It is a pleasure to welcome my colleague Dr David Keane as the first guest poster on ‘Rights as Usual’. David is the author of Caste-based Discrimination in International Human Rights Law (Ashgate, 2007). This post is his.
A wave of ‘radialisation’ in India, or the manufacture of tyres using the radial design, led the French tyre company Michelin to start building a plant near the village of Thervoy Kandigai, in the Tamil Nadu state of India in November 2009. The subsequent two years have seen widespread protest at the destruction and degradation to the forest and surrounding environment being caused by the plant’s construction, culminating in the recent joint complaint from French and Indian NGOs to the French OECD National Contact Point for violation of the rights of the community.
The complainants, including Sherpa, CCFD-Terre Solidaire and the Tamil Nadu Land Rights Federation, argue that the creation of the industrial zone has led to the destruction of the 450 hectares of forest that is a source of agricultural and pastoral activities, with the area leased to Michelin situated on a major drainage basin that supplies three natural lakes with major sources of water for agriculture in the area. In addition: “the local authorities have made available these lands to the company without any prior consultation with the local villagers, a mainly Dalit (Untouchables, according to the Indian caste system) community who has been living there for over two hundred years.”
The caste angle has been raised in media commentary on the question. Thus Radio France Internationale reports “Indian ‘untouchables’ threatened by Michelin tyre factory” in their headline, while Rainforest Rescue similarly proclaim their support for “No Michelin Factory in the Forest of the ‘Untouchables’”. The industry commentator Tyre Press explains that the NGOs are accusing the tyre maker of “not taking the needs and heritage of the local Dalit people – better known to the world as the Untouchable caste – into adequate consideration”.
The Hindu caste system is notoriously complex, and this is reflected in its changing nomenclatures. However the word ‘untouchable’ is no longer acceptable, and has not been for some time now. The group in question are Dalits, a Hindi term meaning ‘the oppressed’, which has been used since the 1970s to categorise those at the bottom of the Hindu caste structure, said to be some 3000 years old. Thus the context of the protest against Michelin is historically and religiously entrenched discrimination against Dalits, despite the abolition of caste-based discrimination in the 1950 Indian Constitution including the outlawing of the practice of ‘untouchability’ in its Article 17.
The right to free, prior and informed consent, the principle that a community has the right to give or withhold its consent to proposed projects that may affect the lands they customarily own, has been accepted as being requisite for development on indigenous peoples’ land, being an integral concept in the UN Declaration on the Rights of Indigenous Peoples. As noted by the Forest Peoples Programme, it is thus a key principle of international law between investors, companies or governments and indigenous peoples prior to the development.
However the villagers of Thervoy Kandigai probably cannot be categorised as ‘indigenous peoples’; and the right to free, prior and informed consent in international law does not extend to communities which are not indigenous. In India, the Constitution has two categories; Scheduled Castes, or Dalits, and Scheduled Tribes, or indigenous peoples. The distinction is not always a straight-forward one. But traditionally, Dalits or low castes are not considered indigenous. The debate therefore is to what extent Dalit or any other community has a right of consent over projects affecting them and their lands. At present, in Tamil Nadu state, that right is non-existent.
Michelin appears not to have engaged the local community. Its own website notes how “Michelin Group and Tamil Nadu government signed a Memorandum of Understanding (MoU) for Michelin’s tyre manufacturing plant”, with no mention of community representatives or involvement.
An interesting study by Sudharsan notes how the grazing land around Thervoy Kandigai village has been a common property resource for hundreds of years. He writes that “there are state governments which have decided that no major project will be undertaken without extensive consultations with the people who will be affected and even making it mandatory for each Village Grama Sabha to give their approval”, and asks: “why cannot the same apply in Tamil Nadu?”
Sudharsan signals that the issue of forcible common property resources acquisition is resulting in unprecedented repression, evident in the spate of protests and arrests around the Michelin plant. He warns of “a grave civil war type of situation in the villages”, without legislative protection of individual and communal rights over natural resources and common property.
If Michelin believes itself to be a responsible company, it is apparent that it should implement a policy of effective consultation with people affected by its major projects.
Dr David Keane, Senior Lecturer, Middlesex University School of Law
On 6 July, the Caribbean Court of Justice (CCJ) delivered a judgment in favour of six migrant banana workers involved in union activities against Mayan King Limited, a company that owns citrus and banana farms, in an appeal coming from Belize brought by the company. The Caribbean Court of Justice is a shared final court of appeal for currently three Commonwealth Caribbean countries: Barbados, Guyana and Belize. Jamaica is probably the next country of the region that will stop sending their appeals to the London-based Privy Council and switch to the CCJ as well. In a forthcoming article in Public Law (October 2012) I have conducted a human rights assessment of the Court and concluded that its very creation constitutes a positive step towards better access to justice in the region. This straightforward judgment against Mayan King, delivered by the Honourable Mr Justice Saunders, shows once again the key role superior courts can play in protecting the rights of vulnerable groups.
The judgment addresses three main points.
