them from the standpoint of human rights and public health. Thus, leaving aside this aspect of Monsanto’s operation, where the collaboration between Monsanto and the US government is strictly based on mutual economic advantage, the further use of Monsanto’s herbicides  as a part of chemical warfare adds yet another significant aspect to the multifaceted complicity between powerful corporations and the US government. It may be useful to start with the words of the Con­ vention  on the Prevention and Punishment of the Crime of Genocide (1948, art. 2): In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: • Killing members of the group; • Causing serious bodily or mental harm to members of the group;

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chapter four • Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; • Imposing measures intended to prevent births within the group; • Forcibly transferring children of the group to another group.

The term genocide was first used by Raphael Lemkin in 1994 (Lemkin 1944: 79), where he states that genocide may also include wars of annihilation or extermination. But WWII was by no means the first war of annihilation or extermination, deliberately planned and ruthlessly carried out: the “German–Herero War of 1904–1907” can be termed “the first genocidal war of the twentieth century” (Anderson 2005: 1156). At that time, some forms of genocide were already considered to be illegal under customary international law. For the case of the Hereros (today’s Namibia), the German colonial enterprise was initiated by German merchants as, after purchasing property in the area, they asked for German protection for their investments (Anderson 2005: 1159). The region inhabited by the Hereros eventually became a protectorate, but it was unable or unwilling to provide the required assistance and support of the Hereros against their neighbors. The Hereros began to resist the colonial administration, and a “swift and harsh response” ensured their revolt (Anderson 2005: 1159). The German Emperor Wilhelm II appointed Lieutenant General Lothar von Trotha, who quickly announced that “It was and remains my policy to apply this force by unmitigated terrorism and even cruelty. I shall destroy the rebellious tribes by shedding rivers of blood and money” (Drechsler 1980: 7). This explicit desire to annihilate and destroy was followed by an equally explicit extermination order: The Herero people will have to leave the country. Otherwise I shall force them to do so by means of guns … Every Herero whether found armed or unarmed … will be shot. I shall not accept any more women and children. I shall drive them back to their people—otherwise shots will be fired at them. These are my words to the Herero people. (Drechsler 1980: 156–157)

We found no such explicit language in Operation Ranch Hand in Vietnam, to be sure. But the “final solution” of pushing the people to the desert, where they could only attempt to dig wells, as they moved from one location to another hoping to survive, but losing both people and animals on the way, echoes the starvation that the civilian population of Vietnam encountered after Agent Orange/dioxin. Additionally, Richard Herz, speaking of genocide, explains that: The Convention [Against Genocide] does not limit the manner in which the acts described in Article II can be committed. Therefore a party that degrades



the corporation as criminal103 the environment as a means of committing a prohibited action with the requisite intent has committed genocide. For example, in 1904, Germany’s poisoning of the Herero people’s water holes during colonization of present-day Namibia constituted genocide. (Herz 2000: 608)

The emerging similarity is clear, even without von Trotha’s intemperate language, when we consider that Operation Ranch Hand’s intent was to induce starvation in the population. We might question the dolus specialis or the genocidal intent that was not specifically declared, perhaps, but the results they followed (and are still unfolding in the severe health conditions that ensued) indicate that, minimally, crimes against humanity were perpetrated. The 1948 Geneva Conventions were enacted (and ratified by the US) precisely so that states could not claim “sovereign immunity” in either war or peace, for the gross human rights violations within or outside their borders. Hence, the legal claim in (a) and (b) above should not be sustained. As well, the further assurance that Agent Orange/dioxin was not known to be a poison at the time it was used, is an erroneous claim, given that as we saw above, Monsanto itself informed the US government of that fact long before the use in question occurred. What remains is the final claim (c), which will be the topic of the next section. Complicity and Responsibility from Nuremberg to Vietnam Expansion of corporate activities was accompanied by judicial recognition of piecemeal constitutional rights, built on a concept of separate corporate “personhood.” Nonetheless, such anthropomorphism did not immediately translate into findings of organizational criminal liability (Robson 2010: 113–114). Robson notes the difficulties of ascribing criminal responsibility to corporations, although she considers it extremely significant that “corporations progressed from doing only what was allowed by their charters to doing anything not prohibited by their charters” (Robson 2010 :113, n.24; Mark 1987: 1455). Yet she considers primarily white collar crime, whereas we have the added task of considering corporate criminality in the largely unexplored field of material, physical human rights breaches, and complicity in crimes against humanity. The first point to note is that after WWII individual responsibility for crimes committed by individuals in such situations was established. Article 6 of the Nuremberg Charter of 1945 focuses on the individual responsibility of persons:

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chapter four The Tribunal established by the Agreement referred to in Article 1 hereof for the trail and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. (Emphasis added)

The crimes included “crimes against humanity,” including the “participation in a common plan or conspiracy” in war crimes, such as “violations of the laws and customs of war”; also “crimes against peace,” “harming civilian populations,” “plunder of public or private property,” and the “wanton destruction of cities and towns.” Hence, the question is how Monsanto and Dow, whether as individual persons or as organizations, could possibly be immune from prosecutions as contractors, when even army officers, expected always to obey superior orders, were no longer exempted from responsibility after WWII. Therefore, the question of immunity does not appear to have been judged correctly either in 1984 or later in the appeal, nor even by the US Supreme Court. Before the Nuremberg Charter of 1945, the London Agreement of 1945 was enacted by the United Kingdom, the United States, France, and the USSR (For Prosecution and Punishment of the Major War Criminals of the European Axis, 82 UNTS 279); thus the US was an active participant in the conclusion of an agreement that was basic to the denial of immunity for those complicit in the perpetration of various crimes in war and peace. Many of those crimes were in fact committed during the Vietnam War, with the aid and cooperation of the chemical companies that participated in the manufacturing and providing of the instruments required for those crimes. In addition, in general criminal cases, US Courts held that “the only intent required to hold a corporation liable is the intent to do the prohibited act” (Robson 2010: 1151 n. 38; United States v. John Kelson Co. 1898). The other problem that remains is that—at most—the guilty corporation could receive only the punishment that was appropriate (that is, a fine), whereas after Nuremberg the individuals responsible could receive a more appropriate punishment for their crimes. Corporation as Criminal: Internal Stakeholders The assumption that individual freedoms are guaranteed by the freedom of the market and of trade is a cardinal feature of neoliberal thinking, and it has long dominated the US stance towards the rest of the world. (Harvey 2005: 7)



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There is one function of corporate organizations the utility of which cannot be denied: they provide work, and, through that, they support families. This corporate function, however, raises serious questions: as we saw in the first sections of this chapter, the work provided by corporations may be neither safe in itself, nor conducive to good ends, either for those employed by the corporate enterprise or for those who are unfavorably affected by their operations. When the corporation is viewed as an employer, providing work for various sections of the population, its role is viewed as particularly important and beneficial within the state, as it supports the community and it contributes—presumably—to the general well-being of population. Yet its role as employer and tax contributor most often blinds local governments to concomitant aspects of corporate operations, beyond the obviously beneficial ones. For the most part, states cooperate with business operations and are in a no hurry to ensure that the right letter of the law is followed regarding the operations of a factory or a mine that may employ several people in an area where much employment does not exist. Frank Pearce has referred to corporations as “legally privileged criminals” (Pearce 1993: 139). He says: In Britain up to 20,000 workers die every year from occupationally related ill health, and 600 from accidents at work—and more than 60 percent of the latter are due to the failure of employers to fulfill their far-from-demanding statutory duties. In the US, more than 100,000 people die annually from occupationally related diseases and 10,000 from industrial accidents—at least 45 percent of industrial accidents arise from infractions against state safety codes. (Pearce 1993: 135)

Unfortunately, these dated statistics show no improvement today. This work is primarily intended to discuss and clarify the role of the corporation, especially in its multinational operations, and its interface with global society and the law. Hence, the corporation’s internal relations are somewhat less than germane to the present enterprise. As well, for the most part, labor relations are better controlled and better known than the relations between the corporation and its external stakeholders, particularly in regard to the life and health of those affected. Nevertheless, as we discuss the harms perpetrated by the corporation and its criminality, it seems appropriate to address at least some specific industries in the mining sector, given that their external relations are—for the most part—just as culpable as their internal ones. Nearly 20 years ago, the Westray mine in Nova Scotia “exploded,” killing all 26 miners working underground (Mining.com 2012):

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chapter four The inquiry found there was little safety training at the mine, ventilation was poor and the mine’s methane detectors were often broken. Mine managers ignored directives to reduce the buildup of volatile coal dust, and rock falls were a common occurrence that went unreported. (Mining.com 2012)

The disaster at the Westray mine showed that the mine was not safe, and both the company and the two of its managers were charged (though not convicted), “with manslaughter and criminal negligence causing death” (Mining.com 2012). Hence even the desirable aspects of the corporate enterprise—that is, the ability to produce income for its employees—is not quite the unalloyed boon it is touted to be. There are some legal and supervisory regimes that give some measure of control to the employees (ideally, unions), but also there are domestic regulations which may work better than international restraints. At any rate, at Westray there were two reviews of mining and management practices: An internal review of the behaviour of the mine inspectors who attended Westray was conducted by the Department of Labour. It found that the mine inspectors operated within acceptable departmental practices and operations procedure; so the Nova Scotia Department of Labour and its Occupations Health and Safety Division was conducted by Coopers and Lybrand for the Provincial General. It found serious deficiencies. (Tucker 1995: 93)

Tucker raises the question that is similar to the questions raised in the rest of this work: what caused the disaster? This is particularly important because Tucker analyses the immediate causality of a disaster that took a number of lives, but also eventually caused the “demise” of Corragh, Inc., the owner of the mine, which ceased operation in 1995 (R. v. Curragh Inc.; Phillips v. Nova Scotia (Commission of Inquiry in the Westray Mien Tragedy) 1995). Yet, despite the cases tried, and the research and deliberations of the commission of Inquiry convened to examine the disaster, “there has been no official determination of the cause of the disaster, hardly any facts have been officially found, few recommendations have been made by officialdom and no laws or regulations have been amended” (R. v. Curragh; Phillips v. Nova Scotia 1995). What underlies this inconclusiveness is rooted in the “politics of causation,” and “existing social arrangements’ (Tucker 1995: 95). For instance, Tucker notes that “hazardous working conditions are [the] inevitable byproducts of capitalist relations of productions” (Tucker 1995: 95). It will be



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hard, therefore, “to interrogate the underlying political commitments” on which both choices and judgments are based. As we noted in the earlier sections of this chapter, it is precisely the “underlying political commitments” that prevent any serious examination of the consequences of corporate activities or the effects of their products, from either the legal or the moral point of view. A similar approach vitiates any analysis of corporate crime, whether it affects the corporation’s external or internal stakeholders. The entrenchment of corporate personhood is yet another political “fiat” beyond discussion—as we saw—and it helps to accumulate additional “rights” to enhance even further corporate power. As a strategy it would be highly desirable to be able to decouple corporate personhood from biological personhood, at least for non-commercial activities (that is, for all cases where more is at stake than financial gains or losses, such that physical health or life is at issue). This would ensure that the relevant sections of the criminal code, intended to treat accused persons in a fair and civilized manner, should not be used to harm innocents behind a legal shield inappropriate to wealthy and powerful entities, far more likely to be victimizer than victim. Glasbeek and Rowland found the basis for “injuring killing in the workplace” in the divided class that they define as comprising the “ruling class and the oppressed” (Glasbeek and Rowland 1986: 66). There is no doubt that their documented research shows how hazardous the workplace truly is. It is equally indisputable that leaving “the matter of the safety at work to the bargaining of parties affected, employers and employees” (Glasbeek and Rowland 1986: 70) is just as useless for the protection of health and safety as it is to do so for corporate crime at the national and the international levels. At the domestic level, businesses pressure governments, and lobby for “consensus” and for managerial rather than substantive standards (such as ISO 14000). The intent is not to preserve the environment or human health, but to avoid prosecution by installing managerial practices to show “due diligence,” while continuing with business as usual, for the most part. The other tactic employed to the same end is that of enacting and publishing a “Code of Ethics,” or “Code of Practice,” applying to both workplace conditions and environmental concerns. But these documents simply entail calling meetings with the local stakeholders (read “potential victims”) for the purpose of appeasing them with various public relation ploys, while continuing with their usual practices. At the international level, as was also noted in the earlier sections of this chapter, a similar technique is applied. The developed states of the

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global North/West are involved in “cooperative” regimes with developing states for the purpose of drafting joint covenants with elaborate procedural rules intended to establish fairness. But the deck is stacked in favor of the affluent few from the start. The members of the G8 group are influencing (if not dictating) the language and the terms, and even the possible penalties that will attach to the crimes they themselves commit as part of the “normal” functioning of their economic infrastructures and power goals. That practice seems akin to gathering a group of rapists and abusers, in order to achieve consensus on how these crimes should be defined, treated, and “sanctioned.” For the most part—and this is an additional obstacle worthy of mention—retributive justice is beyond the scope of international régimes, and it only comes into play for crimes against humanity, genocide and the like. However, this is the same class of crimes, supported by erga omnes obligation and proscribed by jus cogens norms, to the level of which, I have argued, corporate crimes should be raised. The importance of this move is clear when even direct harms like those inflicted on employed workers are often apparently beyond the reach of the law. Glasbeek and Rowland (1986: 71) say: “Let us make it clear at the outset that there is no expectation, by us that this society will set out to control enterprise completely.” This is indeed the crux of the problem. But there should remain at least a hope that justice is possible, if not guaranteed. Another example points to the immense difficulties we face. We note the reluctance of governments to fund a strong inspectorate and empower it to impose at least the maximum penalties presently available in the law: “Empirical studies by sociologists point to the fact that inspectors are loath to use what they see as criminal stigmatization of employers in these kinds of circumstances” (Glasbeek and Rowland 1986: 77). At the level of general principles, the same difficulty holds true nationally as it does internationally: “We are a so-called free enterprise society, wedded to the notion that investors must be encouraged and that State interference is a disincentive to such investment” (Glasbeek and Rowland 1986: 72). The same can be said, mutatis mutandis, at the international level. Glasbeek and Rowland are only concerned with direct harm to employees, but these are only a small fraction of the stakeholders of corporate entities, especially transnational corporations, whose global reach cannot be underestimated. Hence, if it is or should be a crime in the context of a single business operation and its employees in one country, it clearly is and should be equally a crime now raised to the level of genocidal



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massacre when the harming and killing of millions is engendered by economically motivated crimes. It is worthy of note that Glasbeek and Rowland do not attempt to attribute intent to enterprises or employers generally, but base their argument on the failure to protect human life in the quest for profit: It is hard to imagine that there will be many people who will publicly advocate the principle that earning a profit, even if it requires criminal conduct, is more important than the health and safety, of human beings. (Glasbeek and Rowland 1986: 79)

This argument seems indisputable, and if it can be accepted for a single industry or corporation, surely it can be extended even more easily to the global commons. Corporation as Criminal: Asbestos Imposes Direct and Indirect Harm According to theory the neoliberal state should favour strong individual private property rights, the rule of law and the institutions of freely functioning markets and free trade … By extension, the freedom of business and corporations (legally regarded as individuals) to operate within this institutional framework of free markets and free trade is regarded as a fundamental good. (Harvey 2005: 64)

The main problem remains the lack of recognition, in both domestic and international legal regimes and the courts, of the inescapable connection between industrial operations and public health, discussed in Chapter 2 (see also Westra 2012b: 7–19). Another Canadian example will suffice to indicate the gravity of the problem: the example of the asbestos industry. Adopted as early as 1998, the Rotterdam Convention became effective in 2004, and it required ratification from all 143 member countries, in order to list “chrysotile asbestos as hazardous substance” (Soskolne and Ruff 2012: 99). The government of Canada had repeatedly attempted to block the listing of chrysotile asbestos as a hazardous substance, despite the position of Health Canada, which recommended strongly that it should be listed as such. Soskolne and Ruff provide an abundance of relevant factual information: Asbestos is a natural mineral with unusual qualities. It is strong enough to resist high temperatures, chemical attack and wear. … Asbestos minerals are divided into two main groups, based on their fibre structure: serpentine

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chapter four (which includes only chrysotile asbestos) and amphibole (which includes amosite, crocidolite, anthophyllite, tremolite and actinolite). … In 2006, 2.3 million tonnes of chrysotile asbestos were mined worldwide, with Russia, China, Kazakhstan, Canada, and Brazil producing 93% of this total. In the past, other countries also have been in the business of mining and exporting asbestos. Today, more than 50 countries have seen fit to ban asbestos. Over the past 100 years, evidence has implicated all types of asbestos in the causation of asbestosis, various cancers and mesothelioma. The World Health Organization (WHO), the International Labour Organization (ILO), health and labour organizations have called for use of asbestos to stop. In Canada, there is virtually no use of asbestos, but the country chooses to mine and export it. (Soskolne and Ruff 2012: 94–95)

Canada continues to ignore scientific truth and human rights obligations, as the Canadian government continues in its efforts to block the appropriate listing of chrysotile, thus “sabotaging the Rotterdam Convention” as late as 2011 (Soskolne and Ruff 2012: 100): The Canadian Broadcasting Corporation (CBC) program documented how powerful interests are trying to deny global warming, supported by scientists—or rather pseudo-scientists—some of whom had previously worked with “Big Tobacco” and received donations from coal and oil companies. The parallel is striking: In the same way that some have attempted to deny the human health dangers of tobacco and the dramatic consequences of global warming, the producers and supporters of asbestos are trying to make us believe that it is not dangerous or that there are possibilities of its “controlled” and “safe” use. Once again we see science pitted against spin. (Leuprecht 2011: 285–286)

It is interesting to note the interplay of multiple corporate interests—not only asbestos manufacturing companies, but the Canadian Broadcasting Corporation (with a history of supporting “pseudo-scientists”), as well as climate change deniers, accepting donations from Big Tobacco, and coal and oil companies (Soskolne and Ruff 2012: 101). Other countries, such as Malaysia, had proposed outright bans on asbestos, but the Canadian Chrysotile Institute (as it was now renamed) and the International Chrysotile Association and their lobbyists still work hard to continue to serve corporate asbestos interests, thus “impeding public health progress to end preventable asbestos-related illness and premature death” (Soskolne and Ruff 2012: 102). Once again corporate lobbies and interests in general impede legislation that would support human rights to health and life, and it appears that not much has been learned about the defense of public health from



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the epic earlier fight of the WHO against Big Tobacco. That fight happily concluded with the eventual adoption of the Framework Convention on Tobacco Control, which includes also a legally binding provision “to ensure that corporate spin does not trump evidence” (Soskolne and Ruff 2012: 105): A. 5.3. In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law. (Framework Convention on Tobacco Control)

Both the asbestos trade and that of herbicides/pesticides would greatly benefit from being restrained by another binding convention originating from the WHO, but, in general, as noted above, it is much easier to enact binding regulations to control lifestyle choices than it is to attempt to restrain corporate activities, where the legal gains, if any, are small and localized. A general convention does not appear to be near to being prepared at the present time. Concluding Thoughts Consequently the company’s responsibility must, as an initial matter, turn on balancing of the individual right at issue with the enterprise’s interests and on the nexus between its actions and the preservation of its interests. (Ratner 2001: 513)

Ratner’s analysis does not start by separating the individual or collective human right to life and health (obviously such rights do not apply to legal persons) from economic rights. But the difference is one of cardinal importance, as law itself is sharply divided between tort law and criminal law. This must be the starting point, even before considering the questions Ratner considers to be basic: (1) Who is violating the right—the government, corporation, or both? And which actors within the corporate structure? (2) Whose rights are violated— those of people with special ties or not? And (3) which rights are violated, in terms of particular duties they impose on corporate actors? (Ratner 2001: 513)

Although these are important and, indeed, basic legal questions, the main question, I believe, is ignored. That question hinges on the difference in kind between economic and physical damages, although economic damages may well, if prolonged and extensive enough, impose physical

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harms, such that they should be appropriately restrained, in principle, by criminal law. In contrast, to view individual and community rights of human beings of the sort we have been discussing as rights on the same level as corporate rights is to start the analysis from a position that hides, rather than exposes, the reality we must confront. It is indeed to the advantage of the corporation to take a flat view of human rights breaches, so that all such breaches are considered alike. But that is not the case. Whether the corporation is complicit with the harm the state perpetrates or the corporate power is the primary perpetrator, with the state’s complicity, even if we might accept reducing all human rights breaches simply to the economic issue, that too remains (or may easily become) a physical harm; a crime. But a position that refuses to acknowledge the vast difference between a legal entity, no matter how powerful, and a real person is a position that is flawed from the start. A human person may, and most often does, suffer a whole range of painful and often terrible damages that can never affect a corporate “person.” That is why Upendra Baxi views human rights from the standpoint of the “suffering” imposed (Baxi 1998): the harms suffered by a corporation cannot be like those of beings who have a biological and nervous system. Apes, but also much smaller animals such as mice, are used in laboratory assays, whereas legal persons are not used in that way. In fact Ratner himself speaks of examples of human rights violations as he cites the example of Enron, regarding the operations of the Dahbol Power Corporation (DPC), a joint venture of Enron, General Electric, and Bechtel Corporation, to build an electric power plant in India (Ratner 2001: 543). Enron et al. collaborated with the local police to threaten, intimidate, and harm villages opposed to the project. Ratner adds: “Because the right to physical integrity is non-derogable, the corporation would have a duty not to engage in such a conduct” (Ratner 2001: 527). The other example he addresses describes the complicity of diamond companies with various activities of the Revolutionary United Front (RUF) for “aiding the … guerrillas in their long insurgency against the government of Angola” (Ratner 2001: 528), “endorsing a special court for prosecuting atrocities by all sides in Sierra Leone” (Ratner 2001: 528, n.338). What emerges is the fact that these examples are representative of grave, but incidental, aspects of corporate crimes. That is, in and of itself, neither operating a power station nor mining for diamonds are necessarily criminal enterprises: they are operations that may be conducted safely with due respect for human rights, or not. Hence both examples offered by



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Ratner are essentially misleading. In contrast, supplying Agent Orange to the US government, given the properties of that substance and the only possible uses that could be made of it (both, no doubt well known by the research and development departments of both Dow and Monsanto), shows a different situation. Understanding well the properties and effects of a product and supplying a government so that it could be used as part of chemical warfare (whether the UN fully recognized its potential at the time or not) places the corporation in a different category altogether. A similar example might be Bayer and other German corporations providing gas to Nazi Germany for the purpose of their extermination ovens. So, too, the extraction and manufacture of asbestos, with its equally lethal potential, is unequivocally a grave breach of human rights, although it was not war-related. Thus I argue that—to say the least—those two Canadian examples (chosen among many) indicate the complete indifference (in US legal terms, “depraved indifference”?) to the basic rights of humanity when its own economic profit is at stake. The next chapter will discuss this attitude and that power first in relation to the European Union, an institution that—at times—appears to be more committed to principles and human rights than other such alliances.

