The current issue and full text archive of this journal is available on Emerald Insight at: www.emeraldinsight.com/0965-3562.htm

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Received 28 July 2017 Revised 31 July 2017 Accepted 31 July 2017

Corporate accountability in the

Samarco chemical sludge disaster

Karen da Costa

School of Global Studies, University of Gothenburg, Gothenburg, Sweden

Abstract

Purpose - The purpose of this paper is to explore avenues of corporate accountability in disasters, using the Samarco chemical sludge disaster, which took place in 2015 in Brazil, as case study. Design/methodology/approach - The paper considers possible ways of enhancing corporate accountability in disasters, focusing on one particular international mechanism on multinational enterprises (MNEs), which addresses both human rights and environmental issues. The research is based on the location and assessment of a variety of written sources (i.e. normative instruments, academic literature, publications by practitioners, civil society organizations, and the media). The paper makes suggestions on the potential of using existent international accountability mechanisms in similar disasters.

Findings - The paper identifies key measures taken by national authorities to address the disaster. It also considers how the Organization for Economic Cooperation and Development Guidelines for MNEs could be used to pursue corporate accountability. Research limitations/implications - This is a desk-based research, chiefly conducted on documental analysis rather than fieldwork.

Practical implications - The paper might provide useful insights for organizations and communities facing similar challenges linked to multinational corporate activities that adversely affect human rights and the environment. Originality/value - The study brings to attention normative standards relatively unknown to the disaster community, which may help raise interest on them, and lead to their potential use in future disaster situations. Furthermore, to date the Samarco chemical sludge has received scant attention from the academic literature.

Keywords Brazil, Disasters, Extractive industries, Multinational corporations, Business and human rights, Corporate accountability, Chemical sludge, OECD Guidelines Paper type Research paper

1. Introduction

Businesses, especially those in the extractive sector, often risk that their operations may lead or contribute to disasters. Examples of disasters linked to business activities abound, notably the Bhopal gas leak in India (1984) and the "Exxon Valdez" oil spill along the coastline of Alaska (1989) (Zerk, 2006; Tevar, 2012). However, can large and influential companies, notably multinational corporations (MNCs), be held accountable in relation to disasters, particularly when these may combine "natural" and "man-made" features? This paper aims to answer this question - whether it is possible to hold into account MNCs operating in the extractive sector in situations where disasters are linked to their business activities. The paper uses the 2015 Samarco chemical sludge in Brazil as case study. Despite the large area affected and the devastating impact upon the population and the environment, this disaster has to date received little international media coverage and academic attention. The paper aims to fill this gap, thus shedding light on how corporate accountability (here the accountability of MNCs operating in the extractive sector) can be better achieved in disasters. It also identifies redress possibilities available to those affected by similar disasters, focusing on the particular international mechanism based on the Organization for Economic Cooperation and Development (OECD, 2011) Guidelines on Multinational Enterprises (MNEs) (hereinafter "OECD Guidelines," or simply "Guidelines"). The motivation linked to the current investigation relates to identifying how existent legal

This paper forms part of a special section: International Law and Disasters.

Disaster Prevention and Management Vol. 26 No. 5, 2017 pp. 540-552

Emerald Publishing Limited 0965-3562 DOI 10.1108/DPM-07-2017-0171

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frameworks and monitoring mechanisms may offer some insights relevant to the quest of enhancing accountability in disasters.

The paper is structured as follows: after this introduction, Section 2 provides an overview of the factual situation regarding the Samarco disaster. Section 3 grapples with the question of what constitutes a disaster, engaging not only with academic literature, but also with perceptions reflected in treaties and adopted by international actors. Section 4 discusses initiatives aiming at holding businesses into account for the adverse social impact of their operations. The focus is on business and human rights initiatives addressing overseas activities of MNCs. Section 5 identifies key rights affected in the Samarco disaster and what has so far been undertaken by different actors, notably at the national level. Section 6 explores what else could be done in similar disasters, discussing the potential use of one particular international standard-setting initiative aiming to enhance corporate accountability, namely the OECD Guidelines. Bearing in mind the Samarco chemical sludge, the "Guidelines" seem an appropriate option, covering both human rights and environmental issues. The paper concludes drawing possible lessons that may inform future similar disaster situations.

