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POSCO's Odisha Project NON-JUDICIAL REDRESS MECHANISMS REPORT SERIES 5 POSCO’s Odisha Project OECD National Contact Point complaints and a decade of resistance Dr Samantha Balaton-Chrimes Deakin UniverSity ­About­this­report­series this report is part of a series produced by the non-Judicial Human rights redress Mechanisms Project, which draws on the findings of five years of research. the findings are based on over 587 interviews, with 1,100 individuals, across the countries and case studies covered by the research. non- judicial redress mechanisms are mandated to receive complaints and mediate grievances, but are not empowered to produce legally binding adjudications. the focus of the project is on analysing the effectiveness of these mechanisms in responding to alleged human rights violations associated with transnational business activity. the series presents lessons and recommendations regarding ways that: • non-judicial mechanisms can provide redress and justice to vulnerable communities and workers • non-government organisations and worker representatives can more effectively utilise the mechanisms to provide support for and represent vulnerable communities and workers • redress mechanisms can contribute to long-term and sustainable respect and remedy of human rights by businesses throughout their operations, supply chains and other business re - lationships. the non-Judicial Human rights redress Mechanisms Project is an academic research collaboration between the University of Melbourne, Monash University, the University of newcastle, rMit University, Deakin University and the University of essex. the project was funded by the australian research Council with support provided by a number of non-government organisations, including COre Coalition Uk, HomeWorkers Worldwide, Oxfam australia and actionaid australia. Principal researchers on the team include Dr Samantha Balaton-Chrimes, Dr tim Connor, Dr annie Delaney, Prof Fiona Haines, Dr kate Macdonald, Dr Shelley Marshall, May Miller-Dawkins and Sarah rennie. the project was coordinated by Dr kate Macdonald and Dr Shelley Marshall. the reports represent independent scholarly contributions to the relevant debates. the views expressed are those of the authors and not necessarily those of the organisations that provided support. this report was authored by Dr Samantha Balaton-Chrimes. Correspondence concerning this report should be directed to Dr. Balaton-Chrimes via [email protected] (email) or @SbcsbcC (twitter). © 2015 Samantha Balaton-Chrimes. POSCO’s Odisha project: OECD National Contact Point complaints and a decade of resistance is published under an unported Creative Commons attribution non- commercial Share alike (CC-By-nC-Sa) licence, details of which can be found at https://creativecommons.org/licenses/by-nc-sa/3.0/ [email protected] https://twitter.com/caresearch_au corporateaccountabilityresearch.net 2 Acronyms aBP/aPG Algemeen Burgerlijk Pensioenfonds /Algemene Pensioen Groep - Dutch Pension Fund BJD Biju Janata Dal BJP Bharatiya Janata Party FDi Foreign Direct investment Fra the Scheduled tribes and Other traditional Forest Dwellers (recognition of Forest rights) act, 2006 iDCO industrial infrastructure Development Corporation (Odisha) kHiS korean House for international Solidarity LiFe Legal initiative for Forests and environment MtPa Million tons Per annum nBiM norges Bank investment Management – norwegian Pension Fund nCP national Contact Point nGO non-Government Organisation nGt national Green tribunal nHrC national Human rights Commission (india) nyU new york University OeCD Organisation for economic Cooperation and Development OtFD Other traditional Forest Dwellers PPSS Posco Pratirodh Sangram Samiti SOMO Stichting Onderzoek Multinationale Ondernemingen - Centre for research on Multinational Corporations tUaC trade Union advisory Committee Uk United kingdom Un United nations UnOHCHr United nations Office of the High Commissioner for Human rights US/USa United States (of america) 3 Lists­of­figures,­tables­and­boxes List of tables Table 1: POSCO case summary 11 Table 2: Avenues of resistance and remedy 23 List of figures Figure 1: Anti-POSCO People’s Movement Protests, June 2011 29 List of Boxes Box 1: Summary of proposed POSCO project 14 Box 2: Affected communities 18 Box 3: Some of PPSS’ closest supporters and their key activities 30 Box 4: Significant international organisations opposing POSCO’s Odisha project 31 Box 5: Role of international groups in NCP complaints 34 Box 6: Summary of direct NCP outcomes 36 4 Executive­Summary in 2005, korean steel giant POSCO signed a Memorandum of Understanding with the Odisha state government in india to build a US$12billion integrated steel project, involving a plant, mine and associated