CHAPTER FIVE

THE CORPORATION AS A SUPRANATIONAL POWER: THE EUROPEAN UNION Introduction Et même s’il ouvre dans le champ économique sur des bases politique, son activité reste tout àfait légitime, Mais tous les segments de la société peuvent-ils prétender contribuer également à la définition de l’intèrest général? Ainsi, entre une fédération des industries chimiques qui s’emploie à restreindre les législations permettant le contrôle des nuisances et une association de défense de l’environment qui entend protéger la santé des gens, laquelle a le plus de légitimité démocratique? (Jennar 2005:12)

This is one of the main aspects of the argument that we have been proposing in the previous four chapters: the immense power of the corporation can only operate as such if the official governance of the state or—in this case—the union of states within which it operates judges it to be in the common interest. At least, this should be the starting point, as it was, in some way, for the granting of personhood to the corporation. Another example cited by Jennar is that of the representatives of “EuropaBio,” a group of 600 biotech corporations that include the representatives of US firms belonging to the same sector. Jennar asks how both those in that group and the representatives of Oxfam International, who instead support forcefully resistance to genetically modified seeds, can be protected by that association’s patents, while defending growers’ rights to refuse them (Jennar 2005:11). It is true that normally we don’t need to judge a natural person’s actions and projects before granting them human rights and freedom. But it is also true that those rights and freedoms are curtailed when the individual puts the health and survival of others at risk, or commits assaults and murders. Hence fairness should dictate that acquiring the rights of natural individuals should also force the corporation to acquire the corresponding obligations. The main questions concerning corporate personhood were explored in the Chapter 1: personhood is not indiscriminately bestowed upon any and all objects. The paradigm person is a human being, and arguments abound about the logic and even the moral obligation to acknowledge the personhood of

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those whose brain capacity and abilities render them close to natural individuals in some significant respect: great apes, dolphins, and whales, for instance. In contrast, most acknowledge that corporations possess the corporation internal decision-making structure to be able to act and decide as one (French 1984). But no one has yet tried to argue for the capacity of corporations for philosophical/normative reasoning: their “thinking” is strictly utilitarian, in the lowest sense of the word (pace Mill), as they aim at optimum efficiency for achieving their corporate aims. Yet once again those aims are never seriously scrutinized from the standpoint of the protection of human rights, whether civil, social or even basic, like the right to life and health: hence their public interest impact is never in question. That is why an organization comprising numerous biotech and chemical industry “persons” has exactly the same rights as the associations and NGOs formed expressly to protect the public good against the purveyors of GMOs or industrial chemicals. Note that the former must state expressly their aims, as they are formed and registered, while the latter may state what they do, but not why they should be allowed to do it, as they are never questioned as to whether their aims coincide with the public interest. In the EU, corporate groups and lobbies take decisions about their aims and activities behind closed doors, “invisible and inaccessible to those who will suffer the effects of those decisions” (Balanya et al. 2005: 31; translated loosely by the author). EuropaBio and the Federation of Chemical Industries, as well as such Big Pharma companies as Hoffman La Roche, but also Monsanto Syngenta, DuPont, Bayer, Nestlé among others, admit their intent, as Jurgen Drews states that, after joining together in 1989, they will speak with one powerful voice, “as they will debate with politicians or legislators on the necessity for environmental regulations where European industry may grow and develop” (Balanya et al. 2005: 175). Thus the industry must “grow and develop,” not consider the public interest in any guise or the protection of human rights. In 1997, in Amsterdam, those industrial giants met and joined in a cynical mandate applicable to all: they needed to maintain, as they put it, a “direct and indispensable role” (Balanya et al. 2005: 178). To do so, they needed to abstain from controversy about their products, as they acknowledged that existing beliefs to the effect that the industry only obeyed the profit motive “was fatal to the credibility of the industry on those issues” (Balanya et al. 2005: 178). What needed to be done was to construct positive images regarding those products, and to leave to the politicians and



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legislators the task to reduce the public’s anger and “sense of impotence” (Balanya et al. 2005:179). The biotech industry continued to push their enterprise as providing desirable results with such expressions as “employment,” “growth,” and “competition” in order to sway voters, thus attempting to construct consensus through campaigns costing millions of euros. The other prong of their campaigns involved patenting life and, through the greatest pressure campaign in the history of the EU, they addressed those suffering from various diseases. Their motto was: “no patents, no medicines,” so that patenting life was presented as an absolute necessity for the discovery  of medicines for all diseases known to man (Balanya et al. 2005: 184–186). Thus agrochemical corporations and pharmaceutical companies combined to provide unprecedented pressure on EU governance, well beyond the limits of democracy or even of common sense. Nevertheless, the last word had not been said, as we shall see in the next two sections as we will examine both the theoretical and practical resistance to GMOs, based on human rights both on public health and environmental grounds. Europe’s Revolt and Resistance to Corporate Power: Theory and the Law The Community vision is … premised on limiting or sharing sovereignty in a select albeit growing number of fields, on recognizing, and even celebrating the reality of interdependence, and on counterpoising to the exclusionist ethos of state autonomy a notion of community of states and peoples sharing values and aspirations. (Weiler 1991: 2479)

At least in theory, the community vision, with its moral implications, is indeed one of the “pillars” of the European Union (Laffan 2001: 709–727). Given this understanding of the basis for the EU, it is particularly worrying to note the disregard for normativity described in the previous section. At any rate, before turning to the factual “revolt” of Europe against biotech, it will be useful to consider some of the legal regimes that are intended to drive their policies, starting from the 1992 Maastricht Treaty: Treaty Establishing the European Community (1992) Article 30 (ex Article 36) The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial or commercial property. Such prohibitions or restrictions shall not,

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There are a fair number of EC cases that involve public health issues, and these involve Article 30 (EC Treaty, Part Three, Title 1, Chapter 2), where grounds are sought to validate measures that might otherwise be considered discriminatory (De Burca and Craig 2002: 634). For example, in Officier van Justitie v. Sandoz, BV (174/82 [1983], ECR 2445), the Dutch authorities “refused to allow the sale of muesli bars that contained added vitamins, on the grounds that the vitamins were dangerous to health. Article 30 was also fundamental in Preussen–Elektra AG v. Schleswag AG (c-379/98 [2001], ECR 1–2099), and doubts were even cast on whether the list of “grounds” in Article 30 was truly exhaustive in Preussen–Elektra AG v. Schleswag. Advocate General Jacobs re-examined the issue. He argued that the approach in the Walloon Waste case was flawed, in the sense that, whether a measure was discriminatory was logically distinct from whether it could be justified. He suggested, however, that there could be good reasons for allowing environmental protection to be pleaded as a justification, even in cases where there was direct discrimination (De Burca and Craig 2002: 633–634). In the Cassis de Dijon case (case 120/78, Rewe-Zentrale AG v. Bundes­ monopolverwaltung fur Brantwein), the European Court of Justice (ECJ), in contrast, deemed that the protection of public health was not a “decisive consideration” (para. II) to establish that the rejected import’s alcohol content, although it was lower than that prevalent in Germany, was necessarily conducive to addiction or other harmful health effects. But the Simmenthal case (Simmenthal SpA v. Commission 1980) demonstrates that extraordinary health measures (e.g., a second veterinary opinion) may be necessary to protect the public in the case of transboundary movement of beef and beef products. Yet the case is viewed in the literature as an example of the affirmation of the supremacy of community law over national law, with some overtones of market protectionism for Italy’s own beef producers. At any rate, the combination of a forward-looking “teleological” law, as exemplified for instance by Article 308 (ex Article 235), often used to introduce and justify measures for environmental protection or other normatively desirable outcomes, on one hand, and the presence of “judicial activism” on the other (Lord Howe of Aberavon 1996: 190–193; Tridimas 1996), together appear to distance EU Law from all other trade



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agreements. Lord Howe cites Sir Thomas Bingham in Customs and Excise v. Samex: The interpretation of Community Instruments invokes very often … the creative process of supplying flesh to a spare and loosely constructed skeleton, and the taking of a broader view of what the orderly development of the Community requires. (1983, 1 All E. R. 1042, 1056)

This approach, present in ECJ judgments, also supports the view of Prov. V. Dicey pro “judge made law,” also present in the words of Article 4 from the Code Napoléon: “Le juge qui se refuse de juger, sous prétexte du silence, de l’obscurité ou de l’insuffisance de la loi, pourra etre poursuivi comme coupable de déni de justice.” This forward-looking approach to law, coupled with a supranational form of governance that is inherently (though not exclusively) normative, manifests a deep contrast with the approach of trade organizations such as the General Agreement on Tariffs and Trade (GATT) or the WTO. The conflict between the two approaches comes to a head in the “Hormones” case (EC Measures Concerning Meat and Meat Products (Hormones) 1998). In this case, the United States tried without success to remove the EC import ban “on meat raised with growth hormones” (Fidler 2001: 233), which, according to Fidler’s report, are at least five hormones. The case hinged upon several issues: (1) the use of the precautionary principle; (2) public health protection; (3) the nature and import of risk assessment on the part of the European Community. All these issues were brought into question in the case the United States brought to the WTO. The Panel Report, issued August 18, 1997 (WTO Doc. WT/DS26/R/USA), is a lengthy and complex document; hence we will limit our discussion to the three areas listed above. The first difference between the EC and the WTO centers on the nature and the role of the precautionary principle. The EC viewed it as a “general, customary rule of international law,” or at least as “a general principle of law.” Further, the EC believed that it was “not necessary for all scientists around the world to agree on the possibility and the magnitude” of the risk, nor for all of the WTO members to perceive and evaluate the risk in the same way (WTO Doc. WT/DS26/R/ USA at para. 2). In the following paragraph the United States’ position is outlined: “The United States does not consider that the ‘precautionary principle’ represents customary international law and suggests it is more ‘an approach’ than a ‘principle.’” The implication here, of course, is that if it is not a principle of law, then its use does not have the legitimacy it might otherwise have; and, if

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the US position is accepted, the use of the principle might be termed “arbitrary.” The second problem concerns the nature of public health, based on international standards and the debate between the possible interpretations of Article 3.1 of the SPS Agreement, which states: To harmonize sanitary and phytosanitary measures on as wide a basis as possible, Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations, where they exist, except as otherwise provided for in this Agreement, and in particular in paragraph 3.

The question is whether it is possible to equate measures based on “international standards” with measures that conform to such standards, therefore, whether one or the other interpretation is the basis of the EC’s understanding of “public health” (Scott, C. 2001: 144–158). It is clear that “based on” certain standards is not the same as being in conformity or compliance with these standards. Hence, the scientific justification required by the EC may well be understood to exceed international standards, rather than simply to conform to them. Finally, on the question of risk assessment, paragraph 4 of Annex A of the SPS Agreement defines risk assessment: “the evaluation of the potential for adverse effects on human or animal health arising from the presence of additives, contaminants, toxins, or disease-causing organisms in food, beverages or feedstuffs” (Fidler 2001: 240). The problem is that, although the panel refers to “potential” as an alternative to “probability,” “potential” is a concept much closer to “possible” than to “probable,” and the European Community’s understanding of risk assessment sees risk as present when the mere possibility of harm to human health is present. Five levels of protection of human health are required by the EC: 1. the level of protection in respect of natural hormones when used for growth promotion; 2. the level of protection in respect of natural hormones occurring endogenously in meat or other food; 3. the level of protection in respect of natural hormones when used for therapeutic or zootechnical purposes; 4. the level of protection in respect of synthetic hormones (zeranol and trenbolone) when used for growth promotion; and 5. the level of protection in respect to carbadox and olaquindox. (EC Measures Concerning Meat and Meat Products (Hormones) 1998)

Aside from details pertaining to points that are both technical and complex (Fidler 2001: 245–247), all other listed levels of protection indicate a



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perfectly understandable and scientifically supportable stance, which eliminated the possibility of an arbitrary position on the part of the EC. Even if the EC has economic interests in addition to the health concerns, that is, if it had an interest in protecting its own beef sources, the fact remains that there is a solid position in defense of public health, in the face of the cancer epidemic that exists (Epstein 1978). Nor is this case unique. In the later case of Portugal v. Council (case C-149/96, (1999) ECR I-8395), the ECJ judgment stated (para. 47): “It follows for all those considerations, that having regard to their nature and structure, the WTO agreements are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Community institutions.” These are cases that reaffirm the primacy of life and health of individuals explicitly, and the direct effect of Community law over national law, in cases where these are at issue (Guerra v. Italy 1998; Lopez-Ostra v. Spain 1995). Both cases were brought to the ECJ after the plaintiffs failed to receive satisfaction from their respective countries. For the Guerra case, although at first the Italian government expressed a preliminary objection based on “non-exhaustion of domestic remedies,” the court did not accept their argument: had they pursued such remedies, at best they might have caused a temporary closure of the plant, perhaps even a criminal conviction of the factory’s managers. However, such a course of action would not have provided them with the information they sought, or any redress. The court judged, in the merits of the complaint that the state had failed to act: Direct effect of basic emissions on applicant’s right to respect for private and family life meant that Article 8 was applicable. Applicants complained not of an act of State, but of its failure to act — object of Article 8 was essentially that of protecting individuals against arbitrary interferences by public authority — it did not merely compel State to abstain from such interference: in addition to that primarily negative undertaking, there might be positive obligations inherent in effective respect for private or family life.

This case concerns a group of citizens of Manfredonia, located one kilometer away from Erichem Agricoltura, a chemical factory involving the release of large quantities of inflammable gas. Often the operation caused chemical explosions that spewed highly toxic substances into the air. In 1988 the factory was classified as “high risk” according to European Union Directive (EEC) 82/501m, that is, the major accident hazard of industrial activities, “dangerous to the environment and the well-being of local populations” (Guerra v. Italy, “Head note”).

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Forty citizens complained to the European Commission of Human Rights that the action, and especially the omissions, of the Italian authorities had violated Article 10, as well as Articles 8 (“Respect for Family and Home,”) and 2 (“Right to Life”) of the Council of Europe’s Convention on Human Rights. Article 10, “Freedom of Expression,” emphasizes something on which this work has focused—that the exercise of freedom is and must be limited by responsibilities and duties: Article .10(2)—Freedom of Expression The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions and penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or of maintaining the authority and impartiality of the judiciary.

This article is outstanding among other international human rights instruments because of the thorough and painstaking way it outlines the “duties and responsibilities” that balance and limit all “freedoms”—not only freedom of expression, but also “freedom of thought, conscience and religion” (Article 9); “public safety”; “the protection of health and morals”; and, in Article 9(a), in addition, “the protection of the public order.” Hence, the freedom of the corporate enterprise is by no means absolute, and it does not appear to extend as far as it does in North American instruments, as it is clearly limited even in the realm of legally sanctioned activities. Revolt and Resistance to Corporate Power in Practice However in 1999 a group of EU Member States decided to systematically block the EU’s authorization of any new GM products (both import and cultivation), until a legislative framework would be in place that would guarantee consumer choice (labeling and traceability), food and environmental safety (novel food and feed regulation, deliberate release directive), and liability in case of damage to the environment because of GMOs. (Corporate Europe Observatory 2004)

A wide variety of questions were raised in Brussels regarding GM products, primarily because after the “first generation of GM producers,” there was no clear “consumer benefit.” As well, a series of “food scandals,” primarily regarding the emergence of bovine spongiform encephalopathy  (BSE, commonly known as mad cow disease) and other diseases of



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domestic animals showed clearly the downside of GMOs (Corporate Europe Observatory 2004), contrary to the tired arguments from biotech corporate propaganda about the “fact” that “GM is good for the environment, is safer because more scientific, is beneficial for hungry people” (Corporate Europe Observatory 2004). Perhaps only the argument about possible employment was still considered with some favor, and may still continue to gain ground. But many of the proposed laws are being designed and implemented, if slowly. For instance, the “Deliberate Release Directive and Novel Food and Feed” is intended to assess the risk possibility of each new product may pose. But the European Food Safety Authority (EFSA), which should decide on human and animal health and safety, still continues to rely on “data provided by the company” (Corporate Europe Observatory 2004). A new Directive (EC MEMO 04/16) has introduced the labeling of animal feed, but products from animals fed on GM food do not have to be labeled, although “[t]he rules on traceability provide mean to trace products containing or produced from GMOs, through the food production and distribution chain” (Corporate Europe Observatory 2004). A new “Environmental Liability Directive” was designed and implemented to cover “damage to biodiversity, even limited to protected species and habitats” (Corporate Europe Observatory 2004). But damage to health or to organic products is not covered by the directive, defined by environmentalists as an “empty shell” (Corporate Europe Observatory 2004). More hopeful was the Cartagena Protocol on Biosafety, including a Biosafety Regulation purporting to control “the export of GM products form EU to other parts of the world” (Corporate Europe Observatory 2004). That document introduces the precautionary principle (it is noteworthy that the US refused to sign the document over their objections to that point), but the US also had a clause added stating that the provisions of the Protocol would not affect such international agreements as the WTO (Corporate Europe Observatory 2004). However, many specific EU countries worked on establishing so-called “co-existence”: The Italian Biotechnology Association (Assobiotec) reported to EuoBio four cases of regional co-existence legislation (in Tuscany, Basilicata, Apulia and the Marche) that basically meant a ban on the use of GM in those regions. (Corporate Europe Observatory 2004)

As well, at least three Austrian regions (Upper Austria, Salzburg and Carinthia) have effected a ban on GM cultivation (Corporate Europe

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Observatory 2004), whereas the Netherlands, UK and Belgium are pro-GM instead. Leaving aside the specifics of various EU regulatory bodies and preferences, some welcome developments appear: In any case, some GM companies, like Bayer CropScience, need to start making some money soon—with GM. Otherwise investors might demand to move out of it. Syngenta has announced to withdraw from all GM research  activities from Europe following similar decisions earlier by Monsanto, Dupont and others. Reasons named were public resistance, high authorization hurdles and the lack of market opportunities. Ultimate proof that overall the biotech lobby has not been a great success. At least the biotech climate in Europe is not changing. (Corporate Europe Observatory 2004)

At any rate, this brief examination of the practical aspects of GM promotion and lobbying, somewhat dated though it is, cements further our conclusions regarding (a) corporate power and its intrusion into public life and policy decisions, despite the generally better environmental regulatory regimes present in the EU (see previous section); and (b) the total lack of concern on the part of corporate giants, even those affiliated with medicine, regarding human rights to health and a safe environment, contrasted with their total and exclusive focus on their economic advancement. Hence the question posed earlier: how can interventions such as those by Greenpeace and Friends of the Earth (Europe), as well as local groups such as IFOAM (organic farming) and Eurocommerce (retail industry), be permitted to have equal footing—to say the least—with MNCs like Monsanto and Bayer, who, by their words and actions, clearly indicate their total disregard for human rights and ecological concerns, let alone the presence of democratic institutions? After the Treaty of Amsterdam entered into force (1 May, 1999), the “democratic deficit” in the EU was increasingly considered to be acute; the liberalization of trade reached new heights as multinational accords were secretly negotiated under the directives of intergenerational industry with the main purpose of eliminating any measures intended for the protection of local economies, or for the rights of workers and of the environment itself (Balanya et al. 2005: 199). The march away from democracy and human rights was taking place while, according to the World Bank, rich countries’ average income was $26,500 a year, five times higher than the global average of $5,120 and 62 times higher than the income of the poorest countries (Balanya et al. 2005: 203). But the economic crisis did not inspire MNCs to provide measures capable of redressing the gross imbalances and desperate world poverty.



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In contrast, the situation whetted their appetite to capture the “emergent markets” in the East and in Latin America. The EU moratorium on GMOs persisted: On September 29, 2006, a World Trade Organization dispute settlement panel issued its final decision (the EC-Biotech decision) in the complaint brought by the United States, Canada and Argentina against the European Communities (EC), over EC’s alleged moratorium on the approval and marketing of agricultural and food products containing genetically modified organisms. (Gonzales 2007: 583)

The WTO panel concluded that the moratorium on biotech products (1999–2003) “resulted in undue delay” in the “premarket approval procedures in violation of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) agreements” (Gonzales 2007: 584). The conflict was based on the approach of the US, which could be defined as “product-oriented,” as it assumed that to transfer genes from one species to another was no more dangerous or novel than the traditional hybridization technologies. Thus there was no need for any stricter oversight than in the past. In contrast, the “EC has adopted a process-oriented approach, which assumes that genetically altered products may pose novel or unique human health and environmental risks as a consequence of genetic modification” (Gonzales 2007: 584). Hence the EU expects risk evaluations and “public input” before issuing any approval of GMOs, and it insists on an extensive tracing system. It is worthy of note that the panel involved in the decision did not even attempt to consider the safety of the GMOs or the rights of countries to follow the democratic decisions of their citizens regarding their position on GMOs, nor did the panel discuss the precautionary principle and its possible impact on the controversy. The conflict’s effects involved problems beyond Europe and North America, as several countries in Africa were offered “aid” in the form of GM seeds, which were refused. The EU accused the US of “exploiting a humanitarian crisis in order to expand the market for GMOs” (Gonzales 2007: 4; Nuffield Council on Bioethics 2004; Dauenhauer 2003). One of the reasons for Africa’s refusal of the “aid” proposed by the Bush administration was precisely the difficulty of continuing these countries’ lucrative trade with Europe, due to the difficulties deliberately posed by the EU on the sale of GMOs. Before discussing the main differences between the US and Europe on their respective approaches to corporate aims and behavior, we will consider another European case, from Hungary, caused by a subsidiary of the ubiquitous Bayer company, with very dubious antecedents.

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chapter five Criminal Precedents and Corporate Disaster in Hungary This disaster occurred on 4 October 2010 when a reservoir burst at the huge Ajkai Timfoldgyar Zrt. Aluminum plant, located 1665km. west of Budapest. The Ajka aluminum factory was taken over by Hungarian Aluminum Production and Trade Company (MAL) … The case of the Toxic sludge catastrophe in Hungary shows that the company (MAL) worked negligently and the authorities were permissive in regard to the company. (Toth 2013: 1)

MAL was one of the largest employers in that Hungarian region, with 6000 employees. It was set up in 1995 after widespread privatization of the industry dictated by the Prime Minister Ferenc Gyurcsany, the leader of the social democratic party (Toth 2013: 2). The industry’s operations started with “Stage 1 … converting bauxite to alumina.” In this process bauxite, the raw material, is “dug out of the ground and washed with hot sodium hydrodioxide, as part of the Bayer process, invented in the 19th century” (Toth 2013: 2). The process is used to extract the aluminum oxide, in order to produce pure aluminum. The waste from the process is known as “red mud,” a mixture of heavy metals and chemicals: it is a caustic mixture that burns skin on contact, and it is also “classed as a technologically enhanced, naturally occurring radioactive material” (Toth 2013: 2). The operation of the MAL factory produced 700,000 tons of red mud waste each year, and it accumulated in order to avoid the exorbitant cost of neutralizing and disposing of the waste in a sound manner (Toth 2013: 3). One of the reservoirs where the waste was stored ruptured on October 4, 2010, and the red sludge covered fifteen square miles, burying the closest village, Kolontar, within five minutes, because the reservoir was located over fifty meters above the village. The spill caused the death of eight people by drowning in two meters of liquid sludge, while another ten people lost their lives and over 400 needed medical care. Over 700 people lost their homes as the flood swept away houses, cars and farm equipment (Toth 2013: 3). It is important to note that this was not a totally unexpected event, for several reasons: 1. MAL did not use appropriate “dry” technology for handling the waste. 2. MAL’s did not follow its own operating rules, because “6 meters of liquid alkali base was on the solid reed mud, while a maximum thickness of one metre was allowed” (Toth 2013: 4). 3. MAL agreed with authorities that the red mud “should not be considered hazardous waste.”



