Corporate Complicity in Human Rights Abuses in Latin America

Marcelo Saguier

29/07/2012

Opinión

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Efforts to establish an agenda of corporate responsibilities with human rights in Latin America have led to modest, if not aspirational, results. However, recent developments suggest that this agenda is gradually gaining ground, as seen through its appropriation by states, companies and civil society advocacy groups as an interpretative framework for their actions. The emerging dynamics of collaboration and conflict between such actors – within and across national borders – contribute toward defining the broad substance and scope of this emerging agenda.

The linkages between corporations and human rights have been addressed in mainstream discussions mostly as a regulatory challenge. The so-called return of the developmental state in some Latin American countries over the last decade has expanded the scope of these linkages to incorporate the view that human rights can only be fully realized with social inclusion, social protection, and democratization. In addition to a responsible and accountable private sector, the promotion of human rights also requires the active role of the state in setting an enabling policy context, regulatory instruments, and means for participation in strategic economic sectors. In a post-neoliberal context, there is space for experimenting with innovative policy and regulatory approaches to advance the agenda of corporate accountability with human rights through more effective state-company governance arrangements and judicial practices.

Moreover, the agenda of corporate responsibility with human rights in Latin America is also shaped by international normative processes, such as the UN Secretary-General Special Representative’s “Protect, Respect and Remedy” framework. This opened the discussion of what constitutes corporate complicity with human rights and how to differentiate between public and private responsibilities. Though the UN framework has still not fully entered the public debate in Latin American societies and the mass media, it has made progress in shaping the global debate on a norm-based corporate regulation. However, the OECD Guidelines for Multinational Enterprises have been more influential in Latin America, given that they provide an instrument of accountability that has been used by claimants seeking to redress corporate abuses.

Private-led initiatives for corporate social responsibility have been another vehicle used to open up the discussion of human rights responsibility within the business community. In the late 1990s, human rights responsibilities did not feature in the agendas and language of most companies. The UN Global Compact process has contributed toward mobilizing this agenda, as well as toward systematizing and consolidating the panoply of voluntary initiatives publicized as corporate social responsibility. It has recently sets itself the goal of generating the expectation that adherent companies need to publicly demonstrate compliance and transparency with the Global Compact Principles. The development of a Communication on Progress mechanism and the incorporation of the Global Reporting Initiative’s reporting guidelines along standardized performance indicators are steps in that direction. Yet, the voluntary nature of this instrument also suggests its current limitations.

Notwithstanding the relative merit of such initiatives in creating conditions for greater corporate accountability with human rights, compliance remains a great challenge. Extractive industries are increasingly becoming the main source of socio-environmental conflicts throughout Latin America, as related to corporate complicity in human rights abuses. In the mining sector alone, there are presently 161 conflicts that affect 212 local communities in relation to 172 mining projects and 254 companies. During 2009 anti-mining activists were tortured and assassinated in Mexico and El Salvador, allegedly with the complicity of the Canadian companies Blackfire Resources and Pacific Rim. Moreover, there are issues relating to corporate complicity in the agriculture industry such as negative health impacts, environmental damage resulting from the use of pesticides, illegal land acquisition, and forced evictions of local populations.

This has led many civil society advocacy groups to engage with the corporate responsibility agenda as a means toward opening up a broader public debate about the policy, regulatory, and socioeconomic implications for human rights and development, as related to the increasing influence of transnational corporations in all spheres of society. Among the most visible initiatives, there is the regional mobilization of victims of corporate-related abuse within the organization of public opinion tribunals, such as the Permanent Peoples’ Tribunals on Neoliberal Policies and Transnational Corporations in Latin America, which were last held in Peru 2008 and Madrid 2010.

The field of corporate accountability with human rights is leading to the intersection of state-, company-, and civil society responses across different institutional settings in ways that suggest possibilities for constructive synergism. Transnational civil society advocates use OECD National Contact Points to bring about pressure for changes in corporate conduct regarding human rights in line with OECD Guidelines. Accountability synergism increases when states introduce policy reforms and judicial actions that support civil society initiatives in home and host countries.

The company Nidera in Argentina exemplifies this. It was accused in 2011 of human rights abuses against temporary workers at its corn-processing operation facilities in Argentina. Investigative reports were commissioned by the Argentine government. The information gathered helped support legal actions in national and provincial courts and a complaint was filed by Argentine and Dutch NGOs at the Netherlands’ OECD National Contact Point. At the same time, the Argentine government promoted a change of the national legislation that regulates temporary rural employment to prevent unregistered and unprotected work. It also centralized the recruitment of rural work within the Ministry of Labor, in light of the alleged complicity of the subcontracted recruitment companies that provided services to Nidera. With such policy changes as a background, the OECD Guidelines facilitated a constructive space of negotiation between the complainant NGOs and Nidera. An agreement was reached in 2012, in which Nidera committed to strengthening its human rights policy, to formalizing human rights due diligence procedures for temporary rural workers, and to allowing NGO to monitor its operations in Argentina. Private and public engagements at the national and international levels worked as complementary leverages to increase corporate accountability.

Constructive synergies of state and civil society engagements can also be seen in transnational litigation. In 2012 the Colombian trade union Sinaltrainal and the European Center for Constitutional and Human Rights filed criminal charges against Nestlé and members of its senior management through the Swiss public prosecution. They are accused of complicity in the murder of a trade unionist committed by paramilitary forces in Colombia in 2005. Similarly, the companies Drummond and Chiquita face trials in US courts – they were accused under the Alien Torts Claim Act for complicity in the assassinations of trade unionists in Colombia. Non-legal opinion tribunals organized by civil society groups in Latin America compiled accusatory information that later had probative value in the legal courts. In 2011 a US court accepted the compensation claim against DaimlerChrysler AG filed by torture survivors and 22 relatives of Argentinean trade unionists who disappeared during the last military dictatorship (1976–1983). The company was accused of complicity in human rights violations and state terrorism. These cases illustrate the application of an extraterritoriality principle with respect to legal corporate responsibilities with respect to human rights in overseas operations and the role of civil society advocacy in bringing these companies to justice.

These are illustrative examples of the ways in which the agenda of corporate responsibility with human rights is being shaped by the intersection of public and private actors vis-à-vis instances of corporate abuse in Latin America. It suggests a growing synergy between different international instruments as well as national judicial and policy opportunities. Stimulating such synergies is one avenue toward moving ahead with the accountability agenda. Likewise, the improvement of due diligence and reporting processes – in addition to third-party monitoring – is an opportunity for the private sector to bolster the transparency and adequacy of their commitments to respect human rights. Legislative reforms that make corporate disclosure and reporting mandatory can help companies that seriously commit to genuine actions to differentiate them- selves from others. The fact that actors engage with multiple institutional and normative spaces with a narrative of business complicity with human rights is a recent and promising development. These spaces open up opportunities that are valuable, but ultimately the determinant is who uses them, how, and for what purpose.