infrastructure. For the ten years since then the project has faced strong opposition from the communities affected by the proposed steel plant, who do not want to relinquish their agricultural lands and face displacement. the conflict between the company and the communi - ties has escalated in that time, and has involved multiple incidents of violence and intimidation by police and other actors against anti-POSCO protestors, and filing of hundreds of criminal cases against protesters, the legality of which has been called into question. this is a case not only of human rights risks and harms, but also, much more broadly, of contests over development agendas, and who gets to set them. the POSCO project has faced multiple domestic judicial and regulatory hurdles in relation to clearance to divert forest land (on which communities reside) for non-forest purposes, envi - ronmental clearances, land acquisition and prospecting licences for iron ore. Some of these are still ongoing. at the same time, the anti-POSCO Peoples’ Movement (PPSS) has engaged in non-violent direct action, such as blockades, to prevent land acquisition, and has gained support from a broad informal network of civil society activists in Odisha, india, korea, the United States (US) and europe. together, the political mobilization and judicial challenges have stalled the progress of the POSCO project for a decade, but the conflict remains unresolved. POSCO has not categorically committed to relocating or stopping its project, as PPSS aims for. at the time of writing, POSCO has acquired a significant portion, but not all, of the land it needs for the plant. no construction has begun at this stage, most likely because the company is still waiting on prospecting licences for iron ore. The­OECD­NCP­process in October 2012, Bhubaneshwar-based group Lok Shakti abhiyan, with international supporters filed a complaint to the Organisation for economic Cooperation and Development (OeCD) national Contact Points (nCP) in South korea, the netherlands and norway. the complaint alleged that POSCO had not conducted due diligence or meaningful stakeholder negotiation regarding the human rights and environmental impact of its proposed project, particularly the required land acquisition, and had failed to seek to prevent or mitigate the human rights abuses committed by the indian state in its violent efforts to acquire land for POSCO. the complaint also argues that minority shareholders, the Dutch Pension Fund Algemeen Burgerlijk Pensioen - fonds /Algemene Pensioen Groep (aBP/aPG) and the norwegian Pension Fund Norges Bank In - vestment Management (nBiM), should exercise leverage over POSCO to address these human rights concerns, and consider divestment if that fails. the nCP processes had mixed outcomes. the korean nCP rejected the case, and the norwe - gian Pension Fund refused to cooperate. the Dutch process facilitated discussion between aBP/aPG, the complainants’ representatives and, ultimately, POSCO, with the objective of launching a fact-finding mission, which could then form the basis of a dialogue. However, par - ties could not agree to the terms of the mission, and the complainants refused to engage in di - alogue while land acquisition was ongoing, and in the absence of a fact-finding mission. 5 the major success of this nCP process is a purely policy-based one: it established that minority shareholders have obligations regarding due diligence and facilitating access to remedy in the event of human rights harms to which it is directly connected (even if it has not directly caused or contributed to those harms). this raises the possibility of engaging minority shareholders, particularly those, like national pension funds, that have unique forms of leverage, to pressure companies engaged in human rights harms. However, the nCP case also demonstrated that there is a lack of functional equivalence between nCPs, as all three generated different outcomes. OeCD Watch argues that there is an ongoing and urgent need for all nCPs to be functionally equivalent at the most robust levels of complaint handling. Furthermore, the failure to launch a fact-finding mission represents a missed opportunity to make a positive impact on human rights fulfilment in Odisha. in a context where most of the information about the project is controlled by POSCO and the largely pro-POSCO government, and there is very little publicly available information about human rights impacts, it is unrea - sonable for the nCP to expect communities to engage in dialogue based on such information. this pressure demonstrates a failure to appreciate the importance of the political and economic context for the possibilities regarding the resolution of a dispute. in relation to the OeCD nCP process, the report
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