In April 2019 the UK Supreme Court passed its judgment on a case brought by 1,826 Zambian villagers requesting to bring a case before the English courts against Vedanta Resources Pvt. Ltd. The facts of the case are all too familiar, Vedanta Resources Pvt Ltd a giant mining conglomerate based in the United Kingdom had set up a subsidiary in Zambia to mine copper. The pollution that the victims were subjected to, went unaddressed and in an effort to hold the company accountable a case was filed to try them in the English courts. In the Bhopal Gas case, a similar attempt was made to hold Union Carbide accountable in the U.S courts, which after multiple appeals were rejected based on the Union Carbide settlement in India in 1989.
The decision by the United Kingdom Supreme Court to try the case in the English courts was based on the issue of access to justice. The complainants had argued that they would not be able to afford to bring the case before the Zambian courts as Zambian law does not permit conditional fee agreements and that law firms are not equipped to handle such complex litigation. These barriers to access to justice formed the basis for the decision to try the cases in English courts. In this blog post, I would like to explore the challenges to access to justice based on an analysis of the issues in India and the potential that this judgment poses in expanding jurisdictional boundaries on the grounds of access to justice claims.
Access to Justice and Remedy
Access to justice is a layered concept, it includes access to the judicial and non-judicial grievance redressal avenues. Scholarship on environmental law has paid detailed attention to the issue of access to justice. Many victims of pollution often fail to bring cases before domestic courts due to lack of funding or pro-bono lawyers. I would like to contextualize the challenges to access to justice by referring to the Indian context. In India, the access to justice problem was addressed by the expansion of locus standi and the introduction of Public Interest Litigation (PILs). This has become the dominant route for bringing cases before the high courts and the Supreme Court on environmental matters. While PILs have opened the courts to local communities impacted by these cases, mounting a case is expensive and resources remain scarce. Further, PILs filed by powerful actors like conservationists for instance in India undermine claims for justice and rights by local communities. In India, a recent PIL by conservation groups has resulted in an interim order calling for the eviction of forest-dwelling communities. Access to resources shapes the kind of cases that eventually make their way into the courts. In India, similar to Zambia conditional fee agreements are not part of the practice of environmental law. Reliance is thus placed on pro-bono lawyers who are often starved for time and other resources. Not to suggest that pro-bono lawyering has not been active in India but to rather suggest that the pressure on these lawyers is severe given the number of cases that need to be fought.
In environmental cases, I argue that the legal architecture of access to justice forms only a part of the problem. In developing countries like India and Zambia, the challenge is also for local communities to assert rights in a political economy dependent on extraction and deregulation of the environmental standards. In India, when Vedanta Resources Pvt. Ltd was stated to acquire land in Niyamgiri, Odisha. The Dongria Kondh community had refused to consent to such acquisition on the grounds that it is sacred to this Indigenous community. While the Indian Supreme Court recognized the right of the village assembly to decide on the acquisition of forest land, it must be remembered that the decision was likely to be challenged by the state-owned Odisha Mining Corporation. Where the economic priorities that transform the state into a facilitator of industries as opposed to a regulator. It becomes difficult to realize justice in such circumstances. Access to justice thus needs to be situated within the frame of the political economy of development of the region. This judgment opens up an avenue for local community members to challenge violations of domestic law in another jurisdiction based on differing legal standards which offer an additional layer of scrutiny. By acknowledging access to justice as a jurisdictional hook, it offers an alternative argument to bring a case before the home country of the Multinational company.
The Question of Jurisdiction
Scholars have long argued about the governance gap between the home state legal obligations and the host state in which the MNC is operating. The question of jurisdiction tilts this argument by holding the MNC accountable in their home state resolves the governance gap. Implicit in this assumption is that the legal standards of the home state will be higher than the host state. The opening up of the jurisdictional straightjacket offers communities an avenue to hold the MNC accountable in their home terrain. This is unprecedented and allows communities to move beyond struggles located within the governance gap.
Vedanta Resources Pvt.Ltd has been active in India and is responsible for ongoing pollution near their aluminum plant in Lanjgarh Odisha. The local communities have not had respite and complain of water and air pollution. Similarly, In Toothukoodi where Vedanta runs a copper smelter plant, pollution has been a severe problem. In protests against pollution in December 2018, thirteen people were gunned down. Local communities in India and elsewhere challenge companies in difficult and violent circumstances. The ability to shift the conflict onto another jurisdiction might offer an additional lever in their quest for justice.
In environmental claims concerning multinational companies, jurisdiction is often a challenge. The choice of forum determines the potential for justice for local communities. This ties in deeply with the question of access to justice. As communities have limited resources and operate from contexts where the state-corporate nexus is strong, the choice of jurisdiction is key in their quest for justice. This case brings many interesting questions to the fore. An important take away I think is the intersection of the issue of access to justice and expanding the jurisdictional boundaries.