2. Facts - on how it happened On November 5, 2015, two iron ore tailings dams of the extractive company Samarco Mineracao S.A. burst in the small town of Bento Rodrigues, with a population of about 600 inhabitants (Augusto, 2015), and located about 2.5 km downhill from the affected dams, in the Mariana region, state of Minas Gerais, Brazil. The toxic mud of about 60 million cubic meters of iron waste (or more than 20,000 Olympic pools) would soon enter the river system (notably the River Doce, one of Brazil's most important rivers). In the next 17 days, the toxic mud would reach about 20 municipalities downstream from the mine site, having a tremendous negative impact especially in relation to water supply, fisheries activities, agriculture, and tourism. In total, 19 persons were killed (Pimentel, 2016), and more than 600 people lost their homes. Some municipalities (e.g. Barra Longa) managed to evacuate people living close to the river, thus avoiding the increase in the death toll (TVPMMG, 2016). Be this as it may, Bento Rodrigues, the town closest to the mine, is likely never to be considered habitable again.

In total, the sludge reached about 879 km (about the same distance as between Berlin and Paris), affecting an important riparian ecosystem spanning across two federal states: Minas Gerais (where the dams were located), and Espirito Santo, its neighbor state, which also borders with the Atlantic Ocean. The chemical sludge would in a matter of days reach the turtle sanctuary of Regencia beach, with serious environmental consequences for marine life.

The event has been reported as the worst environmental disaster in the country to date (Phillips, 2015). The tragedy was linked to the failure of both Santarem and Fundao tailings dams to contain the water and sediment from iron ore extraction obtained from the open-cast mine. The dams are owned and operated by Samarco, a privately held Brazilian mining company founded in 1977, and controlled in equal parts by two shareholders: the Brazilian Vale S.A. and the Anglo-Australian BHP Billiton (Samarco, 2017; BHP Billiton, 2015).

3. On what constitutes a disaster

Undoubtedly, the events in Mariana seem catastrophic, but do they necessarily meet the definition of disasters? There has been much debate in the literature around defining disasters. Although there is no full consensus on the subject (Perry, 2007; Quarantelli et al., 2007), some similar features appear in different definitions.

The early or "classic" literature on disasters relates to Fritz' writings in the 1960s, considering disaster an "event" impacting a society, which will be prevented from

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(Perry, 2007). The later "hazards-disasters" tradition considers disasters as extreme events arising

when a hazard agent intersects with a social system. Disasters here would be "the interface between an extreme physical event and a vulnerable human population" (Susman, Okeefe, and Wisner, cited in Perry, 2007).

A further school considers disasters to be a social phenomenon. Accordingly, disasters are a social disruption that originates in the social structure, but which might be remedied through social structural manipulation (Perry, 2007).

The growing consensus cutting across different schools is that disasters are inherently a social phenomenon. They do not stem from the agent that causes disruption (e.g. an earthquake), but from the social structure (comprising among others norms and values) of a given community, which also reflects its vulnerability (Kelman et al., 2016). It is important to pay attention to the past of a given community, for it shall provide cues on its disaster vulnerability. Disasters incorporate a continuum comprising the past, the present, and the future. They do reflect a process, and not a single isolated event. Vulnerability is something that is constructed over time, not only from the moment a hazard hits a community (Bankoff, 2012).

The categorization of disasters is also a matter of dispute. However, to distinguish disasters based on types of hazards seems not as important as to pay attention to the social setting in which hazards appear. The social behavior in a given society is rather linked to the very essence of disasters (Quarantelli et al., 2007).

Beyond perceptions from academic literature, further different actors also came up with their own definition of the term. Disasters have been defined in treaties, such as the Tampere Convention on the Provision of Telecommunication Resources for Disaster Mitigation and Relief Operations of 1998 (International Telecommunication Union, 1998):

"Disaster" means a serious disruption of the functioning of society, posing a significant, widespread threat to human life, health, property or the environment, whether caused by accident, nature or human activity, and whether developing suddenly or as the result of complex, long-term processes.

Furthermore, the UN International Law Commission (2016), a legal body that for the last few years was in charge of drafting articles that may give rise to an international treaty on the protection of persons in the event of disasters, provided the following authoritative definition:

"[D]isaster" means a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society.

Another authoritative and recently adopted definition of disaster is the one by the open-ended intergovernmental expert working group linked to the Sendai Framework for Disaster Risk Reduction (UN General Assembly, 2016). It reads:

A serious disruption of the functioning of a community or a society at any scale due to hazardous events interacting with conditions of exposure, vulnerability and capacity, leading to one or more of the following: human, material, economic and environmental losses and impacts.