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4. Privatized industry is freed from both the costs and the responsibility for the disposal of hazardous waste. 5. Analysis showed that “the northwestern wall of the reservoir had been shifting at the rate of 1 cm per year.” 6. MAL did not erect a safety barrier that might have prevented the disaster. 7. MAL ignored abnormal readings during the previous days, and even the alarm that went off a half hour before the disaster. 8. MAL did not have liability insurance to protect the victims (Toth 2013: 4–5). To add to this litany of culpable negligence, after the fact, MAL claimed that the red mud was not hazardous, and that the government’s previous decisions (a clay wall erected on the Western side of the reservoir during the prior communist regime), as well as other natural circumstances beyond their control, were responsible for the tragedy. At any rate, the people of Kolontar were not compensated by the company for their losses (Toth 2013: 6). In contrast, the new conservative government, elected in Hungary later in October 2010, nationalized the operation, arrested some of MAL’s leaders, and applied an unprecedented penalty of 470 million euros to be paid by MAL. Eight days after the tragedy, the Hungarian government put the activities of that corporation under state supervision, and enforced the use of dry technology to the waste: that practice, if implemented earlier, might have avoided the disaster. In addition, it ordered the building of a dam on the river Marcal, in order to avoid the possible contamination of the Danube. Finally, an “integrated monitoring system measuring the airborne dust in the region is in operation” to ensure that no further harm resulted from the switch to dry technology (which produced the dust; Toth 2013: 11). This extreme reaction on the part of the Hungarian government indicates clearly the gulf between government action against corporate criminals that is possible in Europe, and the total lack of that approach in Canada and the US. But there is a further aspect of the Kolontar disaster that has not been discussed: that is, the previous “record” of MAL’s parent company, Bayer. Bayer’s Criminal Precedents: Unacknowledged Dangers The Bayer Company then became part of the IG Farben, a German chemical company conglomerate. During World War II, IG Farben used slave labour

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chapter five in factories attached to large slave labour camps, notably the subcamps of Mauthausen-Gusen concentration camp. IG Farben owned 42.5% of the company that manufactured Zyklon B, a chemical used in the gas chambers of Auschwitz and other extermination camps. After World War II, the Allies broke up IG Farben and Bayer re-appeared as an individual business. The Bayer executive Fritz ter Meer, sentenced to seven years in prison by the Nuremberg War Crimes Tribunal, was made head of the supervisory board of Bayer in 1956, after his release. (Wikipedia 2012)

This brief passage seems to sum up the argument of this work: the activities of corporations are totally amoral. Their aim is to pursue profit at any cost, including the life of innocent people. In fact, questions beyond the economic motive are not even raised. If the Nazis were prepared to pay for it, the manufacture and sale of the gas eventually used at Auschwitz was not questioned. And that was not a product that at least purported to have a “safe,” non-criminal use, like pesticides. Instead, like Agent Orange, Zyklon B was a tool of destruction, and could only be used as such. Nor was that just a temporary aberration, or the mistake of a CEO: after the man’s guilt was proved beyond doubt, and he was convicted at the Nuremberg trials and incarcerated, Bayer “rewarded” Fritz ter Meer with the position of head of the supervisory board of Bayer. Nor was that the only criminal activity connected with Bayer: in 2006 Bayer was involved in providing blood donated by high-risk individuals such as prisoners and homosexual donors, and were thus charged in several lawsuits. During the same year, the US rice crop (Liberty Rice 601) was contaminated by unapproved genetically engineered Bayer CropScience rice, containing a herbicide-resistant trait (Gunther 2007). As well, their seed treatment “inidacloprid” killed honeybees in French Canada and Nova Scotia, and Bayer CropScience was named defendant in that civil suit. In 2001, 52 deaths resulted from side-effects of Bayer’s anticholesterol drug Baycol (Furberg and Pitt 2001). In October 2001, Bayer was also sued and found guilty of criminal responsibility for the death of 24 children and the severe poisoning of another 18 in Peru, because of a powdered mild substitute contaminated with methyl/parathion, an insecticide. In 2009 Bayer’s claims about prostate cancer regarding its “men’s one-aday multivitamins” caused another lawsuit, and in 2008 there was an explosion at Bayer CropScience in West Virginia. Their presence as corporate owners of the chemical facility MAL in Hungary was not noted in the press. Thus there is hardly any need for additional examples of corporate culpable negligence—to say the least—or outright criminality, to give these activities their proper name.



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What emerges is the “lifestyle” of a number of powerful legal persons who, singly and collectively, are intent upon furthering their own interests, while the collective interest of the global citizenry simply does not figure in their calculations. Their power is increasing steadily, even in Europe, where at least some resistance is present to the global, mostly uncritical acceptance we note in the US. Imagine an individual, a natural person, with a grave criminal record dating back to WWII, who, after being rehired following a prison sentence, continues to operate with the same disregard for law and human rights that he manifested before his first incarceration. Could such a person gain ascendency in this own country’s public life? In the governance of the international community? Even the slightest involvement with the official bureaucracy of a country demands—as a starting point—a clean record, as well as the proven ability to act in a responsible manner in the interests of that country’s citizens. Hence this work is not simply intended to show the evils corporations perpetrate, as many books and articles, and even films, show. It intends to show that the political power corporations manifest both in domestic and global settings, brings into question more than the existence of a true democracy in North America and in many countries claiming to be ruled by a democratic government. The corporate power here described brings into question the rule of law (Mattei and Nader 2008), and the desperate need for immediate intervention on the part of a counter power, on behalf of humanity. At any rate, it can be acknowledged that Europe appears to maintain some semblance of independence from the corporate subservience found in North America. Corporate Power and the “European Dream” in Conflict Nation-States are too geographically constrained to effectively deal with global threats and risks. Moreover nation-states are designed to protect property and defend territory. They are exclusive, not inclusive governing institutions. They were never conceived of as vehicles to manage global risks and threats. (Rifkin 2004: 268)

Rifkin explains why the “American dream” is tied to an old system, and an old dream (Rifkin 2004: 85), whereas the European Union’s “transnational governing model” is a beacon of change in the global era” (Rifkin 2004:196). Some claim that Europe is based on a common culture, and a joint tradition. But each of the countries in the European Union has a culture, a tradition; yet many feel “European” as well as German, or Italian; however

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there is no conflict, because to be German or Italian remains first and foremost, and both nationalities share a history, often a religious belief and— most of all—a strongly held set of values in common with other Europeans, and only with them. As Rifkin points out, “from the very beginning [the American dream] was meant to be exclusive to America [and] particularism rather than universalism was its main characteristic” (Rifkin 2004: 17). In contrast, in 1992 the Maastricht Treaty “transformed the European Community into the European Union.” In 1997, the Treaty of Amsterdam established strong human rights values for the union, and the states agreed to surrender some measure of sovereignty in exchange for joint protection not only of economic interests, but also of their culture, values, and most of all their basic rights (Rifkin 2004: 213). Fundamental human rights are at the basis of the European Constitution: If we were to sum up the gist of the document [the EU Constitution], it would be a commitment to respect human diversity, promote inclusivity, champion human rights and the rights of nature, foster quality of life, free the human spirit for deep play, build a perpetual peace, and nurture a global consciousness. (Rifkin 2004: 213)

This is the basic sense of the “European dream,” its inclusiveness and global reach in clear conflict with the American dream’s localized exclusiveness. No European of any country is asked in school to recite a pledge of allegiance either to Europe or to her own country of origin. But allegiance to the human race is clearly a basic value all Europeans share. That is the reason why—at least in principle—the EU is singularly well qualified to stand up to corporate lobbies and manipulations. The latter, after all, are deeply planted and established in the “old dream” and they promise, at best, the “advantages” of the old order. Rifkin is somewhat hasty as he dismisses the religious cohesion of European citizenry as a thing of the past. From Medieval times, the Catholic religion has been and is an additional source of shared values. He bases his position on the observation that famous cathedrals in Europe’s greatest cities are often almost empty on Sundays. In contrast, smaller towns often have well-attended multiple Masses, often standing room only, from Saturday evening to all day Sunday. My experience (admittedly as anecdotal as that of Rifkin, but more varied to be sure) reflects both Italy’s many cities and towns and several churches serving the Italian community in Toronto, Canada, with services held both in English and in Italian.



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I believe that the situation I describe is probably more indicative of the general situation in southern Europe, whereas the Protestant north better fits the view that Rifkin suggests: church after church in the Netherlands, for instance, is transformed into a coffee shop or museum. Thus it is a mixed situation that we can accept in part, not the categorical affirmation Rifkin proposes. In Medieval times, the presence of the Vatican as a source of undisputable religious values, and of priests and monks as holders of the tradition of a common language (Latin) and a common culture, cemented the Europe that was to become the EU with its specific characteristics. In fact, some scholars do refer to the present Europe as “the new medievalism,” that is, “a modern secular equivalent of the kind of political organization that existed in Western Christendom in the Middle Ages” (Bull 1977: 245; Rifkin 2004: 228–9). At any rate, what is basic to the EU is the willingness of people to transcend an attachment to property and place only, thus placing the main emphasis on universal values and human rights, as well as the commitment to the collectivity and the Earth we share (Rifkin 2004: 267). These commitments are desirable, and in fact necessary, in a world where global violence reigns (Westra 2011a), where the environment is increasingly under threat from multiple sources (Westra 2004; Westra et al. 2013), and where ongoing conflicts and other threats put all life at risk. David Beetham says “it is as much the exposure to common threats as the sharing in a common humanity that justifies the claim that the human rights agenda is universal” (Beetham 198: 60). It is for this reason that single nation-states (and even a thoroughly exclusivist federation of states like the United States) are insufficient to offer a response to the multiple threats we face, let alone a solution: gated communities, fences, and walls to keep out the “other”—the “enemy”—do not work in the southern US any more than they do in Israel, but only breed additional conflict and violence. We live in a “global risk society” (Rifkin 2004: 271). Despite his somewhat superficial assessment of the importance of the Catholic church, Rifkin cites Thomas Aquinas as seeking an “accommodation between faith and reason,” as he proposes adding “empathy” to the two, as he acknowledges that “universal threats require the adoption of universal rights and obligations” (Rifkin 2004: 272). But “empathy” is a feeling; it is not something that can be legislated, any more than pity, or affection can, even by the EU. Rifkin should return to Aquinas, who assesses human governance and law, according to whether it is promulgated and enacted for the common

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good, for the protection of everyone, not only certain groups or classes. In the Summa, Aquinas states that a “king” whose laws are not as they should be, for the common good, not only should not be obeyed, but his rule should be fought and resisted, as it simply represents “someone’s violence” (Aquinas). Thus Aquinas himself sees the need for the law to be in the interest of all humanity, although he does not speak specifically of human rights. But when the protection and the interests of the poor indicate the legitimacy of a form of governance, they are surely part of the legal regime that should be obeyed. They are therefore more than the expression of feeling: they represent a non-derogable obligation. For Aquinas, then, it is the essence, the content of the king’s “rule” that determines its status and value, not how we feel about it. Aquinas’s position, in fact, is repeated in the Nuremberg principles and doctrine: Nazis had the right and obligation to disobey “unlawful orders” from superiors—which [the Allies] defined as orders that denied people their basic rights as human beings. If Nazis carried out unlawful orders, they could be tried for crimes against peace and humanity. (Rifkin 2004: 275)

The question was not whether they felt sympathy for, or empathy with, their victims, but whether their actions against such victims were illegal on the basis of the international understanding of human rights, which— like all international law—is based in part on the principles of natural law (Kindred et al. 2000). Therefore we can see how the “European dream” Rifkin traces is in direct conflict with the older dream, where freedom was defined as autonomy, independence based on property, as “civil rights, political rights, and society rights were all designed in one way or another to advance property interests” (Rifkin 2004: 279). The new “dream” defines freedom as recognition, interdependence with others, and the inclusion that characterizes universal human rights (Rifkin 2004: 279–280). It should come as no surprise that Europe’s position, based as it is on all inclusive regard for humanity and multi-culturalism, and on the principles long ago promulgated as natural law, should be and is a much stronger position to oppose the supranational power of the corporation, although it is not always an easy battle or a guaranteed success. The Roots of “Europe, Inc.” in the American Dream American inequality didn’t just happen. It was created. Market forces played a role, but it was not market forces alone. In a sense, that should be obvious:



the european union133 economic laws are universal, but our growing inequality, especially the amounts seized by the upper 1 percent, is a distinctly American “achievement.” (Stiglitz 2012: 28)

Stiglitz’s recent book indicts the ongoing inequality in the US and sees the truth in the position of the Occupy movement, which he traces back not only to the actual events, but also to the motivations behind the Arab Spring of 2011 (Stiglitz 2012: ix–x). He argues that, just like the situation of protesters in Tunisia and Egypt, and “los indignados” of Spain, the gap between the wealthy and the unemployed (or underemployed) poor showed clearly that the “economic and political system” had failed (Stiglitz 2012: x). The 1 percent of those countries, like that in the United States, ensured that change for the better was not even on the horizon, by using their power with and within the government. This was and is true even in the US, where Obama’s own promise of “change” did not come to be (Stiglitz 2012: x). That reality ties in with our own discussion in two ways. First, the 1 percent is another description of the powerful corporations and their CEOs; second, the European lobbies and—in general—the MNCs are primarily based in the US, as that is their point of origin, as well as the origin of their form of operation. Stiglitz explains the way they operate: Our political system has increasingly been working in ways that increase the inequality of outcomes and reduce the equality of opportunity. This should not come as a surprise: we have a political system that gives inordinate power to those at the top, and they have used that power not only to limit the extent of redistribution, but also to shape the rules of the game in their favor and to extract from the public what can only be called large “gifts.” (Stiglitz 2012: 32)

This behavior is termed “rent-seeking” by economists—that is, getting income without creating wealth for the rest of society. Rent-seeking includes “subsidies from the government,” that is, laws that make the marketplace less competitive, lax enforcement of existing competition laws, and statutes that allow corporations to take advantage of others or to pass costs on to the rest of society (Stiglitz 2012: 39). I would add that the primary, basic condition of “rent-seeking” as here defined, is the total amorality of the players. It is not only corporate CEOs who are greedy and desire to make as much money as possible. No doubt, most natural persons have the desire to further their own interests as well, and that, within the limits of law and morality, is not a bad thing. But those individuals whose pursuit of their

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interests includes ignoring or thwarting the law of their country, and the rights of their fellow citizens, are called criminals, and when discovered, are suitably punished. As single, individual evil-doers, there is no question of any attempt to change or influence the laws the define the perimeter of their activities, let alone of “finding better ways of ensuring that politics work for them rather than for society more generally” (Stiglitz 2012: 41) as is the case instead for the top 1 percent. Hence corporations are “legal persons” only when it is to their advantage to claim personhood, while the restrictions applying to natural persons do not apply. The main, absolute “right” of legal persons is their right to property, which can only be lost to the state after “due process,” and appropriate compensation. But corporations have argued strongly against such laws as ATCA, which, in theory, should allow the victims of corporate behaviors in the rest of the world to recover some compensation (Stiglitz 2012: 59). In practice, through the use of forum non conveniens and other procedural legal moves, for the most part ATCA cases do not succeed in offering  relief to those who suffered “torts,” or any of the criminal human rights abuses that are the routine companions of the operations of most extractive and mining industries (Scott, C. 2001: 55–63; Scovazzi 1991: 395–427). The question of the treatment of legal, yet harmful activities has been a major concern in relation to state responsibility, and the topic of “International Liability for the Injurious Consequences of Acts Not Prohibited by International Law” has been on the UN agenda since 1978 (II-2 Y.B. I.L.C. 149 et seq. 1986), and there have been five reports, a “schematic outline” and a number of draft articles, following the first report, through 1988. The problem is that of ensuring that transboundary harm, arising primarily in the environmental field, should be considered a “liability” even if the state could be considered to be “without fault” (Boyle 1999: 1–3). In contrast, viewing the activities under consideration as lawful meant that “neither the payment of compensation nor the prevention of harm was seen as an absolute obligation” (Boyle 1999: 5). The emphasis is on the relationship between the activities, their economic importance, and the “probability and seriousness of loss or injury”; hence a balancing of interests was the main goal of any regulative effort, not ensuring that all harm would be avoided. As Boyle describes it: “In sum, what the schematic



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outline sought was a world in which nothing was either prohibited or made obligatory and everything was negotiable” (Boyle 1999: 5). Instead of another approach based on consensus and negotiation, had the emphasis been placed on the harms themselves, the work of these commissions ought to have sought some redefinition of risk, to indicate whether recurring but moderate pollution, or “large-scale but one-off accidents” such as Bhopal or Chernobyl, might be equally harmful. Liability in all these cases ought to be strict, “in the sense that it is founded on cause, not on the lack of due diligence, or based on breach of obligation” (Boyle 1999: 7). It is disheartening that, as late as 1986, Rapporteur Barboza said: within this topic there will be activities which, although they may cause significant injury, will be permitted because, on balance, the assessment of conflicting interests indicates continuation of the activity despite its risks and compensable injury. (II-1 YB ILC 152, at para. 31 [1986])

We have shown that ecological disasters and ongoing disintegrity will indeed cause “significant injury.” In addition, most environmental injuries, as we are learning, are incompensable, and, with the presence of scientific uncertainty, it is impossible to be sure which injury may be reversible or compensable at all. Perhaps the problem should be reduced once again to that which was termed the “first obstacle,” or the economic motive. The desire for “balancing interests” attempts the impossible: “balancing,” or even comparing, economic interests with life and health-related interests. Hence, it will remain regressive to attempt to prohibit the harm, but not the activity that gives rise to the harm, as its consequence, as was shown for instance in the Trail Smelter Arbitration, where the question of making the activity unlawful was not even raised. Here is one of the most serious obstacles we encounter: in the environmental realm, harm is not prohibited at source (Boyle 1999: 16); at best, “end-of-pipe” mitigation is sought instead. This happens despite the gravity of the injuries inflicted and the prohibitions and punishments these harms would easily evoke, were they inflicted by other means than through the environment. One of the rapporteurs for the 1989 Commission attempted to include “consequences” in the meaning of obligation and in that of “responsibility”: Rapporteur Barboza has taken “liability” to cover not only the obligation of reparation, but also the whole range of obligation, of notification,

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Although extending the range and meaning of “responsibility” appears to be a step forward, joining “prevention” with “notification, information and consultation,” once again takes the issue back to a consensus-based model, rather than indicating clearly the assaultive nature of the harm-producing activities. In essence, such an approach takes, as a given, that the way business institutions presently operate is the only way they can operate, and that is something we all, collectively, must bear, although we may attempt to mitigate the consequences of these activities, albeit in a “cost-effective” manner. This is not true, however. Business tends to operate by viewing everything through one lens only, and we jointly collaborate by allowing this to be “the way it is,” instead of cutting straight to the root of the problem: the harms are indeed real, sometimes they are delayed, but they are always measurable and expected within a certain imprecise range of effects. When we divorce the activity from its immediate results and its long-range consequences, justice is not served, and human rights are not respected. On the topic of crime, Glanville Williams says: The proposition that crime is a moral wrong may have this measure of truth: that the average crime is more shocking, and has graver social consequences, that the average tort. Yet crimes of strict liability can be committed without moral wrong, while torts and breaches of trust may be, and often are, gross moral wrongs. (Williams 1955: 117)

One cannot ignore the problems in this definition. The lack of a completely unitary morality in a pluralistic society, for instance, is a problem that becomes acute when it is transferred to the international community (Gilbert 1990: 348). In contrast, Lauterpacht (citing Grotius) argues that the state as a legal person must also be viewed as subject to moral codes (Lauterpacht 1927: 137). Gilbert adds his voice to those who do not see the need for considering crimes of states, as he looks at international case law and some jurists; but he devotes less than a half-page to the consideration of “Massive Pollution of Land and Seas” in the ill-fated Article 19.3(d) of the 1996 International Law Commission, as he argues that the classic locus, Trail Smelter, cannot be authoritative enough to base criminal responsibility for transboundary harm upon it, as it is only an arbitration (Gilbert 1990: 364–365). This is precisely the sort of opinion this work has attempted to refute: incremental scientific and medical information about the consequences



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of ecocrimes makes such opinions irrelevant to the real issue: the internationally accepted protection of human rights. The bottom line is what one takes to be (1) the role of morality in the law, and (2) the principled support one is prepared to accept for the basis of the connection between morality and the law. If one attempts to reduce erga omnes obligations, and the linked concept of jus cogens norms, to just another way of describing obligations that states agree to accept, on a par with treaties, then the argument for criminalization loses its starting point and much of its strength. Ecoviolence remains just one form of regulatory breach among others, not different in kind from those breaches. I have argued that when the principles that form one of the sources on international law are duly traced back to natural law, properly understood in its “natural” (biological) sense, then we have a solid starting point for the protection of human rights, whether the protection is required from the assaults of invading armies, or from the attacks of genocidal factions or of polluting industries (Westra 2004: ch.1). Corporate Responsibility under ATCA Under what conditions, specifically, can a controversy be brought to the attention of the court under ATCA? Usually, this involves either biological or juridical persons rather than states, as Holwick argues in his discussion of the Jota case (Jota v. Texaco, Inc. 1998; Holwick 2000: 184): Residents of regions of Ecuador brought class action against American Oil Company for environmental and personal injury that allegedly resulted from company’s exploitation of the region’s oil fields, and residents of Peru living downstream from that region brought a class action asserting similar injuries resulting from these activities. (Holwick 2000: 187 n. 20)

In essence, the nature of the alleged violation is the most important point: the Jota plaintiffs “did not claim any treaty violation”; therefore they had to show that “alleged violations” were violations of universal norms, “against the law of nations.” Hence, in legal terms, the plaintiffs argued that there had been a violation of jus cogens norms (Holwick 2000: 212). This has been precisely the gist of some of the argument of this work, and the approach of ATCA supports two points. On one hand, the connection between health and disintegrity demonstrates the criminality of environmental violations that coincide with gross human rights violations. On the other hand, and following upon this argument, it is doubly important for these crimes to be prosecuted as torts as well, under ATCA: the

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plaintiffs’ evidentiary burden, if met, hence accepted by those tribunals, may then be used to establish the criminality of the behavior that resulted in the harms for which they are being compensated, although a prior criminal conviction would prove a civil violation, a fortiori. In addition, the crime of aggression (Article 5) has not yet been defined fully at this time (Kindred et al. 2000: 766). Perhaps including ecoviolence in some form in that article would be a fruitful way of ensuring that ecocrimes are found to fit within that court’s mandates. At any rate, we can conclude that not only is ATCA important on practical grounds, to ensure that egregious human rights violations are brought to the attention of the international community (Scott, C. 2001), but it can also serve a vital purpose to establish the scope of these violations as real crimes, on conceptual grounds. As more cases are brought before courts under ATCA, the current approach exemplified by the WTO tribunals, which juxtaposes human rights with economic advantage to the detriment of the former, will be under attack, even though the eventual “redress,” at best, will remain monetary. These cases to date include: Occidental Petroleum v. U’wa Indigenous People of Colombia; Beanal v. Freeport-McMoranty Inc. Beanal et al. v. Freeport-McMoran, Inc., and Freeport–McMoran Copper and Gold, Inc. 1997; John Doe v. Unocal Corp. 1997; and Sequihma v.Texaco, Inc. 1998. All these cases list a familiar litany of “human rights abuses,” “environmental torts,” and even “cultural genocide” (Holwick 2000). They are, for the most part, cases arising from resource extraction. The accused are transnational corporations; the plaintiffs are citizens of developing countries, exploited and physically endangered, together with their habitats, for the benefit of transnationals. Since governments do not manufacture, process, nor extract resources, they cannot be said to be directly responsible for the harms caused to health and life; we can only consider governments indirectly responsible, through the support they offer, and hence their complicity in the harms caused. The interaction between governments and transnationals ranges from the straight partnership of the military regime of Sani Abbacha, with Royal Dutch Shell Oil in Ogoniland (Westra 2008), to the immense “donations” to the Bush campaign in 2001 by a number of immoral transnationals, such as oil and tobacco companies (Borger 2001: G2). The difficulties of establishing ecologically sound and “secure” regimes is exacerbated by the fact that, for the most part, transnationals are not signatories or—as such—bound by the conventions their own home governments have ratified. The emergence of ATCA actions signals a ray of



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hope for the future, as does the coming into force of the ICC. We need to return briefly to the corporation itself. In contrast to those who view reliance on ATCA not only as an important step forward, but also as a sufficient solution, Ratner argues that “reformulating corporate duties” to include human rights would be the best step, because leaving those abuses entirely as torts and relying on the presence of some “high-profile tort cases” presently tried in the US “assumes too much about tort law and too little about human rights law” (Ratner 2001: 443, 553). Although the transformation of these cases into human rights issues is by no means a “cure-all,” Ratner adds that “reformulating the problem of business abuses as a human rights matter might well cause governments and the population to view them as a legitimate issue of public concern and not as some sort of private dispute” (Ratner 2001: 443, 553). Corporate Criminality, Fitness to Rule and “Tempering Globalization” While globalization may benefit society as a whole it has left many behind— not a surprise given that, to a large extent, globalization has been managed by corporate and other special interests for their benefit. (Stiglitz 2012: 277)

It is no surprise that globalization itself is organized to produce results that benefit corporations, and only corporations. David Korten was among the first to note the effects of corporate “rule” (Korten 1995). What is new is the global extent of that rule. Stiglitz cites an example that is important when we attempt to assess the consequences of that rule. He is assessing the presence of discrimination, mostly racial discrimination in his country, as he cites a study by sociologist Devah Pager: In her field study, matched pairs of twenty-three-year-olds applied for real entry-level jobs in order to test the degree to which a criminal record (a nonviolent drug offence) affects subsequent employment opportunities. All the individuals present roughly identical credentials, including a high school diploma, so that differences experienced among groups can be attributed to the effects of race or criminal status. (Stiglitz 2012: 69)

The result of the study reported that the race of the applicant was deemed to be more significant than the criminal record, although the criminal record, light as it was, was also a serious consideration. Stiglitz’s main focus is the presence of unequal treatment meted out to minorities, a point well proven by Pager’s study and supported by the discussion Stiglitz adds.

