Broader Legal Horizon for Kendeng Communities’ Campaigns for Environmental Rights

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Introduction

This article offers the choices for local communities in the Kendeng Mountain range in Central Java Indonesia to expand their campaign to regain their environmental rights based on experiences from other communities in the world. After showing some quick background of the incoming cement factory in their communities, the nature of the cement extraction, patterns, and liability risks of cement industry, solutions typically sought from other regions, this article would show the possible areas for more extensive campaigns. At the end of this discussion, the article expects to improve the aspects and perspectives of pro-environmental campaigns not only for victims of cement factories but also victims of extractive industries with their notorious destructibility and unsustainability. The single question this article answers is what are the possible venues for plaintiffs or victims of human rights violation or other forms of violation to hold the main extractive corporations' headquarters in the first world countries responsible for the violations committed in their subsidiaries' location in the third world countries? The state-owned cement companies and European-based companies have been planning to build a complex of extractive activities for cement production in some sub-districts on one of five main cities in the Kendeng Mountains ranges (Blora, Rembang, Grobogan, Pati, and Kudus cities). The other question on how to mobilize local courts to be lines of defense for environmental and human rights protection is not discussed in length in this short article.

This article is divided into four parts. The first part will retell the quick background of the Kendeng farming communities and the incoming cement factory. The second part shows the nature of the cement extractive industry. The third part explains the patterns of human rights risks and liability of the industry as well as the solutions already attempted somewhere else around the extractive industries. Then the fourth part would enlist the possible legal horizon for legal rights and human rights campaign activities for the farming communities in the Kendeng Mountains range. 

Nature of Cement Factories

The most strategic but the least known aspect of cement production is the "water footprint" or the calculation of total water consumption of all stages of production (Life Cycle Assessment), which is usually important to assess the sustainability of cement factory in dry regions like Iran. Using a model called Life Cycle Assessment (LCA) developed by Jeswani and Azapagic (2011), Hosseinian and Nezamoleslami (2017) measure the Water Footprint a cement factory located on the western part of Iran (manufacturing Portland cement) producing 1.7 million ton of cement annually. These researchers find its total Water Footprint as 3.614 million cubic meters in 2016 (with water consumption intensity of 2.126 cubic meters of water per ton of cement produced)[1] to indicate the high risk of survival or sustainability of the cement industry in a dry region. This finding indicates a high risk of sustainability of the cement industry in dry regions like Iran (Hosseinian and Nezamoleslami, 2017, p. 23). For illustration, a need of 2,300 cubic meters of water a day by a cement plant in a city is equivalent to a need for daily water for 15,000 to 20,000 residents of the city (Chegreghni 2004). With a simple calculation, this cement plant on the western part of Iran's daily need of water (around 9,901 cubic meters a day) would use a water source that is equivalent to the daily need of 64,000 to 86,000 residents in the nearby city. The double jeopardy of cement production in a rickety karst mountain range like Kendeng Mountain appears when the incoming factories both use the groundwater naturally kept in the environment and extract the materials that build such natural water reservoir.

The most dangerous particle released by a cement plant is mercury (Hg) that is known as a neurotoxin. If released in environment or open-air, metallic mercury might produce symptoms like tremors, emotional changes (such as mood swings, irritability, nervousness, excessive shyness), insomnia, neuromuscular changes (such as weakness, muscle atrophy, twitching), headaches, disturbances in sensations, changes in nerve responses, poor performance on tests of mental function (higher exposures may also cause kidney effects, respiratory failure, and death) (https://www.epa.gov/mercury/health-effects-exposures-mercury). A study by Jong and Tai (2012) measured the mercury (Hg) emissions from cement manufacturing facilities in Korea by measuring the mercury concentration in stack gases from a kiln. The total annual mercury emission directly released in 2012 by the cement industry was estimated to be 1.71 tons, with around 1.17 to 1.53 tons (or 68-89 percent of all emissions) were released directly to the atmosphere (Jong and Tai 2012).

The other least reported and known environmental hazard by cement factories is radiological effects (radiation) due to the concentration of radium-226, thorium-232, and potassium-40 in materials used in cement production. A study by El-Taher et al. (2010) in the Egyptian cement industry showed a rather safe level of radiation (from some 25 materials used in cement production) below the acceptable 370 Bq per kg.[2] This insignificant radiological hazard is still important from the point of view of selecting suitable materials for use in cement manufacture (El-Taher et al. 2010).

The list of potential rights that are violated by extractive industries with sometimes extreme methods of exploitation, which need a comprehensive inter-disciplinary Human Rights Impact Assessments (HRIAs), cover the followings: (1) human rights to water,[3] (2) right to air[4], (3) right to land[5], (4) right to health[6], (5) rights to freedom of assembly and expression (both in Article 11 of Human Rights Act and the European Convention on Human Rights, and Article 21 of the ICCPR), and (6) right to fair trial (in Article 6 of the Human Rights Act, European Convention on Human Rights and Article 14 of ICCPR)[7].