Practitioners have also contributed to a general understanding of the term, often reflected in their practices. One example is the International Federation of Red Cross and Red Crescent Societies definition:

A disaster is a sudden, calamitous event that seriously disrupts the functioning of a community or society and causes human, material, and economic or environmental losses that exceed the community's or society's ability to cope using its own resources. Though often caused by nature, disasters can have human origins[1].

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Despite slight nuances among all these definitions, there is an identifiable thread informing them, namely that disasters imply a disruption of the normal functioning of a given society. This relates both to a society's level of vulnerability, together with the calamitous events that it is confronted with, which is linked to nature and/or human activity.

The Samarco case study meets different conceptual understandings of disasters, demonstrating the pre-existent vulnerability of communities that were directly or indirectly confronted with the chemical sludge.

4. Accountability for businesses, especially MNCs, for the negative social impact of their activities This section discusses legal initiatives aiming at finding ways to improving businesses' record on social issues, focusing particularly on developments arising in the human rights sector. The human rights field has been built upon the assumption that it relates to obligations of "states," that if violated would give rise to their own responsibility. Non-state actors (NSAs) (among others, corporations) were traditionally not considered to have human rights obligations of their own (Bantekas and Oette, 2013). However, it is uncontested that activities of NSAs may jeopardize the enjoyment of human rights, so there have been increasing attempts to find ways of closing this gap (Muchlinski, 2007; Amao, 2011).

Since the 1980s, a growing movement led to the drafting of various voluntary standards directed to companies (notably MNCs), in an effort to improve their social responsibility record. Examples include the UN Global Compact (United Nations, 2000), containing ten principles on human rights, the environment, labor law, and against corruption, as well as the OECD (2011) Guidelines.

Many companies were enthusiastic about these initiatives and decided to voluntarily commit to them. This positive move was perhaps prematurely perceived as companies' will to subscribe for state-like legal commitments. A further later initiative, led by the UN Office of the High Commissioner for Human Rights, aiming at drafting more stringent obligations to companies, was largely rejected by the business community (Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights) (United Nations, 2003). The chasm between the human rights community and the business world would improve only years after, largely thanks to the work by the UN Special Representative on Business and Human Rights, John Ruggie, who, in close consultation with businesses and other stakeholders, drafted a more realistic framework. Accordingly, the UN Guiding Principles on Business and Human Rights (hereinafter, "UN Guiding Principles") (UN Human Rights Council, 2011) indicates that states have the obligation to "protect" human rights, businesses have the obligation to "respect" them (do no harm), and there shall be more effective "remedies" for victims (Tevar, 2012; Amao, 2011).

As suggested by Bantekas and Oette (2013):

[...] while their [MNCs'] human rights "obligations", if any, have largely arisen as a result of voluntary undertakings they are now entering a hybrid phase of limited regulation, or at least of an attempt at regulation.

Section 6 of this paper will discuss in greater detail one standard-setting initiative that illustrates this hybrid phase of limited regulation of the social impact of MNCs, namely the OECD (2011) Guidelines. The analysis of this framework shall provide some insights for situations similar to the Samarco disaster.

5. Rights affected and measures taken at the national level

The human and environmental cost of the Samarco disaster relate especially to the right to life, the right to water, the right to adequate housing, the right to a healthy environment, and the right to livelihood of fisheries' communities and other groups, including indigenous

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were affected by the disaster. Two UN independent human rights experts criticized the handling of the incident,

especially the delay in the confirmation of the toxic risks involved, and asked for more to be done to reduce the impact of the situation (ONUBR, 2015; Tuncak, 2015).

Prognoses indicate that the toxic mud shall cover 10 km of coastline, seriously affecting the entire ecosystem. About eight tons of dead fish have been removed from the affected riparian system. River water was too turbid to treat, what affected the supply to about 800,000 people (The Economist, 2015).

Samarco provided water for part of the communities affected by the disaster, a measure increasingly advocated for in the disaster law literature (Telesetsky, 2015). The affected communities also received a basic food allowance support from the government, which was however reported as not meeting all their needs (Losekann et al., 2015).

After the disaster, the federal government announced an initial US$76 million in fines for Samarco, which was later contested in legal action. In April 2016, Samarco was ordered to build emergency dikes to halt the toxic mud spill.