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From the point of view of the present discussion one clear point emerges: both young men were applying for “entry-level jobs” only, and yet a criminal record, even a minor one (such as a non-violent drug offense), was a significant aspect of their “qualifications.” Aside from racial discrimination, evident in the example, the point is that even a job at the entry level, with little power to affect policies or major decisions, was not available to a person with a record, although the record at issue did not involve attacks or public harm. Thus we should consider the ultimate results of corporate power. One of these results has been singled out and studied over the past several years: the effects of corporate power on democratic institutions. The other is the effect for which I argue in this work: not only is the corporation a supranational power, but it is entirely unfit to rule because of its lack of qualifications, its totally amorality, and, most of all, its proven criminal record. Starting with the corporate attack on democracy, we note that Stiglitz himself speaks of “the evisceration of our democracy” (Stiglitz 2012: 136). He says: Democracy—at least as most of us conceive of it—is based on the principle of one person one vote. Much of the political rhetoric focuses on the “middle” “independent” voter, as standard political theory suggests should be the case. (Stiglitz 2012: 136)

But the corporations and the associations that represent them exercise a control that includes, as we saw above, almost unlimited funding for parties and individual supporters, in order to ensure the success of lobbies and promotional campaigns, as well as the maintenance of the status quo, as the “vestiges of monarchical privilege” (Birch 2007: 154). It is not only the domination of this or that corporation leading to one or another corporate product (although that in itself is extremely dangerous practice). The exercise of coporate power is an all-pervasive form of undemocratic control. It is the “ongoing expansion of the corporate principles and the impact of their ideological dynamics across numerous social institutions in democratic countries” (Birch 2007: 154). Corporations are not political movements as such, nor even one political movement in their joint operation. But the weakening of states, as well as the weakening of citizens, is foundational to the control of all institutions that might be termed democratic. Mattei and Nader (2008: 215) remind us that Cicero, the Roman Stoic philosopher, said that “Freedom is participation in power.” By that



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standard, in democratic countries, citizens shaped by the “powerful corporate representations of the world (e.g. advertising, marketing, branding)” are reduced to “consumers” and “emasculated citizens” (Birch 2007: 154). If we accept the reality of this situation, citizens in Western democratic countries cannot be regarded as “free,” and are not able to contribute and participate in the polity. Hence, by essentially “buying” the parties and the candidates, and by manipulating and convincing citizens of their own corporate values, the democratic force of the country is subverted and it is turned over to the undemocratic control of the corporate order. As we saw earlier, dissent is controlled by conjoining government and corporations as one power, thus terming dissent illegal, or even a form of treason or terrorism. A further counter-democratic practice is that of ensuring that privatization follows other neo-liberal practices. Thus, deregulation of public service operations is followed by turning over public service to the private sector—that is, to the corporation (Stiglitz 2012: 176). Stiglitz emphasizes another point: those who approve the change must be in the public sector, and they are bribed for their approval by those in the private sector, who will benefit. Clearly, bribing is itself a crime, thus further supporting our conclusion that the “normal” advance of neoliberal globalization is fraught with criminal practices on the part of the corporation. Corporations are Unfit to Hold Their Present Ruling Position Few battles over resources approach the urgency of those concerned with potable water. The plunder of water resources encouraged by imperial law, often happens with the complicity of official state law. There have been protests denouncing World Bank-endorsed privatization of water, and major river diversions have also mobilized local peoples. Over exploitation of ground water is a critical part of the problem of scarce water resources. (Mattei and Nader 2008: 207)

Coca-Cola exceeded its water drilling allowance in Kerala (India), so that local water tables fell drastically. The water that was not stolen from the community was polluted, as Coca-Cola returned waste water to the aquifer. The local women initiated a protest, with the support of a local doctor, who declared the remaining water unfit for consumption. Eventually even the international community supported the protests, and in December 2003 Kerala’s chief minister ordered the closure of the plant, using some important principles of common law that should inspire further use in other such cases (that is, against corporate power):

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chapter five Our legal system, based on English common law, includes the public trust doctrine as part of its jurisprudence … the state is the trustee of all natural resources … the public at large is the beneficiary … so although there is no law specifically regulating the extraction of groundwater, the panchayat and the state are required to prevent any exploitation of underground reserves. (Shiva 2005; Mattei and Nader 2008: 207)

Examples of corporate criminal or quasi-criminal activities can be multiplied, but there are just as many examples of corporate persons “avoiding some of the most obvious disadvantages of being a legal person, namely responsibility for one’s act” (Neoclous 2003: 163). The ability to avoid the consequences of its actions derives from a number of corporate powers, acquired both legally and illegally. It is significant that even the “legal” acquisition of power is most often based on ensuring that the “law” at issue is a nothing but a formal procedural defense of corporate power and personhood. As in the Coca-Cola case, the legal apparatus legitimizes an operation that infringes basic human rights, and which ultimately represents a form of legalized “plunder” (Mattei and Nader 2008). That legalized plunder is simply the expression and embodiment of neoliberal globalization. The corporations, associations and institutions that are part of globalization, as we saw, are not open to any consideration of morality or human rights, beyond their own “rights’ and interests. Invoking the criminal law is therefore not only difficult, but often futile: “the corporation, as a disembodied jural entity, has no physical body capable of incarceration, or corporal or capital punishment” (Grear 2010: 91). The same thought is expressed even more forcefully by an anonymous protester from the Occupy movement in New York, as he waved a placard saying, “I will believe that a corporation is a person, when Texas executed one!” (Collins 2013). Grear acknowledges that “the new trade-related market friendly paradigm calls upon the state … to save capital by pursuing ‘de-regulation,’ de-nationalization and disinvestment” (Grear 2010: 14). But the borderless flow of capital (Grear 2010: 13) no longer needs the state, which has become, as we have seen, nothing but the agent or tool of corporate power, for the most part. It is indeed a rare case when the government of a country, especially a country in the global South–East like India, has the courage to assert its independence, as in the case Mattei and Nader have cited. Reviewing such a case simply repeats and reinforces the prevalence of overwhelming, multifaceted corporate power, no matter how acquired and exercised. But that power demonstrates the underlying criminality, the illegality pursued



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with impunity, both for acquiring it and for exercising it. In sum, corporate power, as it now exists, does not reflect law or justice in several, connected ways. This lack includes the following aspects: 1. Persistent lobbying of governments and corresponding intrusion in the drafting of treaties and regulations in international law. 2. Intrusion in the political process through large donations to parties and individual candidates, especially in the US, home of the most powerful MNCs 3. Ongoing control of domestic legal regimes to ensure impunity for activities that affect basic human rights to life, health and normal development. 4. Arrogating traditional state powers for the protection of citizens, by the imposition of supra-national constitutions, through the secret decisions of economic tribunals, such as those of the North American Free Trade Agreement (NAFTA) or the WTO, as those supersede the decisions arising from state constitutions. 5. The continued production of the chemical and other industrial products that affect human rights as in (3), with full knowledge of their composition and eventual effects, with the impunity guaranteed by both lobbying (1) and their intrusion in the political process (2). 6. Collusion with states’ illegal aggressions, oppressions and attacks, and by the ongoing manufacture of weapons both legal and illegal. Some of these activities would be viewed simply as criminal were they perpetrated by natural persons. Others, perhaps, are borderline between illegality and immoral legal behavior. The intrusion in the political, democratic process is particularly worrisome, despite the US court decisions that have legitimized that behavior. The results of that intrusion ensure that elections now range quite far from the ideal of “one man, one vote.” When these corporate activities are viewed together, they reinforce the impression of a total lack of concern for the public interest, the public order, and even the legitimacy of domestic governments, and the soundness of international law. If the corporation is a person, it (and any association of such legal persons) demonstrates an unacceptable character, without the integrity and the moral fiber required by a country’s ruling government, let alone the ability, gravity, and respect for the law that are necessary for the leaders of the globalized world.

CHAPTER SIX

THE CORPORATION AS A SUPRANATIONAL POWER Introduction International human rights discourse, to the degree that it internalizes the globalized logics of commodification, becomes colonized in effect by a logic that knows no inherent or internal limit to its potentially destructive or even fatal impact upon embodied vulnerable human beings. (Grear 2010: 193)

The brief survey of corporate activities in the previous chapters indicates that the “colonization” of human rights law on the part of corporate legal persons is undeniable. It is equally undeniable that the presence of legal personhood with its acquired rights is in itself a grave threat to the “peoples” to whose protection the UN’s system is dedicated. It is impossible to promote the Universal Declaration of Human Rights for the protection of the vulnerable and, at the same time, allow those who victimize them to share in that protection. Especially in international law, which excludes the consideration of petty crime, but also of local murders and robberies, there are only two major groups with the power to harm vulnerable people on a grand scale: states and MNCs. The argument of the previous chapters has indicated that the former are, in many ways, directed and controlled by the latter. In the US, recent regulations even identify the two as one, joined in their common interests; this permits viewing any dissent with the practices and activities of a corporation on the part of citizens as an attack on the state, even a form of terrorism (see Chapter 5). This approach changes drastically the former position of MNCs as legal persons operating in (and presumably under the control of) various states. The new reality instead shows various states under the control, more or less openly practiced, of the corporate giants that support and direct them more or less subtly. If this appears to be an exaggeration, it is sufficient to recall the role of corporate capital during elections, especially in North America, and the ongoing role of corporations in a number of issues, including the modification of legal regimes, the support of the election of favorable judges, and legislative bodies. The relation between MNCs and states is almost reversed at this time. This becomes obvious when we note the relation

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between such associations as the International Monetary Fund (IMF), for instance, and the states it is asked to support to “save” the euro through various loans. One of the first demands placed on the unfortunate country in dire straits is the request to privatize—that is, to restrict the services citizens have a right to expect from their government, and turn those services over to those who will operate exclusively for profit (for example, this is happening in Greece in 2012). The decision-making power of the IMF is emblematic of the present role reversal between MNCs and states. The difficult situation faced by a number of European states is the result, among other things, of the demise of the US social democracy “à la Keynes” and of a better, fairer, and more just use of “international institutions like the UN, IMF and World Bank in the roles that were initially ascribed to them in the post-WWII period” (Westra, R. 2009: 210). However, Richard Westra cannot conclude that even ensuring social and democratic advancement to many or even most countries on the basis of the original mandates of those institutions might have prevented or mitigated the present ecological crisis. I suspect it could not have done so, as “social democratic” advances would still have been based on an unsustainable (though maybe fairer) growth ideal. Further, while it is appropriate to couple the IMF and the WB, it would seem that, at least in principle, the UN was intended as the defender of human rights, thus as a moderator of that unsustainable growth, the only international authority capable of blocking the worst effects of neoliberal globalization. Ecology, biology, and other related sciences indicate that growth, both unrestrained and uncontrolled, has gone forward without any consideration of the consequences. A simple observation of the human rights institution globally confirms that even the possible “advances” in defense of the most vulnerable people have not been actually used, but are instead in steady decline. The main reason for these failures is the total disregard of the human embeddedness in nature; for those who give primacy to social advancement, the natural environment is—at best—a distant concept that ought to be considered in policy-making; for those who simply promote economic profit, it is only raw material. The change required by both approaches, if the ecological/biological necessities were to be taken seriously, would be so drastic as to be mentioned, at best, as an addition for the best of “right-thinking policymakers,” but never as the foundation of any rational policy. And that change cannot happen within the present situation, given the presence of the neoliberal state and its development:



the corporation as a supranational power147 On the one hand, the neoliberal state is expected to take a backseat and simply set the stage for market functions, but on the other hand it is supposed to be creating a good business climate and to behave as a competitive entity in global politics. (Harvey 2005: 79)

It is not clear why the state’s function should be that of “creating a good business climate.” For a non-economist, it would seem that if the state controlled protective laws, and also provided citizens with state sponsored jobs, many of the problems here described would not prevail. The state’s primary concern should be the safety of its citizens (Gostin 2008), and for most countries democracy appears to be the preferred political system. But the retreat of state power has proceeded apace with the growth of corporate power, so that the naïve suggestion of the previous paragraph is not even on the horizon as a workable solution. And if the state does not fulfill the function assigned to it as a business “facilitator,” the corporate power is in a position to force a climate consonant with its goals. Further, as we noted in the previous chapter, governing elites are often not only supported, but also either infiltrated, or bought and paid for by the corporation, which then expects a return for its investments. And herein lies one of the major internal contradictions in the present neoliberal system. On the one hand, the state could not interfere in the market (and this is the position enforced by tribunals such as that of NAFTA and the WTO). On the other hand, like those tribunals, the state is expected to take an “authoritarian” position regarding markets, as the enforcement of their preferences militates against the individual freedom that the neoliberal agenda is expected to promote: “The reduction of ‘freedom of enterprise’ unleashes all those negative freedoms that Polyanyi saw as inextricably tied in with positive freedom” (Harvey 2005: 80). The interplay between US democracy and its imperialistic authoritarianism has a long history. Noam Chomsky cites US president William Howard Taft as saying “the day is not far distant [when] the whole hemisphere will be ours in fact as by virtue of our superiority of race it already is ours morally” (Chomsky 2003: 64). The quest for dominance is coupled with an incredible arrogance, also present in then-President Wilson, who “regarded Italians like children [who] must be [led] and assisted more than almost any other nations” (Chomsky 2003: 65). Chomsky adds (citing David Schmitz): It was therefore right and proper for his successors to offer enthusiastic support for the “fine young revolution” of Mussolini’s Fascism that crushed the threat of democracy among Italians who “hunger for strong leadership and enjoy … being dramatically governed.” (Chomsky 2003: 65; Schmitz 1988)

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Given the imperialist drive present behind the authoritarian imposition of so-called “market-friendly” regulations, it seems that neoliberalism is indeed self-contradictory in its policies and operations. Moreover, if we consider the rise of fascism to be a negative result, we can add a third dimension to the two present results of corporate dominance (that is, democratic deficit, and the increasing illegitimacy and illegality of corporate rule). The results of these three effects in combination can be seen in the major threats to public health and human rights discussed in Chapters 2 and 3, but they also are clearly present in what represents perhaps in the biggest threat of our time: climate change and the push to “sustainable development.” Climate Change and Corporate Culpability At common law there was a close connection between crimes and moral feelings. As one commentator noted, “[r]eal crimes are sins with legal definitions.” When the connection between crimes and core societal values became attenuated, liability is imposed, not only for immoral behaviour but also for undesirable behaviour. In such a context, the only limit on criminalization is the exhaustion of behaviours worthy of deterrence, which is no limit at all. (Robson 2010: 137; Green 1970: 422–424)

Essentially, there is no specific law forbidding the activities that cause climate change, and the corporate actors who are ultimately responsible for its occurrence and for the steady increase of the harmful phenomena that accompany global warming, appear to have little or no interest in effecting useful changes. The problem is that, like the murder of Abel by Cain, the ongoing activities that foster climate change represent entirely new phenomena, hence there is no specific law to criminalize or at least condemn those who either cause it or contribute significantly to its occurrence. Regulatory regimes and court precedent about transboundary harm, starting with the Trail Smelter Arbitration, are simply too weak to control or even to mitigate the problem, and they only consider local events and issues. The recent regulations after that time, as a deterrent of multiple global harms, are as effective as a fly swatter against machine guns. It is for this reason that many of the legal scholars who work on climate change emphasize its immoral aspects rather than its illegality. An important representative of this approach is Donald Brown. In his recent work he addresses specifically the ongoing “disinformation campaign” that was tried unsuccessfully in the recent Kivalina case (Native Village of Kivalina v. Exxon Mobile et al.), where even the evidence of an ongoing disaster,



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such as that of a whole community sinking into the Arctic Ocean because of glacial melts, was insufficient to convince the US (San Francisco) court of the guilt of the perpetrators of a major, well-funded disinformation campaign. Exxon Mobil and over 20 other energy/oil corporations were sued for the results of their campaigns of denial of climate change’s existence, followed by the support of junk science for the disinformation campaign. They were not even found guilty of “public nuisance” for the effects of global warming on that Arctic village. Don Brown says: What I am interested in is the nature of the harm associated with the disinformation campaign. The disinformation campaign is more than a coordinated effort at misrepresenting the science, it is a violation of the body politic … just as the sense of moral outrage is the proper result of violations of one’s individual person, we owe collective moral outrage to violations of our collective body politic. (Brown, D. 2012a)

Brown proposes understanding the problem of climate change by viewing it as a moral problem. Although he is absolutely right regarding the deep immorality of the situation, I think that ultimately appealing to those responsible for climate change will, unfortunately, prove futile. That is so because it is not the state or states that hold the ultimate power to control the origins or the continuation of climate change, but the corporations, singly and collectively, and they are incapable of responding to a moral appeal. At any rate, Brown suggests several reasons why climate change should be considered “an ethical problem,” as well as “the practical consequences” that would follow such an approach. His argument proceeds as follows: First, climate change creates duties, responsibilities and obligations because those who must be responsible for causing this problem are the richer developed countries or rich people in developed or developing countries, yet those who are most vulnerable to the problem’s harshest impacts are some of the world’s poorest peoples around the world. (Brown, D. 2011)

The second and third reasons are as sound and acceptable as the first: “climate change impacts are potentially catastrophic,” and climate change has a “global scope” (Brown, D. 2011). The practical implications that follow repeat the obligations of national governments, given “the magnitude of potential harms,” according to the requirements of justice and fairness (Brown, D. 2012b: 91–138). Brown acknowledges that present arrangements, approaches, and the use of cost–benefit analyses to deal with the problem are all doomed to

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failure. He is right. However, his belief that the recognition of the ethical dimensions of the issue would somehow persuade governments (like the US) to reverse current policies is, unfortunately, not a sure conclusion. What he says might have been accepted in earlier times in US history, to address simply one of the greatest sources of global warming today. But for the reasons we have been presenting, that is no longer the case, after socalled elected governments have succumbed to corporate rule—that is, to the control of organizations and institutions that are neither elected nor open to public discourse or democratic demands. Moreover, as we have argued, and will also show in the next section, corporate actors have not accepted responsibilities, nor can they feel moral concerns that might impel them to change the status quo. Climate Change and State Corporate Relations In Texas, after a petition to the Texas Commission on Environmental Quality (TCEQ) to institute proceedings to reduce greenhouse gasses was dismissed, the Texas Environmental Law Center sued on behalf of a group of children and young adults. The Center asserted the State of Texas had a fiduciary duty to reduce emissions as the common law trustee of “public trust.” (Morris 2012)

The possibility of invoking the public trust doctrine echoes the extensive legal argument present in an important 2009 case: The State of Connecticut et al., v. America Electric Power Company, Inc. et al. First, several “trusts”— the Open Air Institute, Inc., Open Space Conservancy, Inc., and the Audubon society of New Hampshire, in this case—join with the states of Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont and Wisconsin, as well as the city of New York, against several electrical power companies. Second, these states and trusts jointly claim “the ongoing contributions to the public nuisance of global warming” are causing “and will continue to cause serious harms affecting human health and natural resources” (Connecticut et al. v. American Electric 2009). Third, although defendants claimed the whole issue was a “nonjusticiable political question,” in that they “lack[ed] standing,” or that they attempted to displace “federal common law,” the Court of Appeals rejected all these arguments. Fourth, the states itemize singly and collectively the harms of climate change, which will produce “substantial adverse effects on their environments resident, and property,” and all of which will cost each state billions of dollars to respond. As an example, “the reduction of



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California’s mountain snowpack, the single largest freshwater source critical to sustaining water to the State’s 34 million residents during the half of each year, when there is nominal precipitation” (Connecticut et al. v. American Electric 2009: 8). In addition, in the fifth place, the states list several significant cases of “increased illnesses and deaths caused by prolonged heatwave,” the harms from smog, and poor air quality, as they couple explicitly the impacts on “property, ecology and public health” (Connecticut et al. v. American Electric 2009: 9). In the sixth place, the Land Trusts add “how the ecological value of specific properties in which they have an interest, will be diminished or destroyed by global warming” (Connecticut et al. v. American Electric 2009: 10). Hence the emphasis on the connection between ecological values and public health, for instance, is particularly relevant, as is the argument presented to the courts. Well beyond the expected focus on economic impacts and property values (although these are also a significant part of the states’ and trusts’ argument) is the rejection of the “political question” doctrine, and especially in the use of the parens patriae doctrine. This case was discussed extensively in an earlier work (Westra 2011a: 85–100), where the public trust doctrine was tied to the earlier common law principle of parens patriae. This case shows, beyond doubt, why the corporations or any of their association are unfit to govern. Common law has a long history, and it is based on solid principles recognized the world over. But its principles and mandates form no part of the plans or goals of any corporation. The cases cited, and even the precedent of Minors Oposa v. Secretary of the Department of the Environment and Rural Resources (1994) against the government of the Philippines on behalf of the minor children of that country, and their rights to the forests of their land, assume that the specific government in question has a duty and an obligation to protect. In all these cases the courts must engage with the argument; they cannot simply claim that the protection or well-being of their citizens is not their obligation. Even when a court eventually refuses to accept that responsibility, as the US Supreme Court did in 2011 when it reversed the judgment of the Appeals Court in General Electric, the decision for overturning the decision of the lower court was not that it was inappropriate to appeal to the US Federal Government for the protection of citizens of various states, rather, the Supreme Court simply argued that it lacked the competence to supersede the decisions of the EPA, the body entrusted to judge such issues. Hence the US Supreme Court refused to engage

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seriously in the issue of the grave effects of climate change on human health and citizens’ rights. But at least it did not claim that those rights were not its responsibility. If we compare this response with the basic responsibilities accepted by corporations, the important difference between the two groups becomes obvious: in simple terms, the protection of human health is not the business of the corporation. At best, it is an issue that—at least in principle— the law of the land expects it to consider, provided such consideration does not threaten its interests. In addition, in the case of MNCs, the “law of the land” in South America, Africa, or Asia may be too vague, inconsistent, or weak to pose a problem: Bhopal was an example of the presence of these legal flaws and weaknesses (Baxi 2010). Hence we are faced by the paradox of a power dictating or forbidding actions and products through laws that should pertain exclusively to the competence of states, as in the NAFTA decision to compel Canada to accept a gasoline additive that Canada Health has condemned as a carcinogenic substance (Ethyl Corporation v. Canada 1997; Vadi 2010: 226–246). Mary Christina Wood terms the situation a case of “ecological bankruptcy” and a form of “institution decay” (Wood 2009: 47, 62; Westra 2011a: 99–101). It is interesting to consider these seemingly unsolvable problems in the light of corporate personhood once again, using the enlightening discussion of this topic in Anna Grear’s work. Citing Alexander Nékám, she says: For Nékám the use of the idea of personality to explain the subject of rights character of a thing, and the consequent use of the word “person” to designate the legal entity, are both inappropriate as they are dangerous. While from one point of view they say far too much, from another, they say far too little. (Grear 2010: 53; Nékám 1938: 167)

Further, Grear turns to the analysis of legal person in the work of Naffine for further clarification (Naffine 2003: 346–367), whereby “persons” under the law fall into categories ranging from what she terms “P1,” or “nothing more than the formal capacity to bear a legal right and to participate in legal relations” (Naffine 2003: 350), to the more complete designations “P2” (the “biological and metaphysical definition of humanity”) and “P3” the “rational and therefore responsible human legal agent or subject” (Naffine 2003: 357–362). It is clear from this analysis that corporations and economic insti­tutions only fit the first category, P1, and therefore neither “biological” nor yet “rational and therefore responsible” personhood can apply. I would contest the addition of “classical contractor,” as the appellation diminishes