Patterns of Human Rights Liability and Risks

1. Human rights liability

The standard parameters of liability risks born by extractive industries have been reported by Kaeb (2008) as "complicity charges." A typical foreign company operating in foreign soil usually works with host governments to begin and maintain its operation abroad (see also Frynas 2003). The first main allegation of human rights violation usually is the need to incorporate local political contexts or elements in the extraction operation (Kaeb 2008, p. 329). The expected deep frictions among opposing local factions, usually the government officials and local communities, blur the clear line between governmental and corporate responsibility for human rights violations (Kaeb 2008, p. 330 citing Watts, 2005). In the Kendeng Mountains range, for the same reason, two active top cement producers in Indonesia, the Germany-based HeidelbergCement through its subsidiaries, PT Indocement Tunggal Perkasa and PT Sahabat Mulia Sakti in Pati (Keller and Klute 2016) work with the state-owned Semen Indonesia in Rembang. In other words, corporate and governmental interests in the protection of extractive industries’ operation and facilities are intertwined (Kaeb 2008, p. 330). This interdependence works both as the basis of “complicity charge” against MNCs or foreign companies including its local subsidiaries and the reason for “calls” by communities and NGOs for extractive industries like cement companies to use the joint venture nature influence to promote greater respect for human rights in governmental policies (Watts 2005).

The second allegation against extractive industries like cement around complicity is related to the security risks in the host country (Kaeb 2008, p. 330). These security risks are rooted in protests against corporate policies with usual negative impacts on local communities. To protect the staff and facilities, corporations usually hire either "supernumerary police" recruited by local police forces or official police forces itself. An example from Rembang, during the ceremony to put the "first brick" of cement plant in Kendeng Mountain on 16 June 2014, the factory officials brought local Police Forces/Military to deal with “protesters.” During that day, around 100 Police and Army personnel arrested arbitrarily 7 “protesters” although quickly released them later (Apriando and Saturi 2014). This blurred line between corporate and state interests in cement industry practice represents what is known as the Stocksian Paradox that originates from Latin American countries’ practice when states became ‘counter-claimant’ of property/environmental rights of indigenous groups or peasantries (Herwati and Sumarlan, 2016). In the Kendeng Mountains range and other places in Java, the Indonesian governments practice a worse kind of Stocksian Paradox than its Latin American variant because the governments are able to mobilize local courts to "punish" protesting peasantries or indigenous groups for "illegal occupation," "trespassing," "destruction of state property" or any other civil-related rights claimed as owned by the state. The most famous case of a state-owned company’s ability to mobilize local courts to “punish” peasants is the case of PTPN IX (code of a plantation company of the state) brought 520 peasants as defendants in an “illegal occupation” of the state plantation’s properties (Herwati 2015, pp. 43-47).

The third door for allegation against industries like cement is related with the active violations of human rights through abuses committed by security forces that are either contracted, requested by, or acting with the awareness of the corporation (Kaeb 2008, p. 332). The fourth type of liability of extractive industries appears more as a challenge for local or other courts to establish the clear link of liabilities between the rights violation and the complicity standards.

Close to the fourth type liability, the fifth challenge appears to violation victims to demand responsibilities of the extractive industries is the lack of Actus Reus standards of local courts or foreign courts of the corporations’ headquarters. Corporations contest their alleged connection to security forces in faraway lands, which is difficult to establish because the crimes do not happen in a corporate's direct inner "sphere of influence" (Kaeb 2008, pp. 336).

The most critical liability link (the sixth one) between the main headquarters of violating corporations and the violations in faraway lands takes place when the laws of countries of the corporations’ headquarters apply the extraterritoriality principles to crimes or violations committed by these corporations through their subsidiaries operating somewhere else. For the practice of this extraterritoriality among the National Human Rights Institutions of three ASEAN countries (Thailand, Malaysia, and Lao’s PDR), Middleton (2018) already analyzed the practices in cross-border infrastructure investments and found that National Human Rights Commission of Thailand (NHRCT) undertook cases related to ETOs or Extra-Territoriality Obligations[8]. (Under German criminal provisions outlawing polluting water and causing bodily harm with fatal consequences, for example, Greenpeace filed a criminal complaint against French oil company Total Fina Elf—with headquarters in Berlin—for pollution in Siberia in April 2002.)[9] The NHRCT accepted the case of Xayaburi Dam after receiving a complaint from the Network of Thai People in Eight Mekong Provinces submitted in May 2001: the project lacked “information disclosure” and “public participation,” including an Environmental Impact Assessment (EIA) and Health Impact Assessment” (HIA) (NHRCT, 2012). Another concept offered to strengthen the community protection is the concept of Social License (part of the Ruggie[10] Framework of Corporate Social Responsibility); this concept is defined as “the demands on and expectations for a business enterprise that emerge from neighborhoods, environmental groups, community members and other elements of the surrounding civil society” (Gunningham et al. 2004). So far, this Social License has become popular in extractive sectors like International Council on Mining Minerals, the Australian Coal Association, the Minerals Council of Australia, and their corporate members (Wheeler, 2015, p. 10).