Samarco has been suspended from operating in the state of Minas Gerais and had US$9 million of its funds blocked to repair the damage caused in the area. The company initially agreed to pay an initial US$305 million in compensation and preventative measures (Phillips, 2015). However, its very future is uncertain (The Economist, 2015).

All national judicial measures against the company are still ongoing. The most significant of them are two civil actions and one criminal proceeding.

The first civil action was initiated by the federal government and the two affected states, claiming the setup of a fund (of approximately US$6 billion) for cleaning costs and damages, rehabilitation of the community, and the environment. The other civil action was filed by the Federal Public Prosecutor's Office against the companies Samarco, Vale, BHP Billiton, and public entities. It seeks full compensation for the social, economic, and environmental damages caused by the rupture of the Fundao dam, as well as payment of collective moral damages, aiming for a total amount of US$47 billion.

The Federal Public Prosecutor's Office also initiated criminal proceedings against the three companies (Samarco, Vale, and BHP Billiton Brazil) and about 30 of their employees (BHP Billiton, 2016). Responsibility for the different crimes is sought based on the allegation that companies and their key employees (board members especially) did know about the risks under which the Fundao dam was operating but that nevertheless did not take sufficient action to timely address them.

Finally, the Samarco disaster triggered a sort of "preventive" action by Brazilian public authorities, with the opening of several investigations on the condition of mining dams across the country (Phillips, 2015).

6. What else could be done? Identifying international accountability mechanisms, and the potential of the OECD Guidelines for MNEs The tragic events in Brazil demonstrate the importance of disaster prevention, especially in the extractive sector. The disaster equally evidenced Brazil's limited disaster preparedness (The Economist, 2015). Once the tragedy has taken place, different public authorities were challenged in handling the situation, adopting measures ranging from the imposition of fines to setting up assistance programs. Similar disasters, however, are likely to reoccur across the globe.

Whereas Section 4 provided an overview of initiatives on corporate responsibility especially on human rights, this section focuses on the OECD Guidelines. This is not only due to space constraints, but also because they apply to many countries, OECD and other countries that have signed up to them. To date, all 34 OECD countries (among them,

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Australia and the UK), and 12 non-OECD countries (among them Brazil) have subscribed to the "Guidelines"[2]. This means coverage of about 85 percent MNCs in the world. Although the "Guidelines" are strictly speaking non-legally binding in relation to "companies," they are legally binding for "states" that signed up for them. In their 2011 version, the OECD Guidelines clarify that they are "recommendations addressed by governments to multinational enterprises operating in or from adhering countries. They provide non-binding principles and standards for responsible business conduct in a global context consistent with applicable laws and internationally recognised standards" (OECD, 2011).

As suggested by Schekulin (2011), the "Guidelines" are based on the premise that "non-discriminatory treatment of foreign affiliates by host country governments, [...] should be reciprocated by socially responsible corporate behavior." Similarly, it has been suggested that the purpose for regulating MNCs' conduct is "to enhance the advantages of FDI [foreign direct investment] and, more importantly, to mitigate the disadvantages" (Reinert et al., 2016).

Because the "Guidelines" are non-legally binding for MNCs, they have been criticized by some, suggesting, that they "may represent no more than a corporate marketing opportunity rather than an authentic opportunity to moderate corporate behaviour" (Amao, 2011). Arguably, however, business themselves might voluntarily be keen in observing the "Guidelines," thus scoring points vis-a-vis shareholders, customers, and local communities. Also, the "Guidelines" may pave the way for future similar initiatives with a greater binding character toward MNCs (Yang et al., 2012). Currently, the "Guidelines" are the most comprehensive government-backed code of conduct intended for MNCs to observe wherever they operate (Schekulin, 2011).

But what exactly are MNCs? MNCs can be broadly defined as companies established in more than one country with capacity to substantially coordinate their operations (Bantekas and Oette, 2013). MNCs have legal autonomy of their subsidiaries and affiliates from the parent corporation (each one is covered by the legal regime of the country where they are registered/incorporated). This gives MNCs considerable advantage, i.e., they benefit from different tax regimes according to each country they operate. Despite often denying this, parent corporations do exercise considerable influence (sometimes direct control) over their affiliates (Bantekas and Oette, 2013).