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rather than enhances the conception of personhood here proposed, by suggesting that rationality is exhausted by self-interested calculation. At any rate, since P2 and P3 appear to be additions that include the previous conception, as they portray a more complex person in P3, the necessary inclusion of P2 therefore excludes corporations and economic or other institutions, as the qualifying P2 (“biological and metaphysical definition of humanity”) is clearly not appropriate. If we can accept Naffine’s analysis for the most part, then the corporation is excluded a priori from the capacity, let alone the will, to act morally and responsibly in its operations. Hence, if the corporation becomes the ultimate arbiter of public policy, including not only the civil and political, but also the social, environmental and cultural aspects of such policy, we must accept that none of the moral considerations that should enter the public domain will be able to do so, unless the corporate power is first evicted from it. “Nature’s Trust” Against the Power of Drones and Caterpillars [R]educing our footprint is not nearly enough. We must also expand our imprint. Specifically, we need to engage our government to reverse the most encompassing destruction society has ever amassed against this Earth. (Wood 2007: 243)

Mary Christina Wood wants citizens to “re-conceive their government’s role in environmental protection” (Wood 2007: 244), but she recognizes the necessary role the government must play. The primary example she cites is precisely “the global warming crisis” (Wood 2007: 250). In that regard, the overwhelming majority of US citizens do not play their part in reducing the energy footprint, and even the limited efforts of some are largely offset by the overwhelming majority of those who don’t even try (Wood 2007: 250–251). But Wood does not notice the fact that it is useless to chastise US citizens for driving too much, when state governments (following the interests and recommendations of major automobile manufacturers) do not promote public transport even in some of their largest cities, such as Los Angeles, but continue to accept subsidies for more and more highways. That situation is present in Canada as well, whereas in Europe most states have wonderfully convenient and efficient rail systems. Nevertheless, Wood does describe environmental law as a “failed paradigm,” as she notices that the ambitious programs declared by statutes such as the

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Clean Water Act, the Endangered Species Act, and the Toxic Substances Control Act (Wood 2007: 252) fail, because the agencies entrusted to enforce those laws also have “discretion” to “permit the very pollution or land destruction that the statutes were designed to prevent” (Wood 2007: 252). Even the Environmental Protection Agency, the very agency to which the US Supreme Court appealed in 2011 in order to “resolve” the problems of the ongoing health effects of climate change, should have been supposed to insulate environmental rules from politics. It did not; instead, it insulated the politicians from responsibility (Wood 2007: 254 n. 38). Although Wood does not go that far, the research presented in this work indicates clearly what is behind the “politics” she cites as “public servants … are stormed by developers, vetoed by their superiors … and often risk losing their jobs if they say no to a permit”  (Wood 2007: 255). Equally “detached … from any human value system today” is the way the EPA handles human toxic exposure, as it continues to issue permits, while working on tan agreed number of people slated to die of cancer from those exposures: these models include children, and their rates of cancer has increased by 20 percent since 1975 (Wood 2007: 256). The main problem is that, whether we consider public health or any other effect of climate change, the EPA is not constrained to use best scientific evidence, but can also make “policy decisions” (Massachusetts v. EPA 2007; Wood 2007: 259–260). The situation is dire enough to warrant “a new discourse,” a discourse that should rely on “the Nature’s Trust paradigm.” Common law’s ancient principles for the defense of human rights exist, and are applicable, whether we refer to the “public trust” or even to the older parens patriae doctrine (Westra 2011a: 98–100). The obligations implicit in these principles and doctrines are undeniable, and they supported, as we saw, cases in the Philippines as well as the US; in addition, they are clearly in evidence in the conventions regulating the relations between American Natives or Canadian First Nations and their respective governments, as well as abundant case law on those issues. Wood adds: “The very core of the governmental responsibility was preserving resources for future generation” (Wood 2007: 265). The underlying principles include the primacy of life and the obligation of governments to preserve their resources for the future, and that includes ensuring that safe conditions prevail for both air and water, and that the natural environment should retain the conditions necessary to protect the life and health of citizens, in the present and the future, especially for the protection of the most vulnerable, the children.



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In fact, in the light of Wood’s analysis of bureaucratic decision-making, the Supreme Court’s decision to reverse the 2009 judgment of the Appeals Court in the case cited above was on the grounds that the EPA would know better what was the correct decision. It seems that faith in the EPA’s competence and willingness to do right was overrated. Wood terms the EPA’s behavior “politics.” We have seen the incestuous relation between corporate interests and EPA permit-granting agencies, so we can perhaps agree that the designation of “politics” is at best a euphemism for corporate control, perhaps filtered through the political process in various ways, but having the last word anyway. “Nature’s trust” arguments, as well as the approaches of traditional Native thinkers or of ethicists like Don Brown, speak for the respect and support of life, as they understand that ultimately humankind is part of what Aldo Leopold termed “the community of life” (Leopold 1949), so that human beings as natural persons cannot be protected in isolation from our natural habitat, in contrast with non-biological legal persons. Respect for life is absolutely primary in all moral theories, although the implications that follow, according to modern science, have forced a much wider understanding of what that respect entails upon us. But we have also noted the opposite trend in the actions of legal persons and in the institutions through which they are now usurping the legitimate power of democratic governments. Some further examples of the corporate power’s indifference to life will be discussed in the next section. Corporate Complicity in Attacks Against the Right to Life At ALEC (American Legislative Exchange Council) conferences, multinational corporations and state legislators meet behind closed doors to discuss, vote on, and disperse model bills. These bills increase corporate power and lower accountability while seizing the rights of ordinary citizens. The collective power of corporations such as Goldman Sachs, Exxon Mobil, and Chevron—not to mention the Koch brothers—gives them a powerful voice with business-friendly legislators who join ALEC. ALEC’s Energy, Environment and Agriculture Task Force works to eliminate citizens’ ability to protect themselves from pollution and other environmental threats. (Martin 2012)

The 2011 Supreme Court decision essentially absolving all corporate energy persons from responsibility regarding harms arising from climate change was based on the fact that the judges claimed to lack the scientific expertise required to hand down the appropriate informed decision. The

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responsibility returned to the EPA, and ALEC acknowledges in its own literature (ALEC 2011) that it “aims to undermine EPA regulations” to further “the interests of the industry” (ALEC 2011). Bills supported by ALEC provide an “umbrella-like protection” for industry, against all possible regional or other regulations that might propose better collaboration with climate change initiatives. Even at the federal level, ALEC proposes banning all regulation of carbon dioxide. A further example is the “model bill” Resolution to Retain State Authority over Hydraulic Fracturing, which describes hydrofracking as follows: “Hydraulic fracturing is a proven technology with a long history of environmentally safe use in the completion of oil and gas wells” (ALEC 2011). The proposed model bill also allows fracking companies “to avoid disclosure of chemicals.” These efforts demonstrate once again a total lack of concern for human life and health, as those issues are not even factored in any of their efforts. Environmental education is also considered in their bills, some of which discourage “propagandizing” or political action, and explicitly exclude professionals with an environmental education from their panels (ALEC 2011). Is it possible that the US Supreme Court would not have been aware of all these activities, which are contrary to the protection of human rights? It seems extremely doubtful that US judges would be unaware of the qualifications of EPA’s bureaucrats, let alone their propensity to grant permits in the interests of corporations that stand behind their government’s politicians. Similarly ALEC works “to eliminate the idea of the commons–public land and resources that all people share”; its “Right to Farm Act” would even ban public objections to factory farms that pertain to pesticide use (ALEC 2011). Regarding agriculture, in fact, there are no less than three separate (but interconnected) forms of attack that aim to ensure corporate control: 1. The ongoing flow of bills intended to diminish or eliminate corporate accountability, including a special “opportunity to correct” act, which allows companies that are discovered to be in violation of pollution regulations, to forego any liability for their crimes, once they admit their “mistake,” especially in regard to extracting industries. 2. Discouraging citizens’ protests while continuing to engage in their lifethreatening practices that place all sources of safe food under attack. 3. Engaging in direct acquisitions of whatever good or safe food businesses they have not been able to eliminate through the means described in points 1 and 2 above (ALEC 2011).



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The organic industry is the main target of the third program of attacks, and there corporations can practice what they do best: buy and sell. Philip Howard explains their strategy (Howard 2009: 13–30). Most socialist theorists propose and recommend turning away from globalized corporate organizations, whether for food or other commodities. Those who prefer natural food and vegetarians tend to gravitate towards various local organic brands. Each region and state in the US has several such businesses, which provide everything organic, from ice-cream to beans and pasta, as well as whole frozen meals. Howard says that “most acquisitions of organic processors occurred between December, 1997, when the draft USDA standard was released, and its full implementation in October 2002” (Howard 2009). He shows how the top 30 Food Processors in North America have acquired organic firms; some have even “been developed specifically for Wal-Mart” (Figure 1). It is hard to say what remains of the organic growth/preparation promised by the USDA certification after these acquisitions take place. Organic foods are intended for the consumption of safety- and health-conscious individuals, but they are also—at the same time—intended for the protection of the ecology from hazardous substances. Therefore, they are part of a movement for the defense and protection of nature and life, in contrast with the corporate aims we have described. To some this may seem to be an almost indirect, oblique “attack” on life, although once the scientific implications are clear, it seems to be obvious enough. The next “industrial” example we will consider, however, like Zyklon B and Agent Orange, has only one application and one result: the death of human beings. The starting point for this is, once again, the illegal coupling of the state and the corporation as one. This joining was explicit, as we noted, in US law (Terrorism Act of 2006). In that case, as in the case of Agent Orange (but not in the case of Zyklon B, tried after Nuremberg, In Europe), the corporation complicit in the illegal acts on the part of the state escapes censure and criminalization despite the fact that complicity has been a separate crime since WWII. The first example is almost emblematic of complicit corporate criminality: the drone. Of course the drone manufacturers do not prescribe the way their products will be used. But the facts remain: 1. The product has only one use (i.e., it cannot be used for travel excursions, or any other peaceful use). 2. The use for which it is crafted is part of an illegal activity as (a) bombardments in a just war are only legitimate when the way they are

Figure 1. Organic Industry Structure: Acquisition by the Top 30 Food Processors in North America (Howard 2009).

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the corporation as a supranational power159 carried out can discriminate between combatants and non-combatants,  and (b) the question of superior orders has been decided after Nuremberg, so superior orders that command illegal acts must not be obeyed.

I have discussed the legal status of both bombardments and the use of drones in some detail elsewhere. There are numerous deep and grave issues surrounding the existence and the use of drones; for instance, the most intensive use of those technologies comes now under the ultimate control of US President Obama, a Nobel Peace Prize winner. Why are they used for illegal assassinations beyond even the tenuous legality of US court ordered executions, but are described in the US media as “valorous” (Greenwald 2012a)? Why do the targets of most drone murders belong almost exclusively to “Muslim men, women and children in six countries?” (Craig 2012: 1). In contrast, at this time, we need to consider the legality and the morality of the corporations that manufacture and sell drones to the US Air Force. As late as June 21, 2012, The ACLU and the Center for Constitutional Rights this morning filed a suit in federal court against several Obama officials, including Defense Secretary Leon Panetta, and CIA Director David Petraeus. The suit is brought on behalf of 3 American citizens killed in Yemen by the US government—killed specifically by the ICA and the Pentagon’s own Special Operations Command—with no due process and far from any battlefield: Anwar Awlaki and Samir Khan (killed together in a drone strike) and Awlaki’s teenaged son Abdulrahman (killed two weeks later). (Greenwald 2012b)

The first point that emerges is that drone attacks are not taken for granted as a legal form of warfare, let alone in a situation where no war has been declared. In addition, they are viewed as an abomination internationally: As High Commissioner to London, Wajid Shamsul Hasan is one of Pakistan’s top ambassadors … Ambassador Hasan argues that US drone strikes risk significantly weakening Pakistan’s democratic institutions … the drones are a violation of the UN Charter, a clear violation of our territorial sovereignty and national integrity. (Woods 2012)

Drone strikes are indeed “a violation of the UN Charter,” so the corporations that manufacture drones are complicit, according to the Nuremberg principles, in acts that are both illegal and immoral. Nevertheless, as in the case of Agent Orange, they do so with impunity, in contrast with Bayer Corporation, which, regardless of the rewards it continued to reap later, at least was convicted of a crime after WWII, and its CEO did significant jail

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time. This is not the appropriate place for a rehash of US practices and politics, which I researched elsewhere (Westra 2012a). But it is fair to say that the complete amorality of the corporations that continue to manufacture drones is only matched, perhaps, by that of DynCorp. DynCorp leased its airplanes for various illegal operations perpetrated by the US government, including the aerial spraying of Monsanto’s Roundup Special on the Indigenous people of Ecuador (the case is presently in front of the International Court of Justice), and especially for the illegal transport of suspected terrorists to various locations where interrogations by torture awaited them (Woods 2012). One aspect of corporate criminality stands out: when the corporations are based in the US and operating in the interest of that government, the situation is far worse than when that happens in the EU. A final example will suffice to illustrate this conclusion. There are repeated UN resolutions attacking the US–Israel policies regarding Palestine, from the illegal erection of a wall segmenting the apartheid conditions existing under Israeli occupation to the ongoing, and increasingly immoral, influx of “settlers,” the latter even condemned in words, if not acts, by the Obama administration. Yet among the many corporations that continue to manufacture and supply various kinds of legal and illegal armaments (including munitions containing so-called “spent uranium”), one stands out: Caterpillar Inc. Caterpillar’s D9 Bulldozers are provided to the Israeli government to aid in destroying Palestinian homes, and to rip up their cultivated fields, in order to make room for settlers’ dwellings. As part of the ongoing civil protests against Israel worldwide, many associations, including some pension funds, the Jewish Voice for Peace, the Quaker Friends Fiduciary Association, and many others, have been divesting from Caterpillar as one of the main corporations supporting Israel’s illegalities and war crimes. In San Antonio, groups have been protesting as well, as they saw the connection between “Israel’s Apartheid Wall and the wall on the US/Mexico border, both of which Caterpillar is helping to build” (Baltzer 2012). Once again a destructive product is sold to support ongoing illegalities. The few examples provided show beyond a doubt that any product will be manufactured and sold as requested, even if its only possible use is lethal, illegal, and immoral, despite the international rules put in place against that behavior by the UN. Thus the ongoing corporate attacks on natural life, as well as on the natural persons who depend upon it, are joined by the multi-sector promotion and sale of equipment specifically used against collective peoples’ rights under an illegal occupation. In the



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next section we will briefly sum up the effects of corporate power and impunity against vulnerable natural persons. Legal Versus Natural Persons Section 219 of Canada’s Criminal Code, RSC 1985, c. C-46 as amended, clearly dictates that lack of intent to harm is no defence if damage results from knowing acts performed with careless disregard of others: “Everyone is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons” (where “duty” means a duty imposed by law). Every person who causes the death of another person through criminal negligence is guilty of an indictable offence and liable to imprisonment for life. (Hughes et al. 2003: 18)

This paragraph is a sample of Canada’s criminal law and—no doubt— most other nations have a similar criminal code with similar explanations of what, precisely, constitutes a crime, manslaughter or murder. To start, we must admit that this article is never applied to crimes perpetrated through the environment in various ways. But there are several interesting points that emerge. First, the criminal code clearly speaks of “a person” causing the death of “another person,” hence it would be bizarre to claim that corporations do not fit that description, after the centuries they have spent working to ensure that they are indeed “persons” in the eyes of the law. Second, both “doing” and “omitting” are seen as equally culpable, thus ensuring that both the corporate “doer” and agency/government that “omits” to restrain are equally culpable. In fact, if the omission arises from further deliberate corporate acts such as intensive lobbying or unfair elections through corporate meddling, they are doubly culpable for the harmful results that ensue. Third, and equally significant, the “lack of intent” is no defense in law, in the case of “knowing acts performed with careless disregard of others.” The “knowing” aspect is obvious: government agencies even rely on the corporate’s own research, unfortunately, before deciding what is or is not safe, and base their regulatory decisions on that information, on the assumption that the research and development departments of any corporation will surely have the most complete and up-to-date information regarding their own products. Thus, almost any objection that might be raised to exculpate corporations fails, because of how their own CEOs and shareholders want and expect corporations to be viewed by others.

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The questions that remain are how to administer the required punishment, and who might be able to do so; that is, who is not tainted by participation or complicity in the corporate practices themselves. The first question was solved by the tribunal which jailed Bayer’s major CEO for seven years, as well as imposing a substantial fine, beyond what could have easily been absorbed as “costs of production.” The second question remains much more difficult to answer, in some countries perhaps more than in others, but in any country where judges’ appointments are politically motivated (that is, in all common law countries). At this point we might briefly review the arguments of previous chapters, where we have shown how corporate power harms and supersedes the legal protection of human rights that exists in a country. Chapter 2 showed how even the most basic rights, that of human beings to their biological integrity and to normal development, is under attack as public health is no longer under the control of national governments, which would have the duty to protect their citizens, while the final arbiters of the most important decisions regarding public health are now global economic institutions such as the WTO and NAFTA. Their mandate is simple enough: no decision may be tainted by the suspicion of favoring the choices of one or another country’s government for the protection of their respective citizens, no matter how grave the implications of such decisions. Nor is corporate influence on regulations the only difficulty. Products normally in use in North America are often extremely dangerous, but not forbidden, as they are in Europe: “The discovery of persistent bioaccumulative and toxic flame-retardant chemicals everywhere from animals north of the Arctic Circle, to the breast milk of California women has been a cause for considerable concern” (Brown, V. 2012: 1). These chemicals are part of the body burden of citizens of the US, which is ten times higher than that of Europeans, who banned these chemicals in 2004, for most uses. The EPA asserts that these chemicals have “low” or “moderate” hazards for the human health, and “low” hazard of bioaccumulation, but their effects on a host of human health problems are not mentioned in the EPA data. They include “cancer, hormone disruption, reproductive problems, neurodevelopmental effects and obesity … and type 2 diabetes in humans” (Brown, V. 2012: 2). Valerie Brown cites the cost of extensive testing and the lack of ability to integrate multiple findings and data, in a way that would permit switching over quickly to safe alternatives and thus opting for “green chemistry.” The latter would entail designing chemicals “that are intrinsically safe” (Brown, V. 2012: 65; see also Rossi and Heine 2007).



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In the light of the argument of Chapter 1, we should note that the attacks on natural persons are particularly severe in the case of developing humans. Many of the characteristics of these chemicals define them as endocrine disruptors, and their effects include neuro-toxicity, genotoxicity, and effects on reproductive functions and development: “For example TBPH, which is also used as a flame-retardant plasticizer in polyvinyl chloride and other applications has the same carbon skeleton as di(ethylhexyl) phthalate (DEHP), a reproductive toxicant” (Brown, V. 2012: 2; see also Brown, V. 2012: 9 n. 23). Once again, science proves that the most severe effects of unrestrained chemical exposure affect first and foremost the developing human, already under attack worldwide because of “political correctness” which forbids re-opening the main points of Roe v. Wade, despite the immense public health benefit of doing so. In simple terms, if the life and existence of preborn humans were taken in consideration, the number and reach of corporate crimes from chemical exposures would be multiplied exponentially. They are, in fact, the canaries in the mine, as what exacts a terrible price at that stage of life, when humanity is at its most vulnerable, is a portent of the grave harms that are to come for humans of all ages and both genders. In Chapter 4, the main example of unpunished corporate criminality, that is, that of Monsanto, included the proliferation of GMOs and the use of Agent Orange in Vietnam. The latter crime is only now being considered for monetary compensation (King 2012). At any rate, it is hard to see how the thousands of persons affected, including those with multiple birth defects, can actually be “compensated,” and morally debatable whether complicity in a crime against humanity on the part of Monsanto should be “solved” by monetary compensation: Agent Orange is “one of the most toxic compounds known to humans” according to the United Nations. The use of the chemical by the US military in South East Asia between 1961 and 1971 devastated large swaths of the Vietnamese countryside and affected millions of people. As many as one million people in Vietnam have disabilities and other health problems associated with Agent Orange, the Vietnamese Red Cross has estimated, citing local studies. (King 2012: 2)

According to US sources, the cost will be around $43 million, and 29 hectares are to be reclaimed by 2015 (King 2012: 2). The carnage and terrible contamination happened during a war, but the weapon of choice was not deemed to be legal at the time. The staggering number of affected civilians indicates that not only war crime, but even genocide might be an appropriate description of the events.

