The Private Life of Environmental Treaties

Natasha A. Affolder

doi:10.1017/S0002930000019953

1 Traditional accounts of treaty implementation focus on treaty implementation by nation-states. See, e.g., Redgwell, Catherine National Implementation, in The Oxford Handbook of International Environmental Law 922 (Bodansky, Daniel Jutta, Brunnée & Hey, Ellen eds., 2007)Google Scholar. Scholars of transnational legal process equally articulate how treaty norms are internalized into national domestic structures. Harold Hongju, Koh Transnational Legal Process, 75 Neb. L. Rev. 181 (1996)Google Scholar; Harold Hongju, Koh Why Do Nations Obey International Lawi 106 Yale L.J. 2599 (1997).Google Scholar

2 Treaty compliance traditionally denotes the degree to which states parties are fulfilling their obligations under a treaty. As nonparties, corporations arguably do not have obligations with which to comply, yet corporations have appropriated the term “compliance” for treaties. I use the term “treaty performance” in this essay to acknowledge that nonparties may also attempt to conform their behavior to environmental treaty requirements.

3 Convention for the Protection of the World Cultural and Natural Heritage, Nov. 16,1972,27 UST 37, 1037 UNTS 151 [hereinafter World Heritage Convention].

4 See, e.g., Morgera, Elisa Corporate Accountability in International Environmental Law (2009)CrossRef Google Scholar; The New Corporate Accountability (McBarnet, Doreen Voiculescu, Aurora & Campbell, Tom eds., 2007).Google Scholar

5 See, e.g., Ruggie, John Gerard Business and Human Rights: The Evolving International Agenda, 101 AJIL 819 (2007)Google Scholar; Weissbrodt, David International Standard-Setting on the Human Rights Responsibilities of Businesses, 26 Berkeley J. Int’l L. 373 (2008).Google Scholar

6 These corporations were selected on the basis of the Forbes Global 2000 list of the world’s largest public companies by sector (April 2008 rankings). Firm-specific results were further cross-referenced with a general search of corporate disclosures for all companies filed with the SEC between the years 1998 and 2008 that referenced “World Heritage.” This search of LEXIS, EDGAR Online used the search term “World Heritage” and the date restriction of July 1, 1998-July 1, 2008. The search yielded 139 such documents, 112 of which were filed by mining or oil and gas companies. This result confirms the significance of oil and gas and mining industry interactions with the World Heritage Convention compared with those of other corporate sectors.

7 The PriceWaterhouseCoopers 2009 review of global trends in the mining industry states that the four largest global mining companies by revenue (BHP Billiton, Rio Tinto, Vale, and Xstrata) account for 51 percent of the total revenue of the forty largest global mining companies. Pricewaterhousecoopers, Mine—When the Going Gets Tough ... 7 (2009),available at http://www.pwc.co.uk/pdf/mine_when_the_going-gets_tough.pdf.Google Scholar

8 In voting against Recommendation 2.82 (popularly known as the “Amman Declaration”) at the 2000 World Conservation Congress, the United States made a formal Statement for the Record outlining its opposition based on the premise that “[m]ining policy is an internal matter for sovereign states.” Jones, Tim International Union for Conservation of Nature and Natural Resources, Union Internationale Pour la Conservation De La Nature et De Ses Ressources, Proceedings, World Conservation Congress, 4-11 October 2000, Amman, Jordan, para. 2.82 (2001).Google Scholar

9 Recommendation 2.82, Protection and Conservation of Biological Diversity of Protected Areas from the Negative Impacts of Mining and Exploration, IUCN Second World Conservation Congress, Resolutions 89 (Oct. 4-11, 2000), in [untitled], at http://cmsdata.iucn.org/downloads/resolutions_recommendation_en.pdf (only some individual documents in this pdf source are paginated, but the resolution appears on its p. 540) [Amman Declaration] .

10 For examples of state facilitation of mining in protected areas, see Bishop, Kevin Dudley, Nigel Phillips, Adrian & Stolton, Sue Speaking a Common Language: The Uses and Performance of the IUCN System of Management Categories for Protected Areas 152-53 (2004)Google Scholar [hereinafter Bishop ET AL.].