A sort of dilemma in this context is that states seeking to host MNCs subsidiary companies try to lure them to come and operate in their territories (often with generous tax breaks, combined with minimal monitoring of human rights and environmental issues) (Tevar, 2012). On the other hand, the domestic regulation of the parent company by its home state will normally not apply to its subsidiary companies abroad. Home countries of parent companies may try to apply their legislation to MNCs operating abroad if they establish that the parent company substantively controls or influences its affiliate companies. However, this is not so easy to establish, especially in the absence of paper trail (Bantekas and Oette, 2013). The OECD Guidelines may contribute in closing this regulatory gap.

6.1 The OECD Guidelines and their potential to strengthen corporate accountability in disasters Businesses may have not only voluntary commitments but also obligations relating to human rights and the environment, which may be crucial in disasters. Normative standards relevant to businesses hinge on the distinction between corporate (social) responsibility and corporate accountability. "Corporate social responsibility" (or CSR) is largely limited to "voluntary commitments" made by companies, especially in the fields of human rights and the environment. Conversely, "corporate accountability" relates to "responsibilities written as law," which when necessary may be enforced through the justice system. Here companies have compulsory, rather than optional commitments (Middleton, 2016).

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Although the OECD Guidelines do not fully amount to accountability of MNCs, they are the most promising current international standard especially on business and human rights, in terms of directly available remedial mechanisms.

The "Guidelines" cover different areas, namely human rights, the environment, labor standards, together with the combat against bribery and tax evasion. Their 2011 version included two major novelties: a separate human rights chapter, aligned with the UN Guiding Principles; and a more comprehensive approach to "due diligence," with provisions on supply chain management (Amao, 2011).

The multi-sectorial coverage of the OECD Guidelines makes them well suited for disasters, which encompasses various societal aspects. In their "General Policies," the "Guidelines" indicate that enterprises should "respect the internationally recognised human rights of those affected by their activities," and that they should also "refrain from seeking or accepting exemptions not contemplated in the statutory or regulatory framework related to human rights, environmental, health, safety, labour, taxation, financial incentives, or other issues" (OECD, 2011).

Furthermore, the OECD Guidelines provide a complaint mechanism, whose primary function is "to enable dialogue and negotiation between parties to resolve issues and improve business conduct on the basis of the Guidelines" (Amnesty International, 2016). In this sense, the "Guidelines" offer more than other CSR models, actually providing a remedy mechanism, namely complaints addressed to National Contact Points (NCPs) set up by each adhering state. Although the Guiding Principles did propose remedy mechanisms, there is no such mechanism yet in place in the UN system (though there are ongoing discussions on the drafting of a new international standard directly imposing human rights obligations to businesses, which shall include remedies) (Backer, 2017). The grievance mechanism under the OECD Guidelines therefore functions as a complementary system to other initiatives on corporate accountability. Such procedure may be invaluable for those negatively affected by MNCs' practices.

The OECD Guidelines put in place a sort of "hybrid system." The framework legally binds states that adhere to it, and, although it does not legally bind MNCs, these are expected to engage with the grievance mechanism, a process facilitated by the NCPs. Despite not necessarily leading to legal consequences for MNCs, a poor engagement with the mechanism may adversely affect MNCs' reputation toward the local community, customers, and shareholders. Some investors, for example, may openly sell their shares as a protest to company policies, with others following lead. This could be the reason why after the Samarco disaster the companies involved were quick in updating their websites with information about what they were doing to control and stop the damage. Arguably there is now a critical mass of international investors who seriously care about ethical issues when managing their portfolios. They may put pressure on companies to do the right thing and change bad practices.

It is not rare, however, that MNCs simply ignore NCPs' findings, and that governments underperform in terms of following-up on the implementation of NCPs' findings (OECD Watch, 2009). Despite being the exception rather than the rule, some countries are putting increasing pressure on MNCs to observe the "Guidelines." In 2014, Canada threatened to withdraw support for companies that do not embody best CSR practices, including those refusing to participate in the NCP dispute resolution mechanism (Ruggie and Nelson, 2015).

Also to bear in mind is that countries may adopt national laws incorporating the rationale of the OECD Guidelines, which may give rise to binding legal obligations to MNCs domiciled in these countries. One such example is the adoption by the UK of the Modern Slavery Act 2015, which also covers the supply chain of UK companies (Mccorquodale, 2015).