First, an evidentiary point: the company argued that these workers were fired because of poor performance at a time when a larger group of workers were also laid off on financial grounds, while the six claimants contented that it was because of their leading role in unionizing the workers. The Court recognised the difficulties inherent in proving such facts in these terms:
 It seems to us (…) to be somewhat naïve to expect (…) that in cases of this kind there will always be found a “smoking gun”. These cases are (…) more often than not established on the basis of reasonable inferences and here, there was ample scope for the trial judge to draw such inferences from the evidence that was led.
It concluded as follows:
 If indeed a smoking gun has to be found in this case then one can perhaps find it in the open admission by Management that at least some of the claimants were dismissed because they were “distracted” by their union activities. It seems to us that in light of the provisions of the [Trade Unions and Employers Organisations (Registration, Recognition and Status)] Act, unless one can provide positive evidence that union activity is seriously interfering with a worker’s job performance, it is a contravention of the Act merely to adduce as a legitimate reason for dismissing a worker the circumstance that the worker is “being distracted by union activity”. The Act was passed precisely to allow workers to engage in union activity without fear of dismissal solely on account of being so “distracted”.
 The printed evidence on its face, even without the benefit of seeing and hearing the witnesses, compels one to agree with the trial judge that there was cogent evidence against the company.
The second aspect of the judgement concerns the sum awarded to the workers in damages. The trial judge had awarded $70,000 to each worker, while the Court of Appeal of Belize brought this sum down to $30,000, covering both the loss of salary and lump sum in compensation. An important aspect of the case is that some of the dismissed workers were living on Mayan King’s premises with their families and, on top of losing their jobs, had to promptly vacate their houses, causing additional stress. On this point, the CCJ decided that each worker should be awarded a month salary (three months for one of them) and a lump sum of $15,000. This is in relatively sharp contrast to the award of one year of wages, together with a much higher lump sum, that was decided by the lower courts. The reasoning of the Court is as follows:
 In our view the sum of $30,000 awarded by the Court of Appeal for each litigant is on the high side bearing in mind this is a case purely in the private sector domain. The aim of the award cannot be to enrich unjustly or arbitrarily a claimant with a bountiful windfall. Further, the degree of reprehensibility of the defendant’s misconduct is to be considered more for its impact on the victim bearing in mind that the function of the civil law is ordinarily not to punish the defendant.
 In fixing a figure to represent general damages a court must strive to avoid giving a sum that is simply too high or one that is just too low. There is no formula for reaching a precise figure between these extremes. (…) Having considered that $30,000 is too high and bearing in mind the character of the employment, we think that, given the circumstances of this case, the sum of $15,000 is just and equitable for the wrong done to them.
It is of interest that the Court decided not to punish the company too severely and to carefully explain its reasons for settling on this figure. As noted above, civil law is about compensation for an actual damage suffered and not about punishment. The workers’ lawyer expressed disappointment at the award being lowered but also pointed out to the press that the case was never about making money but about the recognition of the right to unionise.
The third point had to do with the company’s contending that the first instance trial had not been fair due to the delay (almost 5 years) in rendering a first judgement. This argument is swiftly dismissed in the CCJ’s judgement. The delay was nevertheless termed “unacceptable” by the dissenting judge, the Honourable Mr Justice Nelson ().
This judgment is interesting from the point of view of business and human rights because of the potential for further cases coming from Guyana and Belize in relation not only to fruit but also mining and logging companies. In both countries there are significant numbers of migrant workers and indigenous peoples, both groups being usually in vulnerable positions and particularly impacted by multinational corporations’ operations. In Belize, the Supreme Court decided two cases asserting Maya land rights in 2007 and 2010, prior to the switch from the Privy Council to the CCJ. In both cases the Supreme Court referred to the Inter-American Commission case Maya Indigenous Communities of the Toledo District v Belize of 2004 in forming its opinion on the existence of indigenous land rights and whether they are protected under the Constitution of Belize. No doubt such questions will eventually reach the Caribbean Court of Justice.
In May this year at Middlesex we organised the screening of Bhopali, a powerful film on the terrible consequences of the explosion of the Union Carbide factory in December 1984 in Bhopal, India.
On Sunday I will be running the London 10K, raising money for the Bhopal Medical Appeal, a charity that helps alleviate the suffering of the tens of thousands of people maimed by exposure to toxins released from the former pesticides factory. The main focus of the Bhopal Medical Appeal is to provide medical support to survivors and their children, many of whom were born with disabilities. Their work is simply necessary, so please donate if you can. It is safe and you will not get spammed.
The Bhopal disaster has come to the fore in an unexpected way this year when it was announced that Dow Chemicals, the company that now owns Union Carbide, is an official sponsor of the 2012 London Olympics. Together with the London Mining Network and UK Tar Sands Network, the Bhopal Medical Appeal launched Greenwash Gold 2012, a campaign to raise awareness on the lack of accountability of corporations in the human rights sphere. After watching short videos, you can vote for your favourite “dodgy company”: Rio Tinto, BP or Dow.
The legal cases both in India and in the United States around the Bhopal disaster are extraordinarily complex, mix civil and criminal law and have been going on for decades. Here is an excellent, though unfortunately not updated, summary. The latest news came a few days ago with yet another dismissed claim. In short, the probability of Dow’s properly compensating victims of the disaster is very low, which means that the help provided by charities such as the Bhopal Medical Appeal is still needed.