11 World Heritage Convention, States Parties: Ratification Status (Apr. 16, 2009), at http://whc.unesco.org/en/statesparties/.Google Scholar

12 World Heritage Convention, supra note 3, Art. 4.

13 Miranda, Marta et al., Mining and Critical Ecosystems: Mapping the Risks 17 (2003).Google Scholar

14 The Arabian Oryx Sanctuary in Oman was deleted from the World Heritage List in 2007. Decision 31 COM 7B. 11, para. 13, World Heritage Committee, Decisions Adopted by the Thirty-first Session of the World Heritage Committee 50, 51, WHC-07/31.COM/24 (July 2, 2007) [hereinafter WH Comm. 2007 Report], Decisions of the committee are available online at http://whc.unesco.org/en/statutorydoc/.

15 The World Heritage Committee has voiced concern about the impact of mining projects on Yellowstone National Park (U.S.), Kakadu National Park (Australia), and Jasper National Park (Canada). See Affolder, Natasha Miningandthe World Heritage Convention: Democratic Legitimacy and Treaty Compliance, 24 Pace Envtl. L. Rev. 35 (2007).Google Scholar At its June 2009 meeting in Seville, the World Heritage Committee noted with concern the possible threat to the outstanding universal value of the Waterton-Glacier International Peace Park World Heritage Site posed by potential mining operations in the Flathead Valley in British Columbia. Dec. 33 COM 7B.22, World Heritage Comm., Decisions Adopted by the Thirty-third Session of the World Heritage Committee 71,72, WHC- 09/33.COM/20 (July 20, 2009).

16 Illegal mining continues to plague the World Heritage sites in the Democratic Republic of the Congo. See Dec. 30 COM 7A.6, para. 4(a), & 7A.8, para. 6(b), World Heritage Comm., Decisions Adopted by the Thirtieth Session of the World Heritage Committee 16-17, 19, WHC-06/30.COM/19 (Aug. 23, 2006).

17 These initiatives include a major, industry-led review of sustainability issues affecting the mining industry and a dialogue between the IUCN and the International Council on Mining and Metals on mining and biodiversity. International Institute for Environment and Development, Breaking New Ground: Mining, Minerals and Sustainable Development (2002)Google Scholar; IUCN ET AL., Proceedings of the Technical Workshop on World Heritage and Mining, Gland, Switzerland (Sept. 21-23, 2000) (2001).Google Scholar

18 International Council on Mining and Metals, Position Statement: Mining and Protected Areas, Commitment 2 (Aug. 20, 2003), at http://www.icmm.com/document/43.Google Scholar

19 Id., Recognition Statement 7.

20 Id., Recognition Statement 10.

21 The Energy and Biodiversity Initiative (EBI), at http://www.theebi.org/. Although the EBI ceased operating in 2007, its Web site remained accessible at the time of this publication in July 2009.

22 The companies are BP, ChevronTexaco, Shell, and Statoil.

23 The organizations are the Center for Environmental Leadership in Business, Conservation International, Fauna and Flora International, the IUCN, the Nature Conservancy, and the Smithsonian Institute.

24 EBI, Framework for Integrating Biodiversity into the Site Selection Process 16, available at http://www.theebi.org/pdfs/selection.pdf Google Scholar (“Whether industrial activities are allowed in a World Heritage site depends on the legal and administrative structures relevant to the site, such as national legislation, any regional or local regulations and the site management plan. But generally speaking, industrial activities are viewed by the Convention as incompatible with World Heritage status and mining is specifically named as an activity that may lead to a natural or mixed World Heritage site being listed ‘in danger’ (July 2002 Operational Guidelines). Therefore, avoiding World Heritage sites would be the best option in terms of easier reputation management. . . .”).

25 Id. at 10 (emphasis added).

26 Id. at 16.

27 The companies are Alcoa, Anglo American, Barrick Gold, BHP Billiton, Freeport Copper, Mitsubishi Materials, Rio Tinto, Sumitomo Metal Mining, Teck Comineo, Vale, and Xstrata. These companies are either original signatories to the 2003 ICMM pledge or have since become members of the ICMM, and are thus committed to complying with the ICMM position statement.

28 Shell, The Shell Report 2003, at 14, available at http://www.shell.com/static/gr-el/downloads/climate_change/shell_report_2003.pdf Google Scholar.