The 2011 revision of the OECD Guidelines treated companies' ethical standards in a more holistic way, and thus it is now possible to file a complaint regarding the supply and value

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chain of a given multinational company. MNCs are therefore expected to act with "due diligence" regarding the conduct also of their suppliers and business partners. This is a considerable move, for prior to that complaints could only relate to direct foreign investment by an MNC. Now the reach of the complaint mechanism is quite far ranging, covering even subsidiaries or sub-contractors based in a non-OECD or non-adherent country. Two recent complaints filed by non-governmental organizations (NGOs) before the UK NCP were based on this principle. Both related to MNCs doing business in DRC, and which allegedly had conflict minerals running through their supply chain, with many human rights violations linked to them. Despite the companies' argument that they were not aware of such abusive practices by their local corporate partners, the procedure conducted by the NCP decided against both companies, based on their insufficient due diligence efforts to avoid human rights violations in their supply chains. It concluded that the MNCs should have used their influence toward local partners, so as not to be complicit with such practices. These were landmark findings on the NCP complaints against DAS Air Cargo (2004) and Afrimex (2008) (Ruggie and Nelson, 2015).

Therefore, the "Guidelines" intend not only to avoid businesses' negative impact on human rights and other areas, but they also aspire businesses to take positive action. In practical terms, this may translate in the need for MNCs to identify risks and the impact of their practices (and of their business partners) in social areas (i.e. human rights and the environment). Businesses are expected to act to mitigate potential risks and to report or address wrong practices identified within themselves or their partners - for example, by using their leverage to advocate for partner companies - including those in their supply chain, to implement necessary changes toward meeting OECD standards.

6.2 The OECD Guidelines and the possibility of filing complaints before the NCPs

Adhering governments ought to set up NCPs whose main role is to further the effectiveness of the "Guidelines" by undertaking promotional activities, handling enquiries, and contributing to the resolution of issues that arise from the alleged non-observance of the "Guidelines" in concrete situations. There is no uniform and standard way for NCPs to handle the complaint procedure, and inconsistencies across NCPs have been considerably criticized (Maheandiran, 2015).

NCPs are meant to effectively handle complaints, what can be done, for example, through mediation between the parties and the delivery of authoritative recommendations. However, NCPs do not have real power to adjudicate on the complaints, or to enforce their deliberations. In other words, they lack real authority to make sure that the "Guidelines" are enforced (Reinert et al., 2016). If mediation fails, NCPs issue a "negative statement." Alternatively, the NCP mechanism will conclude with a "mediated outcome" for the dispute. This will likely be a recommendation on the need to provide remedies to victims, which could be for MNCs to issue an apology to victims, or to proceed with an agreed financial compensation. Despite the fact that NCPs' deliberations and recommendations are not binding to MNCs, they are arguably been increasingly taken seriously by different actors relevant for MNCs, such as export credit agencies, the World Bank (that might suspend loans), and also by sovereign wealth funds.

The NCP complaint mechanism has been increasingly used by NGOs on human rights issues, as well as by trade unions, which historically used the mechanism to complain against violation of labor standards. Since 2001, there have been approximately 300 complaints presented before NCPs across the world, 75 of them since the adoption of the 2011 edition of the "Guidelines." The dissemination of the findings has also considerably improved in later years. Currently, OECD has an official public online repository of cases (OECD Specific Instance Database[3]), covering cases from 2000, when the mechanism was open to civil society. The NGO "OECD Watch" set up its own repository, containing complaints filed by

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database covering complaints by workers' organizations[5] (Ruggie and Nelson, 2015). NCPs and the quality of their outputs vary enormously across jurisdictions. The UK NCP is often praised as a good example, for according to its proceedings, the NCP is asked to include in its final statement of a complaint a clear indication as to whether or not the company is in breach of the "Guidelines." Different is the approach taken by the US NCP, referring to the voluntary nature of the "Guidelines" as justification for the approach of not clearly stating when handling individual complaints whether the "Guidelines" have been "violated" (Sanchez, 2015). Furthermore, the UK NCP has set up a steering committee to oversee its actions, composed by multiple stakeholders (i.e. representatives of the government, labor organizations, and businesses) (Maheandiran, 2015). This seems to

further contribute in strengthening society's confidence on the mechanism. It is clear that NCPs are a work in progress, but the mechanism seems to be positively

evolving, especially through greater stakeholders' usage of it.