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For the former example, that is, regarding GMOs, the situation is not improving at this time. A recent article by Anthony Gucciardi tells a strange story (Gucciardi 2012b): The news surrounding GMO crops continues to get more and more outlandish as the crops are increasingly mutated and sprayed with a medley of harsh pesticides, herbicides and insecticides. The latest news comes from an unlikely source—an automotive publication known as Autoblog. The website reports that farmers who have opted to plant Monsanto’s genetically modified seeds have run into one daunting problem (outside of decreased yields and an extremely higher risk of disease): little spear-like stalks from the harvested GMOs are absolutely wreaking havoc on the heavy duty tractor tires. (Gucciardi 2012b)

Farmers had to turn to Kevlar tires—that is, tires made with the material used in bullet-proof vests—as their regular tires were shredded and useless within one or two years, rather than lasting the expected six or so years. Thus, instead of improvements and changes toward safer products, GMOs now develop further bizarre characteristics that tend to justify the original earlier designation of “frankenfood.” At any rate, all recent developments we have noted emphasize the direct and indirect power of the corporation on human beings, that is, on natural persons with no capacity to defend themselves from the legal persons’ direct attacks. Direct attacks define the effects of their products on basic human rights; the indirect effects include all the political manoeuvers, both legal and illegal, intended to modify existing legal regimes, prevent the emergence of newer regulations, and infiltrate agencies and other institutions with the power to control or restrain public harms. But the power of the corporation extends beyond multiple attacks on biological individuals (natural persons), taken both singly and collectively. The supranational power of the corporation infiltrates the basis of civil and political rights of humanity as well, as Donald Brown indicates (Brown, D. 2012). These rights will be the topic of the next sections. The New Supranationalism and Corporate Attacks on Civil and Political Rights: The EU and the US on Conflicting Trajectories Unnoticed by the United States until recently, a new internationalism is now gradually emerging—an internationalism characterized by a marked trend toward supranationalism. Unlike international organizations of old, which relied on member states to accept rules and decisions voluntarily, the new international institutions are increasingly supranational: “international



the corporation as a supranational power165 judicial persons” whose decisions and rules can be practically enforced. (Tangney 1996: 397)

Before we can assess which civil and political rights have been lost by civil society in general, and perhaps by some specific segments of it, we need to understand the vast difference that exists between the two systems of internationalism and supranationalism. Tangney is clear on that point: International law is deferential to the absolute sovereignty of nation states, while supranational law is promulgated by institutions whose institutional decisions are binding and enforceable against nation states. (Tangney 1996: 399)

In certain respects this move was viewed as a human rights advance: the UN conventions do not permit discrimination against women or minorities, and forbid absolutely war crimes and genocide. Unfortunately, the UN is the only supranational organization that lacks the power to enforce its mandates, although it can indict through its courts the states that perpetrate any of those crimes, in principle at least. Tangney goes on to compare in some detail the development of the European trade community and eventually, with the Treaty of Maastricht of 1992 (Treaty on European Union and Final Act 1992) into the European Union. He also compares it to the US ceding sovereignty not only to the UN, but to the trade institutions that, as we have shown, all but effectively control it, from the World Bank to, especially, the WTO and NAFTA. Tangney traces the development of the EU starting from the treaty of Rome followed by the Merger Treaty of 1965 (Treaty Establishing a Single Council and a Single Commission of the European Communities 1965), but it is clear that, despite its start as a simple trade and economic association, to cement a single market, the EU moved in a better, different direction. The EU developed to ensure that its regulations, directives and decisions are intended “to create law binding on member states,” which, however, retain the right to incorporate EU mandates in their own national laws in different ways: “The supranational character of the EU is evident in that it can override existing legislation of member states” (Tangney 1996: 408). The supranational character of the EU follows its “basic constitutional character” (Tangney 1996: 409). Tangney compares the EU situation with US federalism (Tangney 1996: 409). Yet this comparison seems hard to sustain when we note that the EU has developed from a purely market

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organization to a union that is based on principles and on the primacy of human rights, not simply national rights. In contrast, the US started as an ideological and religious community, as a “Citadel on the Hill” of God-fearing people (Sagoff 2000: 433–462). It has ceded principles and most of its ideology to the market and to the interests of its major players, who now control most of its legislative and judiciary functions, as we have seen in previous chapters. A similar path could be traced for the US in its addiction to violence and war, equally dictated and supported by corporate interests. Thus the ascent of the EU to a more principled and moral organization (through by no means a perfect one) has evolved in an upward path, while the US has been on a downward one instead, in an unparalleled race to the bottom. In the next section we will consider some of the aspects of the EU’s “ascent.” Europe’s Protection of Human Rights Against Multinationals The Community vision is … premised on limiting or sharing sovereignty in a select, albeit growing, number of fields, on recognizing, and even celebrating the reality of interdependence, and on counterpoising to the exclusivist ethos of statal autonomy a notion of a community of states and peoples sharing values and aspirations. (Weiler 1991: 2479)

To propose the EU as a template of expanding human rights protection is to transcend the view of the EU as a “federation” (Lenaerts 1994: 846), like the United States or Canada, but to view it instead as a community, for which the most important aspect is the vision upon which it is based. In order to achieve this vision for the protection of human ethics, individual self-interest must be transcended, and this is the accepted starting point of morality: our self-concern must be limited by respect for others and by the recognition that their fulfillment and their happiness must be of equal concern to us, for justice to be present. In international law, in order to achieve global justice, a similar argument must be accepted: each state must be prepared and willing to give up sovereignty in certain areas (that is, to abandon the primacy of self-concern), in order to achieve a higher level of joint justice. This is not to abandon democracy, but to expand social policy into “major substantive areas,” of which “environmental protection” is one (Weiler 1991: 2452). Although in many areas jurisdictional limits remain within the ambit of state law, when conflicts of competence arise, the doctrine of absorption



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entails that “community competence must prevail” (Weiler 1991: 2441). Absorption is only one of the categories of mutation present in EU law; extension is another: “Extension is mutation in the area of autonomous Community jurisdiction. The most striking example of this change is the well-known evolution of a higher law of human rights in the Community” (Weiler 1991: 2437). Although there is not yet an EU “Bill of Rights,” the present legislative framework represents a step towards a review of present instruments, with a view to creating such a document in the future. The main point to note, then, is that unlike governance under treaties and agreements that give primacy to trade and economic issues, and hence to state or corporate interests analogous to prudential self-interest in individuals, the EU form of governance instead represents a competing vision, so that the strategies it proposes and implements do not simply move from positive to strategic analysis, bypassing altogether the normative aspects of their decisions, but that normativity is clearly incorporated into the pillars of the EU (Laffan 2001: 709). The “centrality of law” is their supranational legal order: “The compulsory/obligatory part of the EU’s patrimony has produced its own Euro-term—the acquis communautaire. In the absence of other glue, the acquis (the body of law/policies that currently runs to over 80,000 pages) is sacrosanct” (Laffan 2001: 712). Laffan traces the core characteristics of the EU, thus also tracing “the consolidation of a supranational polity” (Puchala 1999: 329). This supranational polity is in evidence, as the ECJ clearly supports the focus on “values and norms as guideline to social and political behavior” that prevail in the EU as a “community of values” (Laffan 2001: 714). To be sure, many of these norms are procedural rather than substantive. Nevertheless, the supremacy of the community’s norms in the law renders the EU ongoing “transformation” a valid model on which to rest future human rights. Equally significant, the increasing power of the EU augurs well for the possibility of an increasing global influence and power against the presence of other purely economic power alliances. This argument’s conclusion does not represent the laying out of an adopted practical legal system, but it indicates more than a vague direction in which the EU might be moving. It shows that the European Community’s “transformation” (to use Weiler’s felicitous expression once again) already contains within it the embryonic form of what it can become, and what it probably will become in time. Support for this argument may be found in the existence of the acquis communautaire, on which EU policy depends. The acquis represents the non-derogable aspect

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of EU governance; its presence and that of the normative pillar of which it is a part render the EU form of governance close to embodying, at least in the areas where community supremacy prevails, erga omnes obligations. These are equally non-derogable, non-negotiable, and based upon principles, and hence unlike treaties or even politically negotiated internal laws. In fact the presence of the acquis and of the “normative vision” to which Weiler refers render the EU regulatory framework opposite to the rules of trade organizations such as the GATT or the WTO. At any rate we should acknowledge that the situation here described is primarily one of principle and regulations. The United States and the Reach and Limits of Supranational Power [T]hrough participation in such organizations as the North American Free Trade Agreement (NAFTA), the Canada-US Free Trade Agreement, and the World Trade Organization (WTO), the United States has entered the area of supranational power. By joining these organizations and acceding to their rule-making and enforcement powers, the United States increasingly has ceded sovereign competences over multilateral trade to supranational organizations. (Tangney 1996: 412)

In some sense, no doubt the US is still seeking some form of imperial governance worldwide through globalization; but, in contrast, it is also dominated in turn, its strong original ideology transformed into nothing but a satellite of trade organizations. Most of the work of the previous chapters has shown the character and record of these new masters of sovereign powers. Tangney acknowledges that “the jurisprudence laws and legal structure of a supranational organization may all inadequately safeguard due process” (Tangney 1996:413). In fact, after 9/11, for instance, we note that the sanctity of due process in law has been largely eliminated as “suspects” are held without trial indefinitely in Guantanamo Bay (and not only there), while people are arrested on flimsy approximations of legal process, even for the possible intention of eventually committing a crime (Westra 2012a: 112–126, 135–148). We need not get into the details of US loss of sovereignty at this time. Suffice to say that, once power is ceded to a supranational organization, the federal government’s power to limit that organization’s control is largely lost (Tangney 1996: 415). As well, individuals lose the ability to seek justice based on the merits of a case, as has been abundantly clear in all examples of ATCA litigation, for instance (Tangney 1996: 415). Aside from the legal difficulties presented by the loss of sovereignty, the argument of



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this work has centered instead on the supranational entities themselves. One would think that, before ceding power, the character of the new “masters” should have been studied in depth. This does not seem to have occurred. The US has never been comfortable with the mandates of international law, but if we consider its origins and foundations, then compare them with the explicit goals and mandates of MNCs, the grave losses incurred by citizens become obvious. International law’s origins may be found in Article 38(1) of the Statute of the International Court of Justice, which states: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. … judicial decisions and the teachings of the most highly qualified publicists of various nations, as subsidiary means for the deter­mi­ nation  of rules of law. (Statute of the International Court of Justice, art. 38, para. 1).

The general principles of law recognized by civilized nations, is widely accepted to refer to the principles of natural law, hence it is easy to see the gulf between the foundations of international law and the mandates of trade and economic organization. In addition, the ICJ “was not endowed with any power to enforce its decisions” (Tangney 1996: 402), and those decisions were intended to be reached jointly by sovereign states, through open processes of law, whereas the trade/economic organizations do have the right to enforce their decisions, reached for the most part in secret, and not open to discussion or appeals. They are therefore a supranational power, and one that is not truly accountable to human rights violations: There is a global trend of shifting governance tasks from states (including their sub-entities) to non-state actors … More and more private for profit and non-profit organizations step in to fill the void left by states. At the same time, there is a tendency to move governance tasks to inter- or supranational entities, like the United Nations, the World Trade Organization, or the European Union. (Reinisch 2001: 270)

Some have argued that human rights law emerged from the struggle of property holders, and this would place a special responsibility on these entities:

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chapter six Modern human rights doctrine emerged historically from the struggle of the individual property holder against the autocratic monarchic state. It is an essence of a market-based theory of rights. Thus the first human right to emerge clearly is the right to private property. (Muchlinski 2001: 31)

This appears to be incorrect: the Magna Carta was indeed intended to protect the “rights of man” against the powers of monarchs and tyrants, but it was intended as basic protection against attacks to life and freedom that were at issue, not property or markets. Of course Muchlinski is correct in his assessment, if he starts his consideration of human rights with Locke. Internationally, the progression to full human rights starts even more clearly with physical protection as most human rights instruments arise after the trials at Nuremberg, hence from humanitarian law. If we view human rights through the lens of property holders only, Muchlinski is correct as he adds: “However, the traditional conception of human rights accepts only this protective approach to the relationship between corporation and human rights. It is therefore a conceptual barrier to the extension of human rights obligations to private corporations” (Muchlinski 2001: 31). Muchlinski also notes that the “liberal possessive individualist origins” were at least in part viewed apart from human rights theory after Nuremberg. Although the Cold War divided world powers into easily identifiable “blocs,” the anti-imperialist decolonization movements in Asia and Africa formed a “bloc” against the liberal Western powers, as it forced the latter to acknowledge the dissonance between their national observance of human rights and their disregard of those rights in the colonies. In addition, in many nations today, the infiltration of MNCs into the governance and power structure of states in general, and particularly those of developing states, presents a transnational conflict between proand anti-capitalist groups, instead of divisions based on the ideologies of specific national blocs. Against these recent developments, “traditional economic/political debates” give way to debates based on “race, gender, sexual orientation, youth culture, the ‘third age’ politics of the elderly, consumers and environmentalism” (Muchlinski 2001: 34). We appear to be moving away from political power blocs, and toward corporate/economic ones. This move to “globalization” tends to unleash powers beyond the control of states and their legal instruments. Speaking of transnational corporations, Reinisch says: “their quests for profits, too often coupled with the willingness of host governments to curtail human rights for the sake of economic development, frequently escalate to a denial of human rights” (Reinisch 2001: 281). Despite the presence of numerous codes of ethics, adopted voluntarily by corporations, the OECD



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guidelines for Multinational Enterprises (2000), the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997), the Code of Conduct on Transnational Corporations (1988), and other legal instruments, significant violations continue to occur, as all these instruments are non-binding. The main problem is the presence of the institutional cooperation of governments, both democratic and non-democratic, as both tend to prefer cooperating with MNCs in exchange for the economic advantages the presence of these transnationals brings to their elites; hence these governments do not hold them accountable for they harms they perpetrate (Manzini 1998). Supranational Corporate Power and Post-National Citizenship The changing uses and meanings of the concept of citizenship as a political and legal instrument have been rightly understood by a large number of scholars to be the result of the “postnational situation.” The weakening of the nation state and the loss of its monopoly over the determination of its members’ rights, their ability to participate in politics and public life, and their primary group affiliation and loyalty [are a result of this situation]. (Blank 2007: 411–412)

The question of citizenship and its novel meaning in a post-national world is a vast topic, well discussed in the recent literature (Bosniak 2002: 979; Sassen 2006). Hence, there will be no attempt at this time to do justice to the vast literature on the topic. But the supranational governance that is our main topic demands that we consider the civil and political aspects that follow upon it, and their effect on individuals and communities. Most of the research and argument of the previous chapters has been focused on the violations of basic rights and biological integrity of natural persons, on one hand, and on the character and background of legal persons, on the other. Legal persons’ rights are increasingly broad, while those of natural persons appear to shrink, at least in practice, despite the proliferation of human rights declarations and related legal instruments. It seems clear that this dissonance originates from the ascendancy of supranational governing institutions. Yet natural persons possess more than just basic rights, and in this section we will consider how the civil and political components of human rights fare in the new global situation. Natural persons’ rights, broadly speaking, are primarily connected with their citizenship. This, in turn, is traditionally based on the state, hence these rights are most affected by post-nationality at a time “when national

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forms of public life have simply lost their assured authority and predominance” (Bosniak 2002: 984). As we saw, state authority has been undermined, and the circumstances of outside interference and control have “constrained their ability to insulate themselves from the effects of environmental degradation, infectious diseases and other social disorders” (Bosniak 2002: 984). But the ability to exercise their authority and control has always been based on sovereignty, which entails “supreme legitimate authority within a territory” (Bosniak 2002: 985; see also Philip 1995: 353–368). This classical definition, as we have seen, no longer holds true, and this affects both the rights and the duties of citizenship. The latter tend to be determined primarily by territoriality (Blank 2007: 413), but Blank argues, in addition, that citizenship includes “three dominant spheres: local, national and global” (Blank 2007: 413). These “spheres” should be understood as containers, whereby the final, largest one of the three (that is the virtual or global aspect) contains the other two; that means that the “local” is included in the “state” sphere, while the “global” remains the largest unit of citizenship. This construct reminds one of a set of Russian dolls, each a self-contained unit, although each one fits within the next, larger one. But this analogy is somewhat misleading, as none of the “dolls” is, in effect, self-contained, as the largest “container” determines the conditions and the situation of the smaller ones. Hence the “citizen” of old is now forced to “reposition” herself (to paraphrase Saskia Sassen 2003: 41) in a situation that represents a significant loss of the previous rights and obligations. We have noted the effects of globalization, which undermine the basic identification with, and loyalty to, a nation-state, as “the worldwide spread of an ideology and practice of deregulation [produces] the emergence of individuals and groups who are ‘increasingly unwilling automatically to identify with a nation as represented by the state” (Blank 2007: 416; see also Sassen 2003: 41). Yet it seems premature to define those who no longer fully identify with a state as “decentered citizens” (Blank 2007: 416), as the very core of the rights (and even the duties) of citizenship appear to have been negated by the loss of the state. When the major interaction between the citizens of so-called democratic countries today is that of joining in vociferous, violent protests, when major global meetings take place, it seems that territoriality as such is an insufficient warrant for citizenship. Even the “community” link, or “local” citizenship, to which Blank adds religious and other community aspects, has lost almost all its power,



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as interdependence is hardly possible or fruitful when the human collectivity (Westra 2011b) is vulnerable and seems to have no recourse against multiple corporate attacks. What is left, then, is the largest “container”: the global aspect of citizenship. But from the standpoint of the protection of rights, and even the presence of civil obligations, that seems to remain an empty category. We have shown that global institutions have no appeal mechanisms, nor transparency, leaving aside the case of the UN; that is the only global institution that might be amenable to appeals to the rights of citizenship, and toward which a natural person might still owe some duty of loyalty. In contrast, global economic institutions represented only by abbreviations (WTO, NAFTA, IMF) include no individuals with whom debate or even discourse might be possible, no one whom citizens could either boycott or support, and no openly stated policies or transparent procedure. In the previous chapters we have seen the effects of these conditions, coupled as they are with a less than admirable character and plan of action on the part of those powerful legal persons. As well, there are no flags around which to rally, no “global hymns,” and—most of all—no recognizable principles and traditions associated with those symbols of nationality that still exist, and which might inspire. Hence, not only are the rights of citizenship trampled and diminished by corporate supranational power, but even the duties of citizenship appear to have become vacuous. Thus it is insufficient to ask whether it is our basic rights or our civil and political rights that are at stake. The further question is what happens to our citizenship as such, and whether there remains any space for political debate and for the exercise of real citizenship, as defined from the times of the Greek polis, as participation in the polity and in its governance, in the interest of all citizens. The answer seems to be a negative one. Thus the losses of natural persons reach even further than the danger to life and health. Civil and political rights are equally under attack. One example that ties the corporate disregard for human rights to political rights, for instance, can be found in yet another story from Monsanto. That corporation won the right to begin planting GMO corn in Mexico’s Yucatan Peninsula (Michaels 2012). Corn originated in Mexico over 10,000 years ago, and farmers have developed several natural forms of corn. If Monsanto wins, the farmers will be forced to plant GMO Roundup Ready corn, despite its hazards and costs. The pesticides and other chemicals involved led to a bee colony collapse in Poland, after similar GMO crops were planted, with grave damage to the honey industry in the area. As well, a new law would empower a “Monsanto police force” to make “site

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visits, demand information from farmers and impose administrative penalties for infractions” (Michaels 2012: 2). Some other (non-NAFTA) countries have been able to resist: In June 2012, 5 million Brazilian farmers launched an unprecedented class action lawsuit against Monsanto. The legal action, estimated at $7.8 billion dollars, was organized in response to continued exploitation by the corporation. (Michaels 2012: 2)

Since NAFTA was established, in 1994, an estimated 2 million farmers have been forced out of corn production, while 5 million tons of US corn pour into Mexico instead (Michaels 2012: 2). Thus Monsanto is doing more than harming farmers financially and physically through GMOs: it is interfering with the cultural rights of a people to their own traditional forms of agriculture, in direct contradiction of their social and cultural rights (ICESCR) and the mandate of UNESCO. If we consider the “spheres of citizenship” of these Mexican farmers, it is clear that the local/community aspect of their citizenship cannot be used in their defense, nor can the national/state aspect, which, like the former, is powerless vis-à-vis the supranational effects of NAFTA. The same situation occurs when we consider the global scourge that is climate change. Not only are the most affected communities (e.g., in the Arctic, small islands, seaside cities and towns, many countries in subSaharan Africa) suffering from droughts, out of control fires, unexpected cyclones and other extreme weather events, but citizens also are both vulnerable and powerless, as the only cases where communities attempted to seek redress failed, as I noted earlier. In addition, we are all facing the prospect of diseases ravaging new areas because of it (West, J. 2012). Once again their rights as citizens, and simply as human beings, are removed from consideration, and the efforts to gain justice in the courts are unsuccessful, so that it appears that neither the basic rights of human beings nor their civil and political rights are seriously considered by these forms of supranational governance. From Local to Global Citizenship Against Corporate Power: The Occupy Movement [T]he Greeks understood the realization of certain ideals and visions not merely as a matter of individual choices but as the working out of societal concerns/interests, and obligations that can have no parallel elsewhere. Thus Cicero spoke of the res publica as a peculiarly public realm



the corporation as a supranational power175 where the life of political involvements and obligations would impart a sense of commonality rooted in ideals of justice, equality, democracy and rights extending to all adult persons residing in the state domain. (Boggs 2000: 96–97)

Many cite the Greek philosophers, especially Plato and Aristotle, who indeed saw politics and—in general—the commitment to public life as a central aspect of human life. But few remember that even in antiquity, a simpler but real aspect of the economic interest was alive and well, in contrast with the pure philosophical approach mentioned here. When Plato and Aristotle studied and spoke, seeking to reach and understand the truth of all things and issues, the Sophists were teachers in rhetoric, their aim “to make the weaker argument [logos] the stronger” (Aristotle, Rhetoric, 1402a23). One of the better-known Sophists, Protagoras, argued that “A human being is the measure of all things—of things that are, that they are, and of things that are not, that they are not” (Sextus Empiricus, Against the Mathematicians, 7.60). Instead of reaching for one inalterable truth and virtue, the Sophists were prepared to defend any argument or position for pay; thus they were viewed both as philosophical “prostitutes,” and as dangerous for their ability to sway voters and crowds for money, aside from any consideration of the soundness of the position they defended (Cohen et al. 1995: 70–75). Hence even in 400 bc those whose political position was based on economic advantage, rather than on the best interests of the citizens of the polis and sound government, were both feared and despised; certainly they were not given—so to speak—the keys to the city, or absolute power. It was a lot easier than it is today for citizens in the Greek city-states (polis) to feel and actually be part of the governing enterprise. Even if we simply consider local or state governments, let alone supranational governing bureaucracies, the main, real “contact” between citizen and govern­ ment is through public services the latter is bound to provide. But, as we have noted, that is no longer the case, as corporate power intervenes: Three questions that need to be asked concerning the privatizing of public services are: (1) What are the political values that the use of markets seeks to achieve? (2) What is the impact of the power exercised by entities involved; customers, citizens, consumers? And (3) what procedures can best ensure the kind of public participation and transparency necessary for public legitimacy? (Sassen 2006: 199)

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Sassen herself notes, as we have shown in this work, that with the privatization and commodification of public services, “transparency decreases,” and this undercuts public participation (Sassen 2006: 199 n. 77). Hence, the question of citizenship arises again: how, practically or theoretically, can we have global citizenship, when the very notion of openness and public participation is anathema to global, supranational power? We have all seen the quasi-military apparatus, the riot squads present in all major G8/G20 meetings. Public participation is proscribed, not invited, and secrecy is the new norm for that form of unelected (hence illegitimate) governance. The results of the new supranational control on the public interest is undeniable: Even as economists displace (traditional) public law lawyers in a growing number of governments in the global south, private corporate law is now increasingly used in the development discourse to justify the turn to the market. Markets now dominate where before the government was the main actor, promoting often, but never completely, as a rhetorical contribution— the public interest, safety of citizens, provision of basic needs and so on … (Sassen 2006: 200)

Pace Sassen, the public interest has seldom been promoted, even partially, by corporate governance, although abundant rhetoric has indeed been used (Sophist-style) to convince the masses that this was indeed the case. Sassen acknowledges (citing Marshall) that “the reliance on markets to solve political and social problems is seen as a savage attack on the principles of citizenship” (Sassen 2006: 285; Marshall 1977). The intimate connection between corporate power and “post-national citizenship” (Sassen 2006: 209) therefore negates the very possibility of real citizenship, no matter how numerous the global connections through international networks, even based on common interests and issues. The national state, it is true, is no longer the only locus of power, where citizens seek to find “the protection of rights, citizenship practices, or the experience of collective identities and solidarities” (Sassen 2006: 304). It may be correct, as Bosniak proposes, that “denationalized citizenship can ultimately decouple the concept of citizenship from the nation-state” (Bosniak 2000). Sassen, however, concedes that the transformation present in the nation-state does influence the understanding of citizenship: “some of these transformations might be interpreted as a decline or devaluation of citizenship” (Sassen 2006: 306).