29 Fowler, Jonathan Shell Chief: Protected Sites “No-Go” Zone for Oil, Gas Prospecting, AP Worldstream, Aug. 27, 2003, available in Lexis Academic.Google Scholar

30 India, Cairn Environmental and Social Review Summary (Sept. 26 , 2006), at http://www.ifc.org/ifcext/spiwebsite 1.nsf/DocsByUNIDForPrint/2D345F7A6F0A3A73852571F50067DA2D?opendocument.Google Scholar

31 Cairn Energy Takes Drill to Nepal, BBC Online, Aug. 12, 2004, at http://news.bbc.co.uk/2/hi/business/3557996.stm.Google Scholar

32 Amendment Agreement dated as of July 3, 2007, in respect of the Credit Agreement dated as of March 19, 2007, among Freeport-McMoran Copper & Gold, Inc., the Lenders party thereto, the Issuing Banks party thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent and as Collateral Agent, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Syndication Agent §5.10 (filed July 11,2007) (emphasis added), available in Lexis, Edgar Online File. Schedule 5.1 OB reproduces the ICMM position statement.

33 For example, Energy Resources of Australia (which is partially owned by Rio Tinto) discloses that its Ranger open-pit mine and Jabiluka mineral lease in Australia “are surrounded by, but remain separate from, World Heritage listed Kakadu National Park, and especially stringent environmental requirements and governmental over-sight apply.” Tinto, Rio 2006 Annual Report and Financial Statements 18, available at http://www.riotinto.com/documents/Financial Res ults/riotinto_2006_annualreport.pdf.Google Scholar

34 Newmont Mining, Data Sheets (2006), at http://www.beyondthemine.com/2006/?l=2&pid=5&parent= 20&id=358 Google Scholar (disclosing no acres owned or operated within World Heritage sites).

35 Barrick Gold, Corp., Biodiversity Management and Protection (2007), at http://www.barrick.com/default.aspx.?Sectionld=5fl 87b4e-b5a1-4597-895d-c43041a753f7&LanguageId = 1.Google Scholar

36 Gold Fields, Sustainable Development Report 2003, at http://www.goldfields.co.za/reports/annual_report_ 2003/sd_03/perfomance/enviro_perf.htm Google Scholar.

37 BHP Billiton was created in 2001 by the merger of the Australia-based Broken Hill Proprietary Co. (BHP) and the United Kingdom-based Billiton.

38 See Oxfam Australia, Mining Ombudsman Annual Report2004, at 9, at http://www.oxfam.org.au/campaigns/mining/.Google Scholar

39 BHP Billiton, Questions from SharehoUers 4 (2004), at http://www.bhpbilliton.com/bbContentReposirory/Events/QuestionsfromShareholders.pdf Google Scholar; see also BHP Billiton, Health Safety Environment and Community Report 130 (2004), available at http://www.bhpbilliton.com/bbContentRepository/Reports/bhpb_full_hsec_report_04.pdf Google Scholar [hereinafter BHP Billiton HSE Report],

40 BHP, Environment and Community Report 2000, at 63, at http://www.bhpbilliton.com/bb ContentRepository/Reports/BHPEnvCommReport2000.pdf.Google Scholar

41 BHP Billiton, Pilbara LNG Project: Site Selection Study 18, 30, 31 (May 2003), at http://www.bhpbilliton.com/bbContentRepository/docs/OurBusiness/Petroleum/PilbaraReport.pdf.Google Scholar

42 Barrett, Kate & Yun, Linda BP, Cruise Lines Make Business Decisions with Earth in Mind (Feb. 26, 2007), at http://www.conservation.org/FMG/Articles/Pages/BP_cruises_business_caribbean.aspx.Google Scholar

43 For example, Energy Resources of Australia “recognises that the natural and cultural values of the company’s mineral leases and the surrounding World Heritage-listed Kakadu National Park must continue to be protected,” and bases a number of environmental commitments on this policy. Energy Resources of Australia, Ltd., Social and Environmental Report 15 (2005), at http://energyres.com.au/media_centre/reports/.Google Scholar

44 For example, WestLB announced in December 2008 that it would not renew its agreement to finance the controversial gold mine at Toka Tindung in Indonesia. The bank was subject to a high-profile campaign against the project led by a German NGO. The proposed project would involve open-pit mines in an area close to a proposed World Heritage site. Helmer, John Another Miner Going Nowhere in Indonesia, ASIA Times Online, Apr. 4, 2008, at http://www.atimes.com/atimes/Southeast_Asia/JD04Ae01.html.Google Scholar

45 See, for example, HSBC Holdings’ Energy Sector Policy, published in 2006, which prohibits the provision of financial services for operations in World Heritage sites. HSBC Holdings Plc, 2006 Corporate Responsibility Report 18, at http://www.hsbc.com/l/PA_l_l_S5/content/assets/csr/2006_hsbc_cr_report.pdf.Google Scholar

46 HSBC Holdings, JP Morgan Chase, Wachovia, and Royal Bank of Canada. This calculation of size is based on the Forbes 2000 list of the world’s biggest companies, by sector. Using 2008 figures, I measured size by the composite value of sales, assets, profits, and market value.