6.3 The OECD Guidelines and the Samarco disaster

The OECD Guidelines may offer a promising avenue toward corporate accountability, in situations similar to the Samarco disaster. Here the key company, Samarco, mainly produced iron ore pellets, made by transforming minerals with low ore content into a product with high ore content, which it exported to steelmakers across 19 countries worldwide[6]. Both parties that undertake the Samarco joint venture, namely the companies Vale and BHP Billiton, are MNCs. Vale S.A. is an MNC headquartered in Brazil and present in around 30 countries around the world. It operates in the mining industry, producing especially iron ore and nickel[7]. BHP Billiton is a MNC with headquarters in Australia (BHP Billiton Limited). It has corporate centers in London (UK) (BHP Billiton Plc.), and in Singapore (BHP Billiton Marketing Asia Pte Ltd). It is a company in the business of extracting minerals over the world[8]. Both Brazil and Australia are bound to the OECD (2011) Guidelines on MNCs. Australia is an OECD country, whereas Brazil is a non-OECD country that has signed up to the "Guidelines."

Even if Samarco itself does not qualify as an MNE, it integrates the supply chain of both Vale and BHP Billiton, two MNEs. On this basis, as per the OECD Guidelines, these two companies could also be called into account, through the NCP complaint mechanism. Victims or civil society organizations representing them could, for example, consider filing a complaint before the Brazilian, Australian, or UK NCPs. Brazilian authorities are however currently handling various domestic legal proceedings seeking to determine the responsibility of the businesses involved, and the matter shall be adjudicated by national courts. It is up to applicants to choose in which country to file a complaint - notably in the country where the complained acts took place, or in the home state of the respondent MNC, that arguably should have picked up the risks involved in its business activity object to the complaint. This raises a range of possibilities for disaster victims to explore in the search for corporate accountability, for example, by choosing a country where a well-respected NCP is in place, in which the complaint may have better chances to bring about positive change.

Brazil is the only country which has received a considerable number of NCP complaints both as a home and a host state. In about ten cases, the country figured as home of MNCs against which a complaint was filed. In about 15 further cases, Brazil figured as host state of MNCs, where the alleged violation of the "Guidelines" took place. This somewhat contradicts the old pattern that home countries (where MNCs are headquartered) are located in the Global North, whereas host countries (where operations take place) are to be found in the Global South (Ruggie and Nelson, 2015).

Human rights issues that often appeared in recent NCP complaints include impeded or destroyed sources of livelihood, health, and housing, together with the lack of meaningful

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consultations with communities adversely impacted by business initiatives (Ruggie and Nelson, 2015). These were all issues that equally came into play in the Samarco disaster, and may certainly come up in future similar situations.

7. Conclusion

This paper covered the Samarco chemical sludge that took place in November 2015 in Brazil as case study for accountability of businesses in disasters. This was the worst disaster ever affecting the country. The paper first contextualized the disaster, and then it identified some key judicial proceedings ongoing in Brazil against the companies involved. Finally, it was considered possible international mechanisms that could be useful in addressing situations such as the Samarco chemical sludge. It has been suggested that the OECD Guidelines offer a good opportunity for putting pressure on governments to seek accountability of companies involved. In the case of Brazil, the government is already undertaking such measures, but further alternatives could be explored, namely also putting pressure against Australia and the UK. One possibility would be to file a complaint before the UK NCP, considered by some as the one of the best operating NCPs, which counts with the support of an external "steering board" that provides oversight (Robinson, 2014). It is suggested that the "Guidelines" could be used as normative standard also useful in disasters linked to companies' operations abroad. Albeit not perfect, they contribute to enhancing the observance of especially human rights and environmental standards by companies operating across the globe. It is hoped that by following the "Guidelines" and engaging with the NCP procedure, MNCs shall increasingly avoid the adverse impact of their activities and those of their business partners.

Notes

1. www.ifrc.org/en/what-we-do/disaster-management/about-disasters/what-is-a-disaster/ 2. http://mneguidelines.oecd.org/ncps/ 3. http://mneguidelines.oecd.org/database/ 4. www.oecdwatch.org/cases

5. www.tuacoecdmneguidelines.org/Home.asp 6. www.samarco.com/en/institucional/a-empresa/ 7. www.vale.com/brasil/EN/aboutvale/Pages/default.aspx 8. www.bhpbilliton.com/aboutus/ourcompany/ourstructure

Required:

a. Write the critical review