 

2. Patterns of Risks

The first risk of the existence of extractive industries in a society (typically third world countries) is the most brutal violations of human rights (killings, arbitrary detention, and torture) done by the subsidiaries of the corporations. To establish the liability between the main headquarters of the corporation and the subsidiaries that usually violate human rights is the legal task of the plaintiffs and the Court. The most cited case of establishment of the direct liability between the corporation headquarters (in first world countries) and its subsidiaries (in the countries where violations take place) is the claims brought against the US-based Chevron Texaco Corporation (and its subsidiaries Chevron Nigeria Limited or CNL). The victims or plaintiffs claimed that two shootings by the Nigerian soldiers hired by CNL on a vehicle rented by CNL (with CNL employees onboard) in 1999 killed several villagers (Kaeb 2008, p. 339). Later, the District Court of the Northern District California where the claim was registered found that the relationship (between Chevron Texaco Corporation and CNL) was sufficient for a reasonable jury to qualify the local subsidiary as an agent of Chevron Texaco Corporation to hold the latter as liable (Kaeb 2008, p. 339).

The second risk of the extractive industries in countries where forced or child labor is still commonly practiced is murder, rape, and torture related to the furtherance of forced labor (like in Africa or Asia). In a gas pipeline project called Yadana, the US-based corporation named “Unocal” was held responsible by the Ninth Circuit Court of Appeals as “giving practical assistance to the Burmese Military in subjecting plaintiffs/victims to forced labor.”[11] Another company from French (“Total”) was charged by four Burmese refugees (held by Belgium Constitutional Court as having the same rights as a Belgian citizen) in 2002 through Belgian courts that exercise extrajudicial jurisdiction over suspects of foreign nationality for international crimes committed abroad[12]. In the pressures of public critique of its relations with repressive governments, Total performed later a Corporate Social Responsibility (CSR) policy to “reconcile security [for employees]” and “human rights” and to spur community development (TOTAL 2006).

The third risk related to extractive industries with large concessions is forced displacement. Since the location of the planned cement factories (since 2005) in the Kendeng Mountains range is a productive farming area (rice and maize) as large as 1,560 ha around Pati Regency (Sobirin 2018), large-scale forced displacement is very likely to happen. From the legal and human rights perspective, expropriation and involuntary resettlement could be justified only when: (1) the project is in the public interest (substantiated an determined by established procedures), (2) the principle of proportionality is satisfied (when harm created is proportional to benefits expected), (3) when due process has been observed (affected people have adequate access to legal advice and ability to challenge the decision), and (4) the affected people have been given full and fair compensation (that they are not worse off) (Hoops et al. 2015; United Nations 2014; BverfG 2013).

Conclusion

This article has discussed at least three levels of responsibility held by the corporations (local subsidiaries, state-owned corporations, and multinational-companies): administrative-environmental[13], social[14], and legal-criminal liabilities. The focus of this article is on the legal-criminal liabilities of the main headquarters for activities (violations, forced displacement, arbitrary detention, etc.) done by subsidiaries. The best window for this legal-criminal liability is given by the concept of extraterritoriality to prevent (with “restrictive extraterritoriality” paradigm) and to process (with “expansive extraterritoriality” paradigm) violations of human rights or other international laws by multinational corporations operating beyond their states’ borders. The second best window is available through “International Arbitration in Human Rights Litigation[15]”. Articles 3(5) and 21 Treaties of European Union (TUE or Maastricht Treaty 1993) establish—although still limited—the promotion and protection of human rights as a foreign policy directive (Cannizzaro 2015).

For limitation of space, this article would end by revealing three problems in application of extraterritoriality jurisdiction to improve the accountability and liability of transnational corporations: (1) determination of ‘nationality’ of a corporation, (2) disentanglement of complex structure of multinational corporation, and (3) non-conflictual coexistence of prescriptions of State applying extraterritoriality and those of State where violations take place (de Schutter, 2006, pp. 29-36, available at https://www.business-humanrights.org/sites/default/files/reports-and-materials/Olivier-de-Schutter-report-for-SRSG-re-extraterritorial-jurisdiction-Dec-2006.pdf). Fortunately, this article by de Schutter (2006) also discusses some avenues to overcome these problems.