47 Sachs, Goldman Goldman Sachs Environmental Policy Framework 6, at http://www2.goldmansachs.com/citizenship/environment/index.html.Google Scholar

48 UNEP FI Australasian Advisory Committee on Insurance, Risk, the Environment and the Role of the Insurance Industry 7 (Jan. 2003).Google Scholar

49 OPIC, OPIC Environmental Handbook 8 (Feb. 2004), available at http://www.opic.gov/doing-business/investment/environment/.Google Scholar

50 For example, Russian and U.S. environmental groups pressured OPIC to deny investment finance and insurance for the Aginskoe gold-mining project near the Volcanoes of Kamchatka World Heritage Site in Russia. Berne Declaration-Switzerland, et al., A Race to the Bottom: Creating Risk, Generating Debt and Guaranteeing Environmental Destruction 11-12, Mar. 1999, at http://www.edf.org/documents/480_ecareport.pdf.Google Scholar

51 See Exxon Mobil Corp., Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934, item 8 (May 25, 2005 Google Scholar), available in Lexis, Edgar Online File.

52 Special Resolution 17, in BP p.l.c., Notice of Meeting: Annual General Meeting2004, at 3, available at http://www.bp.com/ Google Scholar; Green Century Funds et al., Drilling in Protected/Sensitive Areas (2005), at http://www.iccr.org/shareholder/proxy_book05/05statuschart.php (Conoco Phillips).Google Scholar

53 See Shareholder resolution [on operations in protected and sensitive areas], in Citistreet Funds, Inc., Annual Report [to SEC] of Proxy Voting Record of Registered Management (2004); and in Loomis Sayles Funds II, Annual Report [to SEC] of Proxy Voting Record of Registered Management Investment Company (June 30,2004), both available in Lexis, Edgar Online File.

54 The committee consists of twenty-one elected states parties and is the key decision-making body of the Convention regime. The bureau coordinates the work of the committee. It consists of seven states parties elected annually by the committee, a chairperson, five vice chairpersons, and a rapporteur. The IUCN has special status under the Convention as an advisory body, and routinely provides information and advice to the bureau and the committee.

55 Coltan Mining Threatens the Congo, ARBOR VITAE (IUCN/WWF Forest Conservation Newsletter), Mar. 19, 2001, at 11.Google Scholar

56 See Bishop ET AL., supra note 10, at 155.

57 Conserving Biodiversity Is a Business Opportunity, Say IUCN and Shell, Shell News and Media Release (Mar. 27, 2008), at http://www.shell.com/.

58 World Heritage Comm., Report of the Twenty-fifth Session (2001), Annex IX, at 111,111-12, paras. 111.44, 111.49, WHC-01/CONF.208/24 (2002) [hereinafter WH Comm. 2001 Report].

59 Dec. 31 COM 7B.9, para. 5, WH Comm. 2007 Report, supra note 14, at 49, 50.

60 Dec. 31 COM 7A.4 & 7A.5, id. at 11,12. The parks in issue, both World Heritage sites, are the Kahuzi-Biega and Virunga National Parks.

61 Dec. 31 COM 7A.4, supra note 60, para. 8, & 7A.5, supra note 60, para. 11, id. at 11, 13.

62 See Dec. 31 COM 7A.3, paras. 5-7, id. at 9, 9.

63 Mount Nimba Strict Nature Reserve, para. VIII.38, WH Comm. 2001 Report, supra note 58, at 20, 21.

64 Walde, Thomas W. International Standards: A Professional Challenge for Natural Resources & Energy Lawyers, in International and Comparative Mineral Law and Policy 219, 221 (Bastida, Elizabeth Thomas, Wälde & Janeth, Warden-Fernández eds., 2005)Google Scholar (“Natural resources and energy are perhaps more sensitive to modern global standards. These industries are among the most globalised industries, but also the most politically vulnerable ones. The industry social and political ‘license to operate’ depends to an increasing degree on compliance with such standards.”).