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In fact, this is the main conclusion that can be reached in this chapter. Even aside from the presence of meaningful emblems and traditional hymns, a state that has turned its responsibility for civil protection to the market, its defense in large part to mercenaries, and its legal and executive power, for the most part, to corporations and economic supranational organizations, entails far more than “a transformation in nation-based citizenship” (Sassen 2006: 307). Rather, it represents a deadly attack on the very principles of citizenship. Despite the presence of international fora where a rare human rights case might be heard beyond the court system of various states, the basic, intimate connection between citizens and states is no longer valid, and that brings national democratic institutions equally into question (Westra 2010: 8–25). Concluding Thoughts At any rate, in this work we have only considered some of the supra­ national institutions that have power today; that is, those that are based solely and explicitly on the profit motive, while the UN, perhaps the most important source of supranational power, was left out of the discussion. There are two reasons for this omission. First, insofar as the UN is the source of international rules and legal instruments, it should be viewed— at least in principle—as a power in opposition to corporate rule, and as the strong defender of human rights. Second, despite its original position against human rights abuses, even at the cost of piercing the veil of sovereignty to defend human beings under attack within states, that combination of power, supremacy, and legality is also severely compromised by the hegemonic power of the US, especially (but not exclusively) through the veto power of the US in the Security Council; hence it is also under attack by a power that, as we have argued, no longer belongs to the people of that country. But that question is too complex to treat briefly at this time, and I have addressed the issue elsewhere (Westra 2012a). Nevertheless, as we seek to dismantle the credibility of corporate supranational power in regard to human rights from the very origin of human life, we need to keep in mind that the UN remains the only existing source of ultimate legality today, and the only venue through which substantive change may be achieved. The corporate power discussed in the present work tries to block most attempts to correct the status quo, as we have

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noted throughout, but the UN remains unique as a possible countervailing force. The other, as yet untapped force for change lies precisely in those with whom the UN identifies, as its Charter starts with “We, the people …,” not “We, the legal persons.” The people today are represented by the recent growing movement of Occupy Wall Street, now expanding form the US to most centers of power globally as the stage upon which this open and forceful protest operates against corporate power. Some find its origins in the Arab Spring of 2011, others view the original protests against the meetings of the Group of 8 or even the Group of 20, from Seattle to Quebec, from Genoa to Geneva, from Davos to Toronto, as these seminal meetings draw strong protests joining disparate actors and interests against corporate oppression. Some even see the 9/11 attacks on the twin towers of the World Trade Center as aimed not only at the US and its racist practices against Muslims, but also aimed perhaps at the center of corporate power with which the US increasingly identifies. Although no definite answer can be given at this point, it seems clear that the twin towers as a center of corporate governance were indeed a symbol at the heart of supranational corporate enterprise. The main goal of this work has been: • to bring into question the status and the role of the corporation; and • to demonstrate the conflict present between its immense (and still growing) power, and its actual fitness to fulfill its self-chosen mandate as the world’s ultimate authority in most fields of human endeavor. Chapter 1 confronted the origin of corporate “personhood,” in contrast with the lack of such “personhood” originally granted in US courts, but now accepted worldwide, to the developing human being. Neither legal question was extensively studied at the time of the decision of the respective courts, nor has it been seriously reconsidered or even discussed: it is acknowledged in each case, but viewed simply as beyond discussion. The lack of protection for the developing human, the preborn, should be necessary for the protection of human rights, because of the evolving science, which indicates beyond a doubt the vulnerability of the prenatal period, and confirms that period as the locus and origin of many grave diseases and dysfunctions not only of childhood, but also of adulthood and old age. Those who block any reconsideration of that position, in the case of the preborn, also refuse to look at the reality of women’s rights involved in the



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presence of unrestrained abortion, which rests on that flawed position: the great majority of abortions terminate female infants, whose rights are somehow invisible because of that old case. It is particularly troublesome that the corporate crimes against life and basic rights we have been emphasizing are perpetrated with impunity in part because their true reach and gravity is left out of consideration. The preborn are invisible in law, unless the physical harm can be traced to one specific criminal, acting with intent against a pregnant woman, at which point the humanity of the preborn is miraculously restored in jurisprudence, as she becomes visible and even acquires basic rights once again. That is the basis for the argument of Chapter 2, where the toxic harms inflicted by industrial enterprises to public health are shown to be supported by the supranational economic and trade organizations, such as the WTO and NAFTA, in direct conflict with the public interest and the basic rights of human beings. Chapter 3 examines more closely the relations between the state and the corporation, as the responsibility and the complicity of the former show the difficulties faced by affected individuals and communities in a largely “lawless” world. Chapter 4 traces the legality of corporate activities, and the weakness of the norms enacted for the protection of the public. Corporate crimes are perpetrated both against the corporation’s external and internal stakeholders, and the most egregious examples of gross breaches of human rights date back to the first emergence of universal human rights, with the UN Declaration of 1945. However, although those early crimes were recognized, tried, and even punished with the imprisonment of the main responsible corporate officer (for the manufacture and sale of Zyklon B), since then the corporate crimes have escaped punishment, even when widely recognized in the media. Some notable exceptions are listed in this chapter, although the gravest crimes escape punishment through the newly developed identification of the corporate criminal with the state whose aims it serves (in this case the United States), in contrast to the principles of Nuremberg. Chapter 5 returns to the interface between the state and the corporation, and the complex relations that exist between them in the EU. It is important to see the strength of the relentless efforts of corporate power to infiltrate a supranational form of governance that is still based on principles and some traditional values beyond the quest for profit. The EU is a supranational power that still can (and does, at times) succeed in restraining supranational corporate excesses, although it remains vulnerable to corporate attacks because of related geopolitical conditions.

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Chapter 6 focuses on the extent of global supranational power, and the effects it causes not only to the basic rights of natural persons, but also to the very civil and political rights on which the corporation itself depends. Can natural persons still claim to be citizens of a country? Or does the overwhelming presence of global corporate power destroy the main characteristics of citizenship, both its rights and its duties? The discussion indicates that the post-national citizen has lost a great deal of what made her a citizen in the first place. If the local and state authorities are no longer able to respond directly to the citizens’ protests, and if most of the links between citizens and authorities, previously based on the supporting services such authorities provided, are eliminated, then the basis of citizenship no longer exists. Nor can the post-national citizen appeal to the global dimensions of citizenship as, with the exception of the International Court of Justice and the European Court of Human Rights, where only rare major human breaches can be tried, the supranational corporate power of the major trade organizations has no desire for public input, and no desire to practice the transparency that would add some democratic legitimacy to its power. It is extremely difficult to find an approach capable of reversing the present trends and status quo. There are, however, some possible paths worthy of consideration, although that is a topic beyond the present work. I have argued that the UN is one such path; its stated aims and the foundations of its origin attest to the serious commitment to human rights above all else. In addition, the emerging Occupy movement proposes a “bottom-up” power. Given its wide reach in many countries and most continents, it is possible that their constant presence in the global media, as well as their identification with the 99 percent, in contrast with the power of the 1 percent, seems to offer some hope for the future. In this work, I have also suggested that full understanding of the extent of the power (and also of the criminality) of the corporation might also support a will for change, which in turn might result in both of the proposed future paths—that is, the roles of the UN and the Occupy movement—to be supported even more widely in the defense of humanity.

APPENDIX ONE

CASES Aguasanta Arias et al. v. DynCorp, Class Action Complaint for Equitable Relief and Damages, Filed in the US District Court, District of Columbia, September 11, 2001. Aguinda v. Chevron Texaco, see http://chevrontoxico.com/assests/docs/2011-02-14-judgment -Aguinda-v-ChevronTexaco.pdf. Allaire v. St. Luke Hospital et al., 184 I11.359; 56 NE 638, 1900. Beanal et al. v. Freeport-McMoran, Inc., and Freeport–McMoran Copper and Gold, Inc., 969 F. Supp. 362 (ED La. 1997). Bonbrest et al. v. Kotz et al., 1946, 65 F. Supp. 138. Citizens United v. Federal Elections Commission, “The story of Citizens United v. FEC, www .storyofstuff.org/category/movies/story-of-citizens-united-v-fec/. Commonwealth v. Cass, 467 N.E. 2d 1324 (Mass.1984) @ 1325–1329. Council Decision of 13 July 2009, concerning the non-inclusion of Metam in Annex 1 to Directive 91/414/EEC, and the withdrawal of authorization for plant protection products containing that substance (2009/562/EC). County of San Mateo v. S. Pac. R. R. Co. (The Railroad Taxes Cases) 13 F. 722 (CCD Cal. 1882). Dietrich v. Inhabitants of North Hampton, 1884, 138 Mass. 14, 52 Am. Rep. 242. Egan v. Canada, 1993, 2 SCR, at 37 L’Heureux-Dubé, J. in dissent. Ethyl Corporation v. Canada, Notice of Arbitration under the arbitration Rules of the UNCITRAL and the NAFTA, April 14, 1997. Fedeyava v. Russia, 2005, ECHR 55723/00. German Federal Constitutional Court, 2nd Chamber, Order of June 245 2003, 2 BvR 685/03, B Verf GE 108, p. 129 at para 67. Guerra v. Italy, 1998, 26 EHRR, 357. Hindustan Coca-Cola Beverages v. Penumatty Grama Panchayat, 2005, KLT 554. Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir. 1998). Kumamoto Minimata Disease case, 696 Hanjil 5 Kumamoto District Court, Mar. 20, 1973. Lopez-Ostra v. Spain (1995) 20 EHRR 277, (1994) ECHR 16798/90). Massachusetts v. EPA, 415 F. 3d 50, 57–58 (DC Cir. 2005, rev’d 127 S. Ct. 1438, 2007). McKiney v. University of Guelph, 1990] 3 SCR 229, at 285–286, La Forest J. Minors Oposa v. Secretary of the Department of the Environment and Rural Resources, 33 ILM 173 (1994). Native Village of Kivalina v. Exxon Mobile et al., CP California 2008, No. C08-01138 SBA. Niigata Minimata case, 642 Hanji (Miigata District Court, September 29, 1971). Officier van Justitie v. Sandoz, BV [1983], ECR 2445 174/82. Oneryildiz v. Turkey, [2004] 41 ECHR 325, 48939/99. Pembina Consol Silver Mining and Milling Co. v. Pennsylvania, 125 US 181 (1888). People v. Davis, 872 P2d 591 (Cal. 1994). Perumatty Grama, Panchayat v. State of Kerala, 2004 (1) KLT 73. Phillips v. Nova Scotia (Commission of Inquiry in the Westray Mien Tragedy [1995] SCM no. 36 (QL). Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833, 874–78 (1992). Portugal v. Council, Case C-149/96, 1999, ECR I-8395. Preussen–Elektra AG v. Schleswag AG, Case c–379/98, [2001] ECR 1–2099. R. v. Curragh Inc., [1994] O.J. Nos. 1116, 1183 and 1452 (QL). Rewe-Zentrale AG v. Bundesmonopolverwaltung fur Brantwein, case 120/78. RJR-MacDonald Inc. v. Canada (A.G.), (1995) 3 SCR 199 at 239–240.

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Robert Mack Bell et al., Petitioners v. State of Maryland, 378 US 226. Roe v. Wade, 410 US 113, 158 (1972). Santa Clara County v. Southern Pacific Railroad Company; California v. Central Pacific Railroad Company, Supreme Court of the United States, 118 US 394; 6 S. Ct. 1132; 30 Led. 118, May 10, 1886, decided. Simmenthal SpA v. Commission, Case 92/78, [1979] ECR 777, [1980] 1 CMLR. State of Connecticut, et al. v. American Electric Power Company, Inc. et al., 2009. Toyama Itai-tai case, 635 Hanji 17 (Toyama District Court, June 30, 1991). Trail Smelter Arbitration, (US v. Canada, 1931–1941 3 RIAA 1905). United States v. Carolene Prod. Co., 304 US 144, 152–53, n.4 (1938) (dictum). United States v. John Kelson Co., 86 F. 304, 305–6 (ND Cal 1898). Yokkaichi Asthma case, 672 Hanji 30 (Tsu District Court, Yokkaichi Branch, July 24, 1972).

APPENDIX TWO

DOCUMENTS Ashbrook proposal, HRJ Res. 13, 97th Cong., 1st Sess. (1981). Constitution of the Federal Republic of Brazil. Constitution of the Republica de Colombia 1991. Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), signed 18 December, 1979, New York City, effective 3 September, 1981. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 UNTS 277, art. 2. Convention on the Rights of the Child (CRC), Commission on Human Rights, GA Res. 44/25, UN GAOR, Supp. No. 49, UN Doc. A/44/49 (1989). EC Measures Concerning Meat and Meat Products (Hormones), Appellate Body Report, Adopted Feb. 13, 1998, WTO Doc. WT/DS26/AR/R and WT/DS48/AD/U. EC Treaty, Part Three, Title 1, Chapter 2. Eleventh Annual Message to Congress (January 11, 1949), in J. Israel ed. The State of the Union Messages of the Presidents, 1906, vol. 3, p. 2881. For Prosecution and Punishment of the Major war Criminals of the European Axis, 82 UNTS 279. Framework Convention on Tobacco Control, WHO Doc. A56/VR/4 21 May, World Health Organization, Geneva Switzerland, adopted by the World Health Assembly 21 May 2003, into force 27 February 2005, available at www.who.int/gb/ebwha/pdf_fields/WHA56/ ea56rl.pdf. Garn-Rhodes proposal, SJ Res. 17, 97th Cong., 1st Sess. (1981). General Comment no. 3 para. 1 in report of the Committee on Economic, Social and Cultural Rights, UN ESCOR, 1st Sess., Supp. no. 3, Annex III at 83, UN Doc. E/1991/23 (1991). General Comment no. 18, para. 12, in Report of the Human Rights Committee, UN GAOR, 45th Sess. Supp. no. 40, vol.1, annex VI at 173, 175, UN Doc. A/44/40 (1990), prohibiting “discrimination in law and in fact in any field regulated and protected by public authorities”. German Federal Constitutional Court (GFCC), Order of June 24, 2003, 2 BvR 685/03, BVerf GE 108; Order of October 26, 2004, 2 BvR 955/00. HR 900, 97th Cong. 1st Sess. (1981). Helles-Dorman proposal, SJ Res. 19, 97th Cong., 1st Sess. (1981). Helms-Hyde human life bill, S. 158, 97th Cong., 1st Sess. (1981). ICCC and IOE, Joint views on the Draft Norms (March 2004), www.business-humanrights .org/links/Repository/179848/linkpageView. ICRC, Report to John Rizzo, Acting General Counsel, CIA; findings following interviews with 14 “high value detainees” transferred to Guantanamo Sept. 2006, 14 February 2007. ILO Convention No. 169, 1989, 28 ILM 138. Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Ecuador, OAS Doc. OEA/Ser.L/V/II.9b, doc. 10, rev.1, Chapter IX (April 24, 1997). Interim Report of the Special Representative of the Secretary General (SRSG) on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, (2006) UN Doc E/CN 4/2006/97/81+. International Covenant on Economic, Social and Cultural Rights (ICESCR), 16 December 1966, 993 UNTS 3, 1976 Can. TS No.46 (1966) (entered into force 3 January 1976). International Covenant on Civil and Political Rights (ICCPR), 19 December 1966, 999 UNTS 171, arts. 9–14, Can. TS 1976 No. 47, 6 ILM 368.

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Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004; see www.icj-cij.org/docket/index.php?p1=3&p2=4&k=5a&case=131&. Madison Declaration on Mercury Pollution, http://allenpress.com/pdf/i0044-7447-036-01 -0062.pdf. Nuremberg Charter, 1945, Charter of the International Military Tribunal, 82 UNTS 279. Panel Report European Communities –Measures Affecting the Approval and Marketing of Biotech Products, WT/DS/291/R, WT/DS/292/R, WT/DS/293/R (September 29, 2006). Permanent Sovereignty over National Resources UNGA Res 1803 (XVII) (14 December 1962), UN Doc. a/5217 (1962). Regulation (EC) no. 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH). Regulation EC no. 1107/2009 of October 21, 2009. Report of the International Law Commission, 53rd Sess., GAOR. República del Ecuador Constituciones de 2008. SC Res. 1315, UN SCOR, 55th Sess., 4186th mtg, at 2, UN doc. S/1315 (2000), “endorsing a special court for prosecuting atrocities by all sides in Sierra Leone”. S. Exec. Doc. E, 95–2 at 23 (1978). Statute of the International Court of Justice, art. 38, para. 1 59 Stat. UNYB 1052, 1055; the ICJ was established in 1945 as the Court of the UN. Treaty Establishing a Single Council and a Single Commission of the European Communities, April 8, 1965, 4 ILM 776, amending the EEC Treaty. Treaty on European Union and Final Act, February 7, 1992, 31 ILM 247. UN Commission on Human Rights, 58th Session, January 24, 2002. UN Declaration of the Rights of Indigenous Peoples, Article 7, www.un.org/esa/socdev/ unpfii/en/drip.html. UN GA Res. 3281, Charter of Economic Rights and Duties of States, UN GAOR, 29th Sess. Supp. No. 31, at 50, UN Doc. A/9631 (1974). UN GA Res. 3201, Declaration on the Establishment of a New International Economic Order, UN GAOR, 6th Spec. Sess. Supp. 1 at 13, UN Doc. A/98 (1976). US Public Health Service, Vital Statistics of the United States: 1900–1970, Washington, DC, http://infoplease.com/ipa/A0922292.html. Wall in the Occupied Palestinian Territory, ICJ Reports, 2004, paras 43, 44 (sep. op. Kooijmans).

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INDEX Aamjinwaang people 29–30 Abel, Louise 52 abortion 16–17, 20 and equal protection 22 see also fetal personhood absorption doctrine 166–167 acquis communautaire 167–168 aerial spraying 35–37 Afghanistan 74 Agent Orange 97, 98–101, 113, 128, 157 and sovereign immunity 100, 101, 159 agribusiness 40–44 intensive practices of 41, 92–93, 156 and organic farming/foods 94, 97, 124, 157 traditional agriculture and 88–89 and water pollution 42, 43 see also GM products; herbicides; Monsanto; pesticides Aguasanta Arias et al v. DynCorp 34–35, 37 Aguinda v. Chevron Texaco 34 Al-Qaeda 76 Alaska (US) 60 ALEC (American Legislative Exchange Council) 155–156 Alien Tort Claims Act see ATCA Allaire v. St. Luke Hospital 12, 13 aluminium 30, 126–127 Alzheimer’s disease 30 Ament, M. 14 Amnesty international 66, 79 Amsterdam Treaty (1999) 124, 130 Angola 112 Annas, Julia 26 apartheid 24, 71, 80, 160 Aquinas, Thomas 131–132 Arab Spring (2011) 133, 178 Archibugi, Daniele 83 Arizona (US) 12 asbestos 28, 44, 89, 109–111, 113 legislation impeded by corporations over 110–111 Ashbrook Proposal (1981) 15 ATCA (Alien Tort Claims Act, US) 32, 64, 134, 137–139 Auschwitz 128 Australia 53 Austria 123

Bakan, Joel 5 Balanya, Belen 67, 116 Barboza, Rapporteur 135–136 Barry, Brian 26 Bassiouni, Cherif 69 Baxi, Upendra 112 Baycol (anticholesterol drug) 128 Bayer 2, 113, 116, 124, 126, 127–129 involvement with Holocaust 127–128 prosecutions against 128, 159–160, 162 Beal, Ron 13–14 Bechtel Corporation 112 Beetham, David 131 Belgium 124 Berg, Jessica 8, 9 Bernstein, Richard 6 Bhopal disaster (India) 34, 51, 54, 135, 152 Biddle, Francis 70 Bingham, Thomas 119 biodiversity 87, 92–93, 123 biotech corporations 115, 116, 117, 124 Birch, Kean 140 ‘birth for benefit’ approach 15 Blackstone, William 22in Blank, Yishai 171, 172 blood transfusions 19 Boggs, Carl 174–175 Bonbrest et al. v. Kotz et al. (1946) 13, 15 Bosniak, Linda 171–172, 176 Bové, José 88–89 Boyle, Adam 134–136 BP 61 Bradshaw, John 17–18 Brazil 35, 110 Britain (UK) 79, 104, 124 abortions in 17 cancer in 55–56 in colonial era 7 British East India Company 7 Brown, Donald 148–149, 162, 163, 164 Brownlie, Ian 72–73 BSE (bovine spongiform encephalopathy) 122–123 Bt crops 93–94 Buelow, William III 10, 12, 18, 20 Bull, Hedley 131

196

index

Burger King 42 Bush, George W. 75, 125, 138 and torture 76–77, 78 business right 66 business as usual 6, 48, 107 Bybee, Jay/Bybee memo 78–79 California (US) 11, 12 Canada 5, 12, 91–92, 128 asbestos industry in 109–111, 113 Charter of Rights and Freedoms 45, 47 criminal code in 161 environmental law in 153–154 exposure to pesticides in 88, 93–94 First Nation in 29–30, 31, 154 Italian Catholic community in 130 mining disaster in (Westray) 105–106 public health in 29–31 tobacco regulations in 44–48 Canadian Environmental Law Association (CELA) 46 cancer 29, 30, 33, 55 and exposure to asbestos 110 and exposure to pesticides 87, 96 and exposure to radiation 52, 53 capitalism 28, 106–107 Cargill 97 Cartanega Protocol 123 Cassis de Dijon case 118 CAT (Convention Against Torture) 76 Caterpillar Inc. 71, 160 Catholic Church 130–131 CBC (Canadian Broadcasting Corporation) 110 CEDAW (Convention Eliminating All Forms of Discrimination Against Women) 63 CELA (Canadian Environmental Law Association) 46 Central America 7, 77 chemical industry 1, 2, 51, 55, 116, 121–122 Bhopal disaster 34, 51, 54, 135, 152 criminality of 93, 127–129 Federation of 116–117 and public health 29–31, 57–58 see also Bayer; Dow Chemical; hazardous substances/waste; Monsanto Chemical and Toxic Substances, Framework Convention for Control of 58 chemical/biological weapons 99, 113, 143 see also Agent Orange Chernobyl disaster 135

Chevron 155 Child, Convention on the Rights of (CRC) 63 child labour 50 children 29, 48, 54 cited in cases 151 exposed to harmful chemicals 30, 87, 93, 94, 96, 98 China 43, 50, 51, 54, 110 Chomsky, Noam 98, 147 CIA (Central Intelligence Agency) 50, 76, 77–79 Citizens United v Federal Elections Commission 22 citizenship 3, 174–176, 180 and markets 176–177 Monsanto and 173–174 post-national 171–174 three spheres of 172–173, 174 and transparency of institutions 173, 175–176 and US Constitution 9–10 civil law 12, 15, 18 civil rights 1, 3, 74, 165 Clements, Jeffrey D. 74 climate change 2, 6, 27–28, 57, 148–155, 174 and corporate culpability 148–150, 155–156 and ecological values-public health 150–151 and envionmental law 153–155 as ethical problem 149 and public trust 150 and state-corporate relations 150–153 Coca-Cola 34, 85, 141–142 cocaine 35–36 Cofan people 37 Colborn, Theo 87–88 Colombia 35, 38 colonialism/neocolonialism 7, 35, 101, 170 common good 25–26, 43, 132 common law 10, 11, 12–15, 18, 19–20, 154 “social values” in 13 Commonwealth v. Cass (1984) 11 compensation 20, 52, 88, 100, 101, 127, 134 Connecticut et al. v. American Electric 150–151 constitutions, national, and environmental protection 37–40 consumerism/consumer society 2, 17, 56–57, 141 contraception 17–18 corn, GM 93–94, 173–174 corporate freedom 45

index197 corporate power 2, 51, 56–57, 58, 60, 61–65, 161–164, 180 composition of 61 corporate legitimacy and 61 and corporate responsibility 62–65 corporations as “quasi-state” 33, 64, 65–67, 82 and cosmopolitan democracy 83–84 and democracy/rule of law 129, 140–141, 142–143 and domestic constitutions 24 international law and 62–65 and limits/norms 89–93 and personhood 21–24, 107, 115 states and 1, 24, 60, 94, 115, 129–132, 145, 145–147 and totalitarianism 100, 101–103 corporate responsibility 62–67, 100, 111, 135–137, 152 and ATCA 137–139 and corporate power 62–65 and corporations as “quasi-states” 65–67 and state responsibility 63–64, 66–67 corporation rights 22 corporations and colonialism see colonialism criminality of see criminality of corporations and discrimination 27, 139–140 disinformation by 51, 148–149 economic imperative of 7, 26, 42, 43, 56, 62–63, 66, 109, 113, 129, 138, 175 employees of see workers global numbers of 63 history/development of 5–8 impunity of 73–76 and individuals 25 interplay between 110 legitimacy/fitness of 2, 61, 148, 151 offshore relocation by 50–51 personhood of see personhood of corporations “spheres of influence” of 27–28, 48, 49, 50, 63 and stakeholders 6, 26, 28, 48–54, 72 Corragh, Inc. 106 counter-terrorism 77 County of San Mateo v. Southern Pacific Railroad Company (1882) 21 CRC (Convention on the Rights of the Child) 63 crimes against humanity 60, 68, 71, 72, 103, 104

criminal law 10, 11, 59, 63–64, 103–104, 111 criminal organizations 59, 64 criminality of corporations 67–70, 87–113, 127–129, 139–141 in finance sector 91 and genocide 100, 101–103 governance gaps and 89–93 and internal stakeholders 104–109 and Nuremberg principles 67–69 and personhood of corporations 103–104 successful prosecutions 2, 88–89, 97, 179 and “underlying political commitments” 106–107 in Vietnam War 98–101 Customs and Excise v. Samex 119 Dahbol Power Corporation (DPC) 112 Davis, Devra 29, 44 DDT 97 decolonization 7, 170 deforestation 97 democracy 3, 61, 74, 129, 140, 147 cosmopolitan 83–84 deficit in 124–125, 148 social 146 deterrence 59, 148 developing countries 1, 7, 108 and discrimination of corporations 28 regulatory regimes in 51 vulnerability of 70 development 1, 35, 36, 75 sustainable 148 Devlin, Patrick 79–80 diabetes 96, 162 diet 40, 41–44, 94, 96, 164 and energy/resource use 56–57 Dietrich v. Inhabitants of Northampton 13, 14–15 dignity, right to 39, 59 dioxin (TCDD) 97, 98–99, 101, 103 disease 41, 174 DNA, damage to 70 Douglas, Justice 23–24 Dow Chemical 92, 98–100, 104, 113 as Olympic sponsor 98 prosecution of 99–100 DPC (Dahbol Power Corporation) 112 Drechsler, Horst 102 drones 54, 74, 157–160 Dryden Paper Company/Chemicals Ltd 31 due process, right to 22 DuPont 116

