Corrupt at Its Core: How Law Failed the Victims of Waste Dumping in Côte d’ Ivoire
Creators: name: Bratspies, Rebecca
Publisher: name: Columbia Journal of Environmental Law
Year: 2019

description: On August 19, 2006, citizens of Côte d’ Ivoire woke to suffocating odors. Overnight, five-hundred tons of hazardous waste had been illegally dumped across the country’s largest city, Abidjan. Thousands were sickened. The incident stands as one of the most flagrant environmental crimes in recent memory. Now, more than a decade later, it is past time to examine the tragedy as an act of environmental corruption and to use the incident to draw lessons about the failures of global environmental governance. The case is particularly instructive because the multi-national oil-trading company involved, Trafigura, has recently been back in this news; this time because of South Korean allegations that the company was involved in oil shipments to North Korea in violation of United Nations (“UN”) Sanctions. With regard to the dumping in Côte d’ Ivoire, Trafigura “strenuously maintains that it did nothing wrong and its staff acted in an appropriate manner throughout, using industry standard practices.” The company’s North Korea statement strikes a similar note, asserting that “Trafigura conducts its business so as to comply with all applicable sanctions and has had no involvement in the final destination of this cargo.” The last part of this denial is the most interesting, because the question of what constitutes “involvement in the final destination of cargo” was precisely the issue in question after the Abidjan dumping, only in that case the “cargo” was hazardous waste that had been unlawfully dumped across the city. Trafigura generated the waste in question and then contractually transferred that waste to another company for disposal in Côte d’ Ivoire. The company maintains its innocence in part by pointing out to the contract requirement that the waste be disposed of in compliance with the law. In the newest allegations against the company, Trafigura is accused of illegally selling oil to North Korea. There is no question that Trafigura originally owned the cargo that was ultimately transferred to North Korea, but claims to have sold it to another company with a contract that prohibited further sale of the cargo in violation of sanctions. The details of the North Korea incident are still unfolding. But, regardless of whether the facts ultimately bear out South Korean allegations against Trafigura, the incident reinforces the same quandary that the Abidjan dumping revealed—law’s inability to reach multinational actors who intentionally structure their actions to avoid legal responsibility. This Article suggests that this inability is an intrinsic characteristic of our current global trade system—a feature, not a bug. Trafigura’s relationship to the events in Abidjan provide a particularly useful case study for exploring this issue because the company describes itself as being “at the heart of the global economy.” Taking the company at its word, the Abidjan dumping highlights a troubling lack of accountability at the heart of the global economy. It reveals how the system of laws that make up international trade law permit Northern trading partners to profit enormously from unlawful conduct in Southern States, while deploying formal legal structures as a shield against any responsibility for that conduct. Indeed, the incident reveals an implicit form of corruption embedded in a global trading system structured to allow plausible denials of involvement in illegal or corrupt transactions. This Article begins with an overview of how environmental corruption has typically been framed in scholarly discussions. Part III provides a description of the tragedy that occurred in Abidjan on August 19, 2006, situating the event in the context of the public and private environmental governance and management choices that led up to it. Part IV identifies the legal regimes that should have prevented this tragedy, and analyzes where those legal regimes fell short. This Part examines the ways that neoliberal principles ratify the “impeccable” economic logic that leads to the dumping of hazardous wastes in developing countries. While the Basel Ban and the Bamako Convention sought to make that “impeccable logic” flatly illegal, limitations at the heart of international law inhibit their effective implementation. This Part proposes that the contours of the global trading infrastructure in which such choices get made is itself corrupt—that drawing the boundaries of actors subject to environmental and human rights obligations to exclude transnational corporations (“TNCs”) is itself a kind of implicit corruption. Finally, this Article uses the robust literature on environmental corruption to demonstrate that this implicit form of corruption is built into the heart of the international commodities trade, and concludes by suggesting some ways forward.
description: Columbia Journal of Environmental Law, Vol. 43 No. 2 (2018): Volume 43.2