65 “EBI, supra note 24, at 10.

66 The 2006 Companies Act in Britain, for example, introduced a requirement of social and environmental reporting for public companies. Companies Act, 2006, c. 46, §417 (Eng.). In Canada, the Ontario Securities Commission has called for more robust environmental reporting. OSC Staff Notice 51-716, Environmental Reporting (Feb. 29, 2008), available at http://www.osc.gov.on.ca/Regulation/Rulemaking/Current/Part5/sn_20080229_51-716_enviro-rpt.pdf.

67 Sir Philip Watts, chairman of Shell’s Committee of Managing Directors, explains: “The clear systems, rules and processes which support these sites provide a strong model of good practice and I hope that this kind of clarity can be developed for other protected areas.” UN News Centre, UNESCO Welcomes Shell’s Pledge Not to Seek Oil or Gas in World Heritage Sites (Aug. 27, 2003), available at http://www.un.org/apps/news/printnewsAr.asp?nid=8084 Google Scholar. On the ICMM position statement, see text at notes 18-20 supra.

68 These companies are Alcoa, Anglo American, BHP Billiton, Freeport Copper, Rio Tinto, and Xstrata.

69 The exception is Brazil-based Vale. In 2007 Vale acquired Inco, a large Canadian subsidiary.

70 Two of these banks are in the United States (JPMorgan Chase and Wachovia), one is in the United Kingdom (HSBC Holdings), and one is in Canada (Royal Bank of Canada).

71 See text at note 18 supra.

72 See, e.g., Vale, Sustainability Report 2007, available at http://www.vale.com/.Google Scholar

73 BHP Billiton, HSE Report, supra note 39, at 18.

74 Wood, Ian BHP Billiton: Environmental Considerations in Gaining and Maintaining Our Licence to Operate 22 (June 15, 2007), at http://www.bhpbilliton.com/bbContentRepository/acsiPresentationJune2007.pdf.Google Scholar

75 BHP Billiton, Hay Point Services HSEC Report 2002, at 2, available at http://www.bhpbilliton.com/bbContentRepository/Reports/HayPoint2002PublicHSECReport.pdf.Google Scholar

76 E.g., Xstrata, Sustainability Report 2008, at 64, available at http://www.xstrata.com/assets/pdf/x_sustainability_2008.pdf.Google Scholar

77 Id.

78 Alcoa, 2007 Sustainability Highlights 18, available at http://www.alcoa.com/.Google Scholar

79 The national nomination of World Heritage sites can already be fiercely contentious. In Australia, the contested Daintree rain forest nomination led to litigation between the Commonwealth and Queensland. Acrimony over the nomination of the Tasmanian Dam and Tasmanian Wilderness area became a federal election issue in the 1983 federal election. Boer, Ben & Wlffen, Graeme Heritage Law in Australia 91–103 (2006).Google Scholar

80 Mining Watch, World Heritage Site Application for New Caledonia Reefs Cancelled (Sept. 18, 2002), at http://www.miningwatch.ca/index.phpP/New_Caledonia/World_Heritage_Site_.Google Scholar

81 See generally Private Authority and International Affairs (a. Cutler, Claire Haufler, Virginia & Porter, Tony eds., 1999).Google Scholar

82 Edith Brown Weiss observes: “In international environmental law, the most important development for the next century may be the emerging interaction of intergovernmental environmental law with transnational environmental law developed primarily by the private sector and by institutions such as the International Standards Organization. . . .” Edith Brown, Weiss The Rise or the Fall ofInternational Law? 69 Fordham L. Rev. 345, 353 (2000).Google Scholar

83 See UN Global Compact, at http://www.unglobalcompact.org Google Scholar; The Global Reporting Initiative, at http://www.globalreporting.org/Home.Google Scholar

84 The standards are expected to be published in 2010. International Organization for Standardization, Guidance on Social Responsibility, ISO/TMB/WG SR N55, ISO/WD 26000 (Mar. 28, 2006), available at http://inni.pacinst.org/inni/corporate_social_responsibility/N055WDl_26000.pdf.Google Scholar

85 See Abbott, Kenneth W. & Snidal, Duncan Strengthening International Regulation Through Transnational New Governance: Overcoming the Orchestration Deficit, 42 Vand. J. Transnat’l L. 501, 505 (2009).Google Scholar

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