198

index

Dutch East India Company 7, 41 Dworkin, Ronald 9 DynCorp 34–35, 37, 50, 160 ECJ (European Court of Justice) 118–119, 121, 167 eco-terrorism 44 ecocrimes 26–27, 29–31, 69, 135–137 aggression and 138 and corporate responsibility 63, 70 see also oil corporations economic growth 146 economic rights 7, 66, 111 Economic, Social and Cultural Rights, Committee on 34 Ecuador 32–33, 34–35, 36, 137, 160 constitution of 38–39 EFSA (European Food and Safety Authority) 123 Egypt 133 Eichstaed, Peter H. 52 elections 22–23, 145–146 Emmett, Mr. Justice 31 empathy 131, 132 endocrine-disrupting chemicals 30, 70, 87–88, 96 energy industry 56–57, 60, 112–113, 150–151 see also oil industry Enron 91, 112 environment and human rights 39–40 and national constitutions 37–40 and “Nature’s trust” paradigm 153–155 environmental justice/rights 1, 30–31, 39–40, 47, 69, 89, 166 right to life and 48 see also climate change EPA (Environmental Protection Agency, US) 98, 151, 154, 156 equal protection, right to 22 erga omnes 67, 73, 75–76, 79, 81, 82, 108, 168 Erichem Agricoltura 121–122 euro crisis 146 EuropaBio 115, 116 Europe, Council of 78 European Charter on Human Rights 39–40 European Commission of Human Rights 122 European Court of Justice (ECJ) 118–119, 121, 167 European Food and Safety Authority (EFSA) 123 European Union (EU) 2, 24, 28, 43, 57, 113, 115–143, 166–168, 169, 179

absorption/extension doctrines in 166–167 acquis communautaire in 167–168 chemical/biotech corporations in 115–117, 121–122 co-existance principle in 123–124 common culture in 129–131 as community 166, 167 Constitution of 130 criminal prosecution of corporations in 126–127 democratic deficit in 124–125 environmental protection in 118–119, 124, 166 establishment/development of 165 lobby system in 116 Maastricht Treaty (1992) 117–118 as model 129–130 pesticide/herbicide regulation in 92, 95–96 precautionary principle in 119–120, 123, 125 public health issues in 118–120 resistance to biotech/GMO in 117–125 sovereignty/supranationalism in 165–166 extension doctrine 167 extractive industries see mining/extractive industries extraordinary rendition 74, 75 Exxon Mobil 61, 148–149, 155 fast food 42, 85 Fedeyava v. Russia (2005) 39 fertilizers 97 fetal personhood 9, 10, 11–18, 25 in common law 12–15 in criminal law 18 and infans conceptus 16–17, 18–19 inheritance and 19–20 and injury by third parties 17 and lex ferenda 19 and medical science 13–14, 16, 17, 19 and personhood of corporations, compared 22–23, 87, 95 and privacy-autonomy mismatch 17, 18 religious dimension of 15–16 and “thin skull” rule 12 Fidler, D.P. 119, 120 financial sector 74 Flynn, John 23 forum non conveniens 134 fracking 156 France 87, 88–89, 95, 104

index199 François, Paul 87, 88 free speech, right to 22 free trade/markets 45, 104, 109, 147, 176 freedom of expression 47, 122 freedom from want 49 freedoms 122 Roosevelt’s four 49–50 Friends of the Earth 124 Fukishima nuclear disaster 53 G8/G20 protests 3, 176, 178 Garn-Rhodes Proposal (1981) 15, 16 GATT (General Agreement on Tariffs and Trade) 119 General Electric 112, 151–152 Geneva Convention (1948) 77, 103 Geneva Protocol (1925) 99 genocide 71, 72, 81, 101–103, 108–109, 163 cultural 138 and environmental degradation 102–103 UN Convention Against 101–102, 165 Germany 71, 101, 102, 103, 118 Gewirth, Alan 26, 66 Gilbert, Paul 136 Glasbeek, H. 107, 108–109 Global Compact (GC) Program 48–49, 62 global governance 1, 2 global risk society 131 globalization 27–28, 35, 50, 74, 139–141, 142, 146, 168, 170 and democracy 140–141, 143 and governance gaps 90 glyphosate herbicide 35–36, 37, 95 GM (genetically modified) products 28, 43, 87, 88–89, 128, 163, 164 and citizenship 173–174 complicity of governments in 96–97 and criminality of corporations 92, 93–94 and factory fish farming 97 labeling of 94, 123 lobbying for 124 public relations for 123 resistance to, in EU 122–125 seeds 125, 128, 164 Goldman Sachs 155 Gonzales, Alberto 77, 78, 125 Gostin, Lawrence 58 governance 7, 167, 168, 169, 174, 179 gaps 90 Grandjean, Philippe 30, 87 Grear, Anna 142, 145, 152

Great Lakes region (US/Canada) 31, 88 Greece 146 Greek philosophy 174–175 Greenpeace 124 Greenwald, Glenn 159 Grotius 69, 136 Guantanamo Bay 168 Gucciardi, Anthony 164 Guerra v. Italy (1998) 39, 48, 121–122 Gulf Oil Corporation 32 Hamilton, Alexander 84 harm, direct/indirect 108, 109–111, 135 Hart, H.L.A. 79–80 Harvey, David 104, 147 hazardous substances/waste 126–127 bioaccumulation of 162–163 Health Canada 30, 88, 109, 152 health, right to 13, 24, 29, 39, 56, 87, 110–111, 143 Helms-Dorman proposal 16 Helms-Hyde Human Life Bill (1981) 15 Henessey, Justice 11 Henkin, Louis 70 herbicides 35–36, 37, 94–95, 97, 111, 164 see also Agent Orange Herero people (Namibia) 101, 102, 103 Herz, Richard 102–103 Hillgruber, Christian 79, 80–81, 82 Hindustan Coca-Cola Beverages v. Penumatty 34 Hoffman La Roche 116 Holmes, Justice Oliver Wendell 12–13, 15 Holocaust 6, 113, 128 Holwick, Scott 137 hormones 42, 119, 120, 162 Howard, Philip 157 Howe, Lord 118–119 Hudson’s Bay Company 5, 7 Hughes, Elaine 161 human rights 1, 7, 20, 89, 154 absolute 66 and animal rights 40 collective 37 “colonized” by corporations 145 in conflict with corporate interests 24 consumerist approach to 17 Draft Norms on Responsibilities of Transnational Corporations with Regard to 62, 64 and environment 39–40 EU and 39–40, 130 European Court of 48, 180 and personhood 10, 11, 15, 116

200

index

and property holders 169–170 and public health 2, 36 UN Delaration of 26, 49, 145 human rights abuses 50–54, 59–60, 112 and corporate impunity 75–76, 179 and corporate responsibility 63 and international law 62 Human Rights Committee 27, 64, 81 Human Rights Watch 79 humanitarian law 65 Hungary 125, 126–127, 128 hydraulic fracturing 156 IBM 6, 100 ICC (International Chamber of Commerce) 62, 63 ICC (International Criminal Court) 81, 82, 139 ICCPR (International Convention of Civil and Political Rights) 27, 49, 63, 81 ICERD (International Convention on the Elimination of all Forms of Racial Discrimination) 27, 60, 63 ICESCR (International Covenant on Economic, Social and Cultural Rights) 49, 63, 65 ICJ (International Court of Justice) 63, 71, 82, 160, 169, 180 ICRC 77, 78 I.G. Farber 100 ILO (International Labour Organization) 49, 62 IMF (International Monetary Fund) 146, 173 immunity 104 sovereign 100, 101, 103 imperialism 74, 148 India 34, 112 Coca-Cola in 141–142 GM products in 87 indigenous peoples 1, 29–30, 31, 35–37, 85, 154 cultural identity of 35 and “development” 36, 37 and environmental protection 39–40 and exposure to radiation 51–53 and herbicide spraying 35–37 and national constitutions 35 and oil industry 32–34 infanticide 16 integrity principle 88 International Chamber of Commerce (ICC) 62, 63

International Court of Justice (ICJ) 63, 71, 82, 160, 169, 180 International Criminal Court (ICC) 81, 82, 139 international law 2, 62–67, 136, 166, 169, 176 corporate crimes in 67–70 corporations as “quasi-state” in 65–67 jus cogens in 71–73, 767 Nuremberg principles in 67–69 right to life in 16 for state/corporate responsibility 62–70 and supranational law 165 universal morality in 67, 69, 70 interrogation techniques 77–78 Inuit Petition 60 IOC (International Olympic Committee) 98 IPM (integrated pest management) 92, 93 Iran 53, 72 Iraq 74 Israel 54, 62, 71–73, 81, 160 Italy 80, 89, 92, 118, 121–122, 130, 147 Japan 53 Jehovah’s Witnesses 19 Jewish Voice for Peace 71, 160 Joseph, Sarah 34 Jota v. Texaco 137 jus cogens 67, 71–73, 75–76, 79, 80, 81, 108, 137 Kant, Immanuel 26, 59 Kentucky Fried Chicken 42 Kerala (India) 141–142 Kesselmann, Mark 85 Keys, Tracey 61 King, Jessica 163 Kissinger, Henry 76 Kivalina (Alaska) 60, 148–149 Kolontar (Hungary) 126–127 Kooijman, Judge 72 Korten, David 74, 139 Laffan, R. 167 Landrigan, Philip 30, 87 Lauterpacht, Hersch 136 Lemkin, Raphael 102 Leonard, Andrew 73 life, right to 15–16, 24, 25, 39, 46, 110–111, 143 and environmental disputes 48 and freedom of expression 47–48

index201 and GM products 87 indifference of corporations to 155–161 see also personhood lifestyle choice 25, 55 lobby system 1, 28, 58, 94, 107, 110, 124, 143 London Agreement (1945) 104 Lopez Ostra v. Spain (1994) 39, 48, 121 Maastricht Treaty (1992) 117–118, 130, 165 MacDonald, P. 14 McDonald’s 42, 85 McGuire, Justice 13 MAL (Hungarian Aluminium Production and Trade Company) 126–127, 128 Malaysia 110 Malnight, Thomas W. 61 Manfredonia (Italy) 121–122 Manhatten Project 97 manslaughter 10, 12, 106, 161 Martin, Melanie J. 155 Marx, Karl 28 Massager, Natalie 19 Mattei, Ugo 75, 91, 140–141, 142 meat industry 40–44, 94, 118 BSE and 122–123 use of hormones in 119, 120, 121 medical science 13, 17, 19 ethics and 16 Mercola, Dr 93–94 mercury poisoning 30–31 metam sodium 92–93 Mexico 160, 173–174 Michaels, Martin 174 Middle East 72 see also Iran; Iraq; Israel; Palestine Mill, J.S. 80, 116 Miller, Arthur S. 84, 85 Minchin, Liz 53 mining/extractive industries 1, 32–37, 110 corporate responsibility and 138 criminal activites by 60, 105–106 human rights abuses by 66, 85 uranium 51–54 MNCs (multinational corporations) 26–27, 32, 34, 66, 124, 169, 170–171 complicity of governments with 6, 91, 145 offshore relocation by 50–51, 152 Mohammed, Khalid Sheik 78 Monsanto 35–37, 116, 124, 160 and Agent Orange 97, 98–101, 103, 113, 163 and citizenship 173–174

criminal activities of 87, 88–89, 91, 97–101, 104 and factory fish farming 97 GM products of 88–89, 93–95, 96–97, 163, 164 prosecutions of 95, 97, 99–100 and US government 100, 101 Mora, Alberto 79 morality 26–27, 59, 67, 69, 149, 153, 166 Morris, David 150 Muchlinski, Peter 170 multiculturalism 80, 132 murder 68, 69–70, 85, 95, 115, 145, 148, 159, 161 Murdoch, Lindsay 53 Nader, Laura 75, 91, 140–141, 142 Naffine, N. 152–153 NAFTA (North American Free Trade Agreement) 143, 147, 153, 162, 165, 173, 174, 179 Namibia 101 Native Village of Kivalina v. Exxon Mobile et al. 148–149 natural law 69, 70 natural resources 91, 141–142, 154 “Nature’s trust” paradigm 153–155 naturowal disasters 70 Navajo people 51–53 Nazi Germany 75, 80, 100, 113, 127–128, 132 NBA (National Biodiversity Authority, India) 87 neoliberalism 104, 109, 141, 142, 146–148 contradiction in 147–148 Nestlé 116 Netanyahu, Benjamin 76 Netherlands 118, 123 NGOs (non-governmental organizations) 62, 66, 71, 79, 116 Nibert, David 40–41, 42 Nigeria 39–40, 138 9/11 attacks 74, 178 Nixon, Ribiotchard 77 North America 1, 5, 28, 88, 94, 96 corporate power in 2, 51, 145–146 Nova Scotia (Canada) 105–106, 128 nuclear energy 46, 53 nuclear weapons 72, 97 Nuremberg Charter (1945) 68, 69, 103–104, 132, 170, 179 Nuremberg trials 2, 65, 67–68, 128, 159 Obama, Barack 159, 160 obesity 40, 41–44, 57, 96, 164

202

index

Occupy movement 3, 75, 133, 142, 174–177, 178, 180 Officier van Justitie v. Sandoz, BV 118 Ogoniland (Nigeria) 39–40, 138 oil corporations 32–34, 37, 39–40, 110 prosecution of 149 see also Exxon Mobil; Texaco Ojibway people 31 Oneryildiz v. Turkey (2004) 39 Ontario (Canada) 29, 31 organic farming/foods 94, 97, 124, 157, 158 outsourcing 28 Pager, Devah 139 Palestine 54, 71–73, 160 paper/pulp industry 30–31 parens patriae doctrine 151 Parkin, D.M. 55 Parkinson’s disease 30, 87 PCBs (polychlorinated biphenyls) 97 Pearce, Frank 105 Pellow, David N. 98 Pembina Consol Silver Mining and Milling Co. v. Pennsylvania (1888) 21 People v. Davis (1994) 12 personhood 1–2, 6, 8–24, 107, 115–116, 180 fetal see fetal personhood misuse of 23 natural v. juridical 8–11, 161–164, 171–172 and racial discrimination 23–24 three categories of 152–153 and US Constitution 9–10 personhood of corporations 1–2, 6, 87, 134, 143, 145, 178 and corporate power 21–24, 107 and criminality of corporations 103– 104, 107, 112 and individuals 25, 26–27 and moral theories 26–27 public good rationale for 25–26, 43 Peru 32–33, 128 Perumatty Grama, Panchayat v. State of Kerala 34 pesticides 30, 87, 97, 128, 164 criminal use of 92–94, 111 EU regulations on 92 Sustainable Use of (EC Directive) 92, 93 pharmaceuticals industry 41, 42, 93, 116, 117 Philip Morris 28 Philippines 151, 154 Phillips v. Nova Scotia 106 Phyto-victims network 87 Plan Colombia 35–36, 38

Planned Parenthood v. Casey (1992) 20 plunder 141–142 Plutarch 19 Poland 78, 173 political donations 22–23, 43, 138, 143, 145 political rights 1, 3, 165 pollution 29–31, 32, 42, 43, 46, 55, 63, 88, 135–137, 154–156 see also ecocrimes; environmental rights/justice Portugal 92 Portugal v. Council 121 poverty 124, 149 Powell, Colin 77, 79 precautionary principle 119–120, 123, 125 Preussen-Elektra AG v. Schleswag AG 118 Pritchard, J. 14 privacy, right to 14, 15 privatization 175–176 property rights 22, 23, 134 and human rights 169–170 public health 2, 28, 29–31, 33–37, 56, 85, 162, 179 and agribusiness/meat industry 40–44 and asbestos see asbestos and ecological value 151 EU’s five levels of protection 120 and GM products 87 precautionary principle in 119–120 and tobacco industry 44–48 public interest 6, 17–18, 45, 61, 116, 143, 176, 179 public relations 107, 110, 116–117, 123 public transport 57, 153 public trust doctrine 142, 150, 151, 154 R. v. Curragh 106 racial discrimination 23–24, 27, 28, 71, 72, 85, 139–140 Ragazzi, Maurizio 82 Ranch Hand, Operation 98, 102, 103 Ratner, Steven R. 7, 25, 26–27, 32, 33–34, 48–49 on corporate responsibility 64, 65, 66–67, 111, 112–113, 139 REACH (Registration, Evaluation, Authorization and Restriction of Chemicals, EU) 92, 96(n) Reinisch, August 169, 170 rent-seeking 133 retribution 59 Rifkin, Jeremy 129–132 Rio Tinto 53 risk assessment 119, 120, 123

index203 RJR-MacDonald Inc. v. Canada (1995) 47–48 Robert Mack Bell et al., Petitioners v. State of Maryland 24 Robson, Regiona 59, 103, 104, 148 Roe v. Wade (1973) 9, 10, 14, 15, 20, 163 Roman law 14, 18 Romania 78 Roosevelt, Franklin D. 49 Rotterdam Convention (1998) 109, 110 Roundup (herbicide) 35–36, 37, 94–95, 97, 160, 173–174 Rowland, Susan 107, 108–109 Royal Dutch Shell 39–40, 61, 138 Ruff, Kathleen 109–110, 111 Ruggie, John Gerard 62, 63, 64, 89–90, 91 rule of law 129 Russia/USSR 39, 104, 110 Rwanda 72 Sani Abbacha 138 Santa Clara v. Southern Pacific Railroad Company 1–2, 6, 10, 21, 23, 24, 84 Sarbones-Oxley Act (US) 91 Sassen, Saskia 171, 172, 175–176 saturated fat see obesity Schmeiser, Percy 91–92 Schmitt, Carl 75 Scovazzi, Tullio 64 self-regulation 64 Sen, Amartya 64 sexuality 79–80 Sharpe, Robert 31 Shell see Royal Dutch Shell Shiva, Vandanar 142 Sierra Leone 112 Simmenthal SpA v. Commission 118 Simons, Penelope 89, 90, 91 slavery/slave-like conditions 41, 50, 54, 67, 71, 72, 127–128 Sophism 175, 176 Soros, George 101 Soskolne, Colin 109–110, 111 South Africa 80, 85 South America 7, 32–37, 77 sovereignty 100, 101, 103, 165, 166 and citizenship 172 loss of 168–169 Spain 79, 92, 133 state-corporate relations 171, 179 and climate change 150–153 complicity in illegal acts 71–73, 96–97, 99–100, 105

corporate power and 1, 24, 60, 94, 115, 129–132, 145 during elections 145–146 and retreat of state power 145–147 states as business facilitators 147 citizens of see citizenship “equality of” 82–83 responsibilities of 63–64, 66–67, 79–83, 134, 149–150 Stephens, Beth 6, 7 Stiglitz, Joseph 132–133, 134, 139, 140, 141 structural violence 40, 43 Sultan, Charles 87, 88, 94–95 supranationalism 84–85, 164–166, 179–180 EU and 165–166, 179 and federalism 165–166 international law/UN and 164–165 Syngenta 116, 124 Taliban 76 Talmon, Stefan 72, 73 Tangney, Patrick 164–166, 168, 169 TCDD (dioxin) 97, 98–99, 101, 103 ter Meer, Fritz 128, 129 terrorism 74, 145, 178 Texaco 32–33, 34, 137 Tobacco Control, Framework Convention on (2005) 48, 58, 111 tobacco industry 44–48, 110, 111 challenges to regulations by 44–45 in developing counries 28, 48 and environmental/chemical exposure 45–47 and freedom of expression/right to life 47–48 Toronto (Canada) 29 tort 10, 15, 60, 111, 134, 139 torture 50, 71, 74, 75–79, 160 Bybee memo on 78–79 Convention Against (CAT) 76 as “enhanced interrogation” 77–79 Toth, Janos 126–127 Toxic Trespass (film, GoldinRosenberg) 29, 50 trade unions 49, 106 Trail Smelter Arbitration 135, 136, 148 Tucker, Eric 106 Tunisia 133 Union Carbide disaster (India) 34, 51, 54, 135, 152 United Nations (UN) 7, 82–83, 134, 146, 169, 176–177, 180

204

index

Charter 82, 159, 178 citizenship and 173 Declaration of Human Rights 26, 49, 145 Environment Programme (UNEP) 40 Global Compact (GI) 48–49, 62 Guiding Principles on Business and Human Rights (2011) 89 Human Rights Commission 36, 64 Sub-Commission on Promotion and Protection of Human Rights 62 US and 82, 99, 160, 176 United States (US) 35, 62, 132–139, 168–171, 174 Agricuture Dept (USDA) 96–97, 157 ALEC (American Legislative Exchange Council) 155–156 Alien Tort Claims Act (ATCA) 32, 63, 134, 137–139 animal rights in 44 and Central/South America 7 climate change and 148–149, 150 corporate power in 2, 143 diet in 40, 42, 43 Enron scandal in 91 Environmental Protection Agency (EPA) 98, 151, 154, 156 and EU 119–120, 123, 125 GM products/biotech in 92, 94, 125, 128 impunity of corporations in 73–74 indifference to right to life in 157–160 indigenous people in 51–53, 60, 154 inequality in 132–133 inheritance rights in 19–20 and Israel 72, 81 lobby system in 1, 28, 58, 94 pesticides in 93 precautionary principle in 119–120 prosecution of war crimes in 104 public health in 29 public/private transport in 57, 153 Radiation Exposure Compensation Act (1990) 52–53 social democracy in 146 sovereignty/sovereign immunity of 100, 101, 165, 166, 168–169 strikes in 85 Supreme Court 12, 14, 20, 151–152, 155–156 and UN 82, 99, 160, 176 uranium mining in 51–53

in Vietnam see Vietnam War Wall Street 74 United States v. Carolene Prod. Co. (1938) 18 US Constitution “dual” 84–85 First Amendment 22 Fourteenth Amendment 6, 9–10, 12, 20, 23–24, 84 “human life amendments” to 15 uranium 51–54, 97 “spent” 53–54 Vietnam War 97, 98–101, 102, 163 Operation Ranch Hand 98, 102, 103 Vines Crist, Juliana 21, 22–23 vitamins 118, 128 von Trotha, Gen. Lothar 102, 103 Wal-Mart 51, 61, 67 and organic industry 157 war 2, 41, 54, 74, 143 use of chemicals in 97, 98–101 use of drones in 157–159 war crimes 2, 3, 68, 103–104, 112, 165 war on terror 74, 75, 76–79, 168 Warren, Mary-Ann 16 water 34, 36, 40, 42, 141, 151, 153, 154 waste 42, 43, 98, 141 see also waste water waterboarding 77 weapons industry 54, 72, 97 Weiler, J.H. 117, 166, 167 Weinstein, Judge 100 West, Leigh 30 Westfall, David 15, 16–17, 18 Westra, Richard 50, 146 Westray mine disaster (Canada) 105–106 WHO (World Health Organization) 33, 42, 45, 56–57, 58, 93, 111 Wiessner, Siegfrid 35 Williams, Glanville 136 Windsor (Canada) 29–30 women/women’s rights 10, 16, 17–18, 63, 165, 178–179 Wood, Mary Christina 153, 154 workers complicity of 54 and criminality of corporations 104–109 and direct/indirect harm 108, 109–111 migrant 50 and relocation of MNCs 50–51 rights of 49–54

index205 rights, abuses of 50–54 working conditions/health of 26, 28, 89, 105 World Bank 124, 141, 146, 165 World Health Organization see WHO World War II 6 see also Nazi Germany

WTO (World Trade Organization) 28, 33, 92, 119, 123, 125, 138, 143, 162, 165, 169, 173, 179 Zambrano, Judge 34 Zubaydah, Abu 77 Zyklon B 128, 157, 179